Commonwealth v. Petrillo

• Citation: 50 Mass.App.Ct. 104,735 N.E.2d 395
• Decision Date: 14 March 2000
• Docket Number: P-1368
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. AUGUSTINE PETRILLO No.: 98- Argued:
• Court: Appeals Court of Massachusetts

Page 395

735 N.E.2d 395 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. AUGUSTINE PETRILLO

No.: 98-P-1368.

Massachusetts Court of Appeals, Suffolk

Argued: March 14, 2000.

Decided: September 20, 2000

Douglas J. Beaton for the defendant.

Alex Philipson, Assistant District Attorney, for the Commonwealth.

Present: Greenberg, Kaplan, & Smith, JJ

GREENBERG, J.

Over the defendant's objection at his jury trial on six counts of aggravated rape, kidnapping, and other related crimes,¹ the trial judge permitted sixteen minutes of commercial, hard-core, pornographic videotapes to be shown to the jury. After a five-day trial, the defendant was convicted of single counts of aggravated rape, kidnapping, and having threatened to commit a crime.²,³ He was acquitted on all other charges. On appeal, the defendant argues that the showing of the videotapes constituted prejudicial error that denied him a fair trial. Although we agree that the videotapes should not have been played to the jury, we affirm the convictions because, under the circumstances presented here, the error was harmless.

1. The sexual encounters. The victim, a twenty-four year old Spanish-speaking immigrant from the Dominican Republic, met the defendant sometime in the fall of 1995. She thought he could help her learn English, find work, and gain independence from her mother. She began dating him and moved into his rooms at the Winthrop Arms Hotel, a residential hotel in Winthrop. At first the relationship was amicable, but within several weeks, things turned sour. The defendant began to mistreat her: forcing her to have sex with him with a pillow over her head, threatening her with knives, and confining her to the apartment for prolonged periods were prime examples. She remained with him until February 22, 1996. The manager at Service Master, where the defendant and the victim worked as house cleaners, suspected something was wrong. She offered to help the victim and to call the police, but the victim refused.

The victim testified that, between the 19th and the 22nd of February, the defendant would truss her up with duct tape and force her to have vaginal, anal, and oral sex. She also testified that the defendant "grabbed me and put me across his knees and hit me on my butt," and that she was required to perform "from behind," as well as lying on her back with her legs above her head. During these sessions, the defendant played pornographic videotapes, and the victim testified that he would do "everything that was on the videos," plus "other things that were his own things."⁴

The Commonwealth rested upon the testimony of the victim and several other witnesses who corroborated some aspects of her testimony as to what was going on inside the apartment at the Winthrop Arms. One witness who lived across the street from the hotel testified that, on February 22nd, after the victim fled from the apartment, he found her hiding behind a car in his driveway, somewhat hysterical and disoriented. He took her to the Winthrop police station where she spoke to several officers about her plight. On February 28, 1996, the police obtained a search warrant for the defendant's hotel room and recovered, among other things, the two videotapes at issue.

The defense called nine witnesses, attempting to weaken the case-in-chief by reference to certain incidents when the victim was free to escape or to ask for help but failed to do so. The defendant did not testify, but through other witnesses denied all criminal wrongdoing and suggested that he only had consensual sex with the victim. The testimony of these witnesses and the cross-examination of some of the Commonwealth's witnesses provided some basis for the suggestion (which the jury rejected) that the victim was lying about the abuse because the defendant was not living up to his promise of financial assistance.

2. The pornographic videotapes. On the first day of trial, before the victim took the stand, the judge heard a motion in limine on the admissibility of the pornographic videotapes. The Commonwealth's offer of proof was that the victim "will testify that she was forced to watch these two tapes" and that "the acts that are in the tapes correspond to the victim's testimony . . . that she was forced to watch these tapes and then commit the acts." Defense counsel objected, arguing among other things that the tapes included footage of sexual activities that had no bearing on the case and that, "in essence, these actors are going to be acting out a story for her, in place of her testimony." In particular, defense counsel claimed that the sexual scenes were not unique enough to prove modus operandi,⁵ nor were they probative of anything more than the fact that the victim had seen the tapes: she would testify that x, y, and z were on the tapes, and then the tapes would be played, demonstrating that she knew what was on them. As for the proposition that she had been forced to emulate the sexual acts in question, however, showing the tapes would accomplish nothing. On the other hand, defense counsel continued, the material was highly inflammatory and, if shown, would deprive the defendant of a fair trial. The judge took the motion under advisement pending the victim's testimony and a prescreening of the tapes. As a precaution, she informed the potential jurors at voir dire about the sexually explicit nature of the expected evidence. Questioned individually, all who indicated that such evidence might be so discomfiting as to interfere with their ability to heed the evidence and discuss it with fellow jurors at deliberations were excused.

After the victim's testimony, the judge observed the videotapes herself and ruled that sixteen minutes could be shown to the jury. Those sixteen minutes depict conduct that the victim was allegedly forced to reenact during the February 22nd rape. Before publishing the chosen portions to the jury, the judge gave a limiting instruction. She stated: "First of all, it is not illegal to possess or to view such videos, and nothing depicted on the films is illegal, and the persons on these films have no connection to this case. You may not consider possession or viewing of such films as proof that the defendant has a bad character, and you may not use this evidence to conclude that if the defendant possessed or used such films he must have committed the crimes charged. If the Commonwealth proves that these films were being played during the acts alleged to constitute the aggravated rapes charged in the indictments, then and only then may you consider such evidence as to the circumstances and conditions existing at the time of the alleged acts as you may find such circumstances and conditions to be relevant on the issue of the defendant's state of mind during the time of the alleged acts. You may also consider such evidence as corroboration of [the victim's] testimony with respect to the films only." The defendant objected to the state of mind reference, and the objection was overruled. The tapes were shown to the jury, after which defense counsel moved for a mistrial "on the grounds that the tapes which were just played for the jury are so inflammatory and prejudicial" that the jurors could not be expected to evaluate the evidence fairly. The judge denied that motion as well. At the end of the trial, the judge reminded jurors to consider evidence only for the purposes for which it was admitted.

To be admissible, evidence must meet "the threshold test of relevancy," that is, it must have a "rational tendency to prove an issue in the case." Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting from Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977). Although "[e]vidence need not establish directly the proposition sought," Commonwealth v. Tobin, 392 Mass. 604, 613 (1984), it "must . . . render[] the desired inference more probable than it would have been without it," Commonwealth v. Fayerweather, supra, quoting from Commonwealth v. Copeland, 375 Mass. 438, 443 (1978). See Commonwealth v. Gordon, 407 Mass. 340, 351 (1990).

The government's initial rationale for having the jury view part of the tapes was that the sexual conduct shown on them corresponded to the acts the victim said she was forced to emulate; in other words, the tapes were corroborative of her testimony. See Commonwealth v. Halsey, 41 Mass. App. Ct. 200, 203 (1996). During the hearing on the motion in limine, the prosecutor argued that the tapes depicted the acts to which the victim would testify: oral, anal, and vaginal intercourse; some scenes depicting what might be called a "rear entry" position; an instance of vaginal intercourse with the woman's legs above her head; and an instance of spanking. As it turned out, the victim's testimony on these subjects was less explicit than billed and, perhaps consequently, less than explicitly tied to the contents of the videotapes.

Even if showing the tapes corroborated some of the details of her testimony, however, unlike the cases cited in the government's brief,⁶ their relevance was marginal. In the circumstances of this case, the videotapes had no bearing on whether the defendant's carnal knowledge of the victim was consensual. The defendant did not contest...