Supreme Judicial Court of Massachusetts, Hampshire
Heard: October 3, 2017.
found and returned in the Superior Court Department on
October 15, 2014. The cases were tried before Daniel A. Ford,
Supreme Judicial Court granted an application for direct
Merritt Schnipper for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for the
following submitted briefs for amici curiae:
Rangaviz, Committee for Public Counsel Services, for
Committee for Public Counsel Services.
J. Carey for Kari Hong & others.
J. Murphy for Women's and Children's Advocacy Project
at New England Law|Boston.
Present (Sitting at Greenfield): Gants, C.J., Gaziano, Lowy,
Budd, & Kafker, JJ.
Superior Court jury convicted the defendant of indecent
assault and battery on a person over fourteen, G. L. c. 265,
§ 13 H, assault and battery, G. L. c. 265, § 13 A
(a.), and indecent exposure, G. L. c. 272, § 53. The
charges stemmed from an encounter between the victim, M.M.,
and the defendant, a State trooper, who met on a dating Web
site and exchanged flirtatious messages. They arranged to
meet in person for coffee, and M.M. agreed to the
defendant's suggestion that they finish their
conversation at her apartment. Once inside, the defendant
exposed himself to M.M. She immediately informed the
defendant that he had the wrong idea, and repeatedly told
him, "No." Despite M.M.'s requests to stop, the
defendant advanced toward her, grabbed her wrist, and forced
her to touch his penis. She told him, "No means no,
" and that he had to leave. He then apologized and left
trial, the defendant requested a jury instruction on mistake
of fact, asserting that he honestly and reasonably had
believed that M.M. had consented to the contact leading to
the charges, and would not have been offended by his act of
exposing himself. The request was denied. The defendant
appeals from the denial and from the admission of what he
asserted was unnecessary first complaint evidence. We
conclude that the trial judge did not err in declining to
give an instruction on mistake of fact for either the charge
of indecent assault and battery or the charge of indecent
exposure. The judge also did not err in allowing the
admission of the challenged testimony.
case also presents the issue of the extent to which a judge
has discretion to question prospective jurors following
attorney-conducted voir dire, and to rule on challenges for
cause. The defendant contends that the answers provided by
the prospective jurors when questioned by the judge were not
sufficient to address issues of bias raised during
attorney-conducted voir dire on the same topics, and that the
judge erred by refusing to excuse the jurors for cause. We
conclude that the judge did not abuse his discretion either
in asking follow-up questions or in his rulings that the
jurors were impartial. Accordingly, we affirm the
jury could have found the following. The defendant first
contacted M.M. on a dating Web site in June, 2014. Over the
following week, the defendant and M.M. exchanged messages
through the Web site and via text messages on their cellular
telephones, with both of them sending multiple flirtatious
and explicit messages. They also spoke on the telephone at
least once. Early on in these exchanges, the defendant told
M.M. that he was a State trooper who was separated from his
wife, but was still living in the same house with her for
financial reasons. M.M., who was separated from her husband,
said that his "situation, " as he had portrayed it,
was not a "deal breaker" for her.
relationship progressed, M.M. became suspicious that the
defendant was trying to cheat on his wife, a suspicion that
he denied. They continued to send each other explicit
messages and to try to find a time at which they could meet
in person. Both said that they were working long hours and
looking for someone "to spend time with on a casual
July, 2014, the defendant offered to meet M.M. at a coffee
shop next to a gasoline station in Williamsburg on her way
home from work. M.M. told the defendant she could meet him
for a short period of time while getting gasoline, but that
she had promised to help her landlord with some work. M.M.
testified at trial that she did need to get gasoline, but she
had no plans with her landlord, and that she simply
"wanted an excuse to just cut it off" if she
decided to leave. She wanted an opportunity to meet the
defendant face to face in order "to see what the
situation really was" with his wife.
at the gasoline pumps, M.M. saw the defendant arrive in
uniform in a police cruiser and enter the coffee shop. She
moved her vehicle next to his and began a conversation with
him in the parking lot. M.M. and the defendant discussed
their relationships with their spouses and otherwise had
"a friendly conversation" in which they "were
shooting the breeze." M.M. testified at trial that she
felt comfortable with the defendant and was not intimidated.
