Com. v. Irwin

893 N.E.2d 414

72 Mass. App. Ct. 643

COMMONWEALTH v. John R. IRWIN.

No. 07-P-956.

Appeals Court of Massachusetts, Norfolk.

Argued April 7, 2008.

Decided September 15, 2008.

Edward J. O'Brien for the defendant.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

Present: McHUGH, KATZMANN, & GRAINGER, JJ.

KATZMANN, J.

Having been found guilty by a District Court jury on a charge of indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B, the defendant, John R. Irwin, now appeals. The principal contentions are (1) that the Commonwealth's use of the defendant's failure to reach out to the police and his delay in speaking to them—as evidence of consciousness of guilt—was improper under the common-law rules of evidence and violated the defendant's privilege against self-incrimination, and (2) that his counsel was ineffective in failing to object to this evidence and to its use by the prosecutor in closing argument. We reverse the conviction and remand to permit a new trial.

Background. On July 25, 2003, the complainant (then six years old), her brother, and her mother visited Virginia Griffin's apartment. At the apartment were Griffin (then a friend of the complainant's mother), Griffin's boyfriend Gary Closker, the couple's two sons (Brian, aged nine months, and Paul, aged three years¹), and the defendant. The defendant had known Griffin for about fifteen years. Several years before the alleged incident, she and the defendant had a romantic relationship, and after their break-up, they remained friends.² The defendant also knew the complainant's mother, and had at one point rented a room from her.

On the evening of July 25, 2003, Griffin and the complainant's mother allowed the children to watch movies. At an unspecified time during the movies, the defendant, who had not been watching, left the apartment. By the time the movies ended, the children had fallen asleep on the floor. Not wanting to disturb the sleeping complainant, the complainant's mother and Griffin agreed that the complainant should spend the night. As Griffin moved the complainant to the larger bed in the apartment's sole bedroom, the complainant's mother and her son left the apartment. Griffin put Brian in a crib located in the bedroom, which directly connected to the living room. Griffin and Closker slept on the floor in the living room.³

Up until this point, the facts are relatively undisputed with only minor, inconsequential discrepancies. However, from this point forward, the Commonwealth and the defendant presented diverging versions of the events.

According to the Commonwealth's evidence, introduced primarily through the complainant's testimony, the next morning, the complainant woke up to find the defendant in bed with her. The defendant, who was "playing with his penis," suggested that the complainant "touch [his] toy." When the defendant did not respond to the complainant's inquiry of "what is it," the complainant decided to touch it. Immediately, she realized that it was the defendant's penis,⁴ got out of bed, and ran to Griffin and Closker. After learning of the incident, Griffin, according to the complainant, called the police.⁵

The complainant further testified that the defendant was the perpetrator and identified him for the jury. She explained that at the time of the incident, she recognized him from the previous evening and that she already knew him because her mother had rented him a room in their house.⁶

The Commonwealth also offered the testimony of Detective Richard Potter, who had been assigned to the case after it had been reported by the complainant's father. Detective Potter testified that he interviewed Griffin in the days following the incident. He also interviewed the defendant, who informed him that when he entered the apartment on the morning of the incident, Griffin and Closker were sleeping on the floor; that he had proceeded directly to the bedroom closet to get money from his jacket; and that thereafter his visit had devolved into an argument with Griffin. As will be further elaborated upon below, Detective Potter also testified that despite numerous attempts, he had difficulty contacting the defendant,⁷ and that the defendant had missed at least one interview, including the initial interview scheduled for September, 2003, and possibly avoided meeting with him for several months.

