Commonwealth v. Sherman , 481 Mass. 464 ( 2019 )

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SJC-12530
COMMONWEALTH vs. RICHARD SHERMAN, JR.
Essex. November 6, 2018. - February 13, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Rape. Consent. Practice, Criminal, Instructions to jury,
Question by jury. Evidence, Inflammatory evidence, Expert
opinion.
Indictments found and returned in the Superior Court
Department on December 11, 2014.
The cases were tried before Joshua I. Wall, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Edward Crane for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
GANTS, C.J. A Superior Court jury convicted the defendant
of penile-vaginal and digital-vaginal rape, implicitly rejecting
the defendant's testimony that all sexual intercourse between
him and the victim had been consensual. On appeal, the
2
defendant claims that the trial judge committed two reversible
errors. First, the defendant contends that, where the
deliberating jury asked the judge whether initially consensual
sexual intercourse could become rape if the victim withdrew her
consent after penetration, the judge erred by failing to
instruct the jury that a defendant may not be found guilty of
rape under such circumstances unless the penetration continued
after the victim communicated the withdrawal of consent to the
defendant. Second, the defendant argues that, where there was
no expert testimony regarding the effect of cocaine on
perception and memory, the judge erred in admitting evidence of
cocaine use for the purpose of allowing the jury to assess the
defendant's ability to perceive and recall events. We conclude
that the judge erred in failing to provide the jury with an
instruction regarding the withdrawal of consent and in admitting
cocaine evidence for the purpose of assessing the defendant's
memory, but that, in the circumstances of this case, neither
error requires reversal of the defendant's convictions.
Background. The primary contested issue at trial was
whether the victim had consented to sexual intercourse with the
defendant. The victim and the defendant offered sharply
differing accounts of what happened in the early morning of
October 14, 2014. We summarize the evidence at trial.
3
The victim testified that on the night of October 13, 2014,
she drank one beer with a female friend at a pub, and then went
with her friend to a second pub. The two arrived at the second
pub at some time between midnight and 12:15 A.M. Upon arriving,
the victim recognized one of her coworkers and the bartender,
and began speaking with them. The defendant, whom the victim
did not know, joined the conversation. The victim and the
defendant remained at the pub until approximately 1 A.M., when
the pub closed. The victim drank one beer and one shot at the
second pub.
The defendant, the victim, and others continued to talk
outside the pub after closing. The defendant asked the victim
if she wanted to "hang out." The victim agreed, but explained
to the defendant that it was "just going to be us hanging out"
because she was gay. The defendant said that was fine, and the
two exchanged telephone numbers before parting.
The victim and her friend then went to a restaurant, where
the victim received a text message from the defendant: "I wanna
c u 2nite make it happen." The victim texted back, "Thats fine,
but you just need to know that i like girls." The defendant
asked by text whether the victim wanted him to get condoms. The
victim replied by text, "im down to chill but i like girls."
After the defendant texted, "K thats cool . . . ," the victim
added, "Plus, not to sound gross but im on my period. Lol."
4
The defendant replied by text, "Its all good." The victim then
drove her friend home and continued alone to the defendant's
apartment, arriving shortly before 2 A.M.
The defendant came downstairs to meet the victim, and the
two went up to his apartment. Both the victim and the defendant
drank beer in the kitchen while discussing their shared interest
in music. The defendant then told the victim that he wanted to
show her a record in his bedroom. The victim entered the
defendant's bedroom, sat at the foot of the bed, and began
looking at the record. The defendant sat down behind the victim
and attempted to kiss her on the cheek. The victim responded by
putting her hand out and telling the defendant that she was gay
and that "it is not going past just hanging out." The defendant
apologized multiple times, and then attempted to kiss the victim
again. Before she could tell him to stop, the defendant got on
top of the victim, put his knees on her thighs, and put his
hands on her shoulders. The victim testified that she felt
"terrified," that she "froze," and that she was unable to fight
back against the defendant.
The defendant then pulled down the victim's pants and
pulled her shirt up to her neck. The victim told the defendant
to "stop" and to "get the fuck off me," and the defendant asked
why. When the victim responded that she was gay, the defendant
said "good" and vaginally raped her with his penis. Intercourse
5
was painful for the victim, who was wearing a tampon, but the
defendant "kept going harder and faster." The defendant then
put his penis in the victim's mouth. When the victim turned her
head away, he inserted his fingers into her vagina. The
defendant then vaginally raped the victim with his penis for a
second time. The victim screamed "stop" repeatedly and
attempted to push the defendant off her by moving her arms from
side to side. The defendant then got off the victim.
