COMMONWEALTH v. BILE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant, Emmanuel T. Bile, Jr., was convicted of two counts of aggravated rape (vaginal and anal).² He appeals, claiming error in the denial of his motion to suppress, jury selection, numerous evidentiary rulings, jury instructions, the prosecutor's closing argument, and the denial of his motion to continue. We affirm.

Background. The jury could have found the following facts. On October 12, 2012, the victim, a student at the University of Massachusetts in Amherst (UMass) drank hard liquor and beer, and smoked marijuana. She became intoxicated to the point that she eventually could not walk or sit without assistance.

During the evening, four of her friends, whom she had met the previous summer, arrived at UMass uninvited. They were Justin King, Caleb Womack, Adam Liccardi, and the defendant. Another student signed the four men into the victim's dormitory. Even though the victim had not invited the men, they appeared on her dormitory floor. Upon encountering the men, she and two girlfriends decided to socialize with the men in the dormitory. The victim and others continued to drink alcohol and smoke marijuana. After the victim's girlfriends said good night and went to sleep in their room, the four men sexually assaulted the victim in her room while she passed in and out of consciousness.

Discussion. 1. Motion to suppress. Prior to trial, the defendant filed a motion to suppress a recorded statement that he made to detectives from UMass. The motion was denied. He appeals, claiming that the statement was not voluntary.³ In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error and conduct an independent review of the ultimate findings and conclusions of law. Commonwealth v. Clarke, 461 Mass. 336, 340 (2012). Here, the motion judge considered the totality of the circumstances of the statement, including the defendant's age, intelligence, emotional stability, experience with the criminal justice system, physical and mental conditions, discussions of leniency or deals, the circumstances of the interview, and the recitation of Miranda warnings. See Commonwealth v. Carnes, 457 Mass. 812, 819 (2010); Commonwealth v. Beland, 436 Mass. 273, 279 (2002). She then found “beyond a reasonable doubt that the defendant ․ gave his statement voluntarily, intelligently and freely as a result of his own choice and the product of his rational intellect.” See Beland, supra.

The motion judge's ultimate finding and conclusions of law are amply supported by the record. The defendant was an eighteen year old college student with prior experience with the criminal justice system. Compare Commonwealth v. Harris, 468 Mass. 429, 435-436 (2014) (defendant, a young adult, went to police station on own volition, and was not restrained while being questioned) with Commonwealth v. Monroe, 472 Mass. 461, 471 (2015) (defendant recently turned eighteen, was obtaining GED, and recently immigrated to United States). He did not appear to be under the influence of drugs or alcohol. He was alert and appeared to understand what was happening.

The detectives spoke to the defendant in his home, where he sat in a chair close to an open door that was not segregated from the rest of the house. His mother and sister were present in the home throughout the interview. The defendant was free to leave, but chose to remain throughout the interview. His movements were not restricted in any way.

The detectives, who were in plain clothes and armed, identified themselves as detectives from UMass.⁴ They were respectful and professional at all times. Although the detectives were outside of their jurisdiction and did not so advise the defendant, the detectives did not make a deliberately false statement designed to elicit a statement from the defendant. Cf. Commonwealth v. DiGiambattista, 442 Mass. 423, 432 (2004). Indeed, they did not, as the defendant suggests, claim “false police authority.” Even outside of their jurisdiction, the detectives are not ordinary citizens. They are law enforcement representatives and agents of the government. Commonwealth v. Allen, 395 Mass. 448, 453-454 (1985). The detectives did not arrest the defendant and did not deprive him of his liberty. Commonwealth v. Hernandez, 456 Mass. 528, 532 (2010). And, although he was not in custody, the detectives advised the defendant of his Miranda rights, including the right to stop questioning at any time. See Commonwealth v. Carnes, 457 Mass. at 817.

The record also does not support the defendant's claim that the police used inducements or trickery to secure his statement.⁵ The defendant's will was not overborne by the detectives. See Commonwealth v. Durand, 457 Mass. 574, 596 (2010). Indeed, the defendant sought to minimize his involvement in the assault, which is further evidence that the statement was voluntary and not the result of overreach or coercion by the detectives. See Commonwealth v. Wolinksi, 431 Mass. 228, 232 (2000). The motion to suppress was properly denied.

