Heard: March 11, 2016.
found and returned in the Superior Court Department on March
case was heard by Tina S. Page, J., and a motion for
a new trial, filed on September 29, 2014, was considered by
M. Kenneally for the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the
Present: Meade, Sullivan, & Massing, JJ.
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 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
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."
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 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."
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
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 his penis the whole night, that he was going to
freak the fuck out of [her] until the next day."
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]."
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 ...