Argued September 17, 2015.
Indictments found and returned in the Superior Court Department on March 23 and August 15, 2006.
The cases were tried before S. Jane Haggerty, J., and motions for a new trial, for postconviction discovery, and for reconsideration, filed on April 26, 2012, June 7, 2012, and June 23, 2014, respectively, were heard by her.
Amy M. Belger for the defendant.
Randall F. Maas & Bethany Stevens, Assistant District Attorneys, for the Commonwealth.
Present: Katzmann, Meade, & Rubin, JJ.
[42 N.E.3d 626] Meade, J.
After a jury trial in 2007, the defendant was convicted of aggravated rape, home invasion, mayhem, assault and battery by means of a dangerous weapon causing serious bodily injury, armed robbery, kidnapping, and attempt to burn personal property. The events leading to these convictions occurred in 2006, when the defendant, a stranger to the victim, broke into her apartment by tunneling through the wall with a crowbar, and then beat and raped the victim with the crowbar before burning a box of items.
On appeal, the defendant claims that the judge improperly permitted the victim to testify that she recognized the defendant by his " energy," the prosecutor's closing argument was improper, the judge erred in her jury instruction on identification, the evidence was insufficient to support the attempt to burn personal property conviction, the convictions of assault and battery by means of a dangerous weapon causing serious bodily injury and mayhem were duplicative, and the judge abused her discretion by denying the defendant's second [42 N.E.3d 627] motion for new trial based on a claim of ineffective assistance and newly discovered evidence. We reverse the convictions of assault and battery by means of a dangerous weapon causing serious bodily injury and of attempt to burn personal property, affirm the remaining judgments of conviction, and remand the case for resentencing. We affirm the order denying the second motion for new trial.
In a separate appeal, the Commonwealth claims error in the judge's order permitting postconviction DNA testing under G. L. c. 278A. The Commonwealth claims that the judge misapplied the statute and failed to consider the strength of the Commonwealth's case, and that the defendant did not meet all the statutory criteria. We affirm the judge's order.
a. Emergency response.
In the early morning hours of March 9, 2006, Ayer police and fire personnel responded to the victim's apartment. The apartment was full of smoke, which emanated from an object smoldering in the bathtub that the fire fighters extinguished. The fire fighters found the victim wrapped in a blanket and curled in the fetal position on the floor near the bathroom. She had a head laceration that was bleeding profusely, bruises on her face, and a stab wound below her left eye. There was a large amount of blood on the bed. The victim was conscious, but in shock and crying. She told those present that " [a] man came through the wall and raped me." The victim was taken to the Nashoba Valley Medical Center and later airlifted to Beth Israel Deaconess Medical Center (BIDMC) in Boston.
b. The attack.
The victim lived alone in the apartment. She worked
as a " spirit medium" and assisted living people with connection " to deceased
loved ones." She also offered " spiritual counseling" and provided advice to
those with problems. Her advice at times involved " divine guidance," which
meant advice from " God's angels, spirit guides, [and] masters like Jesus and
During the early morning hours on the day of the attack, the victim awoke to noises " coming through the wall." When the noises got closer, she got up and saw a man, later identified as the defendant, kneeling and opening drawers in a chest. The victim screamed and was " frozen in fear." She retrieved a crowbar she found on the floor, which she described as a " yellowy metal rusty thing," and attempted to defend herself. The defendant grabbed her hair, but the victim was unable to bring herself to hit him with the crowbar and instead pushed it under a nearby chest of drawers. The defendant threatened to hit her if she looked at him, and he asked the victim for money. As he continued to hold her hair, the victim crawled to her wallet and gave him forty-four dollars in cash. The defendant kept asking the victim if she had a boy friend; she did not respond.
Holding both of the victim's wrists with one hand, the defendant told her to take off her clothes. She said, " No, just let me go." She " was so frozen in fear, [she] didn't know what to do." The defendant took off his clothes and hers. He forced her to " suck on his penis" and he threatened to hit her if she looked at him. He " sucked ... on [her] vagina" and told her she was " beautiful." The defendant tied her legs to the bedposts with shredded pieces of her clothing and vaginally raped her with his penis. When the victim struggled to free herself, the defendant got off her and
began to get dressed. He then covered her mouth and nose with his hand, which prevented her from breathing. She attempted to " peel his fingers off," but soon lost consciousness. The last thing she remembered was seeing the defendant [42 N.E.3d 628] raise the yellow crowbar over her and striking her on her head (more than once) and she " was completely out." The defendant beat and raped the victim with the crowbar.
