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DREBEN, J. Convicted of two counts of aggravated rape, two counts of intimidation of a witness, [Note 1] and of kidnapping, the defendant claims the judge erred in (1) denying the defendant's motion to suppress recordings of telephone conversations he had when he was at the Berkshire County house of correction (HOC); (2) admitting two spontaneous utterances of the victim contrary to the policy underlying first complaint testimony as set forth in Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006); (3) admitting irrelevant and prejudicial evidence of a brown stain; (4) failing properly to answer a jury's question regarding kidnapping that affected both the kidnapping and aggravated rape convictions; and (5) permitting duplicative convictions of aggravated rape. Because of the judge's failure to answer the jury's question properly, we remand for further proceedings on the kidnapping and aggravated rape convictions. We affirm the intimidation of a witness convictions.
1. Facts. The jury were warranted in finding the following. On April 1, 2007, the victim, then sixteen years old, having run away from her parents' home and from the custody of the Department of Social Services (DSS), [Note 2] was living in Pittsfield with her sister. That night, she and a group of people (William Litchfield, Frank Underhill, Ryan Provenzano, Eric Daigle, and the defendant) were in her sister's apartment watching television, sniffing cocaine, and smoking marijuana. [Note 3] The defendant was drinking liquor. He left about 11:00 P.M., but returned between 3:30 and 4:00 A.M. Without saying a word, the defendant walked through the living room where the victim and Underhill were lying on a futon watching television and went into the sister's bedroom where the sister and her boyfriend (Provenzano) were sleeping. Litchfield was sleeping on a sofa.
the apartment through a closet in the sister's bedroom in which there was a door leading to an adjoining apartment that was vacant. When the victim answered the knock, the defendant was at the door; he grabbed her by the arm and pushed her into the kitchen of the adjacent vacant apartment. She tried to pull away. When asked at trial if she shouted, she answered, "Nothing would come out. I was scared."
Although the anal penetration was very painful, she did not scream. Part of the time he had his hand over her mouth. She claimed she bled quite a lot and that there was blood and excrement on the floor in the room with the carpet.
After waiting a few minutes to be sure that the defendant had left, the victim returned to her sister's apartment. She asked Daigle to leave and then locked the door. She broke down, was on her knees, and started to cry. Underhill asked her what happened. At first she did not tell him, but after about five minutes she told him, but did not give him all the details. They both woke up Litchfield and she told both of them what had happened. [Note 4] At their urging, she woke up her sister, a certified nurse's assistant. Her sister called the police. [Note 5] Additional facts will be set forth in connection with our discussion of the issues.
3. Admission of spontaneous utterances. At trial, Underhill and Litchfield testified to statements made by the victim when she returned to the apartment after leaving with the defendant. On the first day of trial, the defendant filed a motion in limine that the Commonwealth be required to identify the first complaint witness. The prosecution indicated that there would not be a first complaint witness, but rather that there would be excited utterances from the people who were in the apartment when the victim returned. Defense counsel then said, "if there is no testimony being offered for first complaint, then there is no issue."
In his initial brief on appeal, the defendant again argues that the victim's statements were the product of reflection and not a mere spontaneous response to a recent shock. He concludes his argument on the issue by saying that the statements were admitted substantively and not just as corroboration as would have been the case had one or the other witness been allowed to testify as a first complaint witness. Only in his reply brief does the defendant develop the argument that the admission of hearsay under the spontaneous utterance exception was improper, was prejudicial, and allowed the Commonwealth to avoid the limitations of the first complaint doctrine, as explained in Commonwealth v. King, 445 Mass. at 242-243. He stresses the rule that only one witness may testify. [Note 11] In addition to failing to object at trial, thus incurring a more stringent standard of review (whether the error, if any, created a substantial risk of a miscarriage of justice), the defendant, as indicated, did not adequately address the issue in his initial brief. The Commonwealth did not raise it in its brief, and only in the reply brief did the defendant specifically raise the issue. The argument, therefore, came too late. See Kelley v. Rossi, 395 Mass. 659 , 665 n.6 (1985), and cases cited.
The defendant's claim that the convictions of aggravated rape were duplicative because they arose out of a set of facts so closely related as to constitute a single crime is without merit. There was evidence of at least two separate rapes, one vaginal, and one anal.
[Note 1] The first indictment for intimidating a witness (the victim), as well as the indictments for the other crimes, were dated May 23, 2007. The defendant was indicted on July 20, 2007, on a second count of intimidating a witness (William Litchfield). The indictments were joined for trial.
[Note 11] Recent cases indicate that evidence of additional complaints, even if they fall within independent exceptions to the hearsay rule, are inadmissible if they "serve no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant's accusation." Commonwealth v. Arana, 453 Mass. 214 , 229 (2009); Commonwealth v. Monteiro, 75 Mass. App. Ct. 489 , 494- 497 (2009). Thus, in some circumstances, the policies of the first complaint rule will preclude the receipt of spontaneous utterances in addition to evidence of a first complaint, or in substitution of first complaint evidence. Commonwealth v. McGee, 75 Mass. App. Ct. 499 , 504 (2009).
"The first element that the Commonwealth must prove beyond a reasonable doubt is that the Defendant forcibly confined or imprisoned [the victim] in Massachusetts. The word forcibly means carried out through the use of force. One acts forcibly towards another if one compels, constrains or obligates her to do something against her will. Force may either be actual or constructive. So there needs not be actual physical force applied against the alleged victim. It's sufficient that the alleged victim is subdued by a display of potential force. Confined means to enclose within bounds or limits, to restrict, shut up or keep in. It's a restraint on a person's movement. Imprisoned means to detain in custody or to hold in restraint. A restraint of a person's liberty is a confinement or an imprisonment.
"Now, aggravated rape requires the Commonwealth to prove one additional element beyond a reasonable doubt. In order to prove the Defendant guilty of aggravated rape, the Commonwealth must prove beyond a reasonable doubt that the rape was committed during the commission of or attempted commission of the crime of kidnapping. The crime need not occur at the same time, but that the offense must constitute one continuous episode and course of conduct. In other words, the crime of kidnapping and the rape cannot be two separate events that were not part of a continuous episode. The critical point is not whether the aggravating act served to compel a victim's submission but whether the rape victim was subjected to another felonious conduct during the same criminal episode. If the Commonwealth proves this additional element, it shall be considered aggravated rape. Now, please keep in mind my definition of kidnapping that I gave you in the first instruction in evaluating this charge."
When Philip Roth's Portnoy's Complaint first exploded on the literary scene in 1969, I remember feeling that my nascent feminism prevented me from reading the book generously and fully evaluating its impact. It was hard not to deplore the caricature of the Jewish mother or the blame heaped on her, Alex Portnoy's relentless sexism, misogyny, and instrumental use of women, his narcissistic sexuality, and his obsession with macho and patriarchal masculinity. As some critics countered, these are the very aspects of modern Jewish male identity that Philip Roth is satirizing. (1)Nevertheless, the brilliance and naughtiness with which Roth records his protagonist's hysterical rants made them seem, somehow, heroic, redeemable, and perhaps worst of all--universal. Alex Portnoy gave voice to a post-War/Cold War malaise in which women (even Jewish women and especially Jewish mothers--like goyim) were part of the problem. (2) 781b155fdc