They spoke for approximately ten minutes and then M.M. said
she had to leave. The defendant told M.M. that he was
enjoying their conversation and asked if he could go back to
her house with her to finish the coffee and the conversation.
M.M. agreed, and he followed her vehicle as she drove home.
M.M. and the defendant arrived at M.M.'s apartment, three
of her landlords' children were in the swimming pool.
M.M. asked the defendant to wait outside for a minute so that
she could put away laundry that was hanging up inside. M.M.
then told the defendant he could come in.
defendant walked into M.M.'s apartment, he started
walking toward her and unzipped his pants. He pulled out his
penis and said, "I want you to see what you're doing
to me." M.M. responded, "No. This isn't what I
thought was going to happen here, " but the defendant
continued to walk towards her with his penis exposed. M.M.
continued to say "no" and "no means no"
as the defendant reached for her wrist and forced her to
touch his penis. She tried to pull away, but her back was
against the kitchen counter. The defendant kissed M.M. until
she turned her head away. He then backed off, and M.M. Said,
"You need to fucking leave." The defendant zipped
his pants, apologized, and said that he would leave. On his
way out, the defendant asked M.M. if she was going to report
him. The defendant had been inside M.M.'s apartment for
approximately five minutes.
minutes after the defendant left, M.M. sent a text message to
a friend, J.D.,  to tell her what had happened. She then
spoke to J.D. on the telephone and sent text messages to
several other friends. That night, M.M. telephoned both the
Worthington and Williamsburg police departments, and left
voice mail messages. The next morning, not having heard from
either police department, M.M. called 911.
defendant sent M.M. a text message that afternoon, asking how
her day was going, but M.M. did not respond. At some point
that day, the defendant removed his profile from the dating
Web site. The defendant was arrested and charged with
indecent assault and battery, indecent exposure, and assault
the messages between M.M. and the defendant were introduced
at trial through M.M.'s testimony. In addition, the
jury heard testimony from J.D. as a first complaint witness,
and testimony from State trooper Robin Whitney and
Northampton police Detective Michael Briggs concerning the
close of all the evidence, defense counsel requested a jury
instruction on mistake of fact for the charges of indecent
assault and battery and indecent exposure. The judge
declined to give the instructions. On the charge of indecent
assault and battery, he decided that the current state of the
law does not require that a defendant intend that the
touching be without consent and, therefore, a mistake of fact
as to consent was both irrelevant and not supported by the
facts in this case. The judge similarly ruled that giving the
instruction for the charge of indecent exposure would add an
element not otherwise required by current jurisprudence,
although he acknowledged that this court has not addressed
the issue of mistake of fact for indecent exposure. He
observed that the facts in this case may support a mistake of
fact defense for the charge of indecent exposure.
defendant was convicted of all three offenses. He appealed
from his convictions, and we allowed his application for
direct appellate review.
defendant challenges his convictions on three bases: (1) the
jury should have been instructed on mistake of fact for both
indecent assault and battery and indecent exposure where he
reasonably believed that M.M. had consented to the touching
and would not be offended by his exposure; (2) the judge
should not have allowed first complaint testimony from J.D.
and "a related category of evidence" from the
investigating officers; and (3) the judge incorrectly refused
to dismiss for cause two members of the venire who had
indicated bias during attorney-conducted voir dire.
Mistake of fact instruction.
the defendant requested mistake of fact instructions for the
indictments alleging indecent assault and battery and
indecent exposure, and objected to the judge's ruling, we
review for prejudicial error. Commonwealth
v. Kelly, 470 Mass. 682, 687 (2015).
mistake of fact instruction "is available where the
mistake negates the existence of a mental state essential to
a material element of the offense."
Commonwealthv.Lopez, 433 Mass.
722, 725 (2001). See Commonwealthv.Liebenow, 470 Mass. 151, 161-162 (2014) (allowing
mistake of fact instruction for charge of larceny where
defendant thought property was abandoned);
Commonwealthv.Kenney, 449 Mass.
840, 857 (2007) (defendant may present evidence of honest
mistake about age of child depicted in pornographic
447 Mass. 537, 540-541 (2006) (defendant entitled to jury
instruction on defense of honest and reasonable belief that
he was collecting debt to refute element of intent to steal).
See also Lopez, supra at 725-726, quoting
Model Penal Code § 2.04(1)(a) (1985) (ignorance or