The victim dressed rapidly, went into the bathroom, and
then collected her things to leave. The defendant told the
victim not to "worry about the blood," which the victim observed
on the defendant's bed, in the kitchen (located between the
bedroom and the bathroom), and on the defendant. The defendant
then offered to walk the victim to her vehicle. The victim
declined. Nevertheless, the defendant followed the victim
downstairs, held her vehicle's door open while she tried to
close it, and attempted to kiss her. The victim pushed the
defendant and drove away.
Soon after leaving the defendant's apartment, the victim
called a friend from her vehicle. After five or six telephone
calls, her friend answered and the victim told her, "I've been
fucked. It just happened. I just got raped." The friend
testified that the victim was so "distraught" and "hysterical"
6
on the telephone that it was initially difficult to understand
her.
The victim then drove to her parents' home, and they took
her to a hospital where a nurse conducted an evidence collection
examination. The nurse testified at trial that the victim --
who, the nurse reported, said that she had been assaulted1 -- was
"horrified, angry, upset, [and] tearful." The nurse further
testified that the victim denied being in pain at that time, and
that the nurse observed no trauma to the victim's body.
At around 4:45 A.M., the victim met with Salem police
Detective Eric Connolly at the hospital. Connolly testified
that the victim was "visibly upset" and crying. After speaking
with the victim, Connolly and two uniformed officers went to the
defendant's address. They arrived at approximately 6 A.M., and
the defendant let them into his apartment. The officers asked
the defendant whether he had met anybody that night, and the
defendant responded that he had had sexual intercourse with a
woman, but could not remember her name. Then, while the
officers were speaking with him, the defendant lowered his
shorts to reveal a "reddish brown stain" resembling blood on his
underwear. The defendant also led the officers into his bedroom
The defendant did not object to the admission of the
1
testimony regarding the victim's statement that she had been
assaulted.
7
to show them a bloodstain on his bed sheets. The officers
placed the defendant under arrest and transported him to the
Salem police department for booking. During booking, Connolly
observed that the defendant had "red brownish stains" resembling
blood on his left hand.
That same day, officers obtained a warrant to search the
defendant's apartment. During their execution of the warrant,
officers discovered a paper plate with a spoon on it on the
defendant's kitchen counter. The spoon, which appeared burnt,
held a white powdery substance believed by Connolly to be
cocaine. Connolly observed more white powder next to the plate.
Officers also obtained a search warrant for the defendant's cell
phone, which led to extraction of the text messages between the
defendant and the victim.
On October 20, the victim went to the Salem police
department to have photographs taken of bruises that had
appeared on her inner arm and inner thigh after the assault.
The defendant testified that he had been at the pub for
several hours when the victim, whom he had not met before,
arrived. The defendant told the victim that he was recently
divorced but "still involved" with his ex-wife. The victim
responded that it was not a good idea for the defendant to
remain involved with his ex-wife, that he would "probably end up
getting hurt," and that he "should move on." The defendant
8
replied, "Move on with you?" The victim told the defendant that
she "like[d] girls." When he asked, "[Y]ou don't like men?" she
replied, "I didn't say that."
After last call, the defendant asked the victim for her
telephone number. The victim provided it, and the defendant
texted her soon after to ask whether she wanted to meet later
that night. The victim agreed, but repeatedly told the
defendant that she liked girls. The defendant understood this
to mean that in light of the victim's interest in women, he
should not "expect a commitment" from the victim.
When the victim texted the defendant to let him know that
she had arrived at his apartment, the defendant went downstairs
to greet her, kissed her on the cheek, and brought her upstairs
to his home. The two were speaking about music in the kitchen
when the defendant kissed the victim on the lips. The victim
reciprocated, and the two kissed for several minutes. The
victim then walked into the defendant's bedroom, and the
defendant followed.
When the defendant entered his bedroom, the victim was
sitting on the edge of his bed. The defendant joined her, and
the two resumed kissing. They also began touching each other's
genitals, although the defendant testified that he never
inserted his finger into the victim's vagina. The defendant
then lowered his shorts, and the victim got off the bed to
9
perform oral sex on the defendant from the edge of the bed. The
defendant did not force the victim to engage in oral sex. After
a couple of minutes, the victim removed her jeans and sweatshirt
and lay down in the middle of the bed. The defendant lay down
next to her, and the two resumed kissing and touching one
another. After several minutes, the victim told the defendant
to "just put it in her." The defendant asked the victim about
her period, and she responded, "I don't care if you don't care."
