COMMONWEALTH v. MCNEIL (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from his conviction of rape, see G. L. c. 265, § 22 (b), the defendant claims that (1) the evidence was insufficient to support his conviction, (2) the trial judge improperly excluded certain out-of-court statements he made to police, and (3) Black citizens were unconstitutionally underrepresented in the jury venire. We discern in the defendant's claims of error no cause to disturb the judgment, and affirm.

1. Sufficiency of evidence. The evidence at trial, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that the defendant raped the victim. The defendant contends that his conviction cannot stand because the Commonwealth failed to prove that he used force or the threat of force to compel the victim's submission. However, “where the complainant is wholly insensible so as to be incapable of consenting ․ the only force required for proof of the crime is such force as was necessary ․ to effect penetration” (quotation and citation omitted). Commonwealth v. Blache, 450 Mass. 583, 589 (2008). In this case, to establish the element of force the Commonwealth was required to prove only that the defendant used such force as necessary to effect oral penetration on the victim while she slept with her mouth open.

The victim testified that the defendant's penis was in her mouth when she awoke.² In addition, she testified that the defendant's penis scraped against her cheek, that she felt a wetness, and that she saw him with his pants down and his penis erect. Viewing the evidence in the light most favorable to the Commonwealth, a rational jury could have found that the defendant orally raped the victim while she was asleep.

2. Exclusion of hearsay. The trial judge properly excluded the defendant's hearsay statements denying the crime during his interviews with Detective Miceli.³ We review the claim of error for abuse of discretion. See Commonwealth v. Crayton, 470 Mass. 228, 248 (2014). “The defendant's statement, when offered by the defendant to prove the truth of the statement's contents, is inadmissible hearsay.” Commonwealth v. Eugene, 438 Mass. 343, 350 (2003). See Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). While the doctrine of verbal completeness provides an exception to this rule, it applies only “[w]hen a party introduces a portion of a statement or writing in evidence.” Crayton, supra at 246. Here, the doctrine was inapplicable because Detective Miceli did not testify at all to the content of the interrogations, including any of the defendant's other statements. As the defendant raised no other basis at trial to admit his hearsay statements, the trial judge properly excluded them.⁴

3. Jury venire composition. While we fully recognize that “the selection of a petit jury from a representative cross section of the community is an essential component of the ․ right to a jury trial,” Commonwealth v. Arriaga, 438 Mass. 556, 561 (2003), quoting Taylor v. Louisiana, 419 U.S. 522, 528 (1975), the defendant fails to make a prima facie case of jury underrepresentation.⁵ “To establish a prima facie case of unconstitutional jury selection under the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, the defendant must show that (1) the group allegedly discriminated against is a ‘distinctive group’ in the community, (2) that the group is not fairly and reasonably represented in the venires in relation to its proportion of the community, and (3) that underrepresentation is due to systematic exclusion of the group in the jury selection process.” Arriaga, supra at 562-563. The defendant fails to satisfy the second and third elements. To support his claim, the defendant relies solely on a visual observation of a single venire and statements of the trial judge and the Commonwealth's counsel that the racial composition was unlikely to change in a different venire. Such evidence, unaccompanied by an analysis of a “statistically significant sample” of past jury venires, is insufficient to establish underrepresentation. Id. at 564.⁶ While the defendant asserts that conducting a statistical analysis would be too burdensome, he offers no evidence to support that assertion. Additionally, the defendant fails to demonstrate the systematic nature of the alleged underrepresentation, supplying no explanation of how the jury selection process in Middlesex County inherently produces underrepresentation of Black jurors. See id. at 567 (“Exclusion is systematic when it is inherent in that process”).

Judgment affirmed.

FOOTNOTES

2.   While the victim equivocated somewhat during her direct examination regarding the degree of her certainty that the defendant's penis was in her mouth when she woke up (saying at one point that “I don't necessarily remember what it was”), any such equivocation goes to the weight of the evidence, not its sufficiency.

3.   While the defendant contends that Detective Miceli's testimony was admitted in error, the testimony was properly admitted to rebut a Bowden defense and did not unfairly prejudice the defendant. See Commonwealth v. Avila, 454 Mass. 744, 753 (2009), citing Commonwealth v. Bowden, 379 Mass. 472, 486 (1980).

4.   The defendant additionally claims, for the first time on appeal, that the exclusion of his denial implicated his fair trial and confrontation rights. As he failed to raise these arguments below, we need not consider them on their merits. See Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).

5.   We note that, under Commonwealth v. Pope, 392 Mass. 493, 498 (1984), a defendant must raise a challenge to the jury venire through a pretrial motion. We nonetheless consider the claim, since the defendant objected to the jury venire composition in a sidebar discussion with the trial judge during empanelment.

6.   We note in any event that “visual observations alone are not a reliable guide to the true makeup of a jury venire.” Commonwealth v. Tolentino, 422 Mass. 515, 520 (1996) (citations omitted). Thus, the defendant had an insufficient basis from which to claim that “there was only one person” in the jury venire “who might have also been Black.”