Commonwealth v. Paige

• Decision Date: 06 December 2021
• Docket Number: SJC-12806
• Citation: 177 N.E.3d 149
• Parties: COMMONWEALTH v. James PAIGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 N.E.3d 149

COMMONWEALTH

v.James PAIGE.

SJC-12806

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 13, 2021

Decided December 6, 2021

Brian J. Kelly, Sharon, for the defendant.

Julianne Campbell, Assistant District Attorney (Craig Iannini, Assistant District Attorney, also present) for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

LOWY, J.

A grand jury returned an indictment in 2016 charging the defendant, James Paige, with murder in the first degree for the 1987 killing of Dora Brimage (victim). A jury convicted the defendant of felony-murder in the first degree with aggravated rape as the predicate offense. The defendant appealed from his conviction. While his appeal was pending, he moved for a new trial, arguing that the judge erred in failing to give an instruction about consciousness of guilt and the defendant's trial counsel was ineffective in failing to request such an instruction. We remanded the motion to the Superior Court, where it was denied by another judge without a hearing, and the defendant appealed. We consolidated the defendant's appeal from his conviction with his appeal from the denial of his motion for a new trial.

Before this court, the defendant repeats his arguments pertaining to the lack of a consciousness of guilt instruction. He also argues there was insufficient evidence to support his conviction, that the prosecutor argued facts not in evidence during closing argument, that the judge should have declared a mistrial after the jury inadvertently were shown video footage unduly prejudicial to the defendant, and that we should reduce the verdict pursuant to G. L. c. 278, § 33E. We affirm.

Facts. Taking the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). The victim was at a party in Boston in 1987. She asked the defendant's brother for a ride from the party. Another individual offered to drive the victim, but the defendant, who did not know the victim, said forcefully that the victim would go with his brother and him. The victim acted hesitant to get into the car, but she ultimately did so. The defendant and his brother drove the victim to Georgia Street. The defendant's brother was "upset" and "crying" the next morning.

The day after the party, construction workers found the victim's body at an indoor work site adjacent to Georgia Street, where the defendant's brother and other members of the defendant's family worked. The victim was on her back with her lower clothing, including her underwear, pulled down around one of her ankles. Her head was injured

severely such that it appeared she no longer had a face; she had died from blunt force injuries to the head and strangulation. A construction shovel used to beat the victim was next to her, as was a piece that had broken off the shovel. There was sperm in the victim's vagina that had been deposited within twenty-four hours of her death. There was no sperm on the victim's underwear.

The murder investigation remained unsolved for decades, until Boston police reopened the case in 2013 after receiving Federal funding to solve cold cases using deoxyribonucleic acid (DNA) testing. DNA testing revealed that the sperm in the victim's vagina matched the defendant's genetic profile.

The defendant spoke with police in 1987 and 2015. In 1987, the defendant told police he and his brother had dropped off the victim at a club not near where the victim's body was found. In 2015, the defendant told police that he and his brother had driven the victim to Georgia Street. The defendant also told police in 2015 that he never had had sexual intercourse with the victim.

Discussion. 1. Sufficiency of the evidence. The defendant argues that there was insufficient evidence to support his conviction of felony-murder in the first degree with a predicate offense of aggravated rape. He made the same argument at trial, moving unsuccessfully for a required finding of not guilty at the close of the Commonwealth's case and at the close of all the evidence. We conclude that there was sufficient evidence to support the defendant's conviction.

The denial of a motion for a required finding of not guilty will be affirmed if the Commonwealth's evidence, together with reasonable inferences from that evidence, is sufficient to persuade a "rational jury" of the defendant's guilt beyond a reasonable doubt. Commonwealth v. Copeland, 481 Mass. 255, 259, 114 N.E.3d 569 (2019). See Latimore, 378 Mass. at 677, 393 N.E.2d 370. The Commonwealth may prove its case using only circumstantial evidence, and the jury's inferences "need only be reasonable and possible, not necessary or inescapable" (citation and quotations omitted). Copeland, supra.

