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COMMONWEALTH v. COWART (2021)

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Appeals Court of Massachusetts.

COMMONWEALTH v. Patrick COWART.

20-P-375

Decided: March 12, 2021

By the Court (Vuono, Sacks & Hand, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction, after a Superior Court jury trial, of a single count of rape, G. L. c. 265, § 22 (b). The defendant and the victim, whom we shall refer to by the pseudonym Zoe, attended the same high school and were observed having sexual intercourse at about 1 p.m. on a school day in a wooded area near the school. The Commonwealth's theory was that because Zoe was under the influence of alcohol and other substances, she lacked the capacity to consent to intercourse, and the defendant knew or should have known of that incapability. On appeal, the defendant argues that the evidence did not warrant the instruction to the jury to consider Zoe's capacity to consent and that the evidence was insufficient to support the guilty verdict. The defendant also argues that various errors in the admission of evidence and in the Commonwealth's closing argument entitle him to new trial. There was no objection to these claimed errors and therefore our review is limited to whether any error created a substantial risk of a miscarriage of justice. We affirm the judgment.

1. Victim's capacity to consent. The defendant's first two arguments are closely related and we consider them together. These are that the evidence did not warrant a jury instruction on Zoe's capacity to consent and that the evidence was insufficient to prove beyond a reasonable doubt that Zoe was incapable of consenting and that the defendant knew or should have known that Zoe's condition rendered her incapable of consent.

a. Governing law. Rape requires proof of penetration “against [the victim's] will,” which is synonymous with lack of consent. Commonwealth v. Blache, 450 Mass. 583, 589 (2008), quoting Commonwealth v. Burke, 105 Mass. 376, 380 (1870). Lack of consent may be proven by showing that “as a result of the complainant's consumption of drugs, alcohol, or both, she was unable to give or refuse consent.” Blache, supra at 590. “[A]n instruction concerning capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse.” Id. at 591-592. Where the Commonwealth proceeds on such a theory, “the Commonwealth must [also] prove that the defendant knew or reasonably should have known that the complainant's condition rendered her incapable of consenting to the sexual act.” Id. at 594.

b. The evidence. We recount, in the light most favorable to the Commonwealth, the evidence of Zoe's incapacity and the defendant's knowledge of Zoe's incapacity. A teacher, Nicole McCormack, testified that while Zoe was in a classroom between 8 a.m. and 10 a.m. that morning, Zoe “didn't seem like herself”; “something was off.” She fumbled with and dropped a computer; when leaving to go to the bathroom, she “went through the wrong door and then seemed very confused as to what door she had just gone out of and what she was walking into”; and, although usually a careful student, she was making notes that had nothing to do with the test she was taking and made no sense. McCormack thought Zoe “potentially was under the influence of something” but did not know what.

When Zoe arrived at her next class, a fellow student, A.B.,2 observed that Zoe -- who was “very athletic,” strong, and ordinarily walked with “perfect balance,” -- was on this occasion “a bit clumsy,” “looked very dazed,” and “her eyes were red.” She was “nodding off throughout class” and at one point “banged her head on the table.” A.B. thought that Zoe was “under the influence of something” but did not know what.

After that class, at about 11 a.m., Zoe met her friend C.C. for their lunch period. They went to the nearby home of one of C.C.’s friends, where Zoe drank “more than half” of a 750 milliliter bottle of vodka, “chugging” it with only a few breaks. C.C. observed Zoe to be “very aggressive,” “slurring her words,” “tumbling,” and “stumbling”; she was “very fidgety, hyper, excited,” and “was doing very impulsive things, like running around the yard for no reason.” When Zoe left at about 1 p.m., she was unable to hold her jacket and bag and “couldn't walk straight.” C.C. believed that Zoe was under the influence of alcohol.

Another student, C.M., testified that during his lunch period, he and the defendant were in a wooded area near the school known as “the bridge.” C.M. saw Zoe running down a hill toward the bridge area, stumbling and imbalanced, and “look[ing] a little not there.” Zoe said that “Indians” were chasing her and that the sky was purple, but C.M. observed that no one was chasing Zoe and the sky was blue and cloudy. Zoe fell, and pill boxes and pills came out of her backpack, along with a bottle of Brisk that also contained alcohol. C.M. and the defendant picked Zoe up and helped her to a nearby log to sit down. Zoe seemed “high,” could not keep her eyes open, and continued to talk about Indians chasing her.