The two then had consensual vaginal intercourse. The defendant
testified that the victim did not ask the defendant to stop,
push him away, or twist her body.
Afterward, the victim went into the defendant's bathroom
for approximately five to ten minutes. When she came back into
the bedroom, the defendant and the victim spoke for
approximately five to ten minutes about how strange it was that
they had never met despite sharing a number of mutual friends.
The victim did not seem upset. After this conversation, the
defendant walked the victim to her vehicle and kissed her
goodbye. The defendant then returned to his apartment. At 3:28
A.M., he texted the victim to say he hoped she got home safely
and to ask whether she wanted to get together the next day to
"cuddle." The victim did not respond to this message.
Later, police officers arrived at the defendant's door and
asked whether he knew the victim. The defendant testified that,
10
at that time, he thought the police might have come to his
apartment because the victim had been involved in an accident.
The defendant invited the officers into his home and, when
asked, told them that he had had sexual intercourse with the
victim. The officers also asked the defendant whether he had
raped the victim, and the defendant responded that he had not.
The defendant testified that on the night in question, he
had a total of three or four beers at the pub and approximately
one-half of one beer at his apartment. The defendant also
testified that he had not ingested cocaine or any other drug
that evening. When asked about the cocaine found on his kitchen
counter, the defendant said that he did not recognize the
cocaine and had not used it on the night in question. The
defendant also confirmed that he lived alone in his apartment.
At the close of the evidence, the judge instructed the jury
regarding the law governing the three indictments of rape:
digital-vaginal rape, penile-vaginal rape, and penile-oral rape.
The judge instructed the jury that "[i]n order to prove the
defendant guilty of this offense, the Commonwealth must convince
[the jury] beyond a reasonable doubt of two things: First, that
the defendant engaged in sexual intercourse . . . with the
alleged victim . . . and, second, that the sexual intercourse
was accomplished by compelling [the victim] to submit by force
or threat of bodily injury and against her will." With regard
11
to the second element, the judge went on to instruct the jury
that the Commonwealth "must prove beyond a reasonable doubt that
at the time of penetration, [the victim] did not consent." The
judge also instructed the jury that the force requirement would
be satisfied if the defendant compelled sexual intercourse by
physical force, violence, threat of bodily injury, or
constructive force, which "may be by threatening words or
gestures" and requires "proof that the victim was afraid or that
the victim submitted to the defendant because his conduct
intimidated her."
During their deliberations, the jury sent the following
written question to the judge:
"Need clarification. Is 'time of penetration' the start or
duration? Definition of the rape -- does it include if she
says No in the middle of the Act? In other words, is it
rape if it started consensual and she changed her mind?"
After conferring with counsel, the judge brought the jurors
back into the court room and explained:
"I understand your question to be can lawful sexual
intercourse become unlawful at some point during the act.
The answer to that is yes, if the Commonwealth proves the
second element beyond a reasonable doubt; and the second
element includes lack of consent and use of force or
constructive force. So, legally, the answer is yes.
Lawful sexual intercourse can become unlawful sexual
intercourse, but remember that the Commonwealth has to
prove . . . both portions of the second element: Lack of
consent and use of force or constructive force."
12
Neither party objected to this instruction.2
Later that day, the jury found the defendant guilty on the
indictments charging digital-vaginal rape and penile-vaginal
rape, and not guilty on the indictment charging penile-oral
rape.3 The defendant appealed, and we granted his application
for direct appellate review.
Discussion. 1. Withdrawal of consent. The defendant
claims that it was reversible error for the judge not to
instruct the jury explicitly that, in order for initially
consensual intercourse to turn into rape, a victim must
communicate his or her withdrawal of consent to a defendant and
the defendant must persist with intercourse despite the
communication. Because the defendant did not object to the
judge's instructions concerning the withdrawal of consent, we
evaluate whether the instructions created a substantial risk of
2 When the judge first spoke with the attorneys about the
jury's question, defense counsel requested that the jury be
"instructed that if it starts out consensual, it is consensual
up until the point where there is a clear . . . statement to the
contrary." Defense counsel, however, did not press this
argument, and did not object to the judge's answer to the jury
question.
