Commonwealth v. Condon

99 Mass.App.Ct. 27

162 N.E.3d 76

COMMONWEALTH

v.David J. CONDON.

No. 19-P-722

Appeals Court of Massachusetts, Barnstable..

Argued October 15, 2020.

Decided December 18, 2020.

James Haynes, Boston, for the defendant.

Laura Marshard, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Blake, & Henry, JJ.

MILKEY, J.

A Superior Court jury found the defendant guilty of rape, G. L. c. 265, § 22 (b ), and of misleading a police officer, G. L. c. 268, § 13B. On appeal, he argues that reversal of the rape conviction is required principally because the judge improperly excluded certain text messages that the victim had sent to a friend with respect to the incident in question. We disagree and therefore affirm the rape conviction. The defendant also argues that the evidence was legally insufficient to support the conviction of misleading a police officer, and on that point, we agree. We therefore reverse that conviction and order the entry of judgment for the defendant on that charge.

Background. 1. The offense. At around midnight on January 24, 2017, the defendant invited the victim to "hang out" with him and his friend, David Rodrigues, at Rodrigues's studio apartment in Harwich. At the time, the victim was nineteen years old. The defendant and the victim previously had dated for approximately two years, and at one point they had lived together. Their romantic relationship ended approximately one year before the defendant extended his invitation.

Once at the apartment, the victim, the defendant, and Rodrigues began playing a card game in which the loser of a round had to consume alcohol. The victim was drinking an orange juice and vodka mixture that she had brought with her, and she also was given a shot of vodka or tequila infused with marijuana leaves. After a while, the participants in the card game altered the rules so that the loser had to remove an item of clothing. At one point, the victim took photographs or "video clips" of the two men in a state of at least partial undress and sent the images to friends using the social media application known as "Snapchat."

At around 2 A.M. , the victim felt sick, which she attributed to the taste of the marijuana-infused alcohol. She therefore rushed to the bathroom and began to vomit. The defendant followed her there, which she acknowledged at trial may have been in response to her requesting help because at that point she "wasn't able to walk." According to the victim, the defendant then professed that he wanted to renew his relationship with her. The next thing the victim remembered was waking up naked on the sofa with the defendant's penis in her vagina.¹ The victim testified that she told him to stop and tried to push him away but was unable to do so. She remembered being awake only for "a minute or two" at this time, after which she "passed out [and] was unconscious." After the victim awoke again later that morning, Rodrigues drove her and the defendant to their respective homes. At one point, she told the two men, "This never happened."

2. Text message exchanges. Later that morning, Brandon Pavlakis, whom the victim referred to at trial as her best friend, viewed the Snapchat images that the victim had sent of the defendant and Rodrigues playing the card game. In response, Pavlakis began exchanging text messages with the victim that morning, and they resumed doing so again in the afternoon. We summarize those two exchanges, while highlighting that -- for reasons that will be explained -- only the afternoon text exchange was admitted in evidence.

At 9:57 A.M. , Pavlakis sent the victim the following text message: "Wtf did I just see on my Snapchat." The victim responded to Pavlakis at approximately 11:39 A.M. , and over the course of the next seven minutes, the two exchanged several text messages about the partying at Rodrigues's apartment and about the victim's concern that she would be fired from her job for being late to work. During that exchange, the victim three times used the common, shorthand expression "lol."² For present purposes, we accept the defendant's interpretation that "lol" stands for "laughing out loud."³

At 1:48 P.M. , the victim resumed communicating with Pavlakis by text messages. After first reporting that she indeed had gotten fired, the victim informed Pavlakis that she "got raped last night," and then went on to discuss the circumstances.⁴

During her own trial testimony, the victim referenced the afternoon text message exchange during which she informed Pavlakis about the rape. The afternoon text message exchange was admitted without objection. On cross-examination, the victim acknowledged that there had been an earlier text message exchange (the morning text message exchange), although there is nothing in the transcript that documents that she was asked about the substance of that exchange.⁵

