Commonwealth v. Mountry

• Decision Date: 01 August 2012
• Docket Number: SJC–10983.
• Citation: 463 Mass. 80,972 N.E.2d 438
• Parties: COMMONWEALTH v. Somdeth MOUNTRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 80

972 N.E.2d 438

COMMONWEALTH

v.Somdeth MOUNTRY.

SJC–10983.

Supreme Judicial Court of Massachusetts,

Essex.

Argued May 7, 2012.

Decided Aug. 1, 2012.

William T. Harrington, Boston, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

In Commonwealth v. Blache, 450 Mass. 583, 589, 880 N.E.2d 736 (2008), we held that where the Commonwealth relies on evidence that a rape victim was incapable of consent to establish the element of lack of consent and thereby reduce the degree of required force to that which is needed to effect penetration, “the Commonwealth should also prove the defendant's knowledge of the complainant's incapacitated state.” Today we hold that a defendant in such a case is entitled to have the jury instructed that they may consider credible evidence of his mental incapacity, by intoxication or otherwise, when deciding whether the Commonwealth has met its burden of proof as to his knowledge of the victim's incapacity to consent.

Following a jury trial in the Superior Court, the defendant was convicted of rape and furnishing alcohol to a person under twenty-one years of age. On appeal he asserts error in the denial of his right to cross-examine the victim as to her motive to fabricate. He also alleges error in (1) the judge's denial of his motion for a required finding of not guilty as to the element that he knew or should have known of the victim's incapacity to consent, and (2) the judge's refusal to instruct the jury that they could consider the defendant's state of intoxication when deciding whether he reasonably should have known of the victim's incapacity to consent.¹ We transferredthe case to this court on our own motion.

We hold that the judge's instruction was error, but the error did not prejudice the defendant because there was no evidence of debilitating intoxication. Therefore, he was not entitled to an instruction on voluntary intoxication. We affirm the convictions.

[463 Mass. 82]1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. In the summer of 2004, the victim was sixteen years old and lived with her parents in France. A paternal aunt whom she had never met lived with the defendant in Gloucester. They had four children. The aunt arranged for the victim to fly to Boston on August 9, 2004, and spend two nights in Gloucester with the defendant and one of their children. The victim and her cousin would then fly to Las Vegas, where the aunt and her other three children were visiting family. The victim arrived in Boston on August 9 and was met at the airport by the defendant and his eleven year old son. They drove around Gloucester briefly, then went to the defendant's apartment and had dinner. The victim, tired from her flight, retired early.

On August 10, 2004, the defendant went to work. When he arrived home, he told the victim he would give her a tour of the area, then make her a special dinner. He asked if she drank. She said she did not like alcohol but drank on special occasions. After sightseeing, they stopped at a package store where the defendant purchased vodka and orange juice. They returned to the defendant's apartment for dinner. The defendant sent his son to his room, then asked the victim to mix some drinks for them. He mixed the drinks thereafter. The two sat down to a lobster and noodle dinner and conversation. During that conversation he asked if she had a boy friend, and learned that she did. After consuming a 750 milliliter bottle of vodka, the defendant and the victim drove to a package store to buy more vodka and orange juice. The defendant referred to her as “honey” and put his arm around her in the car. She pushed his hand away.

When they returned to the defendant's apartment, he offered her another drink, but she declined, having consumed more alcohol than she ever drank. She was tired and lay fully clothed on the bed. As she was falling asleep, the defendant entered the room and offered her another drink. She pushed it away, and he left the room.

She was awakened at about 5 a.m. the next morning by the defendant, dressed in his underwear and a T-shirt, pulling up her pants. She was on the bedroom floor. There was vomit on the bed, on her shirt, in her hair, and on the floor. The victim asked what he had done to her during the night. He replied, “Nothing,” and left for work. As she prepared to shower, she noticed her panties were on incorrectly, and a button was missing from her pants. She also noticed that her “privates” were “a little bit wet.” She put her clothes in a plastic bag.