Shortly thereafter, A.B. was walking nearby when she observed the defendant and Zoe having sex, with Zoe on top, straddling the defendant. A.B. began talking to C.M. When A.B. looked again, she saw that Zoe was now on the ground, face down, and the defendant was behind her. Zoe “didn't seem to be ․ in control”; the defendant “was dominating the situation.” C.M. likewise observed Zoe face down in the dirt while the defendant had intercourse with her from behind; Zoe's eyes were shut and she seemed “limp” and “unresponsive.” At this point, some school staff members approached, and all but Zoe fled. As A.B. ran away she observed that Zoe's expression was “very blank.” A.B. believed that Zoe “was still intoxicated.”

Soon after, a school social worker, Amy Johnson, saw Zoe sit up from behind a log. Zoe was not wearing any pants and was unable to stay upright; she kept flopping over, sitting up, and flopping over again. She was “not responsive”; she “didn't appear to really know who [Johnson] was or what was going on.” Her eyes were “glossy” and not focusing. Johnson believed that Zoe was “very much under the influence” of alcohol.

Zoe began to run away up the nearby hill. As she reached the top, she stumbled and fell, began to roll down the other side, stood up again and then fell and rolled again. Eventually she ran into a swamp. Police were summoned and removed her from the swamp; she was “speaking gibberish” and was taken to a hospital. Records from the hospital, introduced at trial, indicated that she had “alcohol poisoning” and was “clinically intoxicated.”

In the meantime, after fleeing the bridge area, the defendant removed his gray sweatshirt and placed it in a backpack. As he walked through a nearby neighborhood with A.B. and C.M., a police cruiser drove by, and the officer asked the group if they had seen anyone in certain colored sweatshirts. The defendant and C.M. answered in the negative.

Later that day, in conversations with police officers, the defendant admitted having intercourse with Zoe. He stated that Zoe had seemed “confused” and “like she was probably messed on drugs” but that she was the one to suggest that they have sex.

c. Basis for the instruction. The foregoing evidence would plainly “support a finding that because of the consumption of drugs or alcohol ․ the complainant was so impaired as to be incapable of consenting to intercourse.” Blache, 450 Mass. at 591-592. Six witnesses described their observations of Zoe's impaired behavior, speech, and affect before, during, and shortly after the rape. C.C. saw Zoe drink more than half of a bottle of vodka in the two hours immediately beforehand. C.C. and the social worker, Johnson, believed that Zoe was under the influence of alcohol -- in Johnson's words, “very much under the influence.” A.B., too, believed that Zoe was “intoxicated,” and the medical records, which we discuss in more detail later, state that Zoe was diagnosed with “alcohol poisoning,” further demonstrating that she had consumed some significant amount of alcohol. Accordingly, the judge properly gave an instruction tracking the language approved in Blache, including the requirement that the Commonwealth prove beyond a reasonable doubt that the defendant knew or reasonably should have known that Zoe's condition rendered her incapable of consenting. Id. at 595 n.19.

d. Sufficiency of the evidence. We review the evidence to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard, the evidence discussed above was sufficient for the jury to find that Zoe was incapable of consenting.

There was also sufficient evidence that the defendant knew or should have known of Zoe's incapacity. The jury could reasonably infer that the defendant, who was with C.M. when Zoe came running down the hill toward the bridge, saw the same indicia of impairment as C.M. did, including Zoe's stumbling and lack of balance, her statements that Indians were chasing her and the sky was purple, and her seeming to be “high.” The jury could likewise infer that the defendant could see, just as A.B. did, that when the defendant was penetrating Zoe from behind, she was limp and unresponsive. The jury could also consider the defendant's admissions to police that Zoe seemed “confused” and “like she was probably messed on drugs.” Finally, the jury could consider the defendant's statements to C.M., one week earlier, that he would “love to fuck the shit out of [Zoe],” and that C.M. should “just watch” because the defendant was “gonna do it,” as indicating that the defendant was determined to seize any opportunity to achieve his desire, with little regard for whether Zoe was capable of consenting.

