NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
17-P-446 Appeals Court
COMMONWEALTH vs. DERRICK SCOTT.
No. 17-P-446.
Suffolk. April 9, 2019. - November 30, 2020.
Present: Green, C.J., Sullivan, & Ditkoff, JJ.
Rape. Kidnapping. Consent. Deoxyribonucleic Acid. Appeals Court, Appeal from order of single justice. Jury and Jurors. Constitutional Law, Jury, Admissions and confessions, Voluntariness of statement, Assistance of counsel. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Jury and jurors, Empanelment of jury, Examination of jurors, Challenge to jurors, Instructions to jury, Lesser included offense, Motion to suppress, Admissions and confessions, Voluntariness of statement, Redaction, Assistance of counsel, Amendment of indictment or complaint.
Indictments found and returned in the Superior Court Department on October 13, 2011.
A pretrial motion to suppress evidence was heard by Shannon Frison, J., and the cases were tried before Mitchell H. Kaplan, J.
A postconviction motion to compel access to juror questionnaires was heard by Singh, J., in the Appeals Court.
Alan Edward Zeltserman for the defendant. Dara Z. Kesselheim, Assistant District Attorney (Amy Martin 2
Zacharias, Assistant District Attorney, also present) for the Commonwealth.
DITKOFF, J. 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 3
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, 4
"[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 5
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.
1 The jury did not hear about either the previous arrest or the match from the database. 6
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
(2020), quoting Commonwealth v. Robertson, 480 Mass. 383, 390- 7
391 (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 (2020),
quoting Commonwealth v. Oberle, 476 Mass. 539, 545 (2017).
"Finally, the 'judge must then determine whether the explanation
is both "adequate" and "genuine."'" Commonwealth v. Sanchez,
485 Mass. 491, 493 (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."
2 The first African-American man was excused for cause because his father was a police officer and he stated that he would find the testimony of a police officer more credible than that of a civilian witness. 8
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 (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 office 3 and had questioned another female juror
3 When the prosecutor asked that juror whether the brother was treated fairly, she replied, "I mean, I guess I had my own opinions, but yes, he was given a fair trial, I guess." 9
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 defendant objected to the prosecutor's next
peremptory challenge of an African-American man. This
prospective juror had worked for the Committee for Public
Counsel Services for four years and then as a defense attorney.
He stated that he had "defended folks [for] many worse crimes"
than armed robbery with a firearm, of which the juror had been a
victim. He had known defendant's counsel for more than fifteen
years and had been tried by the same prosecuting office in the
past, when, he stated, he was "falsely accused of motor vehicle
insurance fraud." He went to trial and the case was eventually
4 That juror unequivocally stated that her relatives were treated fairly, and the prosecutor did not exercise a peremptory challenge. 5 Similarly, the judge did not err in failing to consider that -- hours later -- both parties would choose not to challenge an already seated non-African-American juror for whom a criminal record check had revealed nondisclosed juvenile charges and a nondisclosed charge of operating under the influence. The judge is not required to be clairvoyant, and the parties may well have different standards for exercising peremptory challenges that would involve reopening the empanelment process. 10
resolved by a continuance without a finding. When the defendant
objected to the prosecutor's peremptory challenge, the judge
immediately cut in and said, "[T]he fact is that [the juror] was
a criminal defense lawyer. That's a reasonable basis on which
to exercise a peremptory challenge."
As the Supreme Judicial Court has recently clarified, "the
presumption of propriety [of a peremptory challenge] is rebutted
when 'the totality of the relevant facts gives rise to an
inference of discriminatory purpose.'" Sanchez, 485 Mass. at
511, quoting Johnson v. California, 545 U.S. 162, 168 (2005).
We consider a number of factors:
"(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge;
"(2) any evidence of disparate questioning or investigation of prospective jurors;
"(3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system);
"(4) whether the defendant or the victim are members of the same protected group; and
"(5) the composition of the seated jury."
(Footnotes omitted.) Sanchez, supra at 512. Furthermore, "the
possibility of an objective group-neutral explanation for the
strike or strikes . . . may play a role in the first-step 11
analysis as well." Robertson, 480 Mass. at 392,
quoting Commonwealth v. Jones, 477 Mass. 307, 322 & n.25 (2017).