To prove felony-murder in the first degree with a predicate felony of aggravated rape, the Commonwealth had to prove that (1) the defendant committed or attempted to commit aggravated rape; (2) the death was caused by an act of the defendant in the commission or attempted commission of the aggravated rape; (3) the act that caused the death occurred during the commission or attempted commission of the aggravated rape; and (4) the defendant intended to kill the victim, intended to cause grievous bodily harm to the victim, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result. Model Jury Instructions on Homicide 59-60 (2018). See Commonwealth v. Brown, 477 Mass. 805, 825, 81 N.E.3d 1173 (2017) (Gants, C.J., concurring).

To prove aggravated rape, the Commonwealth had to show, as relevant here, that (1) the defendant had sexual intercourse with the victim; (2) the defendant compelled the victim to submit by force and against her will or compelled the victim to submit by threat of bodily injury; and (3) the sexual intercourse resulted in or was committed with acts resulting in serious bodily injury.¹ G. L. c. 265, § 22 (a ). See Commonwealth v. Witkowski, 487 Mass. 675, 681-682, 169 N.E.3d 496 (2021).

The evidence at trial, taken in the light most favorable to the Commonwealth, showed that the defendant did not know the victim, that the defendant and his brother drove the victim to a street adjacent to where her body was found the next morning, that the victim's body was found at a construction site where the defendant's brother and other members of the defendant's family worked, that the defendant's sperm was deposited in the victim's vagina within twenty-four hours of the victim's death despite the defendant's statement to police that he had not had sexual intercourse with the victim, that no sperm was found on the victim's underwear, and that the victim was injured severely and died from blunt force injuries to the head

and strangulation. This evidence was sufficient to satisfy all the elements of felony-murder in the first degree with a predicate offense of aggravated rape.

We take this opportunity to raise concerns about our holding in another case where the victim had sex with the defendant proximate to suffering severe and fatal injuries. See Commonwealth v. Scesny, 472 Mass. 185, 192-193, 34 N.E.3d 17 (2015). In that case, the victim died by strangulation, two of her teeth were broken off, she had blood in her mouth, and there were injuries to various other parts of her body. Id. at 188, 34 N.E.3d 17. We concluded that there was insufficient evidence of aggravated rape, although we also decided that there was sufficient evidence of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. Id. at 192-193, 34 N.E.3d 17. With respect to the charge of aggravated rape, we reasoned that the Commonwealth had not proved the necessary lack of consent because the victim's clothing had not been ripped, her genitalia and anus had not been injured, and the victim may have been acting as a prostitute the evening she was killed.² Id. at 193, 34 N.E.3d 17. We thus concluded that "there was no evidence favoring the inference that the defendant raped the victim before killing her over the inference that he had consensual sex with the victim and then killed her." Id. at 193-194, 34 N.E.3d 17.

Where there is evidence of sexual intercourse between the defendant and the victim alongside a homicide, that alone is insufficient to prove felony-murder. We now conclude, however, that where there is evidence that the defendant severely injured and killed the victim proximate to having sex with the victim, the jury may infer that the victim did not consent to the sexual intercourse. See Commonwealth v. Waters, 420 Mass. 276, 280, 649 N.E.2d 724 (1995) (sufficient evidence of lack of consent where, among other things, victim had had sexual intercourse and was stabbed twenty-six times while alive). See also People v. Story, 45 Cal. 4th 1282, 1298-1299, 91 Cal.Rptr.3d 709, 204 P.3d 306 (2009) ("the circumstance that defendant strangled [the victim] to death strongly evidences lack of consent to sexual intercourse. It is possible ... that the two engaged in consensual sex, then defendant strangled her for no apparent reason. But the jury was not compelled to so find. The strangulation strongly suggests absence of consent").

2. Consciousness of guilt instruction. The defendant argues, as he did in his motion for a new trial, that the judge should have instructed on consciousness of guilt, and his trial counsel was ineffective for failing to request such an instruction. The Commonwealth requested a consciousness of guilt instruction at trial, pointing to the defendant's changing story to police about where he dropped off the victim the night before her body was discovered and the defendant's lying to police about having had sex with the victim. The judge was reluctant to give the instruction because he considered the discrepancies to be "inconsistent...