COMMONWEALTH v. WRAY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Peter Wray, was tried in the Superior Court, jury waived, on seventeen indictments arising out of the brutal and prolonged sexual assault of two victims, B.P. and C.C.² Seven of the indictments charged the defendant with aggravated rape, G. L. c. 265, § 22 (a); two charged aggravated kidnapping, G. L. c. 265, § 26; six charged assault and battery by means of a dangerous weapon (ABDW), G. L. c. 265, § 15A (b); and two charged assault and battery, G. L. c. 265, § 13A. The judge found the defendant guilty on all indictments except three of the seven charges of aggravated rape. The defendant subsequently filed a motion for a new trial based on the Commonwealth's withholding of a State Police report regarding the results of a forensic analysis of the kitchen knife that was introduced as an exhibit at trial. The trial judge having retired, a different judge denied the motion without an evidentiary hearing. This is the defendant's consolidated appeal from the judgments and from the order denying his new trial motion.³ We affirm all but two of the judgments (on two of the ABDW convictions), which we vacate as duplicative of the aggravated rape convictions.

Discussion. 1. Failure to disclose exculpatory evidence. The defendant argues that the motion judge erred in denying his motion for a new trial based on the Commonwealth's withholding of a “key piece of exculpatory evidence”: a February 2015 criminalistics report conducted on the kitchen knife, concluding that the single palm print on the blade did not match that of the defendant.

“In reviewing the denial of a motion for a new trial, we ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ ” Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). “Judges are to apply the standard set out in Mass. R. Crim. P. 30 (b)[, 378 Mass. 900 (1979),] rigorously,” and “grant such a motion only if it appears that justice may not have been done” (quotations and citations omitted). Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).

“To obtain a new trial on the basis of nondisclosed exculpatory evidence, a defendant must establish (1) that ‘the evidence [was] in the possession, custody, or control of the prosecutor or a person subject to the prosecutor's control’; (2) ‘that the evidence is exculpatory’; and (3) ‘prejudice.’ ” Sullivan, 478 Mass. at 380, quoting Commonwealth v. Murray, 461 Mass. 10, 19, 21 (2011). “Evidence is exculpatory if it ‘provides some significant aid to the defendant's case, whether it furnishes corroboration of the defendant's story, calls into question a material, although not indispensable, element of the prosecution's version of the events, or challenges the credibility of a key prosecution witness.’ ” Commonwealth v. Watkins, 473 Mass. 222, 231 (2015), quoting Commonwealth v. Daniels, 445 Mass. 392, 401-402 (2005). The prosecution has the duty to seek out and provide exculpatory evidence in the possession of the prosecution team. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police”); Commonwealth v. Beal, 429 Mass. 530, 531-532 (1999).

We need not determine whether, in the circumstances of this case, the report was “exculpatory as to this defendant.” Commonwealth v. Laguer 448 Mass. 585, 595 (2007). Even assuming it was exculpatory, the Commonwealth's failure to produce it was not prejudicial. See Murray, 461 Mass. at 20-21 (“after showing that the withheld evidence was potentially exculpatory, a defendant seeking a new trial must establish prejudice”).

Where “the prosecution fails to turn over exculpatory evidence for which a specific request has been made, ‘the reviewing judge must set aside the [guilty finding] and judgment unless his “conviction is sure that the error did not influence the [fact finder], or had but very slight effect.” ’ ” Commonwealth v. Lykus, 451 Mass. 310, 326 (2008), quoting Commonwealth v. Ellison, 376 Mass. 1, 24-25 (1978). “Where, as here, the motion judge was not the trial judge, and where there was no evidentiary hearing, we are in ‘as good a position as the motion judge to assess the trial record.’ ” Sullivan, 478 Mass. at 380, quoting Commonwealth v. Phinney, 446 Mass. 155, 158 (2006).

