Commonwealth v. Rogers

Massachusetts Appeals Court

Commonwealth v. Rogers

397 N.E.2d 1299, 9 Mass. App. Ct. 812, 1980 Mass. App. LEXIS 961

CourtMassachusetts Appeals Court

DecidedJanuary 3, 1980

StatusPublished

Cited by1 cases

This text of 397 N.E.2d 1299 (Commonwealth v. Rogers) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Rogers, 397 N.E.2d 1299, 9 Mass. App. Ct. 812, 1980 Mass. App. LEXIS 961 (Mass. Ct. App. 1980).

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Opinion

The defendant was convicted of rape and appealed under G. L. c. 278, §§ 33A-33H. A companion indictment charging an unnatural and lascivious act was placed on file after a verdict of guilty; and, in the circumstances (like those in Commonwealth v. Hoffer, 375 Mass. 369, 370 n.l [1978]), we do not consider it further. Neither of the defendant’s two exceptions to the admissibility of evidence has any merit. 1. The seventeen year old victim testified that she and the defendant were undressed in the back seat of an automobile and “[h]e got on top of me.” She was then asked, “What else happened,” and she answered, “Intercourse.” The judge properly refused to strike this response; it was obvious to him, as it is to us from the [813]*813transcript, that she was using a circumlocution, See Commonwealth v. Coderre, 360 Mass. 869 (1971); People v. Walls, 85 Cal. App. 3d 447, 454 (1978); State v. Diamond, 50 Nev. 433, 436-437 (1928). Indeed, defense counsel used the same circumlocution in his cross-examination. 2. A gynecologist’s opinion with reference to “penile penetration” was clearly based on the pelvic examination he made of the victim soon after the incident. Commonwealth v. Peets, 8 Mass. App. Ct. 916 (1979), and cases cited. We note that trial counsel based his defense on consent and conceded in his closing argument that the victim “without any question, has had intercourse in the back seat of a motor vehicle . . . [a]nd as the doctor told us, there was obviously penetration . . . .”

Edward Berkin for the defendant. Dyanne Klein Polatin, Assistant District Attorney, for the Commonwealth.

Judgment affirmed.

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The defendant was convicted of rape and appealed under G. L. c. 278, §§ 33A-33H. A companion indictment charging an unnatural and lascivious act was placed on file after a verdict of guilty; and, in the circumstances (like those in Commonwealth v. Hoffer, 375 Mass. 369, 370 n.l [1978]), we do not consider it further. Neither of the defendant’s two exceptions to the admissibility of evidence has any merit. 1. The seventeen year old victim testified that she and the defendant were undressed in the back seat of an automobile and “[h]e got on top of me.” She was then asked, “What else happened,” and she answered, “Intercourse.” The judge properly refused to strike this response; it was obvious to him, as it is to us from the [813]*813transcript, that she was using a circumlocution, See Commonwealth v. Coderre, 360 Mass. 869 (1971); People v. Walls, 85 Cal. App. 3d 447, 454 (1978); State v. Diamond, 50 Nev. 433, 436-437 (1928). Indeed, defense counsel used the same circumlocution in his cross-examination. 2. A gynecologist’s opinion with reference to “penile penetration” was clearly based on the pelvic examination he made of the victim soon after the incident. Commonwealth v. Peets, 8 Mass. App. Ct. 916 (1979), and cases cited. We note that trial counsel based his defense on consent and conceded in his closing argument that the victim “without any question, has had intercourse in the back seat of a motor vehicle . . . [a]nd as the doctor told us, there was obviously penetration . . . .”

Edward Berkin for the defendant. Dyanne Klein Polatin, Assistant District Attorney, for the Commonwealth.

Judgment affirmed.

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Bluebook (online)

397 N.E.2d 1299, 9 Mass. App. Ct. 812, 1980 Mass. App. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rogers-massappct-1980.

Opinion

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