3 The judge sentenced the defendant to from six to eight
years in State prison on the penile-vaginal rape conviction, and
to three years of probation on the digital-vaginal rape
conviction, to be served from and after his release from
custody.
13
a miscarriage of justice. See Commonwealth v. Pires, 453 Mass.
66, 73 (2009).
To find a defendant guilty of rape under G. L. c. 265,
§ 22 (b), the Commonwealth must prove two elements beyond a
reasonable doubt: first, that there was sexual intercourse
between the defendant and the victim; and second, that the
defendant compelled the victim to submit to the intercourse "by
force or threat of force and against the will of the victim."
Commonwealth v. Lopez, 433 Mass. 722, 726 (2001). See G. L.
c. 265, § 22 (b) ("compels such person to submit by force and
against his [or her] will, or . . . by threat of bodily
injury"). The first element is undisputed here. The second has
been interpreted "as truly encompassing two separate elements":
force or threats, and lack of consent. Lopez, supra at 727. To
satisfy the force or threats element, the Commonwealth must
prove "that the defendant committed sexual intercourse . . . by
means of physical force; nonphysical, constructive force; or
threats of bodily harm, either explicit or implicit" (citations
omitted). Id. To satisfy the lack of consent element in a
typical case, the Commonwealth must prove that "at the time of
penetration, there was no consent" (emphasis added). Id.
We recently described our case law regarding the issue of
consent in cases where the defendant alleges that he or she
14
honestly and reasonably believed that the victim had agreed to
sexual intercourse:
"In Lopez, 433 Mass. at 727-728, we held that a defendant
charged with rape is not entitled to raise a defense of an
honest and reasonable mistake as to the victim's consent,
noting that our rape statute, G. L. c. 265, § 22, does 'not
require proof of a defendant's knowledge of the victim's
lack of consent or intent to engage in nonconsensual
intercourse.' A defendant need only intend to perform the
act by force or threat of force. Id. at 728-729. Because
the Commonwealth is not required to prove that a defendant
intended the intercourse be without consent, 'a mistake of
fact as to that consent cannot . . . negate a mental state
required for the commission of the prohibited conduct.'
Id. at 728.
"We further determined that requiring the Commonwealth to
prove that a defendant 'compelled the victim's submission
by use of force; nonphysical, constructive force; or threat
of force' negates 'any possible mistake as to consent.'
Id. at 729. In so holding, we observed that a mistake of
fact defense has the potential to 'eviscerate the long-
standing rule in this Commonwealth that victims need not
use any force to resist an attack.' Id. A rape victim
need not fend off attackers with physical force 'in order
to communicate an unqualified lack of consent to defeat any
honest and reasonable belief as to consent.' Id.
"Nonetheless, we concluded our analysis by acknowledging
that a mistake of fact defense as to consent might, in some
circumstances, be appropriate. Accordingly, we left open
the possibility of its use in 'a future case where a
defendant's claim of reasonable mistake of fact is at least
arguably supported by the evidence.' Id. at 732.
"Seven years later, in Commonwealth v. Blache, 450 Mass.
583, 594 (2008), we considered whether a defendant charged
with raping someone incapable of consenting to intercourse
(due to intoxication) was entitled to an instruction on
mistake of fact. Because the Commonwealth is not required
to prove the use of force beyond that necessary for
penetration [in cases involving a victim who was incapable
of consenting], 'the possibility of a defendant's
reasonable mistake about the complainant's consent could
increase, creating the potential for injustice.' Id. We
15
held that 'in such a case the Commonwealth must prove that
the defendant knew or reasonably should have known that the
complainant's condition rendered her incapable of
consenting to the sexual act.' Id."
Commonwealth v. Kennedy, 478 Mass. 804, 809-810 (2018).
The jury question in this case requires us for the first
time to consider whether an additional element of proof --
communication of the withdrawal of consent -- is required to
avoid the risk of a reasonable mistake of fact in a case where
the jury may find that the initial sexual penetration was
consensual but that the victim withdrew consent during the
course of continued sexual intercourse.
