Commonwealth v. Balde

75 N.E.3d 1147 (Table)

COMMONWEALTH

v.Vasco BALDE.

16-P-201

Appeals Court of Massachusetts.

Entered: January 10, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his convictions of rape, in violation of G. L. c. 265, § 22(b ), and incest, in violation of G. L. c. 272, § 17. First, the defendant alleges that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth presented insufficient evidence to prove the element of force. Second, the defendant argues that the judge erred by failing to conduct an individual voir dire of potential jurors as required under Commonwealth v. Flebotte , 417 Mass. 348 (1994). We affirm.

Background . In 2005, the sixteen year old victim received a phone call from the defendant, her biological father, asking her to leave Portugal and live with him in the United States, along with his girl friend, Julia, and her two children.²

While living with the defendant, the victim was subjected to several instances of inappropriate kissing and touching by the defendant. At times, the defendant grabbed the victim's breast and buttocks, as well as rubbed his genitals over her clothing while standing against her backside.³ The victim routinely told the defendant to stop. When the defendant discovered that the victim had informed Julia about these incidents, he grabbed the victim by the arm, led her into the living room, and threw her on the couch. He warned the victim that if she told anyone about his conduct, he would "kill" her. The victim felt "scared" and "intimated" by this threat.

Approximately three weeks after the defendant threw her on the couch, he told the victim that he wanted to give her a shower as he "did with all his kids."⁴ The ritual occurred one night when only the victim and the defendant were home. While in the bathroom, the defendant told the victim to take off her clothes. As he helped her undress, the defendant also instructed the victim to remove her underwear.⁵ The victim agreed to the ritual despite knowing that she would be naked.

The ritual began as a standard bath where the defendant poured water on the victim's head and washed her with a loofah. The defendant began by bathing the victim's face and proceeded down to her breasts and her vagina. As the defendant bathed her, the victim sat in the tub with her legs open. The defendant also penetrated the victim's vagina with his fingers. When the victim asked the defendant why he needed to penetrate her, the defendant explained that he was "just cleaning everything." Though the victim told him to stop, the defendant stated that it was part of the ritual. The defendant eventually ceased and helped the victim dry off and get dressed.⁶ The victim slept in the defendant's bed later that night.

Discussion . 1. Use of force . The defendant argues that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth failed to provide sufficient evidence of use of force. We review the evidence in the light most favorable to the Commonwealth. See Suliveres v. Commonwealth , 449 Mass. 112, 114 & n.4 (2007).

To prove a conviction of rape, the Commonwealth must demonstrate that the defendant "compel[led] [the victim] to submit by force and against [her] will, or compel[led] [her] to submit by threat of bodily injury. " G. L. c. 265, § 22(b ), as appearing in St. 1980, c. 459, § 6. The Commonwealth may prove the statutory element of "force" through "actual force, threatened force, or ‘constructive force.’ " Commonwealth v. Wallace , 76 Mass. App. Ct. 411, 417 (2010), citing Commonwealth v. Caracciola , 409 Mass. 648, 651-653 (1991). To prove constructive force, "there must be 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).⁷

In this case, the defendant was an authority figure, as the victim's biological father. Also significant, the victim was dependent on the defendant while in his care in this country. See id . 522-525. See also Commonwealth v. Armstrong , 73 Mass. App. Ct. 245, 255 (2008). Despite the defendant's emphasis that the victim was a fully developed sixteen year old, "[a]t a time when the victim developmentally should have been moving towards independence, the defendant imposed circumstances that guaranteed her dependence on him." Newcomb , supra at 522-523. The defendant asked the victim to leave her home in Portugal and live with him in the United States. Not only did the victim rely on the defendant for traditional needs—such as money, food, and housing—but also, the victim spoke limited English and was isolated from her family and friends, who lived in a different country. Here, there was sufficient evidence to show that the defendant took advantage of the victim's vulnerability and trust in him such that the victim had no meaningful power to resist. See id . at 522-524. See also Armstrong , supra .

