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13-P-666                                              Appeals Court

                 COMMONWEALTH   vs.   RICKY THOMAS.


                           No. 13-P-666.

           Hampden.     March 11, 2016. - May 26, 2016.

            Present:   Meade, Sullivan, & Massing, JJ.


Rape.  Rape-Shield Statute. Evidence, Prior conviction,
     Impeachment of credibility. Witness, Impeachment.
     Practice, Criminal, Impeachment by prior conviction, New
     trial.



     Indictment found and returned in the Superior Court
Department on March 23, 2010.

     The case was heard by Tina S. Page, J., and a motion for a
new trial, filed on September 29, 2014, was considered by her.


     Joseph M. Kenneally for the defendant.
     Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.


     MEADE, J.   After a jury-waived trial, the defendant was

convicted of aggravated rape, and the judge found him not guilty

of kidnapping and assault with intent to rape.    On appeal, he

claims that the judge erred when she excluded evidence of the
                                                                    2


victim's prior convictions; his conviction for aggravated rape

was improper because there was no aggravating circumstance; and

the judge abused her discretion when she denied his motion for a

new trial without holding an evidentiary hearing.   We affirm.

    1.   Background.   The judge was entitled to find the

following facts.   Before the incident at issue, a friend had

introduced the victim to the defendant, whom she knew as

"Steve," and the victim agreed to go with him to "hang out,

party, chill, [and] smoke" "crack" cocaine.   Their plans for

that evening did not materialize.   Several weeks later, the two

again met on the street.   The defendant asked the victim if she

wanted to pick up where they left off, and also if she minded

going to his house in Holyoke.   The victim agreed and "jumped in

[the defendant's] car."

    The two travelled to an apartment complex "that had two

levels, one lower one, and one up a little hill and top level

apartments."   The victim had never been there before, but she

identified a photograph of a "top left window" as "the window of

[the defendant's] room."   On cross-examination, the victim made

it clear that she went to the defendant's apartment voluntarily

"to party," that is, "smoke, get high and chill."   The two

entered the apartment, and the defendant directed the victim

down a long, dark hallway to a room at the end of the hall on

the left.   The defendant went into a bathroom on the right, and
                                                                    3


the victim walked into the indicated room.    The room was not

furnished, but there were two mattresses on the floor, a

television on a stand, and "drug paraphernalia on the floor."

    The victim sat on the corner of one of the mattresses, and

she could hear the defendant talking in the bathroom.   She asked

if he had said something, but he replied that he was just

thinking out loud.   The defendant then walked out of the

bathroom, "completely naked."   At that point the victim had been

in the apartment "[a]bout three minutes at the most."   The

defendant asked her to take her clothes off and put on a sweater

that he took from the closet.   She took off her pants and

sweater and shoes, put on the sweater the defendant gave her and

sat back down on the bed.

    The defendant sat next to her with his legs around her, and

when she turned to look at him, "he just grabbed [her] real

quick on [her] neck and started choking [her]."   She could not

breathe and "everything was turning black."    Struggling to

speak, she told him to let her go, that she would do anything,

and that he did not have to do that.   Eventually, the defendant

released her.   She was shocked and shaking uncontrollably

because she had been "attacked . . . out of nowhere."   She asked

him repeatedly why he had done that to her and he said, "I want

you to suck my penis."   He said that "[she] was going to suck
                                                                     4


his penis the whole night, that he was going to freak the fuck

out of [her] until the next day."

       The defendant grabbed the victim's head and started pushing

her, "shoving" her to perform oral sex on him.    She pulled her

head back and said that she needed some water, but he grabbed

her head with both hands and forced his penis into her mouth

"more than once."    She was afraid for her life, and "the second

time, when he yanked [her] head back," she said, "[W]e know the

same people" and started naming names, "just to get to him on

another level to break through that, finally actually like

getting some time for this man not to hurt [her]."

       When she asked for water a second time, he said no, and

demanded oral sex for "three more minutes."    However, after a

short period, she told him that she was about to throw up, and

he told her he would get the water, "but don't you dare move

from there."