We have no doubt that consensual sexual intercourse between
adults is not only lawful, but a private act of intimacy so
important that it is constitutionally protected as a liberty
interest. See Lawrence v. Texas, 539 U.S. 558, 567, 572 (2003);
Goodridge v. Department of Pub. Health, 440 Mass. 309, 328-329
(2003) ("how to express sexual intimacy" is "among the most
basic of every individual's liberty and due process rights"
under Massachusetts Constitution). We also have no doubt that
consensual sexual intercourse can become unlawful where the
victim withdraws consent after the initial act of penetration
has occurred. See M.G. v. G.A., 94 Mass. App. Ct. 139, 142
(2018) ("a person's consent may be withdrawn prior to or during
the act"); Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 661
16
(2012) (where victim consented at time of initial penetration
but withdrew consent during intercourse, and where defendant
forcibly continued intercourse after victim's withdrawal of
consent, jury could have found defendant guilty of rape).
Consequently, we must draw a clear line that is crossed when
sexual intercourse that begins as a consensual act of intimacy
is transformed into rape, one of the most serious crimes
punishable by law. See G. L. c. 265, § 22 (b) (rape conviction
punishable by imprisonment for up to twenty years; second or
subsequent rape conviction punishable by imprisonment for life
or for any term of years); Newsom v. State, 533 P.2d 904, 911
(Alaska 1975) ("forcible rape ranks among the most serious
crimes . . . because it amounts to a desecration of the victim's
person which is a vital part of [his or] her sanctity and
dignity as a human being").
The Commonwealth argues that no additional element of proof
is necessary because, where the victim withdraws consent,
continued sexual intercourse becomes rape only where the
defendant compels the victim to continue to have sexual
intercourse by force or threat of force. The Commonwealth
contends that such a finding is, "effectively and essentially,
the equivalent of a finding by the jury that the victim conveyed
or communicated to the defendant that she no longer consented."
In other words, the Commonwealth agrees with the defendant that
17
a victim must communicate his or her withdrawal of consent, but
argues that an instruction on the matter is unnecessary because
a jury would always understand that continued penetration that
is compelled by force or threat of force could only be so
compelled after the communicated withdrawal of consent.
The problem with this argument is that it is far easier to
evaluate whether force or the threat of force compelled a victim
to submit to a defendant's initial penetration of a victim's
vagina, anus, or mouth than it is to evaluate whether force or
the threat of force compelled a victim to submit to a
defendant's continued penetration. Therefore, where the initial
penetration was consensual, the fairest and clearest way to draw
the line separating consensual sexual intercourse from
postpenetration rape is to require, as an element of the
offense, that the victim reasonably communicate to the defendant
his or her withdrawal of consent. This approach is in keeping
with the decisions of a number of State courts. See, e.g., In
re John Z., 29 Cal. 4th 756, 760 (2003) ("the offense of
forcible rape occurs when, during apparently consensual
intercourse, the victim expresses an objection and attempts to
stop the act and the defendant forcibly continues despite the
objection"); State v. Robinson, 496 A.2d 1067, 1068-1069 (Me.
1985) (affirming conviction where judge instructed jury that
where intercourse is initially consensual "and one or the other
18
changes his or her mind, and communicates the revocation or
change of mind of the consent, and the other partner continues
the sexual intercourse by compulsion of the party who changes
his or her mind, then it would be rape").
The communication of withdrawn consent certainly need not
be made through the use of physical force. Cf. Lopez, 433 Mass.
at 729 (noting "long-standing rule in this Commonwealth that
victims need not use any force to resist an attack"). It also
need not be made through the use of particular words, or through
words at all. Physical gestures, such as trying to push the
defendant away or attempting to move in a way that would require
the defendant to end the penetration, may suffice, provided that
these gestures reasonably communicate the withdrawal of consent
to a reasonable person in the defendant's circumstances. We
emphasize, however, that the Commonwealth need not prove that
the defendant actually knew that the victim withdrew consent.
It suffices that the victim reasonably communicated the
withdrawal of consent in such a manner that a reasonable person
would have known that consent had been withdrawn. See id. at
727 ("Although the Commonwealth must prove lack of consent, the
elements necessary for rape do not require that the defendant
intend the intercourse be without consent" [quotation and
citation omitted]).
19
The requirement of a reasonable communication protects a
defendant who lawfully initiates sexual intercourse with a
partner's consent from being convicted of rape where the partner
withdraws consent during sexual intercourse without
communicating the withdrawal to the defendant. However, we
emphasize that we require no such communication of nonconsent in
a case where the victim alleges that the initial penetration was
without consent. In such cases, the requirement that the sexual
intercourse be compelled by force or the threat of force will
typically suffice to protect a defendant from being found guilty
of rape based on a reasonable mistake of fact. See Lopez, 433
Mass. at 728-729.
