Commonwealth v. Landry
| Decision Date | 29 July 2021 |
| Docket Number | 19-P-1340 |
| Court | Appeals Court of Massachusetts |
| Parties | COMMONWEALTH v. Lee LANDRY. |
Following a 2014 jury trial, the defendant was convicted of two counts of rape, G. L. c. 265, § 22 (b ), one count of incest, G. L. c. 272, § 17, and one count of indecent assault and battery on a person fourteen or older. G. L. c. 265, § 13H. He was sentenced to twelve to fifteen years of incarceration, an upward departure from the recommended range in the sentencing guidelines, which was seven to ten and one-half years.
In 2018, following an unsuccessful appeal to this court, the defendant timely moved to revise and revoke his sentence pursuant to Mass. R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016). He argued that the sentence was improperly influenced by the prosecutor's reference, during sentencing, to grand jury evidence that indicated that the victim had contracted three sexually transmitted diseases (STDs) during the rape. The motion was denied, and the defendant appeals, arguing that (1) the introduction of the STD information at sentencing violated the due process clause because the information had not been introduced at trial and was not reliable hearsay, (2) establishing the transmission of STDs would have required expert testimony at trial, and no expert had testified to such, and (3) he had been deprived of the opportunity to rebut the contention. We affirm.
Background. We briefly recount the facts of the underlying case to the extent that they are relevant to this appeal. A fuller treatment may be found in a panel of this court's decision on direct appeal in Commonwealth v. Landry, 93 Mass. App. Ct. 1113 (2018) ().
In January of 2011, the defendant, age twenty eight at the time, vaginally and anally raped the victim, his niece, at his Dracut home. The victim was sixteen years old. The victim eventually disclosed the rape to her mother in 2012, after the two of them visited a Planned Parenthood clinic for treatment of three STDs that the victim had contracted as a result of the rape. The victim and her mother then confronted the defendant, who is the mother's brother.
Both the victim and the victim's mother testified before a grand jury regarding the STDs, and the victim's medical records were also introduced as exhibits. The victim's mother, a health care worker, testified to the grand jury that she had visually inspected the defendant's (her brother) genital rash in January 2010, as well as the victim's (her daughter) genital rash in January 2011 and again in April 2012, and that it was her impression that they were the same rash. The mother also testified that she had, on separate occasions, taken both the defendant and the victim to health clinics for treatment for STDs during the relevant time period. The mother testified that while confronting the defendant, she had asked him why the victim had the "same exact diseases," and that the defendant had responded "I'm not the only one in the world who has those two diseases."2 However, by agreement of the parties, evidence regarding the STDs was not presented at trial. The defendant was tried and convicted in November of 2014.
The case then moved to the sentencing phase. The victim spoke again, recounting the profound impact that the rape had on her. She did not, however, mention the STDs. Following her statement, the prosecutor added:
In response, defense counsel argued that because the matter had not been aired at trial, the defendant had not gotten a chance to "factual[ly] dispute" the contention regarding STDs. Defense counsel requested that the judge not "take at face value [the prosecutor's] representations." The judge, referencing the victim's impact statement, the relation between the defendant and the victim, and the "particularly cruel and brutal act," sentenced the defendant to a period of twelve to fifteen years in prison -- an upward departure from the sentencing guidelines, which would have set a seven to ten and one-half year sentence. The judge also imposed concurrent terms in the house of correction for other convictions, as well as a subsequent term of probation.3
Following the affirmance of his convictions in this court, the defendant filed a motion to revise and revoke his sentence, arguing that the information regarding the STDs should not have been considered. The defendant's motion contended that, in light of the parties' agreement not to reference evidence regarding STDs at trial, the prosecutor's reference to the grand jury evidence at sentencing caught him unprepared and denied him the opportunity to rebut such information. The motion also argued that the STD information was not reliable, and that expert testimony would have been required to establish that "[the defendant] was the one who ... transmitted these diseases to her."
The judge, who had also presided at trial, denied the motion. The judge had not referenced the STDs at sentencing, but in his order denying the rule 29 motion he stated:
This appeal followed.
Discussion. The defendant argues that the judge improperly considered the information regarding the STDs, for several reasons. We review the denial of a motion to revise and revoke a sentence under an abuse of discretion standard. Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014). We perceive no abuse of discretion.
The defendant first argues that the STD information was not sufficiently reliable to be considered by the judge at sentencing. This argument hinges on an assumption that some type of structured evidentiary restrictions apply to sentencing proceedings. This assumption is at odds with historic sentencing practices. It is settled law that "[a] sentencing judge is given great discretion in determining a proper sentence." Commonwealth v. Donohue, 452 Mass. 256, 264 (2008), quoting Commonwealth v. Lykus, 406 Mass. 135, 145 (1989). In the exercise of this discretion, "the judge may consider a variety of factors including the defendant's behavior, family life, employment history, and civic contributions, as well as societal goals of ‘punishment, deterrence, protection of the public, and rehabilitation.’ " Donohue, supra, quoting Commonwealth v. Power, 420 Mass. 410, 414 (1995). Importantly, the "scope of sentencing and the judge's inquiry is ‘largely unlimited as to the kind of information he may consider, or the source from which it may come.’ " Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 586 (1991), quoting United States v. Tucker, 404 U.S. 443, 446 (1972). This includes "hearsay information about the defendant's character, behavior, and background." Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993).
In arguing that the judge violated due process by relying on the hearsay statements regarding the STDs,4 the defendant relies on Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (), as well as two Supreme Judicial Court opinions that upheld sentences against challenges that judges had relied on improper information. See Goodwin, 414 Mass. at 94 (); Commonwealth v. Martin, 355 Mass. 296, 299 (1969) ().
We are not persuaded. As indicated, the cases recognize that a judge's inquiry at sentencing is "largely unlimited," Tucker, 404 U.S. at 446, and specifically allow consideration of hearsay. E.g., Goodwin, 414 Mass. at 92. The Durling case, of course, has nothing to do with sentencing. It is a case about probation revocation hearings, and the types of evidence that may be considered in adjudicating a probation violation. In contrast, sentencing proceedings do not involve formal adjudications of fact; they unfailingly involve multifactor balancing -- a...
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