Here, our information on the race of the prospective jurors
is quite limited. At this point in the empanelment process, one
non-African-American man, six women of unknown (to us) race, and
one man of unknown (to us) race had been seated. The prosecutor
had used peremptory challenges only on juror no. 21 and a female
juror. The prosecutor, however, had challenged both of the
jurors who, like juror no. 35, expressed skepticism about the
fairness of the criminal justice system. 6 Only one juror with a
criminal record had been seated, and that juror had reported
only a disorderly conduct charge in college that had been
dismissed. In light of this, the judge faced with a peremptory
challenge of a long-time defense attorney with a criminal record
who believed that he had been wrongly prosecuted by the same
prosecuting office could reasonably determine that "the totality
of the relevant facts" gave rise to no "inference of
discriminatory purpose." Sanchez, 485 Mass. at 511,
quoting Johnson, 545 U.S. at 168.
This case is similar to Commonwealth v. Lopes, 478 Mass.
593 (2018). There, the Supreme Judicial Court affirmed the
trial judge's determination that the presumption of propriety
6 Another juror who opined that he had been treated unfairly by the criminal justice system had been excused for cause. 12
had not been overcome where a juror's "two significant
experiences with the law provided a sufficient and obvious basis
for the prosecutor's peremptory challenge." Id. at 601.
Contrast Robertson, 480 Mass. at 393 (judge should have inquired
about prosecutor's reasons for peremptory challenge where "[t]he
record offers little insight into what potential neutral reason
the Commonwealth might have offered"). 7 The judge acted within
his discretion.
3. Access to juror questionnaires. Each prospective juror
is required to fill out a confidential juror questionnaire prior
to empanelment. G. L. c. 234A, § 22. See Commonwealth
v. Espinal, 482 Mass. 190, 195 (2019).
"The information elicited by the questionnaire shall be such information as is ordinarily raised in voir dire examination of jurors, including the juror's name, sex, age, residence, marital status, number and ages of children, education level, occupation, employment address, spouse's occupation, spouse's employment address, previous service as a juror, present or past involvement as a party to civil or criminal litigation, relationship to a police or law enforcement officer, and such other information as the jury commissioner deems appropriate."
G. L. c. 234A, § 22. Accord Commonwealth v. Lopes, 440 Mass.
731, 735 (2004). 8 Copies of the completed questionnaires are
7 To be sure, the better practice is for a judge to pretermit the first step and move directly to requesting an explanation for a peremptory challenge from the prosecutor. See Sanchez, 485 Mass. at 514; Lopes, 478 Mass. at 598. 8 On a case-by-case basis, the standard juror questionnaire may be supplemented by additional questions. See, e.g., 13
provided to counsel and the judge during empanelment where, of
course, they are invaluable tools for the empanelment process.
G. L. c. 234A, § 23. See, e.g., Commonwealth v. Rios, 96 Mass.
App. Ct. 463, 467 (2019). At the completion of empanelment,
counsel must return their copies to the clerk and hold in
confidence the information contained therein. G. L. c. 234A,
§ 23. The questionnaires of those who are not selected are
destroyed; the questionnaires of those who are selected (either
as deliberating or alternate jurors) are retained by the clerk
of court "until final disposition of the case," which should
include the direct appeal. G. L. c. 234A, § 23.
"Except for disclosures made during voir dire or unless the
court orders otherwise, the information inserted by jurors in
the questionnaire shall be held in confidence by the court, the
clerk or assistant clerk, the parties, trial counsel, and their
authorized agents." G. L. c. 234A, § 23. Accordingly, after
empanelment is completed, the clerk may not provide the parties
with access to the questionnaires absent a court order.