The defendant's primary argument on appeal is that the evidence of Zoe's incapacity was not as strong as that found sufficient in other cases. This argument is unavailing. The issue is whether the evidence here met the Latimore standard, not whether it was as strong as in other cases.3

To whatever extent the jury was required to find Zoe's intoxication to be “extreme”4 -- a question we do not decide -- the evidence here was sufficient to support such a finding. That evidence included Zoe's consumption of more than half a bottle of vodka and Johnson's description of Zoe as “very much under the influence.”

2. Admissibility of prior consistent statement. On direct examination, C.C. was shown a vodka bottle, similar to the one from which she saw Zoe drinking, and was asked to draw lines on the bottle to illustrate how much vodka had been in the bottle before and after Zoe drank from it. During cross-examination, defense counsel referred to C.C. as having testified that Zoe drank “from here to here.” The judge then asked, “For the record, how much of the bottle is that,” and C.C. answered, “[M]ore than half of the bottle.” Counsel then impeached C.C. with her testimony from a prior proceeding that Zoe had consumed one-fourth of the bottle. On redirect, the prosecutor elicited testimony that C.C. had also previously stated that Zoe had consumed one-half of the bottle. The defendant did not object, but he now claims that the admission of this prior consistent statement was error, creating a substantial risk of a miscarriage of justice.

A prior consistent statement is admissible only when the witness's “trial testimony is impeached by a claim that the witness has recently fabricated her account” and only when the prior consistent statement was “made before the witness had incentive to fabricate.” Commonwealth v. Tennison, 440 Mass. 553, 563 (2003). Before admitting a prior consistent statement, the trial judge must make a preliminary finding, outside the presence of the jury, “(1) that the witness's in-court testimony is claimed to be the result of a recent fabrication or contrivance, improper influence or motive, or bias; and (2) that the prior consistent statement was made before the witness had a motive to fabricate, before the improper influence or motive arose, or before the occurrence of the event indicating a bias.” Commonwealth v. Caruso, 476 Mass. 275, 284 (2017). The prior consistent statement is admitted for “the limited purpose of rebutting the claim of recent fabrication.” Tennison, supra.

We agree with the defendant that admission of the prior consistent statement was error. Although defense counsel impeached C.C. with various inconsistences between her testimony on direct examination and her prior testimony, more is required before a prior consistent statement may be admitted. See Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 482 (2004). There must also be a claim of recent fabrication by, or other improper influence on, the witness. See id. But the judge made no finding of such a claim as to C.C.’s testimony, cf. Caruso, 476 Mass. at 284, nor do we see such a claim in defense counsel's cross-examination of C.C.

Nevertheless, the error did not create a substantial risk of a miscarriage of justice. That is, we do not have “a serious doubt whether the result of the trial might have been different had the error not been made.”5 Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). There was considerable additional strong evidence -- including C.C.’s properly-admitted testimony on direct examination -- that Zoe was severely intoxicated. Moreover, in her final instructions, the judge correctly informed the jury that they could not consider any prior consistent statements unless there had been a suggestion that a witness had recently contrived his or her testimony.6 The jury are presumed to have followed the judge's instructions. See Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013).

Finally, the Commonwealth's case was a strong one. In addition to the evidence already discussed, there was evidence the jury could have viewed as showing the defendant's consciousness of guilt -- specifically, his flight from the scene, and his taking off and concealing his sweatshirt before an officer drove by and asked if the defendant had seen anyone wearing a sweatshirt of a particular color.

3. Admissibility of lay opinion testimony. The defendant argues that a substantial risk of a miscarriage of justice resulted from three Commonwealth witnesses testifying, each in a different way, that they believed Zoe was under the influence of something on the day in question, without specifying what that “something” was. The defendant acknowledges Commonwealth v. Canty, 466 Mass. 535 (2013), in which the Supreme Judicial Court held that, because the symptoms of alcohol consumption are so well known, a lay witness may testify to his or her opinion that a person was under the influence of alcohol, including the level of intoxication. Id. at 542, 544. As to substances such as marijuana, however, “[a] lay witness may testify concerning a [person's] observable appearance, behavior, and demeanor, but may not offer an opinion as to the [person's] sobriety or intoxication.” Commonwealth v. Gerhardt, 477 Mass. 775, 786 (2017). See Commonwealth v. Sherman, 481 Mass. 464, 477 (2019) (in case involving cocaine, “[w]here there is a lack of reliable general knowledge regarding the relevant effects of a drug, expert testimony is required to show that connection”). The defendant argues that under Gerhardt and Sherman, the three opinions at issue here, each of which raised to varying degrees the possibility that Zoe was under the influence of some drug, should not have been admitted.

