Opinion
14-P-1155
11-19-2015
COMMONWEALTH v. WILLIAM TURMAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of rape. The Commonwealth's theory of the case was that the victim did not consent, and indeed lacked the capacity to consent at the time of the rape. On appeal, the defendant claims error in the judge's instructions regarding his intoxication. We affirm.
Background. After spending the evening at a bar in Boston, the victim and some of her friends returned to her brother's Somerville apartment in the early morning hours of July 2, 2011. There, the victim continued drinking and smoked marijuana. At approximately 2:30 A.M., she fell asleep on a sofa in the apartment's living room. The defendant, who was one of the brother's roommates and who knew the victim "in passing," returned to the apartment some time after that (about 4:00 A.M. by his own estimate). According to his testimony, he also fell asleep in the living room, and when he woke up, everyone had left, except for the victim still sleeping on an adjacent sofa. The defendant stated that he went over to the victim and "shook her shoulder [and] . . . grabbed her hand" to try and wake her up because he wanted to "hook up with her." He testified that he then offered to "play with [her] pussy," and that she replied "Uh-huh," which he "assumed . . . meant yes."
When the victim woke up around 5:30 A.M., she felt someone's tongue licking her vagina, and discovered that her underwear had been pulled down. Recognizing the defendant, she immediately pushed him off of her, exclaiming: "What the fuck are you doing?"
Discussion. In Commonwealth v. Mountry, 463 Mass. 80, 91-94 (2012) (Mountry), the Supreme Judicial Court held that in sexual assault cases, where there is evidence that a defendant may have been so intoxicated that he could not appreciate the victim's inability to consent, he is entitled, upon his request, to a jury instruction with regard to that. Here, in his initial requested jury instructions, the defendant included one based on Mountry. However, he subsequently withdrew that request, and crossed out that portion of his requested instructions. As a result, the judge did not give a Mountry instruction in her initial jury charge.
During their deliberations, the jury made an inquiry regarding the defendant's intoxication. Specifically, the jury asked: "Since defendant was under the influence . . . [he] may not have known complainant was incapacitated"; and "Does being intoxicated absolve a person from being deemed 'reasonable'?" This prompted the defendant to revive his request for a Mountry instruction. After a colloquy with both counsel, the judge provided such an instruction, responding to the jury's inquiry as follows: "You may consider any credible evidence of the defendant's intoxication as it may be relevant to whether he knew or reasonably should have known that the complainant was incapable of consenting to intercourse." Defense counsel declared that she was "satisfied" with such language.
The defendant's claim that the judge erred in not sua sponte including a Mountry instruction in her initial jury charge founders for many reasons. First, it is far from clear that a Mountry instruction ever was warranted here given the state of the evidence regarding the defendant's level of intoxication. Second, as the defendant acknowledged at oral argument, highlighting a sexual assault defendant's intoxication presents a two-edged sword, and, here, the defendant affirmatively decided against requesting an instruction regarding that issue. If the judge had given such an instruction contrary to the defendant's wishes, she ran the risk of "interfer[ing] with the defendant[']s[] right to present [his] chosen defenses." Commonwealth v. Norris, 462 Mass. 131, 144 (2012). Third, even if the judge should have initially provided a Mountry instruction, she cured any prejudice in that omission by providing one in response to the jury's inquiry.
There was evidence that the defendant had had several drinks over the course of the evening and that he was -- by his own description -- "pretty intoxicated." However, the Supreme Judicial Court has indicated that a Mountry instruction is due only when there is evidence of "debilitating" intoxication. Mountry, 463 Mass. at 93. The trial judge herself commented that whether a Mountry instruction was warranted was a "close case." Before the jury came back with its inquiry, defense counsel had commented in regard to whether a Mountry instruction was warranted, "I don't think the evidence is there."
The additional instruction supplemented the instructions the judge already had given, and she told the jury that they should consider her instructions as a whole. There is no merit to the defendant's argument that this was improper.
The defendant is left to argue that the particular language the judge provided failed to satisfy Mountry. Because defense counsel declared herself "satisfied" with that language, our review is limited to whether any error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
The defendant argues that the trial judge erred in instructing the jury that evidence of intoxication "may be" relevant, rather than stating that such evidence "is" relevant. However, in Mountry itself, the court held that, as to the element of knowledge, the jury should have been instructed that "they could consider any credible evidence that the defendant was affected by the voluntary consumption of alcohol" (emphasis added). 463 Mass. at 92. The judge's instructions conveyed that the jury could consider the defendant's intoxication as bearing on whether he knew or reasonably should have known that the victim was incapable of consenting, and no particular phrasing is required. See generally Commonwealth v. Torres, 420 Mass. 479, 484 (1995) ("Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words"). The judge's instructions posed no error, much less a substantial risk of a miscarriage of justice.
Conversely, the particular instructions the defendant had proposed were plainly at odds with Mountry. Specifically, those proposed instructions failed to discuss the objective component of knowledge set forth in Mountry, 463 Mass. at 91 (defendant's intoxication is relevant to whether he "knew or reasonably should have known that a victim's condition rendered . . . her incapable of consenting" [emphasis added]).
Judgment affirmed.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 19, 2015.