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Commonwealth v. Thomas

Appeals Court of Massachusetts, Hampden

May 26, 2016

COMMONWEALTH
v.
RICKY THOMAS

          Heard: March 11, 2016.

         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.

          Present: Meade, Sullivan, & Massing, JJ.

          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 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 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 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 ...


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