Commonwealth v. Zane Z.

• Citation: 743 N.E.2d 867,51 Mass. App. Ct. 135
• Decision Date: 17 October 2000
• Docket Number: P-517
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. ZANE Z., a juvenile 99-
• Court: Appeals Court of Massachusetts

743 N.E.2d 867 (Mass.App.Ct. 2001)

COMMONWEALTH vs. ZANE Z., a juvenile

99-P-517

Court of Appeals of Massachusetts

October 17, 2000.

March 9, 2001.

County: Barnstable.

Present: Armstrong, C.J., Beck, & Rapoza, JJ.

Indecent Assault and Battery. Rape. Juvenile Court, Delinquent child. Practice, Criminal, Instructions to jury, Verdict, Argument by prosecutor. Jury and Jurors. Evidence, Privileged communication, Communication with social worker, Relevancy and materiality. Privileged Communication

Complaints received and sworn to in the Barnstable County and Plymouth Town Division of the Juvenile Court Department on September 16, 1997.

A motion for access to privileged records was heard by Louis D. Coffin, J., and the cases were tried before Richard P. Kelleher, J.

Paul J. Machado for the juvenile.

Linda A. Wagner, Special Assistant District Attorney (Lisa Edmonds, Assistant District Attorney, with her) for the Commonwealth.

BECK, J.

A Barnstable Juvenile Court jury found the juvenile delinquent on complaints charging indecent assault and battery of a child under the age of fourteen, G. L. c. 265, § 13B, and rape of a child under the age of sixteen. G. L. c. 265, § 23. On appeal, the juvenile argues that (1) the trial judge erred in denying the juvenile's written request for a specific unanimity instruction; (2) the motion judge erred in denying the juvenile's request for production of certain Department of Social Services and counseling records pursuant to Commonwealth v. Bishop, 416 Mass. 169 (1993); and (3) the prosecutor's closing argument created a substantial risk of a miscarriage of justice. As to the first issue, we conclude that this case is governed by Commonwealth v. Conefrey, 420 Mass. 508 (1995), and we therefore reverse.

1. Facts.

In the spring of 1997, the juvenile was fifteen years old, and the victim was eight years old. They had been neighbors for five years. The victim often played with the juvenile and his younger brother, who was about her age. She was also very close to the juvenile's mother.

In early July, 1997, the victim asked the juvenile's mother whether sex is when a man puts his penis in a woman. Later that day, the victim disclosed the following incidents which were alleged to have occurred some time between March 31, 1997, and June 3, 1997.

One day when the victim was wearing shorts, the defendant, his younger brother, the victim, and her younger brother were playing in the woods near the victim's house. The defendant sent the two younger boys on a "mission." He then ordered the victim to lie face down on the ground. When she looked back, she saw that the juvenile had "[taken] out his penis." The juvenile then lay on top of her rubbing his penis against the part of her underwear that was covering her vagina. He told her to move her body up and down "[l]ike . . . how you do a push up." When they heard leaves rustling, signaling the return of the boys, the juvenile and the victim got up. It was not entirely clear from the victim's testimony whether this conduct occurred more than once.

On another occasion, the juvenile locked the younger boys out of the juvenile's bedroom, sat in a chair, and told the victim to suck his penis. The juvenile's penis was in her mouth "but there was . . . boxer fabric over it." The juvenile got up when he heard the younger boys opening the door with a coat hanger.

In the course of the investigation of the events just recounted, the victim was taken to the emergency room of a nearby hospital. During that visit, the victim revealed that her grandfather had also been sexually abusing her. He "would take out his penis and . . . have [the victim] rub it," while she sat in his lap when he babysat. This abuse apparently occurred during the same time period as the incidents involving the juvenile.

One year before the juvenile's trial, the grandfather pleaded guilty to two counts of indecent assault and battery of a child. G. L. c. 265, § 13B. He was sentenced to two and one-half years in a house of correction, one year to serve and the balance suspended, with ten years' probation. By agreement of the parties, the jury were made aware of this information.