At the outset we note that none of the three witnesses opined that Zoe was under the influence of any particular drug. McCormack, the teacher, testified that based on her observations, Zoe “potentially was under the influence of something. What, I didn't know.” Similarly, A.B. testified that when she had seen Zoe in class in the morning, she believed that Zoe was “under the influence of something” but A.B. did not know what.7 When A.B. later saw Zoe at the bridge, she believed that Zoe “was still intoxicated.” The third witness, C.M., testified that, based on his observations, Zoe appeared “high” on something other than alcohol, but he offered no opinion as to what that might be.

Gerhardt and Sherman do not clearly indicate that it is impermissible for lay witnesses to testify in this manner. A lay opinion that a person's appearance, behavior, and demeanor suggests that the person is under the influence of some unknown substance would not appear to require the same sort of “reliable ․ knowledge regarding the relevant effects of a [particular] drug,” such as cocaine or marijuana, that only an expert witness can provide. Sherman, 481 Mass. at 477 (effects of cocaine). See Gerhardt, 477 Mass. at 786 (effects of marijuana).

We need not decide whether the admission of the testimony challenged here was error, however, because even if it were, it did not create a substantial risk of a miscarriage of justice. The three witnesses’ testimony about their observations of Zoe's appearance, behavior, and demeanor was unquestionably admissible. The jury would have considered those observations as relevant to Zoe's capacity to consent, even if the witnesses had not gone further and opined, based on their observations, that Zoe was under the influence of something. Moreover, there was powerful and essentially uncontradicted evidence that Zoe was under the influence of alcohol, as well as evidence of the defendant's consciousness of guilt. Therefore, we are not left with any “serious doubt whether the result of the trial might have been different had the [claimed] error not been made.” LeFave, 430 Mass. at 174.

4. Admissibility of notations in medical records. The defendant asserts a substantial risk of a miscarriage of justice arising from the admission in evidence of hospital records stating that Zoe had “alcohol poisoning” and was “clinically intoxicated.” The defendant argues that these notations, without any accompanying expert testimony, “left unanswered so many crucial questions that, by themselves, they lacked probative value.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 448 (1996), overruled on other grounds, Commonwealth v. King, 445 Mass. 217, 235, 242-243 (2005), cert. denied, 546 U.S. 1216 (2006). At oral argument, the defendant made clear that his claim is not that the notations were substantially more prejudicial than probative, see Mass. G. Evid. § 403 (2020), but that they were not relevant at all.

We are unpersuaded. The notations tended to show that even when she arrived at the hospital after the rape, Zoe had an amount of alcohol in her system that was of sufficient medical importance to note in the record. This was relevant to proving a critical fact in the case: that Zoe was impaired at the time of the rape. See Mass. G. Evid. § 401 (2020) (“Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action”). That the jury was not informed about the precise significance of the terms “poisoning” and “clinically” in the notations did not make them inadmissible on relevance grounds.8

5. Admissibility of A.B.’s opinion. Without objection, A.B. testified that when she saw the defendant and Zoe, she thought that they were just having sex, but she later realized that “it wasn't just sex.” She did not explain what she meant by this statement. The defendant now argues that this testimony was inadmissible because it came too close to expressing an opinion that the defendant had raped Zoe. He relies on the principle that “where an opinion comes close to an opinion on the ultimate issue of guilt or innocence, the probative value of the opinion must be weighed against the danger of unfair prejudice.” Canty, 466 Mass. at 543-544. The defendant suggests that such a weighing here should have led to exclusion of the testimony and that its admission created a substantial risk of a miscarriage of justice.

The meaning of A.B.’s testimony, “it wasn't just sex,” is unclear. The jury might have understood it to refer to A.B.’s description of how Zoe's interaction with the defendant unfolded. A.B. initially saw Zoe on top of the defendant, straddling him -- but once she saw Zoe on the ground face down, with the defendant behind her, A.B. thought that Zoe “just didn't seem to be in control ․ it was more [the defendant] was dominating the situation.” Even if the jury understood the “it wasn't just sex” testimony in this way, however, it is doubtful whether the testimony had much probative value. And there was a risk that the jury might have understood it as implying A.B.’s opinion that what she witnessed was a rape -- an opinion that would have been unfairly prejudicial.