       As soon as the defendant turned his back and walked out of

the room, the victim looked around "to find a way out to escape

from him."    She concluded that the "only way out was the door

where he walked through [to the kitchen to get the water] and

the window."    She "got up, walked toward the window, and opened

it."    The defendant came back into the room and grabbed her by

the sweater and pulled her back.    The victim said, "No, you are

going to hurt me," and she yanked the sweater off "and . . .
                                                                    5


fell off the window."    In answering the question "[W]hat

happened when he was wrestling with you, what happened to you?"

the victim responded, "That is when I fell, I jumped out my

sweater and I fell . . . out the window" onto the ground below.

She identified a photograph of the window in the defendant's

apartment as "the window I jumped out the corner of."    On cross-

examination, the victim clarified, "[I]f I could have jumped, I

would have calculated the way I fall, I wouldn't hurt myself

that bad.   But because he grabbed me, I fell without calculating

so I hurt myself even more."

    After she fell, the victim lost consciousness, but she

remembers that the defendant called from upstairs, saying "Come

back up . . . I am not going to hurt you."   Instead, she crawled

across the parking lot toward another apartment house and

started "ringing every, every, every single doorbell."    One man

answered his door and called the police.

    Holyoke police Officer Kristin Shattuck spoke to the

victim, who was visibly shaken, upset, and crying, holding the

right side of her arm.   She had "a contusion to the top of her

right hand, and she also had dried blood coming from the

hairline on the right side of her head going down to her temple

area."   She was wearing only a T-shirt and socks, with no pants,

and it was cold, "about 29, 30 degrees that evening."    The
                                                                       6


victim told the officer that the defendant had forced her to

perform oral sex.

    In the area beneath the defendant's window, the "dirt was

. . . freshly disturbed, being winter and everything.      And there

was dried blood right on the foundation right below the window

where if somebody had fallen, they would have hit right on the

corner there. . . .    There was a bent screen that was right

below the window, and that window was the only one in the

apartment complex . . . that was missing a screen."

    The victim was hospitalized for more than a week.          She

sustained a concussion, a broken wrist, two broken vertebrae, a

broken toe, and a cut on her leg from the screen.       Hospital

records revealed the presence of cocaine in her system, and she

confirmed that she had smoked crack cocaine seven or eight hours

before she met the defendant that day.     In her opinion, there

were no residual effects of the cocaine.     "[T]hat is an effect

that lasts seconds, not hours."    She identified the defendant as

the man who had assaulted her from a photographic array on the

night of the incident and again, several times, during the

trial.

    2.   Discussion.    a.   The rape-shield statute.    The

defendant claims that the judge should have denied the

Commonwealth's motion in limine and permitted him to impeach the

victim with prior convictions for "prostitution-related
                                                                       7


offenses," in order "to demonstrate how she ended up in the

defendant's apartment and her motive to falsely accuse him of

rape."    He contends that excluding this evidence denied him due

process, including "the right to confront his accuser."      We

disagree.

     At the time the judge heard the motion, which was prior to

the defendant's election of a jury-waived trial, the defendant

argued, "I think the fact that we have to explain to the jurors

how this woman or why she ends up in this place.      She is there

for the purpose of smoking with no money, with nothing, Your

Honor."     He made no constitutional argument.   The judge excluded

any use of the victim's prior convictions for sexual conduct for

a fee and being a common street walker, citing the rape-shield

statute, G. L. c. 233, § 21B.1    However, she ruled that the

defendant could impeach the victim with a conviction for using a

false name.2    See G. L. c. 233, § 21.   On appeal, it is clear

that the defendant's purpose in offering the convictions was

     1
       In addition, as the prosecutor noted, the street walker
charge appears to have been dismissed. Other charges were
discussed, but the defendant did not note any objection to the
judge's ruling on those charges. The record contains neither a
copy of the victim's board of probation record, nor copies of
any docket sheets showing convictions.
     2
       The defendant did not, in fact, impeach the victim with
that conviction at trial. He did ask her, "You've been arrested
for assault and battery before?" The victim responded that she
had and that she pleaded guilty to the charge. This occurred
without objection despite the fact that no certified copy of the
conviction was offered.
                                                                     8


not, as he concedes, "to demonstrate a general lack of

credibility . . . but to demonstrate how she ended up in the

defendant's apartment and her motive to falsely accuse him of

rape."    His argument appears to be that the victim intended from

the beginning of the encounter to exchange sex for cocaine, and

that when she found herself on the ground under the defendant's

window, she "had a motive to provide the authorities with an

alternative explanation as to why she acted in the manner that

she did."   The argument is without merit.

