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Commonwealth v. Olivier

Appeals Court of Massachusetts, Middlesex

August 10, 2016

COMMONWEALTH
v.
HERVE OLIVIER, JR.

          Heard: October 7, 2015.

         Indictments found and returned in the Superior Court Department on December 15, 2011.

A pretrial motion for presumptively privileged records was considered by Thomas P. Billings, J., and a renewed motion was heard by Kathe M. Tuttman, J; a pretrial motion for a hearing on the adequacy of the affidavit supporting a search warrant was heard by Thomas P. Billings, J.; and the cases were tried before Bruce R. Henry, J.

          Stanley D. Helinski for the defendant.

          Kate Cimini, Assistant District Attorney, for the Commonwealth.

          Present: Katzmann, Rubin, & Wolohojian, JJ.

          RUBIN, J.

         This case presents a question of first impression about the adequacy of the subsequent offense portion of an indictment where, on the main indictment, a defendant is convicted not of the charged offense, but of a lesser included offense that carries a subsequent offense enhancement.

         The defendant was indicted on December 15, 2011, on ten counts. Count 1 charged rape of a child by force under G. L. c. 265, § 22A. A second part of that count, captioned "Forcible Rape of a Child -- Subsequent Offense, " charged that at the time of the offense charged in the first count the defendant "was previously convicted of Indecent Assault and Battery on a Child Over Fourteen, a violation of Massachusetts General Laws Chapter 265 Section 13[H] in the Framingham Juvenile Court Docket No. DL05FO606 on November 28, 2007.”[1] See G. L. c. 265, § 22C.[2]

         After a jury trial, the defendant was convicted on count 1 not of rape of a child by force, but of the lesser included offense of rape of a child (i.e., statutory rape) under G. L. c. 265, § 23. Some eleven days later, a new jury was empanelled, and the defendant was tried on the subsequent offense penalty enhancement for the latter crime under G. L. c. 265, § 23B. See G. L. c. 278, § 11A; Commonwealth v. Pelletier, 449 Mass. 392, 396 (2007), quoting from Commonwealth v. Miranda, 441 Mass. 783, 788 (2004) (explaining that § 11A "requires a defendant to be tried in a two-step, bifurcated procedure: 'first, on the underlying substantive crime and, then, in a separate proceeding, on that component of the charge referring to the crime as a second or subsequent offense'"). See also Commonwealth v. Fernandes, 430 Mass. 517, 520-521 (1999), cert, denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) ("[T]he counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentence enhancement provision"). He was convicted. He received a mandatory minimum sentence of fifteen years in State prison under the penalty enhancement.[3]See G. L. c. 265, § 23B. The defendant now appeals.

         1. The subsequent offense enhancement.

         The defendant first argues that since he was acquitted of rape of a child by force on count 1, the subsequent offense portion of the indictment was in essence a nullity. The indictment read "Forcible Rape of a Child -- Subsequent Offense." Since the defendant was acquitted of forcible rape of a child under the first count, the defendant argues, if the Commonwealth desired to try him for the subsequent offense enhancement applicable to the lesser offense of which he was convicted, it was required to amend the indictment to say so. He argues that having failed to do so, the Commonwealth did not put him on notice that he might be tried for the subsequent offense enhancement were he convicted of a lesser included offense.[4]

         We disagree. It is well established that an indictment for a greater offense puts a defendant on notice that he may be convicted of a lesser included offense that is not named in the indictment. See Commonwealth v. Keane, 41 Mass.App.Ct. 656, 661 (1996) ("[A]n indictment for aggravated rape clearly gives notice of the lesser included crime of rape"). Likewise, the second or subsequent offense portion of an indictment identifies the previous conviction[5] that the Commonwealth will seek to prove at trial. In such a case, we think that the subsequent offense indictment puts a defendant on notice that, should he be convicted of only a lesser included offense for which the prior conviction named in the subsequent offense indictment also subjects him to a subsequent offense enhancement, the Commonwealth may proceed to trial on the subsequent offense enhancement applicable to the lesser included offense conviction.