Even if admission of the testimony was error, however, it did not create a substantial risk of a miscarriage of justice. As we have discussed, the Commonwealth's case was otherwise strong. Although the Commonwealth mentioned A.B.’s remark in its closing argument, the Commonwealth also mentioned the testimony of numerous other witnesses showing that Zoe was impaired and that the defendant not only should have known, but also actually knew, of her impairment. We are persuaded that any error in the admission of A.B.’s remark “did not ‘materially influence[ ]’ the guilty verdict.” Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

6. Closing argument. Finally, the defendant asserts that the prosecutor misstated the evidence in her closing argument, thereby creating a substantial risk of a miscarriage of justice. We see no error and therefore no such risk.

First, the defendant points to a portion of the argument in which the prosecutor, after summarizing C.M.’s observations of Zoe's appearance, behavior, demeanor, and statements, stated that C.M. “knew immediately that [Zoe] was extremely impaired.” In the same vein, after summarizing other evidence, the prosecutor stated, “Everyone who saw [Zoe] that day could tell, obviously, that she was extremely impaired.” The defendant takes issue with the word “extremely,” noting that no witness had used that precise word. But the prosecutor was not purporting to quote any witness; she was asking the jury to draw a permissible inference from the evidence. That evidence included C.C.’s having seen Zoe drink more than half of a bottle of vodka, and Johnson's opinion that Zoe was “very much under the influence” of alcohol. “[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole” are not impermissible.9 Commonwealth v. Costa, 414 Mass. 618, 629 (1993).

Second, the defendant points to the prosecutor's statement paraphrasing the defendant as having told a police officer that Zoe “was messed up. And then [the defendant] went on to describe how he knew she was messed up.” This was a permissible paraphrase of the officer's testimony, which described the defendant's statement as follows: “He said that she seemed like she was probably messed on drugs. He went on to state something to the effect of that when she drinks a lot, she talks a lot. When she is on drugs, she doesn't talk a lot. And she seemed to be somewhat quiet.” The prosecutor did not purport to quote the testimony and in these circumstances was not required to include the word “probably” in her paraphrase. See Commonwealth v. Evans, 439 Mass. 184, 194, cert. denied, 540 U.S. 923, 540 U.S. 973 (2003) (not improper for closing argument to paraphrase witness testimony). There was no error.

Judgment affirmed.

FOOTNOTES

2.   We use initials to identify the students who testified at trial.

3.   The defendant also points to evidence showing, in his view, that on the day in question, Zoe was “quite capable” of activities such as running, finding her way from place to place, and straddling the defendant and moving up and down on him, and thus “perfectly capable of consenting.” But we are required to view the evidence in the light most favorable to the Commonwealth, not the light most favorable to the defendant. See Latimore, 378 Mass. at 677.

4.   The Blache court noted that the standard for incapacity it approved -- “so impaired as to be incapable of consenting” -- is “intended to communicate to the jury that intoxication must be extreme before it can render a complainant incapable of consenting to intercourse.” Blache, 450 Mass. at 592 n.14. The court did not, however, include the word “extreme” in the model instruction it approved. Id. at 595 n.19. In the case before us, the jury were instructed that the Commonwealth must prove “extreme intoxication.”

5.   “In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error,’ and whether it can be inferred ‘from the record that counsel's failure to object was not simply a reasonable tactical decision.’ ” Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).

6.   The judge added, correctly, that even if there had been such a suggestion, the prior consistent statement could be considered only as bearing on the credibility of the witness's current testimony and not as proof of any fact asserted in the prior statement.

7.   Defense counsel elicited this same testimony on cross-examination of A.B.

8.   Even if the notations were erroneously admitted, they created no substantial risk of a miscarriage of justice in light of the strength of the other evidence that Zoe was incapable of consenting to sex that day. In addition, defense counsel's closing argument stressed that “alcohol poisoning” and other terms in the medical records had not been explained by any live testimony or any tests showing a particular alcohol level.

9.   “Any adverse impact, were it to exist, resulting from the summation would have been cured by the judge's charge to the jury. The judge told the jury that closing arguments were not evidence and called upon the jury to decide the case based on the evidence.” Commonwealth v. Costa, 414 Mass. 618, 629 (1993). The judge here gave these instructions.

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