Juror questionnaires can provide vital information for
postconviction litigation. For example, a claim based on a
juror's omissions of information from a questionnaire might be
impossible to adjudicate without access to the questionnaire in
Commonwealth v. Billingslea, 484 Mass. 606, 627 (2020); Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 762 (2016). 14
question. See, e.g., Commonwealth v. Torres, 437 Mass. 460,
468-469 (2002); Commonwealth v. Gonsalves, 96 Mass. App. Ct. 29,
30-31 (2019). A claim of ineffective assistance of counsel
based on counsel's failure to exercise a peremptory challenge
could require the information on a questionnaire.
See Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 309 (2000).
Even where access to a juror questionnaire is not critical,
it may be helpful or otherwise relevant. For example, a claim
of juror bias might be assisted by the information in the
questionnaires. See, e.g., Commonwealth v. Richardson, 469
Mass. 248, 255 & n.13 (2014). Where a party justifies a
challenged peremptory challenge on the basis of a potential
juror's answers on the questionnaire, access to that
questionnaire could be quite useful. See, e.g., Robertson, 480
Mass. at 395 & n.9; Commonwealth v. Maldonado, 55 Mass. App. Ct.
450, 457 & n.2 (2002), S.C., 439 Mass. 460 (2003); Commonwealth
v. Cavotta, 48 Mass. App. Ct. 636, 638-639 & n.3 (2000).
Similarly, in that circumstance, access to the other
questionnaires could be useful for comparison purposes.
Cf. Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts
Comm'n Against Discrimination, 449 Mass. 675, 684-685 (2007)
(discussing comparator evidence).
Where a party wants access to a juror questionnaire and can
demonstrate that such access could potentially assist in 15
litigating a viable postconviction issue, a judge should grant
some form of access while remaining cognizant of the vital
importance of the confidentiality of juror questionnaires.
See Commonwealth v. Womack, 457 Mass. 268, 279 & n.11 (2010)
(confidentiality of questionnaires vital to jurors'
confidence); Commonwealth v. Howard, 46 Mass. App. Ct. 366, 368-
369 (1999) (same). Potential assistance is a relatively low
bar. The judge may structure an order, however, to preserve
that confidentiality to the extent practical, for example, by
impounding the questionnaire so that it will be placed only in
an impounded appendix. Where the usefulness of a questionnaire
is uncertain, a judge may choose to have counsel first view the
questionnaire in camera, returning to request a copy only if the
questionnaire proves significant.
Here, the defendant moved for access to all of the juror
questionnaires in Superior Court after the entry of his appeal
in this court, but he neither filed a timely notice of appeal
from the order denying the motion for access, nor argues in his
brief to this court that this denial was error. 9 Accordingly,
9 The defendant filed a notice of appeal from the denial of his motion for access 364 days after the motion was denied. He then specifically asked the clerk not to assemble the record for appeal. The defendant confirmed at oral argument that this was a strategic decision. 16
the propriety of that denial is not before us. See Commonwealth
v. Frias, 53 Mass. App. Ct. 488, 495 (2002).
Instead, after unsuccessfully challenging the denial in a
petition under G. L. c. 211, § 3, see Scott v. Commonwealth, 479
Mass. 1034 (2018), the defendant filed a motion with a single
justice of this court to compel the Superior Court clerk to
provide him with access to the juror questionnaires, or, in the
alternative, to determine "that said questionnaires are part of
the record on appeal that should be provided to" the defendant.
It is from the single justice's order denying this motion that
the defendant timely noticed an appeal.
"It is well settled that this court will not reverse an
order of a single justice in the absence of an abuse of
discretion or clear error of law." Howard v. Boston Water &
Sewer Comm'n, 96 Mass. App. Ct. 119, 123 (2019),
quoting Commonwealth v. Springfield Terminal Ry. Co., 77 Mass.
App. Ct. 225, 229 (2010). The single justice, however, lacked
the authority to decide the defendant's appeal of the Superior
Court judge's order denying the defendant's motion for access to
the questionnaires. See DeLucia v. Kfoury, 93 Mass. App. Ct.
166, 168 (2018). That question had to be presented to a panel
of this court by a proper notice of appeal and briefing.
The defendant's alternative claim for relief, that "the
instant request for access to jury questionnaires should be 17
sufficient in itself to establish the right of [the defendant]
to access the questionnaires as he seeks to perfect the direct
appeal of his criminal conviction," is not persuasive. The mere
fact that a document is part of the record on appeal, see Mass.
