Commonwealth v. Tillson

235 N.E.3d 287

104 Mass.App.Ct. 180

COMMONWEALTH

v.Thomas TILLSON.

No. 22-P-889

Appeals Court of Massachusetts, Bristol.

Argued January 8, 2024

Decided May 17, 2024

Rape. Indecent Assault and Battery on a Person with an Intellectual Disability. Consent. Evidence, Authentication, Court record, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Voluntariness of statement, Required finding, Motion to suppress, Instructions to jury.

Indictments found and returned in the Superior Court Department on October 18, 2018.

A pretrial motion to suppress evidence was heard by Raffi N. Yessayan, J., and the cases were tried before Thomas F. McGuire, Jr., J.

Megan A. Siddall, for the defendant.

Robert P. Kidd, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Wolohojian, & Toone, JJ.¹

WOLOHOJIAN, J.

₁₈₁After a jury trial, the defendant was convicted of rape, G. L. c. 265, § 22 (b), and indecent assault and battery on a person with an intellectual disability, G. L. c. 265, § 13F. He raises four arguments on appeal. First, he argues the evidence was insufficient in two respects. With respect to all the crimes, he argues that the evidence was insufficient to prove lack of consent -- either as a matter of actual consent or of incapacity to consent. ₁₈₂With respect to the rape charges, he also argues that the evidence was insufficient to prove force. Second, the defendant argues that a guardianship decree issued by the Probate and Family Court should not have been admitted in evidence because it was not properly authenticated and that the error was prejudicial. Third, the defendant argues that his statements to police should have been suppressed because they were involuntary. Fourth, the defendant argues that voluntariness was a live issue at trial such that the judge was required sua sponte to give a humane practice instruction and that the failure to do so resulted in a substantial risk of a miscarriage of justice. We affirm.

Background. We recite the facts pertinent to the defendant’s arguments regarding the sufficiency of the evidence through the lens of Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), reserving additional facts for later discussion. The victim was a fifty year old man with developmental deficits. The victim’s mother had been his guardian until she died in 1994. Thereafter, the victim moved in with his brother and sister-in-law, who became his court-appointed permanent guardians in 1995 and, as such, had responsibility to take care of the victim financially and to watch over him.

The victim could not read, and could write only in a limited fashion by copying things. He could spell his name and address. He graduated from high school at the age of twenty-two, after following a curriculum that did not include classes in English or math, but did include archery, basketball, and baseball. After being diagnosed with mild retardation,² the victim was determined to be in need of assistance and was provided services by the Department of Mental Retardation (DMR) and later by the Department of Developmental Services.³ The victim has for decades also received sendees on a daily basis from an entity called People Incorporated.

In 1999, the brother used half of the proceeds from the sale of the deceased mother’s house to purchase a condominium in Fall ₁₈₃River for the victim to live in. Although the victim lived in the condominium by himself, he needed significant supports for many aspects of daily life. The victim, for example, could not drive. He was assigned a mentor who would take him shopping, and do other activities with him. One of the mentors lived next door to the victim in an adjoining unit, and helped him shop and cook. Also by way of example, the victim was not capable of safely using an oven. The sister-in-law prepared meals for the victim, which he reheated using a microwave. The brother and sister-in-law called the victim at least once a day, and visited him weekly. The victim needed guidance and reminders to make sure that he had eaten, shaved, cleaned, and brushed his hair.

People Incorporated arranged for the victim to work at a bank, where he watched parked cars and picked up litter. The victim also volunteered at a hospital, where he washed pots and pans in the kitchen. People Incorporated transported the victim to and from his work, and also from the hospital.⁴ People Incorporated also provided an afterwork program for the victim.

The victim has had a girlfriend, who has a similar disability to his, for almost thirty years since high school. The victim and his girlfriend would go on walks together, or out to dinner, or "things like that." The two were never left alone together, but instead were accompanied either by a mentor or by the brother and sister-in-law.

