Commonwealth v. Moniz , 87 Mass. App. Ct. 532 ( 2015 )


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    11-P-954                                                Appeals Court
    COMMONWEALTH   vs.   ROBERT MONIZ.
    No. 11-P-954.
    Middlesex.       February 12, 2015. - June 17, 2015.
    Present:    Cohen, Green, & Massing, JJ.
    Rape.  Assault with Intent to Rape. Practice, Criminal, Motion
    to suppress, Assistance of counsel, Admissions and
    confessions. Constitutional Law, Assistance of counsel,
    Admissions and confessions. Evidence, Admissions and
    confessions.
    Indictments found and returned in the Superior Court
    Department on September 2, 2004.
    The case was heard by Elizabeth M. Fahey, J., and a motion
    for a new trial, filed on January 14, 2014, was considered by
    her.
    James A. Reidy for the defendant.
    Jamie Charles, Assistant District Attorney (Kevin L. Ryle,
    Assistant District Attorney, with him) for the Commonwealth.
    MASSING, J.     The defendant, convicted of eight counts of
    sex offenses committed against his adopted son when the boy was
    between the ages of fourteen and eighteen years old, appeals
    from the three convictions based on his conduct after the victim
    2
    turned sixteen, one for rape in violation of G. L. c. 265,
    § 22(b), and two for assault with intent to rape in violation of
    G. L. c. 265, § 24, claiming insufficiency of the evidence.1     He
    also appeals from the denial of his motion for new trial
    alleging that trial counsel was ineffective for failing to move
    to suppress the defendant's postindictment admissions to a
    person he asserts was acting in a law enforcement capacity.      We
    affirm.
    Background.   The victim was born in August, 1978.    The
    defendant met the victim after he entered into a romantic
    relationship with the victim's mother.   In 1988, the victim's
    family began living with the defendant in Enfield, New
    Hampshire.   In April, 1989, the defendant married the victim's
    mother and adopted the victim.
    The first sexual incident occurred when the defendant
    arranged to sleep alone with the victim in a cabin the defendant
    had built in the middle of the woods, approximately two hundred
    yards from the house in Enfield.   The defendant touched the
    victim's genitals over his clothing for a couple of minutes
    before they went to bed.   The victim asked the defendant what he
    was doing, and the defendant told him, "[T]his is what all good
    1
    The other convictions were on two counts of rape and abuse
    of a child under sixteen years of age, G. L. c. 265, § 23; one
    count of assault with intent to rape a child under sixteen,
    G. L. c. 265, § 24B; and two counts of indecent assault and
    battery on a person aged fourteen or older, G. L. c. 265, § 13H.
    3
    friends do."    The defendant would "do the same thing" at the
    print shop that the defendant and the victim's mother owned,
    where the victim sometimes worked.
    The defendant took the victim into the cabin once or twice
    a week, mostly on the weekends, and more frequently during the
    summertime.    Over time, the defendant began touching the
    victim's genitals under his clothing.    The defendant would
    arrange to stay home alone with the victim while the victim's
    mother went out shopping for two to three hours at a time.       He
    performed fellatio on the victim numerous times, asked the
    victim to reciprocate, and told the victim that the victim was
    gay.    The victim refused the defendant's requests for fellatio
    but was afraid he could not otherwise protect himself from the
    defendant.
    The victim asked the defendant at least once in New
    Hampshire, "[W]hy he was doing that, why didn't he just love my
    mother and leave me alone?"    The defendant convinced him that
    nobody would believe him if he reported their sexual encounters,
    and that it was better for his family if he would submit to the
    defendant's sexual demands.    As a result, the sexual episodes
    continued as the family relocated from New Hampshire to Rhode
    Island to Massachusetts.
    The family moved to Waltham, Massachusetts, in 1993.    The
    victim, then a sophomore in high school, was five feet, ten
    4
    inches tall, and weighed 185 pounds.     Even as a teenager, "it
    seemed easier" to the victim to remain silent and submit to the
    defendant's sexual demands.   The defendant would "pitch a fit"
    when the victim resisted his advances.     He threw several
    tantrums that quickly escalated from screaming to physical
    violence, "trashing" the victim's bedroom, and smashing walls.