R. A. P. 8 (a), as amended, 378 Mass. 932 (1979) ("The original
papers and exhibits on file, the transcript of proceedings, if
any, and a certified copy of the docket entries prepared by the
clerk of the lower court shall constitute the record on appeal
in all cases"); 10 Maldonado, 55 Mass. App. Ct. at 457 n.2, does
not necessarily mean that any party is entitled to unfettered
access, or indeed any access, to it. When, for example, a judge
conducts an in camera hearing on a witness's invocation of the
privilege against self-incrimination pursuant to Commonwealth
v. Martin, 423 Mass. 496, 504-505 (1996), the transcript of that
hearing is a part of the record on appeal and is reviewed by the
appellate court but is not accessible to the parties under any
circumstances. See Pixley v. Commonwealth, 453 Mass. 827, 834-
835 (2009); Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 628
(2010). As we have stated, whether a party is entitled to
access to the juror questionnaires is a question for the trial
10The Massachusetts Rules of Appellate Procedure were wholly revised, effective March 1, 2019. See Reporter's Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 466 (LexisNexis 2019). The analysis would be the same under the current version of Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019). 18
court judge upon a showing that such questionnaires would
potentially be useful or relevant in litigating a postconviction
matter, and the defendant did not appeal from the judge's ruling
in this regard. Accordingly, the single justice properly denied
the defendant's motion.
Even though the defendant has waived his right to review of
these issues in this appeal, we are cognizant that the juror
questionnaires are, in fact, relevant to the defendant's issue
concerning the peremptory challenges, which involve, among other
things, a juror's failure to answer a question on the
questionnaire. Although juror no. 21's questionnaire has been
destroyed (because he was not seated), whether any other seated
jurors failed to answer a question or otherwise displayed
similar nonracial characteristics as the struck jurors in their
questionnaires is important information. Accordingly, as we
have done in the past when a question concerning the use of
peremptory challenges on the basis of race has been raised, we
ordered the questionnaires from the trial court and have
reviewed them carefully. See Maldonado, 55 Mass. App. Ct. at
457 & n.2.
None of the seated jurors failed to answer a question on
the questionnaire. None of the seated jurors described any
experience as a defense attorney or in a related job. Regarding
criminal records, one juror reported being charged with 19
disorderly conduct in college, but the judge read that
information into the record. Three other jurors described a
criminal history of a relative or partner, but again the judge
read that information into the record. One juror stated that a
distant relative had served time for draft resistance in World
War II. This information was not read into the record, but it
is not helpful to the defendant. Accordingly, nothing in the
juror questionnaires calls into question our conclusions
regarding the peremptory challenges.
4. Instruction on lesser included offenses. At trial, the
defendant requested the judge to instruct the jury on two lesser
included offenses of rape, indecent assault and battery, and
simple assault and battery. The trial judge declined, reasoning
that no view of the evidence supported either instruction. "A
lesser included offense instruction should be given where 'the
evidence at trial presents "a rational basis for acquitting the
defendant of the crime charged and convicting him of the lesser
included offense."'" Rios, 96 Mass. App. Ct. at 476,
quoting Commonwealth v. Donlan, 436 Mass. 329, 335 (2002). In
deciding whether a lesser included offense instruction is
appropriate, "we draw all reasonable inferences from the
evidence in favor" of the defense. Commonwealth v. Dyous, 436
Mass. 719, 731 (2002). Nonetheless, "even when evidence is
introduced that would justify conviction for a lesser included 20
offense, the defendant is not entitled to an instruction
thereupon unless the proof on the 'elements differentiating the
two crimes is sufficiently in dispute so that the jury may
consistently find the defendant innocent of the greater and
guilty of the lesser included offense.'" Donlan, supra,
quoting Commonwealth v. Souza, 428 Mass. 478, 494 (1998).
