Opinion
19-P-1340
07-29-2021
COMMONWEALTH v. Lee LANDRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a 2014 jury trial, the defendant was convicted of two counts of rape, G. L. c. 265, § 22 (b ), one count of incest, G. L. c. 272, § 17, and one count of indecent assault and battery on a person fourteen or older. G. L. c. 265, § 13H. He was sentenced to twelve to fifteen years of incarceration, an upward departure from the recommended range in the sentencing guidelines, which was seven to ten and one-half years.
In 2018, following an unsuccessful appeal to this court, the defendant timely moved to revise and revoke his sentence pursuant to Mass. R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016). He argued that the sentence was improperly influenced by the prosecutor's reference, during sentencing, to grand jury evidence that indicated that the victim had contracted three sexually transmitted diseases (STDs) during the rape. The motion was denied, and the defendant appeals, arguing that (1) the introduction of the STD information at sentencing violated the due process clause because the information had not been introduced at trial and was not reliable hearsay, (2) establishing the transmission of STDs would have required expert testimony at trial, and no expert had testified to such, and (3) he had been deprived of the opportunity to rebut the contention. We affirm.
Background. We briefly recount the facts of the underlying case to the extent that they are relevant to this appeal. A fuller treatment may be found in a panel of this court's decision on direct appeal in Commonwealth v. Landry, 93 Mass. App. Ct. 1113 (2018) (decision pursuant to former rule 1:28).
In January of 2011, the defendant, age twenty eight at the time, vaginally and anally raped the victim, his niece, at his Dracut home. The victim was sixteen years old. The victim eventually disclosed the rape to her mother in 2012, after the two of them visited a Planned Parenthood clinic for treatment of three STDs that the victim had contracted as a result of the rape. The victim and her mother then confronted the defendant, who is the mother's brother.
Both the victim and the victim's mother testified before a grand jury regarding the STDs, and the victim's medical records were also introduced as exhibits. The victim's mother, a health care worker, testified to the grand jury that she had visually inspected the defendant's (her brother) genital rash in January 2010, as well as the victim's (her daughter) genital rash in January 2011 and again in April 2012, and that it was her impression that they were the same rash. The mother also testified that she had, on separate occasions, taken both the defendant and the victim to health clinics for treatment for STDs during the relevant time period. The mother testified that while confronting the defendant, she had asked him why the victim had the "same exact diseases," and that the defendant had responded "I'm not the only one in the world who has those two diseases." However, by agreement of the parties, evidence regarding the STDs was not presented at trial. The defendant was tried and convicted in November of 2014.
References to grand jury testimony are taken from representations made in the Commonwealth's brief and appendix, as well as representations the Commonwealth made to the judge in response to the defendant's rule 29 motion. The defendant does not contest the Commonwealth's representations as to the grand jury testimony.
The case then moved to the sentencing phase. The victim spoke again, recounting the profound impact that the rape had on her. She did not, however, mention the STDs. Following her statement, the prosecutor added:
"I would suggest Your Honor can consider that [the victim] suffered and still suffers from some sexually transmitted diseases as a result of this matter. We agreed, the parties, for the purpose of the trial, not to put that into evidence .... But it did become a part of the case. It was entered into the Grand Jury. There are Grand Jury exhibits that demonstrate three different sexually transmitted diseases. One which could potentially cause her lifetime complications ...."
In response, defense counsel argued that because the matter had not been aired at trial, the defendant had not gotten a chance to "factual[ly] dispute" the contention regarding STDs. Defense counsel requested that the judge not "take at face value [the prosecutor's] representations." The judge, referencing the victim's impact statement, the relation between the defendant and the victim, and the "particularly cruel and brutal act," sentenced the defendant to a period of twelve to fifteen years in prison -- an upward departure from the sentencing guidelines, which would have set a seven to ten and one-half year sentence. The judge also imposed concurrent terms in the house of correction for other convictions, as well as a subsequent term of probation.
The docket originally contained an error, in that it listed the ten-year term of probation as an additional ten-year term of incarceration, to be served consecutively to the twelve to fifteen-year term. This error was corrected by the court following the defendant's motion to revise and revoke.
Following the affirmance of his convictions in this court, the defendant filed a motion to revise and revoke his sentence, arguing that the information regarding the STDs should not have been considered. The defendant's motion contended that, in light of the parties' agreement not to reference evidence regarding STDs at trial, the prosecutor's reference to the grand jury evidence at sentencing caught him unprepared and denied him the opportunity to rebut such information. The motion also argued that the STD information was not reliable, and that expert testimony would have been required to establish that "[the defendant] was the one who ... transmitted these diseases to her."
The judge, who had also presided at trial, denied the motion. The judge had not referenced the STDs at sentencing, but in his order denying the rule 29 motion he stated:
"The specific issue of the STD's imparted to the victim by the defendant's rape was important for the undersigned to know so as to really appreciate the extent of her torment .... The defendant might well have never been confronted if it were not for the transmission of the disease .... There was no injustice here."
This appeal followed.
Discussion. The defendant argues that the judge improperly considered the information regarding the STDs, for several reasons. We review the denial of a motion to revise and revoke a sentence under an abuse of discretion standard. Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014). We perceive no abuse of discretion.