    "A trial judge has broad discretion to determine the proper

scope of cross-examination.   See Commonwealth v. Mountry, 463

Mass. 80, 86 (2012); Commonwealth v. Johnson, 431 Mass. 535, 538

(2000).   'If a defendant believes that the judge improperly

restrained his cross-examination of a witness, the defendant

must demonstrate that the judge abused [her] discretion and that

he was prejudiced by such restraint.'    Commonwealth v. Sealy,

467 Mass. 617, 624 (2014), quoting Commonwealth v. Barnes, 399

Mass. 385, 393 (1987)."    Commonwealth v. McGhee, 472 Mass. 405,

426 (2015).   "When the prior conviction is of a sexual offense

and is being offered to impeach the [victim] in a sexual assault

case, the judge's consideration of the 'prejudicial effect' of

introducing the conviction should take into account the

important policies underlying the rape-shield statute. . . .

The judge should thus consider the potential that the jury may
                                                                      9


misuse the conviction of a sexual offense as indicative of the

[victim's] consent, and the risk that the [victim] may be

subjected to needless humiliation."   Commonwealth v. Harris, 443

Mass. 714, 727-728 (2005).

     While evidence of a victim's prior sexual conduct may be

admissible to show her bias or motivation to lie, see

Commonwealth v. Houston, 430 Mass. 616, 622 (2000), nothing

about the facts here gives this victim such a motive.    She was

forthcoming about her prior drug use and her intent to use crack

cocaine with the defendant on the night at issue.   She agreed

that she went willingly with him and did not object to taking

some of her clothes off "to get comfortable."   She also

indicated that she might have been willing to have sex with the

defendant had he not attacked her.3   There was no abuse of

discretion.4

     In addition, this was not a consent defense case.     Although

the defendant did not testify at trial, at the time that the

     3
       "When he was doing that, I jumped off my neck, my head,
and I said I need water. I'm going to throw up. I feel
nauseous. I'm so shocked, I'm shaking from head to bottom. I
have no control of my body. No control at all at this point
because the shock was so severe. It happened so unexpected, so
suddenly. It was the last thing that I would expect. It would
be a mutual thing for it to happen. It could have happened, but
it was uncalled for."
     4
       "Because the defendant raised no constitutional objection
at trial, we decline to address the constitutional argument he
made on appeal." Commonwealth v. Houston, supra at 619 n.4.
                                                                   10


motion in limine was heard, his counsel denied that any sexual

activity at all had taken place between the two.    Finally, there

is no reason to believe that this injured victim would have

believed that she would be arrested for prostitution or for any

other offense had she not claimed to have been raped; as a

result, she had no motive to lie about what had happened.

Contrast Commonwealth v. Joyce, 382 Mass. 222, 227 (1981).5

     b.    Aggravated rape.   The defendant next claims that, while

the evidence may be sufficient to sustain a conviction for

"simple" rape, the Commonwealth failed to prove any aggravating

circumstance that would justify his conviction for aggravated

rape.     In particular, he says, he was not convicted of any of

the felonies listed in G. L. c. 265, § 22(a), he was found not

guilty of kidnapping, and, he argues, the admittedly serious

injuries that the victim suffered were not inflicted by the

     5
       "In the Joyce case, the [victim] had been charged twice
with prostitution -- the second time when she had allegedly been
discovered undressed in a car engaged in sexual acts. According
to the account the defendant offered of the night of the alleged
rape, he and the [victim] were engaging in consensual sexual
intercourse in his car when he saw a police cruiser approaching
and told the [victim] to get dressed. In offering the prior
prostitution charges, the defendant 'intended to show that the
[victim], having been found in a similar situation on two prior
occasions, had been arrested on each occasion and charged with
prostitution.' Commonwealth v. Joyce, supra at 230. [The
court] consequently concluded that 'we cannot say that this
[prostitution charge] evidence has no rational tendency to prove
that the [victim] was motivated falsely to accuse the defendant
of rape by a desire to avoid further prosecution" (emphasis
added). Id." Commonwealth v. Houston, supra at 622-623.
                                                                    11


defendant, "who neither intended nor anticipated" them.6    We

disagree.