Based on the evidence and arguments before the judge, we are confident that the withholding of the report did not affect the outcome of the trial. The absence of any forensic evidence connecting the defendant to the knife was established, and fully exploited by defense counsel, at trial. On cross-examination by defense counsel, the two lead investigating officers stated that the knife was sent to the State Police for fingerprint and DNA analysis, but they were unaware of any forensic testing results linking the defendant to the knife. The inadequacy of the investigation was the first point defense counsel made in closing argument. He also emphasized the absence of the defendant's fingerprints or DNA on the knife. The prosecutor acknowledged the absence of the defendant's fingerprints on the knife, but argued that since the defendant was a regular visitor to the apartment where the assaults occurred, his fingerprints on a kitchen knife would not have been particularly probative. See Laguer, 448 Mass. at 599-600 (undisclosed fingerprint report not prejudicial where there was “powerful evidence that connected the defendant to the crime” and inadequacy of police investigation was explored at trial). Similarly, the presence of an unknown person's palm print would not have made any difference. The defense was not mistaken identity, or that someone else attacked the victims with a knife; the defense was that the defendant and the victims engaged in consensual sex.

Moreover, the trial judge heard and saw substantial evidence -- in addition to the victims' testimony -- that they had been lacerated by a knife, including the hospital records, photographs of the victims' injuries, testimony from the nurses who examined the victims, and testimony from the first complainant witness. In short, we conclude, as did the motion judge, that there is no “reasonable possibility that the nondisclosed evidence would have made a difference.” Laguer, 448 Mass. at 594.

2. Ineffective assistance of counsel. Faulting his trial counsel's failure to move for a mistrial or to strike C.C.'s testimony on the ground of impermissible coaching, the defendant claims that he was deprived of his constitutional right to effective assistance of counsel. The defendant failed to raise this claim in his motion for new trial. “[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). A “claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction [only] when the factual basis of the claim appears indisputably on the trial record.” Id., quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). The defendant's direct appeal does not fall into this limited exception.

At trial, a man appeared to be coaching C.C. while she testified. The second time this occurred, the trial judge stopped the proceedings, asked the man to stand and identify himself, and, learning he was C.C.'s father, warned him that if he continued “trying to communicate with this witness in my courtroom during this trial,” he would be asked to leave. From what appears on the record, the father's coaching was not pervasive or prejudicial, and the judge acted appropriately. The records before us provide no basis whatsoever to conclude that the coaching was significant, or that it would have been an abuse of discretion for the judge to deny a motion for a mistrial.

3. Evidence of serious bodily injury. With respect to the ABDW charges, the defendant argues that the Commonwealth failed to prove that he used the knife in a manner likely to cause “serious bodily injury” as defined in G. L. c. 265, § 15A (d). There is no such requirement. The defendant was charged and convicted under § 15A (b), which carries a maximum sentence of ten years imprisonment and does not require proof of serious bodily injury. He was not charged under § 15A (c) (i), a more serious offense, which carries a maximum sentence of fifteen years upon proof of the infliction of serious bodily injury as defined in the statute.

The indictments charged that the defendant used the kitchen knife as a dangerous weapon. “The essential question, when an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm.” Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984). See Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001); Commonwealth v. Appleby, 380 Mass. 296, 304-307 (1980). It was not necessary for the judge to find that the defendant's use of the knife created a risk of permanent disfigurement, loss of bodily function, organ failure, or death. The knife, as used here to threaten the victims and cut them all over their bodies, was capable of inflicting serious bodily harm. The evidence was sufficient for the judge to find that it was used as a dangerous weapon.

4. Duplicative convictions. The defendant contends that he is entitled to dismissal of four of his six convictions of ABDW because he engaged in only one continuous assaultive criminal act with respect to each victim. He also claims that with respect to each victim, one conviction of ABDW should be dismissed as duplicative because it served as the predicate offense for his aggravated rape convictions.

a. Distinct assaults and batteries. In a footnote in its brief, the Commonwealth concedes that two of the convictions were improper because the defendant committed “only a total of four distinct assault and batteries upon C.C. and B.P.” Contradicting its concession, however, the Commonwealth then argues that the defendant committed three distinct batteries upon C.C. -- first cutting her stomach while the two were in the kitchen (indictment number 10), and then cutting her on her thighs and legs (indictment number 11) and on her breasts (indictment number 12) while he raped her -- and three distinct batteries upon B.P. -- first placing the knife on her face and throat when he woke her (indictment number 15), and then “smack[ing]” her on the cheek (indictment number 13) and cutting her thigh (indictment number 14) while he raped her.