    The defendant would eavesdrop on the victim's telephone
    conversations and become upset that the victim was spending time
    with females, making the victim feel "like [he] was splitting
    the family apart."   The victim "didn't want to create problems
    within the family," and he "felt it was easier just to not say
    anything."
    The defendant attempted to have anal sex with the victim on
    two separate occasions, once when the victim was around fourteen
    years old, and once after the victim's sixteenth birthday.     Both
    times, the victim had been trying to take a shower in the
    bathroom after the defendant had performed fellatio on him when
    the defendant approached the victim from behind and "rubbed his
    penis on [the victim's] butt."    The victim moved away and asked
    the defendant what he was doing.   The defendant said nothing in
    response and eventually left him alone in the bathroom.
    The defendant continued to sexually assault the victim
    after he turned sixteen years old in the same general manner as
    in the earlier sexual episodes.    The episodes stopped when the
    5
    victim turned eighteen and moved into his grandparents' home in
    Lexington.    The victim's mother testified that the defendant
    became depressed in the victim's absence, and a few months
    later, in November, 1996, the defendant attempted to commit
    suicide.
    The defendant moved to Alaska in January, 1997, and the
    victim finally told his mother that the defendant had been
    sexually abusing him for years.    Approximately four years later,
    the victim learned that the defendant was dating a woman in
    Alaska who had a four year old son.    Fearing that the defendant
    would sexually abuse the son, the victim reported the defendant
    to the police.
    In 2004, the defendant was arrested in Alaska and indicted
    in Massachusetts.    As a condition of bail, the Alaska court
    appointed the mother of the defendant's new girlfriend to serve
    as the defendant's third-party custodian.2     During the two- to
    three-week period of the defendant's pretrial release in Alaska,
    he made a series of admissions to his custodian regarding his
    sexual assaults on the victim.    He told her that "he did it";
    that he "hurt the child . . . , but he doesn't think it was
    hurting him"; and that "everything he did helped that child."
    Discussion.    1.   Constructive force.   The defendant argues
    that the evidence was insufficient to prove that he used force
    2
    See note 5, infra.
    6
    to accomplish the sexual assaults after the victim reached the
    age of sixteen.   To support a conviction for rape under G. L.
    c. 265, § 22(b), the Commonwealth must prove beyond a reasonable
    doubt that the defendant had sexual intercourse by force or
    threat of force and against the will of the victim.    However,
    the Commonwealth need not prove that the defendant used physical
    force.   Commonwealth v. Caracciola, 
    409 Mass. 648
    , 651 (1991).
    Constructive force may be shown by "proof that the victim was
    afraid or that she submitted to the defendant because his
    conduct intimidated her."    Commonwealth v. Newcomb, 
    80 Mass. App. Ct. 519
    , 521 (2011) (Newcomb).    In cases such as this,
    where sexual assaults that began when the victim was a child
    continue past the child's sixteenth birthday, constructive force
    may be shown by "a prior pattern of repeated sexual assaults by
    the defendant upon the victim when she was a child, combined
    with the victim's statement that the assaults always happened
    the same way."    
    Id. at 524
    .
    For example, in Commonwealth v. Wallace, 
    76 Mass. App. Ct. 411
    , 413-414, 417-418 (2010) (Wallace), where the defendant's
    sexual assaults on the victim began when the victim was eleven
    and continued until he turned eighteen, evidence of "the history
    of their relationship and the defendant's predatory behavior"
    was sufficient to support the rape conviction.    The defendant
    had repeatedly raped the victim as a child, which had the effect
    7
    of "grooming the victim" to submit to the same conduct after he
    matured.    
    Id.
     at 418 n.11.   The victim submitted to the
    defendant after he turned sixteen because "he feared the
    consequences of resisting the defendant's sexual advances (even
    if the specific consequences he feared were not spelled out)."
    Id. at 418.   These facts permitted the inference that the
    defendant compelled the victim to submit by force and against
    his will.   Id. at 417-418.