We also clarify that in withdrawn consent cases, the force
or threat of force required for a rape conviction is only that
necessary to compel continued intercourse after the withdrawal
of consent. Cf. Lopez, 433 Mass. at 726 ("The essence of the
crime of rape . . . is sexual intercourse with another compelled
by force and against the victim's will or compelled by threat of
bodily injury" [citation omitted]). No additional use or threat
of force is required under G. L. c. 265, § 22.
We expect that these withdrawn consent rape instructions --
explaining that initially consensual sexual intercourse can
become rape, adding the element of a reasonable communication of
the withdrawal of consent, and defining the element of force or
20
threat of force as only that necessary to compel continued
intercourse after the withdrawal of consent -- will apply only
in two rare circumstances: first, where there is evidence
presented at trial that the victim consented to the initial
penetration of sexual intercourse and later withdrew consent; or
second, where the jury asks a question concerning withdrawal of
consent, as they did here. In the absence of such a jury
question, the defendant's testimony that the victim consented to
sexual intercourse will not suffice alone to warrant an
instruction on the withdrawal of consent after penetration. Nor
will the victim's prior consent to an earlier completed act of
sexual intercourse suffice alone to warrant such an instruction.
Rather, in the absence of a jury question, the instruction will
be warranted only when there is evidence that the victim
initially consented to the sexual intercourse at issue, and then
withdrew his or her consent during the course of it. Only then
will instructions on withdrawn consent be needed to prevent the
routine instruction -- that the Commonwealth "must prove beyond
a reasonable doubt that at the time of penetration, [the victim]
did not consent" -- from causing confusion.
Having concluded that the jury question here warranted such
instructions, we now consider whether their absence created a
substantial risk of a miscarriage of justice. We must order a
new trial under the substantial risk standard "if we have a
21
serious doubt whether the result of the trial might have been
different had the error not been made." Commonwealth v. Azar,
435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430
Mass. 169, 174 (1999). See Commonwealth v. Brown, 479 Mass.
600, 610 (2018). "We consider the strength of the
Commonwealth's case, the nature of the error, the significance
of the error in the context of the trial, and the possibility
that the absence of an objection was the result of a reasonable
tactical decision." Azar, supra. We recognize that we must
closely scrutinize this risk where, as here, "the elements of a
crime are erroneously stated in the jury charge." See id.
Having evaluated this case with that close scrutiny, we are
confident that the jury's verdicts would have been the same had
the judge correctly instructed the jury on how to proceed if
they found that the victim initially consented to sexual
penetration and then withdrew her consent during intercourse.
The jury heard no evidence that the victim initially engaged in
consensual penile or digital sexual intercourse with the
defendant and then later withdrew her consent. The defendant
testified that sexual intercourse was consensual at all times;
the victim testified that it was never consensual. Although the
jury's decision to acquit the defendant of oral rape could
potentially mean that they credited the defendant's testimony
22
that this form of intercourse was consensual,4 the defendant
testified that the oral intercourse came first. A victim's
consent to oral intercourse does not necessarily imply his or
her consent to penile or digital intercourse. In the absence of
any evidence that the victim withdrew initially granted consent
to penile or digital intercourse, we are persuaded that the lack
of an instruction on the matter "did not materially influence[]
the guilty verdict" (quotation and citation omitted). See
Commonwealth v. Richardson, 479 Mass. 344, 354-355 (2018).
2. Admission of cocaine evidence. Before trial, the
defendant filed a motion in limine to preclude the admission of
evidence concerning the cocaine found on his kitchen counter.
The defendant argued that, because there was no evidence that he
was under the influence of cocaine on the morning of October 14,
the cocaine evidence would be more prejudicial than probative.
The judge deferred ruling on the motion until he learned that
the defendant would testify in his own defense, and then ruled
that the evidence was admissible because there was "solid
indicia . . . of [cocaine] use that night" and because evidence
4 The jury may also have had a reasonable doubt whether the
oral intercourse occurred at all. In contrast with the penile
and digital penetration, that charge was not supported by
physical evidence in the form of stains left by the victim's
blood on the defendant's hand, bed sheets, and underwear.
Furthermore, defense counsel suggested during trial that the
victim had not informed police officers or medical personnel
that she had been orally raped.