Here, the victim unambiguously testified that the defendant
penetrated her vagina, both digitally and with his penis. The
defendant likewise unambiguously stated that there was
penetration; he told the police that his penis "was in the
vagina." Although the defendant focuses on the victim's
testimony that she saw the defendant ejaculate and that he
"rubbed his penis up and down kind of inside the lips of [her]
vagina," that testimony casts no doubt upon this element. It is
well settled that "[i]ntrusion into the vagina itself is not
required to make out the wrongful penetration. Touching by the
male of the vulva or labia . . . is intrusion enough." Donlan,
436 Mass. at 336, quoting Commonwealth v. Baldwin, 24 Mass. App.
Ct. 200, 204-205 (1987). 11
Although the jury had the right to disbelieve any portion
of the evidence, and could have selectively disbelieved portions
11For this reason, the defendant's statement in closing argument that "the penis didn't go into the vagina here" is a non sequitur, if it was intended as a remark on the element of penetration. 21
of the victim's testimony, "the mere possibility that the jury
might not credit a portion of the Commonwealth's evidence" is
not enough to entitle the defendant to an instruction on a
lesser included offense. Donlan, 436 Mass. at 337. Where the
case was tried on the question whether the victim consented to
the penetration and not whether it occurred, no rational jury
could have convicted the defendant of the lesser included
offenses while acquitting him of rape.
5. Instruction on withdrawal of consent. In Commonwealth
v. Sherman, 481 Mass. 464, 472-473 (2019), the Supreme Judicial
Court held that, where a victim consents to sexual penetration
but withdraws consent during the course of sexual intercourse,
the Commonwealth must prove that the victim communicated the
withdrawal of consent to prove that a rape occurred. Such
withdrawal of consent may be communicated through resistance,
words, or gestures, such as attempting to move away. See id. at
474. "[T]he Commonwealth need not prove that the defendant
actually knew that the victim withdrew consent. It suffices
that the victim reasonably communicated the withdrawal of
consent in such a manner that a reasonable person would have
known that consent had been withdrawn." Id.
It is unsurprising that the defendant failed to request
such an instruction, as Sherman was decided over three years 22
after the trial here. 12 The defendant now claims that such an
instruction should have been given, because the victim's request
that the defendant use a condom while raping her evidenced her
consent. We review this claim for a substantial risk of a
miscarriage of justice, see Sherman, 481 Mass. at 475-476, and,
finding it without merit, we discern none.
Society long ago moved beyond the point where a victim's
request that a rapist use a condom could be considered consent.
See People v. Ireland, 188 Cal. App. 4th 328, 336 (Cal. Ct. App.
2010) (noting standard instruction in California that
"[e]vidence that the woman requested [the defendant] to use a
condom or other birth control device is not enough by itself to
constitute consent"); Mack v. State, 338 Ga. App. 854, 857
(2016) (fact that victim asked defendant to put on condom did
not negate her fear); State v. Troutman, 148 Idaho 904, 911
(2010) (whether defendant wore condom "is irrelevant to the
12The defendant suggests that he somehow did request a Sherman instruction when he asked for an instruction consistent with Commonwealth v. Lopez, 433 Mass. 722, 727-728 (2001), in which the Supreme Judicial Court rejected the proposition that a defendant is entitled to an instruction on the defense of an honest and reasonable mistake as to the victim's consent. The judge, however, opined that his instruction was consistent with Lopez and invited the defendant to submit any proposed language. The next morning, the defendant said, "I think the instruction is okay." Even if we could somehow discern what the defendant was thinking, this would not preserve the issue. See Commonwealth v. King, 77 Mass. App. Ct. 194, 197 (2010), S.C., 460 Mass. 80 (2011). 23
consent question"); Tyson v. State, 619 N.E.2d 276, 295-296
(Ind. Ct. App. 1993) (victim's testimony that she asked
defendant, "Please put a condom on" during assault "could not,
as a matter of law, lead a reasonable person to believe that
[the defendant] was reasonably mistaken as to [the victim's]
consent to sexual intercourse"); State v. Anderson, 66 So. 3d
568, 580 (La. Ct. App. 2011) (rejecting contention that there
was consent where victim testified "she asked him to use a
condom"; "Defendant fails to cite any case law to support that
use of a condom necessarily equates with consensual sex").