2. Jury selection. In response to attorney-conducted voir dire, two potential jurors indicated they could not remain impartial if evidence that the victim delayed disclosing the sexual assault was introduced at trial.⁶ In response to the Commonwealth's request and over the objection of the defendant, the potential jurors were excused for cause. We review for an abuse of discretion. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 809-810 (2019).

The impartiality of a juror is paramount. The judge must consider whether a potential juror “has expressed or formed an opinion regarding the case, or has an interest, bias, or prejudice related to the unique situation presented by the case.” Commonwealth v. Williams, 481 Mass. 443, 448 (2019), quoting Commonwealth v. Soares, 377 Mass. 461, 481 (1979). Here, both potential jurors were candid in affirmatively stating that they could not remain impartial. Cf. Commonwealth v. Leahy, 445 Mass. 481, 498-499 (2005). If a juror will lose impartiality because of the introduction of certain evidence, that alone is a basis to excuse them from the jury. Commonwealth v. Gray, 465 Mass. 330, 338 (2013). The judge was free to credit these statements, and he did not abuse his discretion in excusing these two potential jurors.

3. Evidentiary rulings. a. First complaint evidence. The defendant filed an opposition to the Commonwealth's motion in limine to admit testimony of a first complaint witness, J.R., a friend of the victim. At a voir dire hearing, conducted at the defendant's request, he argued that admitting J.R.'s testimony would be improper because he was the actual first complaint witness. He based this claim on a text message that the victim sent to him after the assault that read “thanks for raping me,” which was sent around the same time that the victim made the disclosure to J.R. The Commonwealth contends that because trial counsel did not object to the testimony at trial, this issue was not preserved. See Commonwealth v. Grady, 474 Mass. 715, 724-725 (2016). Passing on the question whether the claim is preserved, we conclude that the judge did not abuse his discretion and the testimony was properly admitted. Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011).

First complaint testimony is admissible to assist the jury in assessing the victim's credibility. See Commonwealth v. King, 445 Mass. 217, 218-219 (2005); Mass. G. Evid. § 413(a) (2019). It is limited to a single complaint witness, but a judge has discretion to decide who can testify as first complaint witnesses and make substitutions when necessary. Commonwealth v. Roby, 462 Mass. 398, 407-408 & n.13 (2012). Further, a judge may substitute the very first complaint witness with another if that individual is unavailable to testify as a first complaint witness, King, 445 Mass. at 243-244, or they have “an obvious bias or motive to minimize or distort the victim's remarks.” Commonwealth v. Murungu, 450 Mass. 441, 446 (2008).

Here, the judge determined that the victim's first complaint was to J.R., and permitted J.R. to testify accordingly. The defendant has failed to meet his burden to establish that the judge abused his discretion in so finding. Additionally, even if the defendant was the first person the victim told of the assault, the defendant has not cited any authority that permits a defendant to be deemed a first complaint witness in this context. Furthermore, he had an obvious motive to minimize the victim's statement, and was unavailable to the Commonwealth as a witness. See Commonwealth v. Kebreau, 454 Mass. 287, 292 (2009) (when first person told of assault is unavailable, judge may admit testimony from substitute complaint witness); Murungu, supra; Mass. G. Evid. § 413(a). There was no error.

b. Evidence of joint venture. The defendant contends that the judge abused his discretion by admitting evidence that supported the Commonwealth's theory of joint venture. This includes evidence of Liccardi's vaginal rape of the victim and a statement he made immediately prior to the rape, admission of a text message sent to the defendant from a friend, and a video of Womack “thrusting” his groin in a stairwell of the dormitory. We address each in turn.

i. Liccardi's vaginal rape of victim. Because the defendant did not object at trial, we review to determine, if error, whether the evidence created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The defendant contends that Liccardi's vaginal rape of the victim occurred after the other three left the room and thus was not admissible as joint venture evidence. To the extent that the defendant argues that the evidence was inadmissible on relevancy grounds, we disagree.

Evidence is relevant if it has the tendency to prove the proposition in question is true. Evidence is admissible as long as the probative value is not substantially outweighed by the unfair prejudice. Commonwealth v. Wall, 469 Mass. 652, 661 (2014). Here, the Commonwealth was required to prove that the defendant participated in the crime and shared the intent of his coventurers. Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). Thus, the full extent of the assaults, which occurred over the span of hours, was relevant. Although the others had left the room, Liccardi's actions were relevant and admissible to prove the ongoing joint venture, particularly where the others stayed in the building for several hours waiting for Liccardi. See Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 817-818 (2006).