23
of drug use was relevant to the defendant's "ability to perceive
. . . and recall events."
After the defendant testified, the judge informed counsel
that, although he had initially admitted the cocaine evidence
"solely for the purpose of evaluating the defendant's ability to
. . . perceive and recall events," he was now also admitting it
for the purpose of evaluating the credibility of the defendant,
who during direct examination had denied using drugs that
evening and during cross-examination had denied recognizing the
white substance found on his kitchen counter. The judge
instructed the jury that they could use this evidence "only for
purposes related to the defendant's credibility" and "the
defendant's ability to perceive and recall events as they took
place." He forbade the jury from using the evidence to conclude
that "the defendant is of a bad character or is more likely to
commit crimes." After the close of evidence, when the judge
charged the jury, he again instructed them that evidence
concerning cocaine could be used only for two purposes: to
determine whether drug use affected a witness's ability to
perceive and recall events, and to assess the believability of
testifying witnesses. Neither party objected to the judge's
limiting instruction.
The defendant argues, and the Commonwealth concedes, that
it was error for the judge to allow evidence of drug use to be
24
admitted for the purpose of assessing the defendant's memory
where there was no expert testimony regarding cocaine's effects
on one's ability to perceive and recall events. We agree. A
party that seeks to admit evidence of drug use for the purpose
of challenging a witness's ability "to perceive and to remember
correctly" is required to "show a connection between the drug
use and the witness's ability to perceive, remember, or testify
to the event" (citation omitted). Commonwealth v. Alcantara,
471 Mass. 550, 565 (2015). Where there is a lack of reliable
general knowledge regarding the relevant effects of a drug,
expert testimony is required to show that connection. See
Commonwealth v. Gerhardt, 477 Mass. 775, 785-787 (2017) (expert
testimony required to establish effects of marijuana);
Commonwealth v. Lloyd, 45 Mass. App. Ct. 931, 933 (1998) (expert
testimony required to show Prozac's effect on ability to
perceive or remember events).
Because the defendant did not object to the judge's
limiting instruction and objected to the admission of the
cocaine evidence only on the ground that it was more prejudicial
than probative because there was insufficient evidence of drug
use, we consider whether the error created a substantial risk of
a miscarriage of justice. See Commonwealth v. Carlson, 448
Mass. 501, 506 (2007) ("Where the defendant advanced precise
grounds at trial in support of his objection, he may not rely on
25
a different ground in his appeal"); Commonwealth v. Perez, 405
Mass. 339, 342 n.3 (1989), citing Commonwealth v. Freeman, 352
Mass. 556, 563-564 (1967) (where objection below was on grounds
different from those raised on appeal, court considers whether
error created substantial risk of miscarriage of justice). We
conclude that it did not. There was no evidence that drugs
played any role in the events of October 14, and neither
attorney mentioned the cocaine in closing argument. See
Commonwealth v. Niemic, 472 Mass. 665, 673 (2015) (although
cross-examination on particular issue was improper, "prosecutor
did not mention the matter in his closing argument, thus keeping
any prejudice at a minimum"). Furthermore, where the jury
acquitted the defendant of one of the three rape charges, we
conclude that it is unlikely that the drug evidence was given
significant weight in the jury's evaluation of the defendant's
testimony or culpability. See Commonwealth v. McCoy, 456 Mass.
838, 844 (2010) ("acquittals on two indictments indicate an
unbiased jury"); Commonwealth v. Delaney, 425 Mass. 587, 595
(1997), cert. denied, 522 U.S. 1058 (1998) (where jury acquitted
defendant of certain charges, it was "clear that the jury
carefully considered the evidence with regard to each crime
charged").5
5 The Commonwealth argues that the cocaine evidence was
properly admitted to impeach the defendant's credibility, and
26
Conclusion. For the reasons stated above, we affirm the
defendant's convictions.
So ordered.
points out that there was no objection to the admission of the
evidence for this purpose. Defense counsel, however, questioned
the witness about cocaine -- subjecting the witness to later
impeachment -- only after the judge ruled that cocaine evidence
was admissible for the purpose of determining the defendant's
ability to recall and perceive events. Because we conclude that
the judge's error did not create a substantial risk of a
miscarriage of justice, regardless of whether the cocaine
evidence otherwise would have been admitted, we need not decide
whether that evidence was properly admitted for impeachment
purposes.