Convictions may be duplicative where the acts underlying the offense are “part of a continuous stream of conduct occurring within a short time frame and governed by a single criminal design.” Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003), overruled on other grounds byCommonwealth v. Kelly, 470 Mass. 682, 700-701 (2015). Whether the defendant's acts are separate and distinct is a question for the finder of fact. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). See also Kelly, 470 Mass. at 699, quoting Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753-754 (2008) (“Convictions of two cognate offenses will be sustained ‘where the judge instructs the jury explicitly that they must find separate and distinct acts underlying the different charges’ ”).

The defendant raises his claim that the three batteries upon each victim were not separate and distinct for the first time on appeal. “In the circumstances, we review the claim only to determine if a substantial risk of a miscarriage of justice occurred.” Commonwealth v. Mamay, 407 Mass. 412, 418 (1990). See Kelly, 470 Mass. at 699. In addition, because the case was tried without a jury, we operate under the presumption that the judge properly instructed herself on the law. See Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000). In this posture, notwithstanding the Commonwealth's concession, we discern no substantial risk of a miscarriage of justice arising from the judge's determination that the acts of cutting the victims at different times on different parts of the body were sufficiently distinct to support separate convictions. See Mamay, 407 Mass. at 418 (successive penetration of rectum and vagina in short time frame sufficiently distinct acts to support two rape convictions); Commonwealth v. Vega, 36 Mass. App. Ct. 635, 641 (1994) (“The realities of the multiple attacks on the victim[s] warranted -- although they did not require -- multiple indictments and consecutive sentences”).

b. Predicate offenses. We agree with the defendant that, with respect to each victim, one of the convictions for ABDW must be vacated as wholly included in, and duplicative of, the aggravate rape convictions. “A conviction of aggravated rape under G. L. c. 265, § 22 (a), requires that the rape be aggravated by serious bodily injury, or being committed by a joint enterprise, or being ‘committed during the commission or attempted commission’ of a specified aggravating offense.” Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 172 (2018). Relevant to this case, the specified aggravated offenses include ABDW, G. L. c. 265, § 15A, and kidnapping, G. L. c. 265, § 26. See G. L. c. 265, § 22 (a).

For each victim, any one of these charges -- as to C.C., any of indictment numbers eight, eleven, or twelve; as to B.P., any of indictment numbers nine, thirteen, or fourteen -- could serve as the predicate offense for all of the aggravated rape convictions. See Gilbert, 94 Mass. App. Ct. at 173-174 (single aggravating factor may support multiple convictions under G. L. c. 265, § 22). Although “[c]onvictions of aggravated rape and of a charged predicate crime may stand so long as there are aggravating factors beyond the charged predicate offense,” id. at 174, the Commonwealth did not present evidence of any uncharged conduct that could have served as the predicate offense. Accordingly, for each victim, one of the predicate ABDW convictions was wholly included in the aggravated rape convictions and must be vacated as duplicative. See id. at 174-175; Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 632 n.1 (2003).

Conclusion. On indictment numbers eleven and fourteen charging ABDW, the judgments are vacated, the findings are set aside, and the indictments are to be dismissed. The remaining judgments are affirmed, as is the order denying the motion for new trial.

So ordered.

FOOTNOTES

2.   We refer to the victims by their initials. See G. L. c. 265, § 24C.

3.   This case was originally scheduled for oral argument on April 2, 2020, but in light of public health concerns arising from the coronavirus/COVID-19 pandemic and the state of emergency declared by the Governor, this court ordered that all cases scheduled for oral argument during the month of April would be deemed submitted on the briefs without oral argument. We acknowledge the supplemental memorandum filed by the defendant on April 13, 2020, in lieu of oral argument.