The defendant's primary witness was Griffin. At the time of the alleged incident, the defendant had keys to her apartment, and she allowed him to stay there at times, with the understanding that he would call her first before coming over. On the evening prior to the incident, the complainant visited Griffin and her family. At some point, the defendant left. Griffin testified that on the morning of the incident, she awoke when she heard and observed the defendant enter the apartment and go into the bedroom.⁸ Once in the bedroom, Griffin observed the defendant reach into the closet, which was directly adjacent to the door, and take something out. The defendant then moved to the bathroom. Thereafter, Griffin and the defendant got into an argument because the defendant had not called to say that he would be coming over, and he did not have permission to enter the apartment. When the defendant would not leave, and would not return the keys to her, Griffin contacted the police, who responded and removed the defendant from the apartment.

Griffin testified that about "two hours later," while the children were watching television, the complainant informed her that "there was somebody in the bed." Upon examining the bedroom, Griffin did not observe any person in the bedroom. Upon further inquiry, the complainant told Griffin that "some strange guy was in the room" and that "he wanted [her] to touch his Charlie." When the complainant's mother arrived, Griffin did not tell her about what the complainant had said because it "didn't make sense." Nor did Griffin call the police in response to the complainant's account.

The defendant also called the complainant's father to testify. He testified that on the afternoon of the incident, he picked up his daughter (the complainant) and her brother at their mother's residence and took them to his home. During that visit, he had a conversation with the complainant, wherein she alleged that she had been sexually assaulted that morning at Griffin's house. Specifically, the complainant stated, "Paul's father John made me touch his Charlie."⁹ After questioning his daughter further, he contacted the police. On cross-examination, the complainant's father stated that he did not know Paul, or his father. He also responded affirmatively to the prosecutor's question as to whether the complainant had also told him "that John took his penis out of his pants."¹⁰

The defendant also testified. He stated that he had dated Griffin for five years, that they had broken up, but had remained friends. While he did not live in Griffin's apartment at the time of the alleged incident at issue, he was living with her, Gary Closker (by then her husband), and their two children at the time of trial. The defendant testified that he came to know the complainant's mother because she was a friend of Griffin. He had rented a room from the complainant's mother, but saw the complainant very little because of his schedule, and was not living in that rented room at the time of the alleged incident.

The defendant's testimony regarding the alleged incident was congruous with Griffin's version of the events. He testified that on July 25, 2003, he was at Griffin's apartment when the complainant's mother and her children (including the complainant) came over to watch movies. He testified that he stayed one-half hour and left, returning the next morning at 7:00 A.M. because he wanted to get some money from a pocket in his jacket, which hung in a closet in the apartment. The defendant, who testified that he had a front door key (and a key to a storage bin downstairs where he kept all his belongings), let himself in with the front door key. Griffin and Closker woke up. Griffin began arguing with him about the keys, saying that she wanted them returned. The defendant testified that he took a step into the bedroom and did not see anyone. He opened the closet in the bedroom, got a twenty dollar bill from a coat pocket, and went to the bathroom. When he refused to return the keys, Griffin called the police to remove him from the apartment. When the police arrived, the defendant gave Griffin the house key, but retained the storage bin key. The police "asked" the defendant to leave, and he did so, later meeting Closker at a bar. The defendant testified that he did not see the complainant at all that day, and stated, "no, I did not," in response to a question as to whether he had "touch[ed] or act[ed] inappropriately with [the complainant]."

On cross-examination of the defendant, the Commonwealth inquired as to why he had not attended a September, 2003, meeting with Detective Potter as he had agreed to do, instead of waiting until January, 2004.¹¹ The Commonwealth further inquired as to why there was an approximate three-month lapse in the defendant's communications with Detective Potter between September, 2003, and December, 2003.

Discussion. The issue in this case focuses on the Commonwealth's use of evidence relating to the defendant's prearrest inaction and silence to suggest consciousness of guilt. The Commonwealth's theory was that the defendant's failure to reach out to the police or to speak with them at the first opportunity, and his declining to comply with police requests for an interview, were evidence of guilt.¹² Our analysis is informed by two related principles, one founded in the common-law rules of evidence, and the other in the Constitution of the Commonwealth.

First, regarding the common-law evidentiary rule, as the Supreme Judicial Court has observed, while "[t]he ...