     "General Laws c. 265, § 22(a), . . . on its face, does not

require that the aggravating factor or factors be used to

facilitate the unlawful sexual intercourse.    When a rape victim

sustains serious bodily injury, the pertinent statutory language

requires only that the intercourse have been 'committed with'

the acts that resulted in the victim's injuries.    While the

language 'committed with,' of course, implies some logical nexus

between time and place, the words do not specifically require

that the physical force precede the rape or that the injuries be

inflicted to overcome a victim's will to resist."    Commonwealth

v. McCourt, 438 Mass. 486, 492-493 (2003).    In the present case,

the defendant, having raped the victim once, then threatened her


     6
       The Commonwealth claims that there were facts from which
the judge could have found kidnapping as an aggravating
circumstance. However, the evidence established that, at the
outset, the victim went willingly to the defendant's apartment.
The only theory argued by the Commonwealth at trial to support
the kidnapping charge appears in the prosecutor's opening
statement: "As far as the kidnapping and assault charges, while
they were in that posture when [the victim] asked him to go get
her that cup of water he threatened her and said, 'Don't you
dare move while I go get that cup of water.' And then he said
things to her like, 'I am going to freak the fuck out of you all
night.' Which is, again, why she was so terrified and why she
dove for the window when she had the brief moment." While those
facts might reasonably have persuaded a fact finder on the
kidnapping charge, here, because the judge found the defendant
not guilty of kidnapping, it is difficult to see how she could
have based her verdict on kidnapping as the circumstance
aggravating the rape charge.
                                                                    12


and ordered her to remain where she was so that he could

continue to rape her throughout the night.    Instead, she

attempted to escape through the second-floor window -- the only

avenue open to her -- and, when she did so, the defendant

grabbed her, as she described, precipitating a fall that did not

permit her to try to protect herself as she dropped to the

ground below.

     In McCourt, the Supreme Judicial Court held that "[t]he

Legislature's clear purpose in creating the offense of

aggravated rape was to protect victims of violent sex offenders,

by punishing more severely perpetrators (i) who inflict serious

bodily injury on a victim, in addition to the bodily harm from

the act of rape itself" (emphasis supplied).    Id. at 495.   The

court further explained that "[t]he critical point is not

whether the aggravating acts served to compel a victim's

submission, but whether the rape victim sustained serious bodily

injuries . . . during the same criminal episode."    Ibid.

     Here, the victim sustained her considerable injuries during

an ongoing episode in which the defendant tried to rape her

repeatedly.7    It reasonably can be said that his actions caused

her injuries, especially those actions at the window that


     7
       While the defendant claims that his punishment should not
be enhanced because he lived on the second floor, in fact, that
second-floor location facilitated his efforts to prevent the
victim's escape.
                                                                  13


facilitated and exacerbated her fall.     Those actions and the

accompanying threats were the proximate cause of the victim's

injuries.   Compare Commonwealth v. Wade, 428 Mass. 147, 151

(1998) ("the judge made clear that the Commonwealth had to prove

that the act that was the proximate cause of death was an act

that in the natural and continuing sequence of events produce[d]

the death, and without which, the death would not have

occurred") (citation omitted).

    The question "whether there is an adequate nexus between

the unlawful sexual intercourse and the serious bodily injury

. . . is a task jurors commonly are called to make.    The jury

are entitled to consider the entire sequence of events in making

their determination whether the aggravating acts occurred in the

course of the rape, or whether, because of intervening time or

events, the rape and the aggravating acts cannot be viewed as

one continuous course of criminal conduct directed at the

victim."    Commonwealth v. McCourt, supra at 496.   Here, the

judge, as the fact finder, clearly was persuaded that one

continuous course of conduct produced the victim's serious

injuries.   We will not disturb that finding where it is fully

supported by the evidence.

    c.     The motion for new trial.   Finally, the defendant

claims that the judge improperly denied without a hearing his

motion for a new trial based on a claim that counsel was
                                                                    14


ineffective for failing to call a witness to impeach the victim.