Here, the victim testified that the sexual encounter with
the defendant was nonconsensual at all times. She pushed the
defendant away when he first tried to kiss her, and asked that
he use a condom only once he had dragged her into the bedroom
and pinned her arms down while ignoring her pleas to stop. To
be sure, the defendant told the police that the victim had
consented to the entire sexual encounter. The Supreme Judicial
Court, however, has held that "the defendant's testimony that
the victim consented to sexual intercourse will not suffice
alone to warrant an instruction on the withdrawal of consent
after penetration." Sherman, 481 Mass. at 475. As there was no
basis for concluding that the victim initially consented to
intercourse and then withdrew that consent, there was no basis
for a Sherman instruction. See Commonwealth v. Butler, 97 Mass. 24
App. Ct. 223, 235 (2020) (not reasonable to believe that
incapacitated individual in protective custody and under
defendant police officer's control consented to indecent assault
and battery).
6. Motion to suppress statements. a. Standard of review.
The motion judge denied the defendant's motion to suppress his
statements during the police interview, finding that (1) the
defendant knowingly, intelligently, and voluntarily waived his
Miranda rights, and (2) his statements were voluntary. "On
appeal, we review a ruling on a motion to suppress by accepting
'the judge's subsidiary findings of fact absent clear error but
conduct an independent review of [the] ultimate findings and
conclusions of law.'" Commonwealth v. Polanco, 92 Mass. App.
Ct. 764, 769 (2018), quoting Commonwealth v. Ramos, 470 Mass.
740, 742 (2015). Where, as here, there is a video recording of
the interview of the defendant, we "may independently review
[the] documentary evidence, and . . . findings drawn from such
evidence are not entitled to deference." Commonwealth
v. Tremblay, 480 Mass. 645, 654-655 (2018). Accord Commonwealth
v. Molina, 467 Mass. 65, 72 (2014), quoting Commonwealth
v. Hoyt, 461 Mass. 143, 148-149 (2011) ("we will 'take an
independent view' of recorded confessions and make judgments
with respect to their contents without deference to the fact 25
finder, who 'is in no better position to evaluate the[ir]
content and significance'").
b. Waiver of Miranda rights. The Commonwealth bore the
initial burden of proving beyond a reasonable doubt that the
defendant's waiver of Miranda rights was "voluntary, knowing,
and intelligent." Commonwealth v. Clarke, 461 Mass. 336, 342
(2012). Accord Commonwealth v. Rivera, 482 Mass. 259, 265-266
(2019). "Relevant factors in this analysis include the manner
in which the interrogation is conducted, whether Miranda
warnings were given, the defendant's physical and mental
condition, and the defendant's individual characteristics, such
as age, education, intelligence, and emotional stability." Id.
at 266. Whether a waiver is voluntary depends on "the totality
of the circumstances." Commonwealth v. Gallett, 481 Mass. 662,
668 (2019).
Here, the defendant "was informed of his Miranda rights and
indicated verbally and in writing that he understood the
warnings." Gallett, 481 Mass. at 669. The defendant was
thirty-six years old at the time of the interrogation, his
emotional and physical condition was unremarkable, and there is
no indication that the defendant had cognitive limitations that
would affect his waiver and voluntary statements. The
detectives made no intentional misrepresentations that could
have undermined the defendant's ability to make a free choice, 26
and they did not impermissibly maximize the apparent strength of
the Commonwealth's case. See id. at 670-671; Commonwealth
v. Spray, 467 Mass. 456, 467-468 (2014).
The detectives' failure to inform the defendant of the
charges against him until midway into the interview did not
vitiate the voluntariness of the defendant's Miranda waiver,
contrary to his claims. At no point did the detectives make a
false statement about the charges in Boston, but they did avoid
telling the defendant he was charged with rape until after he
had categorically denied ever being in Boston. "[A]ny lack of
disclosure regarding the ground for an arrest is not the type of
'trick[ery]' that would prevent the defendant's waiver from
being knowing, intelligent, and voluntary." Commonwealth
v. Cartwright, 478 Mass. 273, 281-282 (2017),
quoting Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985).
