Commonwealth v. Scott
| Decision Date | 30 November 2020 |
| Docket Number | No. 17-P-446.,17-P-446. |
| Citation | 160 N.E.3d 641,98 Mass.App.Ct. 843 |
| Parties | COMMONWEALTH v. Derrick SCOTT |
| Court | Appeals Court of Massachusetts |
Alan Edward Zeltserman, Brookline, for the defendant.
Dara Z. Kesselheim, Assistant District Attorney (Amy Martin Zacharias, Assistant District Attorney, also present) for the Commonwealth.
Present: Green, C.J., Sullivan, & Ditkoff, JJ.
The defendant, Derrick Scott, appeals after a Superior Court jury trial from convictions of rape, G. L. c. 265, § 22 (b ), and kidnapping, G. L. c. 265, § 26. He also appeals from an order of a single justice of this court denying his postconviction motion to compel the clerk of the Superior Court to provide him with access to juror questionnaires. We conclude that a party to a criminal case may be granted access to juror questionnaires, upon such conditions to preserve their confidentiality that a judge in an exercise of discretion considers prudent, if that party demonstrates that the juror questionnaires would be useful or relevant to postconviction litigation. Having reviewed the juror questionnaires and determined that they are not useful or relevant, we affirm the order of the single justice.
Regarding the defendant's claims of error by the Superior Court judges, we conclude that the trial judge acted within his discretion in allowing the Commonwealth's peremptory challenges. We conclude that the defendant was not entitled to an instruction on the lesser included offenses of indecent assault and battery or simple assault and battery where both the defendant and the victim stated that the defendant penetrated the victim's vagina, and we reject the defendant's contention that he was entitled to an instruction on withdrawal of consent because the victim asked him to wear a condom before raping her. We conclude that the judge who heard the defendant's motion to suppress properly concluded that the defendant voluntarily made statements and waived his Miranda rights even where the police did not inform the defendant why he was under arrest. We discern no substantial risk of a miscarriage of justice from the admission of the defendant's recorded police interview where all redactions requested by the defendant at trial were made. Finally, we conclude that a defendant does not have a right to have counsel appointed in connection with a prearraignment motion to amend indictments. Accordingly, we affirm the judgments.
1. Background. In October 1996, the victim was a twenty-one year old senior at Boston University. She was living in an apartment in the Brighton section of Boston with a college friend. One day, the defendant knocked on the victim's door and stated that he was selling magazines for school. The defendant and the victim started talking, and the victim invited the defendant inside her apartment. The defendant said that his name was Derrick and that he was from Georgia. The victim's roommate was not home at the time.
After approximately an hour, the defendant said, "[I]f I ask you something do you promise to say yes?" The victim said, "[N]o, I don't promise." The defendant then tried to kiss the victim, who pushed him away and told him that it was time for him to go. The defendant put his arm around the victim's neck, dragged her into her roommate's bedroom, and placed her on the bed.
The defendant pinned the victim's hands over her head and pulled down her shorts. She begged the defendant to "please stop," but he continued. The victim then asked him if he had a condom and told him that she had one in her purse. When the defendant got off the victim to retrieve the condom, she grabbed her roommate's phone. The defendant took the phone from the victim and threw it before she could use the phone to summon help.
The defendant then used one hand to pin the victim's arms and the other to place his fingers inside her vagina. The victim asked the defendant "to please stop" and told him that "it really hurt." The defendant did not stop, and pulled down his pants and "started to rub his penis up and down inside of [her] vagina, the lips of [her] vagina, up and down really, really hard." The victim again begged the defendant "to please stop," and told him that she could not breathe. The defendant stated that he would let the victim breathe if she "would have sex with him." As the defendant placed his penis inside the victim's vagina, the victim said, "[P]lease stop, please stop, why are you going this to me, you're hurting me."
The defendant ejaculated inside the victim and on the sheets. He then "rubbed his penis up and down kind of inside of the lips of [the victim's] vagina, hard, a few more times." Finally, he stopped and put his pants back on. The defendant said, "I guess you're going to call the police now," then said, "[H]ave a nice day" and left.