         First, we think that this is the way that any reasonable attorney would understand the indictment, though we recognize that how any individual attorney would understand the language of the indictment is an empirical question. Second, we think that any alternative would be impractical, since the second, subsequent offense trial is ordinarily conducted immediately after the conviction on the underlying offense. And finally, such a reading of the indictment does not prejudice the defendant. No defendant can be certain of a conviction on a lesser included offense rather than the charged offense. Therefore, if the prior conviction is to be contested, counsel will have to prepare for the subsequent offense trial in advance of trial on the charged offense. In circumstances such as these, where the specific prior offense to be proved is identified in the indictment and it subjects the defendant to an enhancement with respect to the lesser included offense of conviction, nothing different will be at issue in the subsequent offense trial than would have been at issue had the defendant been convicted of the charged, greater offense. There thus can be no prejudice to the defendant.

         We note that nothing that we say prevents the Commonwealth from determining not to proceed on a subsequent offense enhancement in the event of conviction of only a lesser included offense. That discretionary determination remains with the executive branch. See, e.g., District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 668 (1980) (prosecutor has uncurbed discretion to nol pros portions of indictment charging murder in first degree). We also note that our decision applies only to indictments such as the one at issue here, which identifies the prior conviction to be proved. We express no opinion on indictments that may be phrased or structured differently.

         2. The remaining claims of error.

         The defendant also claims that the Superior Court judges erred in five other respects: (1) by denying the defendant's motions seeking the victim's records; (2) by denying the defendant's motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3) by ruling that the defendant's deoxyribonucleic acid (DNA) expert could not criticize the thoroughness of the Commonwealth's investigation; (4) by failing to sustain the defendant's objection to the prosecutor's misstatements in closing; and (5) by refusing to ask a series of voir dire questions proposed by the defendant. We disagree with the defendant in all respects. Before explaining our reasoning, however, it is necessary to set forth additional factual background.

         a. Background.

         As stated previously, the defendant was indicted on ten counts: two counts of rape of a child by force as a subsequent offense, G. L. c. 265, § 22A; two counts of aggravated rape of a child by force (aggravated by kidnapping) as a subsequent offense, G. L. c. 265, § 22B; one count of indecent assault and battery on a person over fourteen, G. L. c. 265, § 13H; one count of distribution of marijuana, G. L. c. 94C, § 32C (a.); one count of possession with intent to distribute marijuana, G. L. c. 94C, § 32C (a.); one count of kidnapping, G. L. c. 265, § 26; one count of intimidation of a witness, G. L. c. 268, § 13B; and one count of threat to commit a crime, G. L. c. 275, §§2 & 4. The defendant pleaded guilty to the drug offenses before trial. He was found guilty of the lesser included offense of statutory rape on the four indictments that charged rape of a child by force and aggravated rape. The judge then vacated the jury verdicts on the aggravated rape charges and dismissed the indictments as duplicative. The defendant was acquitted of indecent assault and battery, kidnapping, intimidation of a witness, and threat to commit a crime. As discussed above, in the second phase of the trial, a new jury found that the conviction of rape of a child on count 1 was a subsequent offense.

         We recite the facts a reasonable jury could have found, taking the evidence in the light most favorable to the Commonwealth except where the jury verdicts rejected the Commonwealth's theory of the case. We reserve additional facts for later discussion of specific issues.

         The defendant and the victim started communicating in October, 2011, when the victim had returned to her grandparents' house[6] in New Hampshire after running away to stay with friends in Marlborough for three days. The victim used two different applications installed on her iPod Touch to communicate with the defendant both by voice and by text message. At some point during the next few weeks, the victim told the defendant that she wanted to run away again.

         On November 1, 2011, they made a plan for the defendant and a friend of his, who had a car, to pick up the victim at her grandparents' house. When the defendant sent a text message saying that he was nearby, the victim told her grandmother that the screen in her window was broken. While her grandmother was looking at the screen, the victim took her purse, a bag she had packed, and thirty-seven dollars from her grandmother's purse, and left the house. Before she got into the car with the defendant, he said that she should tell his friend she was nineteen. However, at the time she was only fifteen. The victim's ...


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