"The police are not required to 'inform a suspect of the nature
of the crime about which he is to be
interrogated.'" Commonwealth v. Hensley, 454 Mass. 721, 738
(2009), quoting Medeiros, supra. Accord Molina, 467 Mass. at 76
n.13 (failure to inform suspect of nature of crime "does not
itself render a statement involuntary").
c. Voluntariness of statements. To use the defendant's
statements as evidence against him at trial, the Commonwealth
also "must show that any statement made [by a defendant] after a 27
waiver was voluntary, as a product of the defendant's 'rational
intellect and free will.'" Rivera, 482 Mass. at 266,
quoting Commonwealth v. Hoose, 467 Mass. 395, 403 (2014). In
deciding whether the Commonwealth met its burden, we may
consider, among other relevant factors, "the defendant's age,
education, intelligence, physical and mental stability, and
experience with the criminal justice system." Commonwealth
v. Siny Van Tran, 460 Mass. 535, 559 (2011).
Here, the defendant at all times displayed a knowing
comprehension of the questions asked of him and voiced lucid and
logical responses, which reflected an effort to exonerate
himself. See Commonwealth v. Libby, 472 Mass. 37, 49 (2015)
(defendant's exculpatory explanations of events suggested
statements were product of defendant's own free will). The
defendant responded appropriately to substantive questions posed
by the officers, demonstrating an understanding of the nature of
their questioning. See Tremblay, 480 Mass. at 656-658
(defendant was responsive to police questions and even minimized
his culpability, leading to conclusion that defendant's
statements were voluntarily given). Based on the totality of
the circumstances, we see no reason to disturb the motion
judge's ultimate finding that the Commonwealth had established,
beyond a reasonable doubt, that the defendant had knowingly,
intelligently, and voluntarily waived his Miranda rights and 28
that he made his statements to the police voluntarily.
See Gallett, 481 Mass. at 672; Libby, supra at 48-50.
7. Redaction of video-recorded interrogation. The parties
spent considerable effort during trial redacting the video
recording of the interview. The Commonwealth's original
position was that the defendant's denials should not be
admitted, but the trial judge disagreed. The parties then
discussed the scope of redactions. The defendant, although
noting that he wanted the entire interview suppressed, explained
that he "want[ed] more of it rather than less of it" to be
admitted. The parties presented the disputed redactions to the
trial judge, and the judge ruled on them, siding with the
Commonwealth on some redactions and with the defendant on
others.
On appeal, the defendant proposes additional redactions.
Because the defendant did not request these redactions at trial,
review is waived and we consider only whether there was a
substantial risk of a miscarriage of justice. See Commonwealth
v. Rivera, 97 Mass. App. Ct. 285, 292 (2020); Commonwealth
v. Sanchez, 96 Mass. App. Ct. 1, 8 n.8 (2019). We discern none.
The defendant vaguely asserts that accusatory statements by
the officers should have been redacted. The interview, however,
did not include "repeated statements [by the officers] that they
did not believe the defendant." Commonwealth v. Santos, 463 29
Mass. 273, 288-289 (2012) (admission of officers' frequent
accusations that defendant was lying improper). The defendant
also asserts that a reference to the defendant's being on
probation was mistakenly retained. The parties, by their own
description, "went to great pains . . . to make sure that every
mention of every arrest that [the defendant] ever had, including
the [operating under the influence] prior arrest, anything
having to do with bad acts or encounters with the law [was]
excised." That the parties missed one mumbled reference to
probation does not create a substantial risk of a miscarriage of
justice. Similarly, it is difficult to find error, much less a
substantial risk of a miscarriage of justice, from the inclusion
of the defendant's criticism of his coworkers as possible
criminals. In sum, we can discern no substantial risk of a
miscarriage of justice. See Rivera, 97 Mass. App. Ct. at 293-
294. Accord Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324
(2016) ("Having elected to pursue this approach at trial, the
defendant cannot change tactics on appeal based on the fact that
he did not achieve the desired result").