The defendant, who is more than ten years older than the victim, lived in the same condominium complex with his wife and son.⁵ Towards the back of the complex, there was a grassy area and a picnic table where the victim, the defendant, and other residents of the complex regularly congregated. The victim became friendly with the defendant, whom he met through the defendant’s son.

One day, the victim had a conversation with the defendant in which the defendant warned him to be careful of ticks. The defendant and the victim then went into the victim’s condominium, where the victim got undressed and the defendant shaved his penis to supposedly check for ticks. The victim did not ask the defendant to do this; instead, the defendant did it of his own initiative. The defendant remained clothed during this episode.₁₈₄

On another occasion, the defendant wanted the victim "to do him" or "to give him a blow job." The victim "said no," and that he did not "want to do it." The defendant "wanted me to do it so I wouldn’t get in trouble," and the victim complied. The defendant then attempted to put his penis in the victim’s "bum." The defendant then forced his penis into the victim’s mouth, something the victim did not want to have happen. The defendant then asked the victim to touch the defendant’s penis "[t]o see if it will squirt." The defendant also touched the victim’s penis by putting his penis together with the victim’s penis "[t]o make them squirt" even though the victim did not want to do this. The defendant also touched the victim’s penis with his hands. The defendant and the victim were alone when these events took place. The victim did not want to engage in any of these activities, he told the defendant so, and the conduct made him scared.⁶ It was the victim’s first time engaging in such activity.

While the defendant was in the victim’s condominium, the victim tried to alert his mentor to the situation by banging on the wall to see if he could get her attention, but she did not respond. The defendant told the victim not to say anything because the defendant did not want to get into trouble. He also told the victim not to sit at the picnic table anymore.

In 2017 going into 2018, the brother and sister-in-law noticed that the victim looked very sickly, had lost a lot of weight, complained of body aches, was agitated, and was swearing and getting angry at people. This was unusual behavior, and the brother and sister-in-law became concerned that the victim was seriously ill. They took him to the doctor several times, but tests did not reveal any physical ailment.

On the evening of April 13, 2018, the sister-in-law called the victim to see if he had eaten his supper. She noticed that he "wasn’t acting right on the phone." The victim was unable to offer a clear explanation as to what was wrong, but said that he could not pick up his pants, that his legs and side were in pain, and that he was sweating. The sister-in-law and brother drove immediately to the victim’s condominium and found him sweating in his pajamas. The victim again stated that he did not know ₁₈₅what was wrong, and the sister-in-law and brother decided to drive him to the hospital. En route, the victim revealed that the defendant had been hurting him, that the defendant had shaved his penis for ticks, and that the defendant had tried to put his penis in his "bum." The victim said that he had not wanted to engage in sexual activity with the defendant. When the brother and sister-in-law brought the victim to their home that night, the victim curled up and "cried and cried," a form of expression he had not previously manifested even in moments of deep personal grief such as the loss of his mother.

Ten days later, on April 23, 2018, the defendant voluntarily went to the police station, where he made inculpatory statements during a one-hour interview that was audio-visually recorded. The defendant confirmed the broad details of the victim’s account, except that he denied anal penetration. He acknowledged that he had engaged in sexual activity with the victim on approximately six occasions, but said that he stopped when he became uncomfortable with the situation given the victim’s intellectual deficits.

The defendant was indicted of one charge of indecent assault and battery on a person with intellectual disability, G. L. c. 265, § 13F (defendant touching victim’s penis, victim touching defendant’s penis, and victim and defendant touching penises together), and three charges of rape (oral rape victim on defendant, oral rape defendant on victim, and anal intercourse), G. L. c. 265, § 22 (b). At trial, the defense acknowledged that sexual activity had occurred between the defendant and the victim but argued that it was consensual. The jury convicted him of the indecent assault and battery (all three acts), and the two oral rape charges; he was acquitted of the rape charge alleging anal intercourse.

[1–4] Discussion. 1. Sufficiency of evidence. a. Lack of consent. The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt that the victim did not actually consent or was incapable of consent. Lack of consent...