Later in the trial, Pavlakis testified as the first complaint witness. On direct examination, he testified about the afternoon text message exchange without drawing an objection. On cross-examination, Pavlakis acknowledged the existence of the morning text message exchange, which he indicated had begun around 10 A.M. when he asked the victim about the Snapchat images of the card playing. However, when defense counsel tried to inquire into the substance of the morning text message exchange, the prosecutor objected on the ground that it was hearsay that did not fit any exception. During a lengthy sidebar discussion, defense counsel argued that the substance of the morning text message exchange was fair game for two reasons. First, focusing on the victim's use of "lol" in the morning text message exchange, counsel argued that the victim's statements constituted prior inconsistent statements that could be used for impeachment. Second, counsel argued that the morning text message exchange was necessary to provide the full context of the afternoon text message exchange. The judge agreed with the Commonwealth and cut off this line of questioning.⁶

3. The course of the investigation. The Harwich police first interviewed the victim at her home on the day of the events in question. That same day, the victim was taken to a hospital where a rape kit was completed. The nurse who examined the victim observed that her vaginal area was raw, swollen, and red looking. A vaginal swab taken from the victim revealed the presence of sperm cells. The major deoxyribonucleic acid profile from the sperm fraction almost certainly came from the defendant.

At the start of their investigation, the Harwich police were concerned about whether they had jurisdiction. That was because, even though the victim told them that Rodrigues's apartment was in Harwich, her specific description of its location led them to believe that it might have been in Brewster. Effective police work quickly dispelled those concerns. With the assistance of the State police, who went through the contents of the victim's cell phone with her permission, the Harwich police located Rodrigues's apartment. Then, the next day, the police drove to the location with the victim to confirm that it was the site that she had reported. In addition to following up with the victim, the police interviewed -- among others -- Rodrigues, Pavlakis, and the victim's roommates.

In the week that followed, Detective Paul Ulrich was not able to physically locate the defendant. On January 31, 2017, Ulrich called the defendant at a telephone number provided by the victim. In answering his telephone, the defendant readily identified himself to Ulrich, even confirming for the detective the last four digits of his Social Security number. After Ulrich told the defendant that he wished to discuss an incident that the defendant was involved in, but before Ulrich gave any more details, the defendant denied that he had been involved in any incident. Once Ulrich provided details about the victim's allegations, the defendant denied that he had seen the victim in recent weeks, that he knew anyone named Rodrigues, or that he was familiar with the street on which Rodrigues lived.

At the end of his telephone conversation with the defendant, Ulrich asked the defendant where he currently was living. When the defendant asked why Ulrich wanted that address, Ulrich responded that it was just so that the police had accurate, updated records. The defendant then stated that he lived at 1017 Massasoit Road in Eastham. Ulrich looked up the address on the Internet service known as "Google Maps." That search called into question whether the supposed address existed. By checking town tax records and by driving by where the putative address should have been, Ulrich confirmed that the defendant had given him false information. On February 3, 2017, Ulrich searched for the defendant at various other locations, such as his father's home at 1740 Massasoit Road, Eastham (which was the address that the Registry of Motor Vehicles had on file for the defendant). The police spoke to the defendant's father, employer, and current girlfriend about the defendant's whereabouts, but were unable to physically locate him. The following business day, which was "as soon as [the police] exhausted [their] efforts to physically locate" the defendant, the police pursued an arrest warrant for him.

4. Bill of particulars. After the defendant was indicted for rape and for misleading a police officer, the defendant requested a bill of particulars regarding the charges. In the bill of particulars, the Commonwealth clarified that the indictment for misleading a police officer was based on the defendant's having "falsely told Detective Paul Ulrich that he resided at 1017 Massasoit Road, Eastham, when in fact no such residence existed." Notwithstanding this, the Commonwealth has vacillated since then on what theory the misleading a police officer indictment relied. In her opening statement, the prosecutor told the jury that the indictment was based on the defendant's other falsehoods ...