For the same reasons, Liccardi's statement to the victim -- after the others left -- that she was “beautiful” and did not “deserve it” -- was not inadmissible because the “statements of joint venturers are admissible against each other if ․ made both during the pendency of the cooperative effort and in furtherance of its goal.” Commonwealth v. Rakes, 478 Mass. 22, 36 (2017), quoting Commonwealth v. Bright, 463 Mass. 421, 426 (2012). See Mass. G. Evid. § 801(d)(2)(E) (2019). The joint venture was ongoing, and the jury could have found the statements were designed to mollify the victim in order to prevent her from reporting the wrongdoing.

ii. Text message. The defendant claims error in the admission of a text message that he received from a friend, J.B., before the sexual assault, contending that the message was hearsay. Because he objected at trial, we review for prejudicial error. Commonwealth v. Sullivan, 478 Mass. 369, 376 (2017).

In response to a message from J.B., the defendant replied referencing anal rape. The responsive text message was admissible as a statement of the defendant. See Mass. G. Evid. § 801(d)(2). The Commonwealth offered J.B.'s text message for a valid nonhearsay purpose -- to put the defendant's statement in context. Commonwealth v. Mejia, 88 Mass. App. Ct. 227, 237-238 (2015) (“statements provided context for the relevant and admissible statements made by the defendant in the same conversation”). Even if admitted in error, we conclude that this one text message did not influence the jury, or it had but a very slight effect. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). There was no prejudice.

iii. Womack video. The defendant filed a motion in limine to preclude the admission of a surveillance video of Womack, in the company of the defendant and another, “thrusting” his groin area in an interior stairwell railing in the victim's dormitory, contending that the prejudicial value of the video outweighed its probative value. We review a ruling on a motion in limine for an abuse of discretion. Commonwealth v. Spencer, 465 Mass. 32, 48 (2013). Here, the judge admitted the evidence because he found that the conduct occurred in the same building and within a matter of minutes of the rape. The judge did not abuse his discretion in determining that the video was relevant to demonstrate the shared knowledge and intent of the defendants, particularly where Womack appears to be acting out sexual acts that had just occurred.

4. Jury instructions. The defendant argues that the judge erred in the jury instructions regarding aggravated rape, first complaint, and specific unanimity. Because the defendant did not object at trial, we review to determine if any error created a substantial risk of a miscarriage of justice. Commonwealth v. Harris, 481 Mass. 767, 779 (2019).

a. Aggravated rape. We evaluate jury instructions as a whole and interpret them as a reasonable juror would. Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). A trial judge is not required to use any specific words in an instruction provided that all instructions are given accurately and explain the law correctly. Commonwealth v. Burke, 414 Mass. 252, 267 (1993). Here, the judge instructed the jury that in order to find the defendant guilty of aggravated rape, they must find, beyond a reasonable doubt, that the defendant committed a rape, either as a principal or a joint venturer, and that the rape was committed as part of a joint enterprise. The defendant contends this was error because the Commonwealth can only prove the underlying rape under principal liability. We disagree, because aggravated rape and rape may be proved by accessory liability. Commonwealth v. Basey, 82 Mass. App. Ct. 278, 281, 283 n.4 (2012). See Commonwealth v. Mazariego, 474 Mass. 42, 48 (2016). The joint venture instruction applied to each of the charges; however, the judge essentially folded the previously given joint venture instruction into the aggravated rape instruction. When the instructions are read as a whole, the judge properly set out the legal concepts and instructed the jury on the correct legal standards. The jury's split verdict is evidence that they were not confused by the instructions. Commonwealth v. Ramos, 63 Mass. App. Ct. 379, 382 (2005).

b. First complaint. The defendant also claims that the judge erred in the first complaint instruction given to the jury at the close of the evidence. Specifically, he claims the instruction was not accurate because the judge omitted repeating that the jury may consider a delayed disclosure in assessing the victim's credibility. While we agree with the defendant that the judge's final instruction did not track the model jury instruction, the given instruction was legally accurate. Burke, 414 Mass. at 267. And the judge gave a complete contemporaneous instruction when the first complaint witness testified; he did not omit the delayed disclosure language. The jury are presumed to follow all instructions, not just those contained in the final charge. Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Accordingly, even if error, the instructions did not create a substantial risk of a miscarriage of justice.