When the victim regained consciousness, she saw a pool of blood next to her and she smelled smoke. The smoke was coming from a box the defendant had stuck in a hole in the wall. She dragged the flaming box into the bathtub and retrieved a fire extinguisher from the kitchen. After reading the instructions, she was able to use it to extinguish the fire. At some point, the victim's landlady came to the door and had her son telephone for an ambulance.
c. The victim's injuries.
The extent of the victim's injuries were as extreme as they were extraordinary. The wounds to her head and face were so severe that she required plastic surgery. Her perineum, i.e., her vagina and rectal areas, were " completely macerated" ; the usually thick band of tissue between the vaginal canal and rectum was completely torn away. Her " normal anatomy could not be identified." Dr. Christopher Awetry, the victim's treating obstetrics and gynecological physician at BIDMC, opined that the victim's injuries were not caused by a knife, but instead by " an object that had tearing capabilities, but also with a blunt side." With a reasonable degree of medical certainty, Dr. Awetry opined that the victim's injuries were consistent with having been inflicted by a crowbar.
Part of the victim's treatment as a sexual assault victim was the administration of an AIDS preventative medication. However, the victim was allergic to the medication and developed a dermatological manifestation referred to as Stevens Johnson syndrome, which resulted in a chemical burn with swelling and blistering over ninety-eight percent of her body. These additional injuries were extremely painful and required her admission to the burn unit at Brigham and Women's Hospital.
d. The hole in the wall.
The defendant gained entry to her apartment (no. 6) through a hole in the wall from a vacant, adjacent apartment (no. 7). The former tenants of apartment no. 7 had moved out, but some furniture remained in the apartment. The hole had been opened in the drywall between two studs. Paul Zambella, a forensic scientist at the Massachusetts State police
crime laboratory, measured the hole and found it to be approximately twelve and one-half inches wide by approximately twenty-one inches in length.
Daniel Freedman, the landlady's son and the building's maintenance man, was able to fit himself through the hole between the two apartments. Freedman was approximately five feet, eight inches tall and weighed 185 pounds. Detective Brian Gill, the lead investigator, made a cardboard replica of the hole with dimensions of twelve by eighteen inches based on his measurements. Gill, who was five feet, eight inches tall and weighed 230 pounds, was able to fit through the replica of the hole. In April of 2006, the defendant was six feet tall and weighed 190 pounds. By the time of trial in the summer of 2007, the defendant appeared to have gained weight.
e. Identifying the defendant as the assailant.
Eleanor Lamb, the defendant's sister, lived across the street from the defendant on West Street in Ayer in March of 2006. On the night of March 8, 2006, some hours before the victim's attack in the early morning of March 9, Lamb was drinking and socializing in her apartment with Nicole Minkle, James Daniels, and Christopher Hird. The defendant was present and drinking as well. He left at approximately 10:30 p.m., but returned thirty minutes later. When he returned, he [42 N.E.3d 629] told them that he had discovered a vacant apartment with furniture left behind. The defendant asked if anyone wanted any of the furniture; all declined, except Lamb.
At approximately midnight, the defendant and Lamb left her apartment and walked for about two minutes before reaching the apartment building. They entered with a key that the defendant had found after he broke into the apartment through a window earlier in the evening. Lamb took a big roll of bubble wrap, the defendant took a trash bag full of various items, and they both returned to Lamb's apartment.
Upon their return, the defendant asked to borrow Lamb's blue flashlight and a yellow crowbar that had previously belonged to Lamb's former boy friend. Hird also saw the defendant holding the yellow crowbar. On his way out the door, the defendant stopped and poked his head back in and said, " Don't worry, it's not like I'm going to hurt -- or kill anybody." He was dressed in blue jeans, a flannel shirt, and a dark-colored jacket. Lamb never saw the crowbar again after lending it to the defendant, but she did find the flashlight in her mailbox the next day.
The next morning, Lamb saw on the television news the apartment building she and the ...