The defendant first argues that the STD information was not sufficiently reliable to be considered by the judge at sentencing. This argument hinges on an assumption that some type of structured evidentiary restrictions apply to sentencing proceedings. This assumption is at odds with historic sentencing practices. It is settled law that "[a] sentencing judge is given great discretion in determining a proper sentence." Commonwealth v. Donohue, 452 Mass. 256, 264 (2008), quoting Commonwealth v. Lykus, 406 Mass. 135, 145 (1989). In the exercise of this discretion, "the judge may consider a variety of factors including the defendant's behavior, family life, employment history, and civic contributions, as well as societal goals of ‘punishment, deterrence, protection of the public, and rehabilitation.’ " Donohue, supra, quoting Commonwealth v. Power, 420 Mass. 410, 414 (1995). Importantly, the "scope of sentencing and the judge's inquiry is ‘largely unlimited as to the kind of information he may consider, or the source from which it may come.’ " Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 586 (1991), quoting United States v. Tucker, 404 U.S. 443, 446 (1972). This includes "hearsay information about the defendant's character, behavior, and background." Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993).
In arguing that the judge violated due process by relying on the hearsay statements regarding the STDs, the defendant relies on Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (due process requires that hearsay presented at probation revocation hearings meet a minimum "substantially reliable" standard), as well as two Supreme Judicial Court opinions that upheld sentences against challenges that judges had relied on improper information. See Goodwin, 414 Mass. at 94 (information about prior uncharged conduct was "sufficiently reliable" even though it was unsworn, and hearsay); Commonwealth v. Martin, 355 Mass. 296, 299 (1969) (judge may consider "responsible unsworn or out-of-court information").
We do not think it is material whether the judge relied on the prosecutor's statements about the STDs, or the grand jury evidence itself. The prosecutor offered the judge copies of the grand jury evidence, which the judge declined, although the judge likely was familiar with it from prior proceedings.
We are not persuaded. As indicated, the cases recognize that a judge's inquiry at sentencing is "largely unlimited," Tucker, 404 U.S. at 446, and specifically allow consideration of hearsay. E.g., Goodwin, 414 Mass. at 92. The Durling case, of course, has nothing to do with sentencing. It is a case about probation revocation hearings, and the types of evidence that may be considered in adjudicating a probation violation. In contrast, sentencing proceedings do not involve formal adjudications of fact; they unfailingly involve multifactor balancing -- a balancing left to the judge, as the cases recognize. In performing that balancing the judge is well situated to weigh the quality of the information presented as well as the information itself. The cases acknowledge the "necess[ity] that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of a rigid adherence to restrictive rules of evidence." Goodwin, supra, quoting Williams v. New York, 337 U.S. 241, 247 (1949). Indeed, "all types of untested statements are offered ... at sentencing hearings. Witnesses are not produced and cross-examination is not required." Commonwealth v. Nunez, 446 Mass. 54, 58 (2006). See Commonwealth v. Lugo, 482 Mass. 94, 101 (2019) (defendant "not entitled to ... adversarial process before sentencing"). Certainly, there is no Massachusetts case applying Durling-like limitations to a sentencing proceeding.
The opinions in Goodwin and Martin suggest that there are some outer limits on the information that can be relied on at sentencing, but neither case holds that such a limit was exceeded, or provides a relevant standard that must be met. See Goodwin, 414 Mass. at 92-94 ; Martin, 355 Mass. at 299, 304.
The defendant's argument that the judge should not have considered the information regarding the STDs because it was not established at trial, fails for essentially the same reasons. "Where a judge is imposing sentence the situation is far different from that affecting a trial."Commonwealth v. Celeste, 358 Mass. 307, 309 (1970).
In any event, the defendant's argument fails because the information at issue had sufficient indicia of reliability to pass the standard he proposes. The testimony regarding the STDs was given under oath to a grand jury, and was corroborated by medical records as well as testimony regarding the defendant's similar STD infections, including an admission of the defendant that would have been admissible at trial. See Commonwealth v. Hartfield, 474 Mass. 474, 481, 484 (2016) (substantial indicia of reliability where statements made "under oath in ... grand jury proceeding" or are "corroborated by information from other sources"); Mass. G. Evid. § 801 (d) (2) (2021). For those reasons, the information at issue certainly would have been "sufficiently reliable" to be considered at sentencing. Goodwin, 414 Mass. at 94.
Finally, the defendant argues that he "did not have an opportunity to challenge or rebut" the allegation regarding STDs, and that the court should have "[a]fford[ed] [the defendant] a short hearing before imposing sentence." However, a "short hearing" was conducted -- the sentencing proceeding -- and during that proceeding defense counsel in fact objected, averring that the STD information was "factual[ly] dispute[d]." While the defendant was not entitled to an adversarial process, see Lugo, 482 Mass. at 101, the defendant was free to present additional information to the judge to further rebut the claim. We note that the defendant did not seek additional time to present further evidence.
The judge of course was not required to credit the defendant's unsupported assertion of a "factual dispute." The judge instead was free to credit the sworn grand jury testimony and exhibits -- including the admission of the defendant that he had the same STDs at around the same time -- in imposing a sentence above the guidelines but still well under the statutory maximum. See Power, 420 Mass. at 413-414.
It is inapposite that the judge exceeded the sentencing guidelines; the guidelines are advisory only. See Commonwealth v. Russo, 421 Mass. 317, 322-323 (1995) ; Power, 420 Mass. at 413-414.
The order dated May 8, 2019, denying the amended motion to revise and revoke sentence is affirmed.
So ordered.
Affirmed