The victim's mother telephoned the house at about 10 a.m. that morning, at which time the victim told her mother what had happened in as much detail as she could recall. Her mother, the first complaint witness, testified that the victim also said that her “T-shirt was up” when she awoke and that she did not want to be pregnant. The victim's mother then telephoned the aunt in Las Vegas, and another daughter who was studying in Utah, to report what had happened.

The defendant returned to the apartment at lunchtime and arranged for a taxicab to take his son and the victim to the airport for their flight to Las Vegas. When the victim arrived in Las Vegas she told her aunt what had happened. Her aunt said the victim's mother had already telephoned her and reported what the victim had said. Her aunt said she was sorry for her and offered her $4,000 to spend on her vacation. She told the victim not to mention the money to her parents. About one month later, the aunt sent $4,000 to the victim in France.

In the meantime, the victim's sister drove from Utah to Las Vegas and took her to a hospital to be examined. A nurse at the hospital called for assistance from the Las Vegas metropolitan police department, after which a detective arranged for the victim's transfer to a different hospital, where she was examined by a sexual assault nurse examiner.

Vaginal swabs and other evidence were taken from the victim at the hospital. That evidence and the victim's clothing were given to Las Vegas police, who sent it to the Massachusetts State police crime laboratory, where it was examined and tests were conducted. Sperm cells were observed on one vaginal swab and on the crotch of the victim's panties. Deoxyribonucleic acid (DNA) tests were conducted on the samples containing sperm cells. STR analysis targeting fifteen areas across different chromosomes was performed on the sample from the panties. Y–STR analysis, focusing on the Y chromosome, was performed on the sample from the vaginal swab. Test results indicated a match to the defendant's DNA from samples of both the vaginal swab ² and the panties. The likelihood of a randomly selected unrelated person having a DNA profile matching the profile obtained from the sperm fraction of the sample from the panties is one in 1.92 trillion in the Asian population living in the United States,³ one in 7.485 trillion in the Caucasian population, one in 256.5 trillion in the African–American population, and one in 1.352 trillion in the Hispanic population. As for the match between the sample from the vaginal swab and the defendant's DNA, the statistical probability is that one in 429 unrelated Caucasian males, one in 327 unrelated African–American males, and one in 199 unrelated Hispanic males will have a matching profile. Further statistical analysis indicated the profile from the vaginal swab is not expected to occur more frequently than one in 8,333 unrelated males worldwide. That is, over ninety-nine per cent of the unrelated male population could be excluded as the source of the DNA found inside the victim's vagina.

As a result of jurisdictional confusion, there was a delay of approximately sixteen months in the investigation. On January 4, 2006, the defendant was arrested and brought to the Gloucester police station, where he was interviewed. His interview lasted approximately thirty-three minutes, was audiotaped, and was played for the jury. The defendant told police that he did not pour any drinks for the victim but, believing people from France “love to drink,” told her to help herself. He prepared a lobster and noodle dinner for her, his son, and himself. After dinner he visited a friend in the apartment building, then returned at about 11 p.m. and went to bed in his son's room. At about 5:30 or 6 a.m., he noticed the victim was sleeping on the floor of her bedroom. She awoke as he placed a blanket on her. When she asked him what had happened, he told her nothing had happened. He then went to work.

The defendant repeatedly told police he was drunk that night and could not remember if anything had happened between him and the victim. He also told police that the victim was drunk and that she just did not remember. He acknowledged that the victim's aunt telephoned him after learning that the victim accused him of sexually assaulting her. He told her he did not think he did anything wrong, but when asked if he had “slept with” the girl, he told the aunt he “did not know.” He admitted it was possible. He told the aunt if he had “slept with” the victim, they should send her some money, “just in case” they had “sex and [he could] not remember.” He again acknowledged he could have had sexual intercourse with her. The defendant told police the aunt sent the victim $5,000 about a month later.

2. Limitation on cross-examination. The Commonwealth moved in limine pursuant to the rape shield statute, G.L. c. 233, § 21B, to exclude evidence of sexual activity between the victim and anyone other than the defendant. The defendant sought to introduce evidence that the victim had sexual intercourse five days before her examination at the hospital. Defense counsel asserted that hospital reports indicated the victim went to the hospital stating...