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Commonwealth v. Sherman

Supreme Judicial Court of Massachusetts, Essex

February 13, 2019


          Heard: November 6, 2018.

          Indictments found and returned in the Superior Court Department on December 11, 2014. The cases were tried before Joshua I. Wall, J.

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

          Edward Crane for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         A Superior Court jury convicted the defendant of penile-vaginal and digital-vaginal rape, implicitly rejecting the defendant's testimony that all sexual intercourse between him and the victim had been consensual. On appeal, the defendant claims that the trial judge committed two reversible errors. First, the defendant contends that, where the deliberating jury asked the judge whether initially consensual sexual intercourse could become rape if the victim withdrew her consent after penetration, the judge erred by failing to instruct the jury that a defendant may not be found guilty of rape under such circumstances unless the penetration continued after the victim communicated the withdrawal of consent to the defendant. Second, the defendant argues that, where there was no expert testimony regarding the effect of cocaine on perception and memory, the judge erred in admitting evidence of cocaine use for the purpose of allowing the jury to assess the defendant's ability to perceive and recall events. We conclude that the judge erred in failing to provide the jury with an instruction regarding the withdrawal of consent and in admitting cocaine evidence for the purpose of assessing the defendant's memory, but that, in the circumstances of this case, neither error requires reversal of the defendant's convictions.


         The primary contested issue at trial was whether the victim had consented to sexual intercourse with the defendant. The victim and the defendant offered sharply differing accounts of what happened in the early morning of October 14, 2014. We summarize the evidence at trial.

         The victim testified that on the night of October 13, 2014, she drank one beer with a female friend at a pub, and then went with her friend to a second pub. The two arrived at the second pub at some time between midnight and 12:15 A.M. Upon arriving, the victim recognized one of her coworkers and the bartender, and began speaking with them. The defendant, whom the victim did not know, joined the conversation. The victim and the defendant remained at the pub until approximately 1 A.M., when the pub closed. The victim drank one beer and one shot at the second pub.

         The defendant, the victim, and others continued to talk outside the pub after closing. The defendant asked the victim if she wanted to "hang out." The victim agreed, but explained to the defendant that it was "just going to be us hanging out" because she was gay. The defendant said that was fine, and the two exchanged telephone numbers before parting.

         The victim and her friend then went to a restaurant, where the victim received a text message from the defendant: "I wanna c u 2nite make it happen." The victim texted back, "Thats fine, but you just need to know that i like girls." The defendant asked by text whether the victim wanted him to get condoms. The victim replied by text, "im down to chill but i like girls." After the defendant texted, "K thats cool . . .," the victim added, "Plus, not to sound gross but im on my period. Lol." The defendant replied by text, "Its all good." The victim then drove her friend home and continued alone to the defendant's apartment, arriving shortly before 2 A.M.

         The defendant came downstairs to meet the victim, and the two went up to his apartment. Both the victim and the defendant drank beer in the kitchen while discussing their shared interest in music. The defendant then told the victim that he wanted to show her a record in his bedroom. The victim entered the defendant's bedroom, sat at the foot of the bed, and began looking at the record. The defendant sat down behind the victim and attempted to kiss her on the cheek. The victim responded by putting her hand out and telling the defendant that she was gay and that "it is not going past just hanging out." The defendant apologized multiple times, and then attempted to kiss the victim again. Before she could tell him to stop, the defendant got on top of the victim, put his knees on her thighs, and put his hands on her shoulders. The victim testified that she felt "terrified," that she "froze," and that she was unable to fight back against the defendant.

         The defendant then pulled down the victim's pants and pulled her shirt up to her neck. The victim told the defendant to "stop" and to "get the fuck off me," and the defendant asked why. When the victim responded that she was gay, the defendant said "good" and vaginally raped her with his penis. Intercourse was painful for the victim, who was wearing a tampon, but the defendant "kept going harder and faster." The defendant then put his penis in the victim's mouth. When the victim turned her head away, he inserted his fingers into her vagina. The defendant then vaginally raped the victim with his penis for a second time. The victim screamed "stop" repeatedly and attempted to push the defendant off her by moving her arms from side to side. The defendant then got off the victim.

         The victim dressed rapidly, went into the bathroom, and then collected her things to leave. The defendant told the victim not to "worry about the blood," which the victim observed on the defendant's bed, in the kitchen (located between the bedroom and the bathroom), and on the defendant. The defendant then offered to walk the victim to her vehicle. The victim declined. Nevertheless, the defendant followed the victim downstairs, held her vehicle's door open while she tried to close it, and attempted to kiss her. The victim pushed the defendant and drove away.

         Soon after leaving the defendant's apartment, the victim called a friend from her vehicle. After five or six telephone calls, her friend answered and the victim told her, "I've been fucked. It just happened. I just got raped." The friend testified that the victim was so "distraught" and "hysterical" on the telephone that it was initially difficult to understand her.

         The victim then drove to her parents' home, and they took her to a hospital where a nurse conducted an evidence collection examination. The nurse testified at trial that the victim --who, the nurse reported, said that she had been assaulted[1] -- was "horrified, angry, upset, [and] tearful." The nurse further testified that the victim denied being in pain at that time, and that the nurse observed no trauma to the victim's body.

         At around 4:45 A.M., the victim met with Salem police Detective Eric Connolly at the hospital. Connolly testified that the victim was "visibly upset" and crying. After speaking with the victim, Connolly and two uniformed officers went to the defendant's address. They arrived at approximately 6 A.M., and the defendant let them into his apartment. The officers asked the defendant whether he had met anybody that night, and the defendant responded that he had had sexual intercourse with a woman, but could not remember her name. Then, while the officers were speaking with him, the defendant lowered his shorts to reveal a "reddish brown stain" resembling blood on his underwear. The defendant also led the officers into his bedroom to show them a bloodstain on his bed sheets. The officers placed the defendant under arrest and transported him to the Salem police department for booking. During booking, Connolly observed that the defendant had "red brownish stains" resembling blood on his left hand.

         That same day, officers obtained a warrant to search the defendant's apartment. During their execution of the warrant, officers discovered a paper plate with a spoon on it on the defendant's kitchen counter. The spoon, which appeared burnt, held a white powdery substance believed by Connolly to be cocaine. Connolly observed more white powder next to the plate. Officers also obtained a search warrant for the defendant's cell phone, which led to extraction of the text messages between the defendant and the victim.

         On October 20, the victim went to the Salem police department to have photographs taken of bruises that had appeared on her ...

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