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Commonwealth v. Kennedy

Supreme Judicial Court of Massachusetts, Hampshire

February 9, 2018


          Heard: October 3, 2017.

         Indictments found and returned in the Superior Court Department on October 15, 2014. The cases were tried before Daniel A. Ford, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Merritt Schnipper for the defendant.

          Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth.

          The following submitted briefs for amici curiae:

          David Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services.

          Thomas J. Carey for Kari Hong & others.

          Wendy 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.

          GAZIANO, J.

         A 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 the apartment.

         At 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.

         This 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 defendant's convictions.[1]

         1. Facts.

         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.

         As the 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 basis."

         In 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.

         While 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.

         When 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.

         As the 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.

         A few minutes after the defendant left, M.M. sent a text message to a friend, J.D., [2] 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.

         The 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 and battery.

         All of the messages between M.M. and the defendant were introduced at trial through M.M.'s testimony.[3] 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 investigation.

         At 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.[4] 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.

         The defendant was convicted of all three offenses. He appealed from his convictions, and we allowed his application for direct appellate review.

         2. Discussion.

         The 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.

         a. Mistake of fact instruction.

         Because 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).

         A 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 material); Commonwealthv.Vives, 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 ยง 2.04(1)(a) (1985) (ignorance or ...

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