    Likewise in Newcomb, supra, we affirmed the defendant's
    convictions of rape of his adult daughter on a theory of
    constructive force.   The defendant's assaults on the victim when
    she was under the age of sixteen "inculcated [in her a pattern
    of] submit[ting] to the defendant's advances."     80 Mass. App.
    Ct. at 522.   The victim's dependence on her father, his mental
    abuse of her mother, his drunken tirades, and the "victim's
    testimony that every act of [abuse] followed the same pattern"
    permitted the inference that the sexual assaults of the adult
    victim were "accomplished in precisely the same circumstances
    that demonstrated constructive force when she was fourteen.
    Those circumstances included a fear of the defendant that was
    never dissipated."    Id. at 523.
    This case shares the hallmarks of constructive force found
    in Wallace and Newcomb.    The assaults began when the victim was
    young and the defendant, his adoptive father, was an authority
    8
    figure.   The victim feared the defendant's angry, and sometimes
    violent, tirades and worried that the family would be split
    apart if he resisted the defendant's advances.   The pattern
    continued after the victim turned sixteen.   This evidence was
    sufficient to permit the jury to find the existence of the
    essential element of force or threat of force beyond a
    reasonable doubt.   See Commonwealth v. Latimore, 
    378 Mass. 671
    ,
    676-677 (1979); Commonwealth v. Hanlon, 
    44 Mass. App. Ct. 810
    ,
    814 (1998).
    The defendant also argues that the proof of force (or
    constructive force) was necessary to sustain his convictions of
    assault with intent to anally and orally rape the victim, and
    that such proof was absent.   However, proof of force is not
    needed to sustain a conviction of assault with intent to rape,
    the elements of which are "an assault on the victim and a
    specific intent . . . to rape the victim."   Commonwealth v.
    Martin, 
    447 Mass. 274
    , 287 n.9 (2006), citing Commonwealth v.
    Nickerson, 
    388 Mass. 246
    , 253 (1983).
    The trial judge instructed the jury on the two common-law
    theories of assault, attempted battery and immediately
    threatened battery.3   Neither requires the use of force, or even
    3
    To convict on a theory of attempted battery, "the
    prosecution [must] . . . prove that the defendant intended to
    commit a battery, took some overt step toward accomplishing that
    intended battery, and came reasonably close to doing so. . . . A
    9
    that the victim be put in fear.     Indeed, under the attempted
    battery theory, the victim does not even need to be aware of the
    attempt -- "the victim could be unconscious or have his back
    turned when the attempted battery occurred."     Commonwealth v.
    Porro, 
    458 Mass. 526
    , 530 (2010).    Under the threatened battery
    theory, "[t]he victim need not actually be in fear, but must
    apprehend the risk of an imminent battery."     
    Id. at 531
    .   The
    evidence was sufficient to prove both counts of assault with
    intent to rape.
    2.   Ineffective assistance of counsel.     In his motion for a
    new trial, the defendant claimed that trial counsel was
    ineffective for failing to file a motion to suppress the
    admissions he made to his court-appointed custodian in Alaska
    after he had been indicted in Massachusetts and his right to
    counsel had attached.
    The Sixth Amendment to the United States Constitution
    "generally prohibits any 'knowing exploitation by the State of
    an opportunity to confront the accused without counsel being
    present.'"   Commonwealth v. Hilton, 
    443 Mass. 597
    , 614 (2005),
    S.C., 
    450 Mass. 173
     (2007) (Hilton), quoting from Maine v.
    conviction of assault under a theory of threatened battery
    requires the prosecution to prove that the defendant engaged in
    conduct that a reasonable person would recognize to be
    threatening, that the defendant intended to place the victim in
    fear of an imminent battery, and that the victim perceived the
    threat." Commonwealth v. Porro, 
    458 Mass. 526
    , 530-531 (2010).