c. Specific unanimity. A specific unanimity instruction is required if there are separate events or episodes and jurors could otherwise disagree about which act a defendant committed and still convict him of the crime charged. Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904 (1995). Although the defendant did not request such an instruction, and did not object to the lack of one, any error did not amount to a substantial risk of a miscarriage of justice. It is unlikely that the jury verdict would have been different had an instruction been given, particularly in view of the acquittal of the defendant on one indictment. Commonwealth v. Comtois, 399 Mass. 668, 677 (1987). Furthermore, even if the absence of the instruction was error, we discern no substantial risk of a miscarriage of justice where evidence against the defendant on the indictments for aggravated rape was otherwise “sufficient to meet the statutory elements and withstand a directed verdict motion.” Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005).

5. Closing argument. The defendant contends that the prosecutor's closing argument misstated the evidence, misled the jury, and shifted the burden of proof.⁷ Because he did not object at trial, we review to determine if any error created a substantial risk of a miscarriage of justice. Alphas, 430 Mass. at 13. See Commonwealth v. Johnson, 463 Mass. 95, 112-113 (2012).

Here, the defense was that the victim consented to the sexual acts, and that the defendant was too intoxicated to determine whether the victim had consented. See generally Commonwealth v. Mountry, 463 Mass. 80, 92 (2012). He argues that the prosecutor misled the jury because there was testimony from other witnesses about how much alcohol the defendant drank that night. As a result, he claims that the prosecutor insinuated that the defendant should have come up with more evidence in support of his intoxication defense. The challenged statements came close to the line of permissible advocacy, and were better left unsaid. Despite this, and viewing the closing argument as a whole in light of the judge's instructions to the jury on how to consider the defendant's claims of intoxication, and the strength of the Commonwealth's case, Commonwealth v. Philbrook, 475 Mass. 20, 28 (2016), the challenged statements did not create a substantial risk of a miscarriage of justice.

6. Motion to continue. Shortly before trial, the four codefendants' cases were severed at the defendant's renewed request. As a result, the defendant requested at least a thirty-day continuance, contending that severance changed the posture of his defense. We review the denial of the motion for abuse of discretion. Commonwealth v. Cavanaugh, 371 Mass. 46, 50-51 (1976). See Commonwealth v. Melo, 472 Mass. 278, 304 (2015); Mass. R. Crim. P. 10 (a), 378 Mass. 861 (1979) (continuance shall be granted “only when based upon cause and only when necessary to insure that the interests of justice are served”).

The judge found that the defendant's strategy may have changed in some respects, but that severance did not impact his central defenses of consent and intoxication, and severance similarly impacted the prosecution. Notwithstanding, the judge found that the posture of the case was not changed so significantly that any additional work could not be reasonably concluded within two weeks. He noted that counsel was experienced and had represented the defendant for twenty-seven months. On this record, the denial of the motion to continue was not an abuse of discretion.

Judgments affirmed.

FOOTNOTES

2.   The defendant was found not guilty of one count of aggravated rape (oral).

3.   The defendant does not challenge the motion judge's finding that he was not in custody and therefore not subject to custodial interrogation pursuant to Miranda v. Arizona, 384 U.S. 435 (1966). The defendant does claim that the seizure of his cellular telephone should have been suppressed as a fruit of the poisonous tree from the involuntary statement.

4.   That the detectives were of a different race than the defendant, without more, does not support a claim of coercion.

5.   One detective mentioned the defendant's family and urged him to tell the truth. This did not render the defendant's statements involuntary. Commonwealth v. Tolan, 453 Mass. 634, 643 (2009).

6.   Juror no. 51 and Juror no. 3.

7.   The prosecutor argued during closing arguments that there was “zero evidence” other than the defendant's “own word” that he was so intoxicated that he could not have reasonably known that the victim did not consent to the sexual acts; that there was only one “side” about the victim's condition on the night of the assault while the other “side” consisted solely of the defendant's testimony; and that the defendant was asking for a “free pass” to rape the victim because she did not say anything and the defendant was drunk.