We disagree.    "The decision to hold an evidentiary hearing on a

motion for a new trial is 'left largely to the sound discretion

of the judge.'"   Commonwealth v. Vaughn, 471 Mass. 398, 404

(2015), quoting from Commonwealth v. Stewart, 383 Mass. 253, 257

(1981).   "Indeed, [Mass.R.Crim.P. 30(c)(3), as appearing in 435

Mass. 1502 (2001),] encourages the denial of a motion for a new

trial on the papers, without hearing, where no substantial issue

is raised."    Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394

(2012).

    We review the denial of a motion for a new trial for "'a

significant error of law or other abuse of discretion,'

Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting from

Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting

'special deference' to the rulings of a motion judge who, like

the judge here, also presided at trial."    Commonwealth v.

Bonnett, 472 Mass. 827, 833 (2015).   "'In general, failure to

impeach a witness does not prejudice the defendant or constitute

ineffective assistance.' Commonwealth v. Bart B., 424 Mass. 911,

916 (1997).    'Even on the more favorable standard of review

under [G. L. c. 278,] § 33E [which is not applicable here], a

claim of ineffective assistance based on failure to use

particular impeachment methods is difficult to establish.

Impeachment of a witness is, by its very nature, fraught with a
                                                                  15


host of strategic considerations, to which we will, even on

§ 33E review, still show deference. . . . Furthermore, absent

counsel's failure to pursue some obviously powerful form of

impeachment available at trial, it is speculative to conclude

that a different approach to impeachment would likely have

affected the jury's conclusion.'   (Footnote omitted.)

Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) (counsel not

ineffective in failing to impeach witness with certain prior

inconsistent statements where witness was extensively impeached

by other means)."   Commonwealth v. Hudson, 446 Mass. 709, 715

(2006).

    Here, in support of his motion for new trial, the defendant

claimed that trial counsel was ineffective for failing to call

James Bradley as a witness.   According to Bradley's affidavit,

submitted in support of the defendant's motion, he would have

testified to the victim's prior inconsistent statements,

specifically that she had been "robbing a trick" and then jumped

out of the window, thinking the defendant's apartment was on the

first floor.   Bradley also stated that the victim did not say

anything about being attacked or sexually assaulted.

    The defendant submitted a letter from trial counsel, who

stated that he did not call Bradley because he understood that

Bradley would have testified only that someone else had given

him the information, and, further, that Bradley "had a long
                                                                   16


criminal record and was in the middle of his own trial in the

Superior Court."

    The motion judge, who was also the trial judge, concluded,

"There is no substantial issue because even if I credit

Bradley's affidavit as to what his testimony would have been,

trial counsel did not provide ineffective assistance by failing

to call him as a witness."   The judge did "not credit the

defendant's claim that, during the trial he disagreed with trial

counsel's decision not to call Bradley . . . [and e]ven if the

defendant disagreed with trial counsel's decision, that decision

was not manifestly unreasonable. . . ."    The judge further noted

that Bradley's statement would have been admissible only to

impeach the victim and also that trial counsel had thoroughly

cross-examined the victim and impeached her with her own

inconsistencies.   Any further impeachment would have been

cumulative.    In the judge's view, trial counsel's strategy was

"manifestly reasonable," given Bradley's prior record, combined

with the fact that no stolen goods were found on the victim or

in the area.   "Moreover, Bradley's testimony would not have been

plausible because the victim jumped out of the window in

January, almost naked, rather than leaving the defendant's

apartment through the door with her clothes on at an opportune

time."   As such, it was not an abuse of discretion for the judge
                                                                  17


to determine that motion failed to raise a substantial issue, or

to deny the motion itself.

                                   Judgment affirmed.

                                   Order denying motion for new
                                     trial affirmed.