The element of force was further demonstrated through the victim's fear arising from the defendant's threats and threatening conduct.⁸ See Caracciola , supra at 651. Three weeks prior to the rape, the defendant threw the victim on the couch and threatened that if she told anyone about his behavior, he would kill her. As a result, the victim was "scared" and "intimated." See id . at 652 ("[The victim] was entitled to take the defendant's threatening words and his conduct at face value"); Wallace , supra at 418 ("[T]he jurors were entitled to credit [the victim's] testimony that [she] feared the consequences of resisting the defendant's sexual advances"). Therefore, where the defendant was an authority figure and preyed upon the victim's vulnerability by causing her to submit to his sexual advances out of fear for her safety, "a jury rationally may conclude that ‘the victim's ability to resist the rape was overborne or negated’ by the defendant's conduct." Commonwealth v. Dumas , 83 Mass. App. Ct. 536, 539 (2013), quoting from Armstrong , 73 Mass. App. Ct. at 255. See Newcomb , 80 Mass. App. Ct. at 523 (victim's fear "was never dissipated because her ability to separate from her father was compromised by him"). Thus, there was no error.

2. Individual voir dire . The defendant argues that the judge failed to conduct a proper inquiry of the first eight jurors as required under Flebotte , 417 Mass. at 353-356. "[The] judge [shall] question prospective jurors individually when it appears that their impartiality may be affected by extraneous issues." Id . at 355, citing G. L. c. 234, § 28.⁹ While the judge has broad discretion in determining when a risk of impartiality exists, he is required, "on request ... to question each potential juror individually [in cases involving sexual offenses against minors] as to whether the juror had been a victim of a childhood sexual offense" (emphasis supplied). Commonwealth v. DiRusso , 60 Mass. App. Ct. 235, 237 (2003), quoting from Flebotte , supra at 355.

Here, the defendant did not request that the judge inquire "whether [a] juror has been a victim of a childhood sexual offense" (emphasis supplied). Flebotte , supra at 353. Rather, after the first eight jurors had been empanelled, the defendant generally requested that the judge ask whether a juror has "been the victim of a sexual assault."¹⁰ This request was a variation of the Flebotte inquiry, and so, the judge's query did not reflect the specific Flebotte question. Accordingly, the judge adequately explored the issue of impartiality by asking each potential juror if he or she would believe an alleged rape victim more than another witness or sympathize with an alleged rape victim such that the juror would be unable to keep an open mind.¹¹ See Commonwealth v. Vickery , 82 Mass. App. Ct. 234, 237 (2012) (judge sufficiently explored the issue of impartiality).¹² The judge further signaled to the jurors, en masse, that they would be asked during individual voir dire, if they or anyone close to them had ever been accused of a sexual assault.¹³ See Commonwealth v. Howard , 46 Mass. App. Ct. 366, 369 (1999) (judge's inquiry "was a proper and adequate way of determining whether any juror was biased against the defendant or harbored any concern which would affect his or her impartiality").

Furthermore, even assuming arguendo, that the defendant did request a specific Flebotte inquiry, the defendant's objection was waived. See Vickery , supra ; Commonwealth v. Coutu , 88 Mass. App. Ct. 686, 692-693 (2015). Defense counsel made her request after the first eight jurors had been empanelled and seated.¹⁴ "The acquiescence of defense counsel to actions taken by the trial judge can constitute a waiver of any objection to the judge's actions." Vickery , supra at 235. The defendant had numerous opportunities to raise insufficiencies in the judge's questioning. Before trial, the judge gave both counsel a copy of the voir dire questions that he intended to ask the potential jurors. In addition to the judge's individual inquiry, each counsel performed an attorney-conducted voir dire of the jurors. At this time, defense counsel could have conducted a further inquiry of the first eight jurors herself, but did not do so.¹⁵ Instead, she requested that the judge ask additional questions, after eight jurors had been empanelled, and then acquiesced to the judge's selection process on the second day of empanelment. When the judge completed empanelment of fourteen jurors on the second day, defense counsel requested that the judge re-question the first eight jurors. Thus, the defendant waived any objection to the judge's initial procedure by failing to act or object in a timely fashion. See ibid .; Coutu , supra ("Order in the administration of criminal justice requires that if a defendant is aggrieved by what transpires during his trial, he must assert a timely objection or claim of error" [quotations omitted] ). See also G. L. c. 234A, § 74, inserted...