2. Specific unanimity instructions.

Some time before the end of the trial, defense counsel filed a document entitled "Defendant's Request for Jury Instructions." This document consisted of eleven numbered paragraphs. Paragraph eleven, citing Commonwealth v. Conefrey, 420 Mass. 508, requested the following instruction on unanimity:

"I instruct you that your decision in this case must be unanimous. In other words, you cannot find the defendant guilty of any charge unless each one of you, individually, is convinced beyond a reasonable doubt of the truth of that charge against him."[I] further instruct you that where evidence has been presented of more than one incident for a particular charge, your verdict must be unanimous as to a specific act that is the basis of any finding beyond a reasonable doubt on that charge. It is not enough, for example, that each of you concludes that some incident has been proved; there must be unanimous agreement on a particular incident, and if there is not, you must find the defendant not guilty on that charge."

The judge did not give the requested instruction. Instead he instructed the jury as follows:

"Your verdicts have to be unanimous which means that all six of you have to agree. You can't decide the cases five to one or four to two. When you go to your jury room, you have to reach a unanimous verdict. All six jurors agreeing. . . ."You don't have to decide each case the same way. . . . You could conceivably find [the juvenile] delinquent of one complaint and not delinquent of the other. But in each case your verdict has to be unanimous."

At the conclusion of the judge's instructions, defense counsel asked the judge to give instruction number seven, concerning prior consistent statements. The judge agreed. Counsel then requested the specific unanimity instruction set out in paragraph eleven. When the prosecutor interjected that the judge had given that instruction, defense counsel explained, "if some of them think the incident in the woods happened, some of them think that maybe the incident in the bedroom happened, then --." The judge appears to have broken in and said, "No, I'm not going to do that." Defense counsel responded, "Well, my objection then for the record on that." Counsel reiterated his objection after the jury retired, "in case the microphone didn't pick [it] up." The judge responded "okay."

(a) Applicable legal standards. While not guaranteed by either the Federal Constitution or the Massachusetts Declaration of Rights, the right to a unanimous verdict is "recognized at common law as a means to ensure that the government has met its burden of proving all facts necessary to show the defendant's guilt." Commonwealth v. Conefrey, 420 Mass. at 512 n.7. "A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987). "[A] [specific] unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged . . . . The possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant." Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 366-367 (1991), quoting from People v. Burns, 196 Cal. App. 3d 1440, 1458 (1987).

The first Massachusetts case "address[ing] a trial judge's refusal to give a specific unanimity instruction after a proper request and a timely objection, where alternate incidents could support a conviction," was Commonwealth v. Conefrey, 420 Mass. at 512. (In previous cases challenging the failure to give such an instruction, there was neither a proper request nor a timely objection. See, e.g., Commonwealth v. Comtois, 399 Mass. 668, 675-677 [1987]; Commonwealth v. Lemar, 22 Mass. App. Ct. 170 [1986]; Commonwealth v. Liberty, 27 Mass. App. Ct. 1, 9-10 [1989].) In Conefrey, the court determined that "a judge should give a specific unanimity instruction if a defendant request[s] it in accordance with the normal procedure of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979)." Id. at 513. See Commonwealth v. Lemar, 22 Mass. App. Ct. at 172.

(b) Legal analysis. In this case, the juvenile argues that the judge's refusal to give the requested instructions was reversible error because either the incident in the woods or the incident in the bedroom could have supported the jury's finding of delinquency. The Commonwealth argues that there was only "one discreet act of rape (oral-penile), which occurred in the juvenile's bedroom." The record does not support the Commonwealth's argument.

Neither the Commonwealth's opening statement nor its closing argument communicates its theory that the bedroom incident constituted the rape and the incident in the woods was the indecent assault and battery. In fact, the only time the prosecutor used the words rape or intercourse in her closing argument was in connection with the incident in the woods. The prosecutor asked the jury to "remember exactly what [the victim] said. . . . [The victim] remembered seeing [the juvenile's] penis . . . [and] feeling it rubbing up against her vagina." Then the prosecutor rhetorically asked, "Does [the victim] know what the definition of intercourse is? No. She's eight years old. But she told you that she felt it right there . . . ." Contrast Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990) (prosecutor consistently highlighted different actions comprising the indecent assault and battery...