The victim spoke with the police and was transported to a hospital by ambulance. There, a nurse collected samples from the victim's vaginal and genital areas. Semen was detected on the genital swabs, but not the vaginal swabs. In 2000, the Boston Police crime laboratory created a deoxyribonucleic acid (DNA) profile from semen on the genital swabs and submitted the profile to a national database in an attempt to identify the perpetrator. In 2011, the defendant's DNA profile was entered into the database after an unrelated arrest.
In April 2014, based on a match in DNA profiles from the national database,1 Boston police obtained an arrest warrant for the defendant, who was living in California. Local police officers executed the warrant at their request. Two Boston detectives interviewed the defendant in California.
The detectives began the recorded interview by advising the defendant of his Miranda rights. The defendant stated that he grew up in Georgia and initially denied ever being in New England or selling magazines. The defendant continued denying ever having been in Boston after the detectives told the defendant that his DNA matched a 1996 rape kit from that city. The defendant, however, described the victim of that crime as a "young woman" and a "white girl." The detectives pointed out that they had not provided this information. Eventually, the defendant acknowledged having what he described as consensual sex with a "college-age" "[w]hite girl" he met while selling magazines in Boston. The defendant stated that his penis was inside that woman's vagina for "maybe two pumps." He stated that the woman became angry when he left after having sex.
After his arrest, the police obtained an oral swab from the defendant. His DNA profile was a statistical match to the semen taken from the victim in 1996 with a vanishingly small random match probability.
2. Peremptory challenges. When challenging the propriety of a peremptory challenge, "the burden is on the objecting party to make a prima facie showing of impropriety that overcomes the presumption of regularity afforded to peremptory challenges." Commonwealth v. Rosa-Roman, 485 Mass. 617, 635, 151 N.E.3d 863 (2020), quoting Commonwealth v. Robertson, 480 Mass. 383, 390-391, 105 N.E.3d 253 (2018). "If the judge finds that the presumption has been rebutted, the burden shifts to the prosecutor to articulate a nondiscriminatory or ‘group-neutral’ reason for the challenge." Commonwealth v. Mason, 485 Mass. 520, 530, 151 N.E.3d 385 (2020), quoting Commonwealth v. Oberle, 476 Mass. 539, 545, 69 N.E.3d 993 (2017). "Finally, the ‘judge must then determine whether the explanation is both "adequate" and "genuine." ’ " Commonwealth v. Sanchez, 485 Mass. 491, 493, 151 N.E.3d 404 (2020), quoting Oberle, supra. "We review a judge's decision as to whether to allow a peremptory challenge for an abuse of discretion." Mason, supra.
a. Prospective juror no. 21. After five jurors had been seated, the Commonwealth used a peremptory challenge on a juror whom the judge described as the second African-American man to be examined.2 The juror had not filled out the portion of the juror questionnaire that asked about prior involvement with the court system. When asked by the prosecutor, the juror disclosed that he had been arrested in the same county where the trial was being held for domestic violence. When the prosecutor asked the juror whether he believed he had been falsely accused, he stated, "I can't say that," but then stated that he and his partner had merely "argued."
The prosecutor sought to exercise a peremptory challenge to exclude this juror, the defendant objected, and the judge asked the prosecutor for the reason for the challenge. The prosecutor explained that the basis for the challenge was the prior arrest, the juror's failure to fill out the questionnaire fully, and his failure to "answer the question of whether he believed he was falsely accused about it." The judge accepted this explanation and excused the juror. The defendant objected but did not question the prosecutor's explanation.
The judge acted within his discretion in allowing this peremptory challenge. A "prosecutor's concern regarding, essentially, the ability of the juror to follow simple instructions," such as to disclose prior involvement with the court system, is a legitimate one. Commonwealth v. Rodriguez, 457 Mass. 461, 473, 931 N.E.2d 20 (2010). Similarly, the prosecutor could reasonably be concerned with the juror's equivocal answer regarding whether he had been treated fairly by her own office. In this regard, the prosecutor had already used a peremptory challenge on a female juror who had been similarly ambivalent about the treatment of her best friend's brother by the same prosecutor's office3 and had questioned another female juror about her opinion of the treatment afforded her father and brother in a prosecution by the same office.4 The prosecutor was not required to adopt the defendant's view, expressed for the first time on appeal, that the juror's explanation was in fact candid.5
b. Prospective juror no. 35. After eight jurors had been seated, the...
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