    10
    Moulton, 
    474 U.S. 159
    , 176 (1985).    This rule applies when law
    enforcement officials or their agents speak to defendants about
    their pending charges in the absence of counsel; it does not
    apply to communications initiated by "private citizens
    'unconnected with law enforcement authorities.'"     Hilton, supra
    at 615-616, quoting from Commonwealth v. Allen, 
    395 Mass. 448
    ,
    454 (1985).
    The defendant claims that his third-party custodian,
    appointed by the Alaska court under 
    Alaska Stat. § 12.30.020
    (2004),4 was acting as an agent of Massachusetts prosecutorial
    authorities.    We disagree.   Alaska's unique third-party
    custodian arrangement was a form of supervised home detention.5
    See Johnston, Sentenced by Tradition:    The Third-Party Custodian
    Condition of Pretrial Release in Alaska, 
    26 Alaska L. Rev. 317
    (2009).   The appointment of the custodian, imposed in lieu of
    bail or pretrial detention, was for the defendant's benefit.
    She did not act at the behest or on the behalf of the
    Commonwealth.
    4
    This provision has since been repealed.    See 2010 Alaska
    Sess. Laws c. 19, § 30.
    5
    
    Alaska Stat. § 12.30.020
    (b)(1), as then in effect, gave
    the judicial officer determining a defendant's pretrial release
    status the option of "plac[ing] the person in the custody of a
    designated person or organization agreeing as a custodian to
    supervise the person." A custodian could be subject to
    prosecution for "failure to report immediately in accordance
    with the terms of the [release] order that the person released
    has violated a condition of release." 
    Ibid.
    11
    The defendant chose his girlfriend's mother as a custodian
    because she was friendly to him and her home was convenient.
    After his arrest, the defendant's girlfriend "begged" her mother
    to accept responsibility for supervision of the defendant in
    accordance with the conditions of pretrial release.   According
    to the defendant, his two other sureties lived too far away,
    "all the way into Fairbanks," whereas his girlfriend's mother
    lived approximately one mile away in North Pole, Alaska.
    The defendant likens his custodian to the court officer
    found to be the equivalent of a law enforcement official in
    Hilton.   He argues that like the court officer, who "was
    required to report any observations or information concerning
    criminal activity," Hilton, 443 Mass. at 616, the custodian "was
    required to report any violations of law or conditions of
    release to the authorities."   See Commonwealth v. Howard, 
    446 Mass. 563
    , 569 (2006) ("Our primary concern was, and remains,
    with the constitutional implications of questioning on matters
    concerning pending charges posed by persons whose official
    duties direct them to interact with a defendant and who may be
    required to turn any incriminating responses over to the police
    and prosecutor").
    The defendant exaggerates his custodian's responsibilities.
    Her statutory duty was to assure the defendant's appearance at
    trial, and her reporting obligation was accordingly limited to
    12
    informing the court if "the person released has violated a
    condition of release."     
    Alaska Stat. § 12.30.020
    (b)(1).   She was
    not charged with investigating the pending charges or reporting
    other criminal conduct, nor did she.     She did not disclose the
    defendant's admissions until after the defendant had been
    extradited to Massachusetts, and then only when a Fairbanks
    police detective, at the request of the Waltham police, sought
    her out for questioning.     "[N]either the [custodian's] questions
    nor the defendant's responses were prompted or suggested by law
    enforcement officials."    Commonwealth v. Allen, 
    395 Mass. at 454
    .    Under these circumstances, an agency relationship did not
    arise between the custodian and the Commonwealth.
    Because a motion to suppress would have been futile, the
    defendant cannot demonstrate that counsel was ineffective for
    failing to pursue it, or that counsel's failure to do so
    deprived him of a substantial defense.     See Commonwealth v.
    Saferian, 
    366 Mass. 89
    , 96 (1974); Commonwealth v. Conceicao,
    
    388 Mass. 255
    , 264 (1983).    The judge's denial of the motion for
    new trial without an evidentiary hearing was well warranted.
    Conclusion.   For the foregoing reasons, the defendant's
    motion for required findings of not guilty on the three
    13
    challenged charges and his motion for a new trial were properly
    denied.
    Judgments affirmed.
    Order denying motion for new
    trial affirmed.