8. Amendment of indictments. "Under the Sixth Amendment
to the United States Constitution and art. 12 [of the
Massachusetts Declaration of Rights], the defendant has a right
to counsel at every 'critical stage' of the criminal
process." Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510 30
(2011), quoting Commonwealth v. Woods, 427 Mass. 169, 174
(1998). "In order to constitute a critical stage, the accused
must require assistance in 'coping with legal problems or
assistance in meeting his adversary,' and the Sixth Amendment
does not apply where there is no possibility 'that the accused
might be misled by his lack of familiarity with the law or
overpowered by his professional adversary.'" Commonwealth
v. Sargent, 449 Mass. 576, 580 (2007), quoting United States
v. Byers, 740 F.2d 1104, 1118 (D.C. Cir. 1984). See Robinson
v. Commonwealth, 445 Mass. 280, 286 (2005) ("because the
suppression hearing in this case would have required the taking
of evidence and also involved the admissibility of substantial
evidence that could determine the outcome of the case,"
suppression hearing was critical stage); Commonwealth v. Medina,
64 Mass. App. Ct. 708, 721 (2005) (right to counsel at hearings
at which evidence is taken).
Here, as the fifteen-year statute of limitations approached
in 2011, 13 the Commonwealth had a DNA profile of the suspect but
did not know his identity. See G. L. c. 277, § 63, as amended
by St. 1996, c. 26. Accordingly, the Commonwealth secured
13The statute of limitations for the kidnapping charge would have expired before this time, had the defendant remained a usual and public resident of Massachusetts. See G. L. c. 277, § 63. As it happened, the statute of limitations was tolled by the defendant's nonresidence. See Commonwealth v. White, 475 Mass. 724, 731 (2016). 31
indictments against "John Doe, (a black male, approximately
5'11" tall, with a thin build, brown eyes, age 18-19 and
identified by the DNA profile appended hereto in appendix A-
CC#60-531557)." 14 On March 20, 2014, after the defendant was
identified, but before he was arraigned, the Commonwealth
obtained an ex parte amendment of the indictments to substitute
the defendant's name.
The defendant contends that he was entitled to the
appointment of counsel for this prearraignment, prearrest
hearing. The right to counsel protected by the Sixth Amendment,
however, does not attach "until the time of
arraignment." Commonwealth v. Celester, 473 Mass. 553, 567
(2016). See Rothgery v. Gillespie County, Tex., 554 U.S. 191,
199 (2008), quoting 1 W.R. LaFave, J.H. Israel, N.J. King, &
O.S. Kerr, Criminal Procedure § 1.4(g), at 135 (3d ed. 2007)
(right to counsel "attaches at the [defendant's] initial
appearance," when "the magistrate informs the defendant of the
charge" against him and "determine[s] the conditions for
pretrial release"). The Supreme Judicial Court has held the
same with respect to the art. 12 right. Celester, supra. "The
14In Commonwealth v. Dixon, 458 Mass. 446, 447-448 (2010), the Supreme Judicial Court held that a similar John Doe indictment, which identified the accused by his unique DNA profile and a physical description, comported with statutory requirements and had the legal effect of tolling the statutory limitations period. 32
arraignment signals 'the initiation of adversary judicial
proceedings' and thus the attachment of the Sixth Amendment
. . . ." Michigan v. Jackson, 475 U.S. 625, 629 (1986).
Interpreting art. 12, the Supreme Judicial Court has
consistently held that the right to counsel "attaches at the
time judicial proceedings are commenced." Commonwealth
v. Neary-French, 475 Mass. 167, 172 (2016). See Commonwealth
v. Ortiz, 422 Mass. 64, 67 n.1 (1996) ("There is no authority
for the proposition that the right to counsel under the Sixth
Amendment . . . or under art. 12 . . . arises prior to
arraignment"). Accordingly, the defendant had no right to
counsel at the time of the amendment of the indictments.
9. Conclusion. The judgments are affirmed. The order of
the single justice denying the defendant's motion to compel is
affirmed.15
So ordered.
15The defendant also filed a notice of appeal of the denial of his motions for postconviction discovery. The defendant has not briefed the denial of these motions, so any issue regarding them is waived. See Frias, 53 Mass. App. Ct. at 495.