Commonwealth v. Gregory F. Landry.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-291
COMMONWEALTH
vs.
GREGORY F. LANDRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in Superior Court, a jury convicted the
defendant of one count of rape of a child, aggravated by more
than a ten year age difference, G. L. c. 265, § 23A (b), and one
count of indecent assault and battery on a person fourteen years
or older, G. L. c. 265, § 13H.1 On appeal, the defendant argues
that: (1) the judge erred by admitting numerous Instagram
direct messages under the first complaint doctrine; (2) there
was insufficient evidence to sustain his conviction of indecent
assault and battery; and (3) the judge erred in denying the
1 The jury also found the defendant guilty of one count of rape
of a child; the trial judge dismissed this conviction as merged
with the aggravated rape of a child. Prior to the jury's
deliberation, the judge dismissed indictments alleging assault
and battery and assault with intent to rape a child under
sixteen years. The judge also allowed the defendant's motion
for a directed verdict on one charge of open and gross lewdness.
defendant's motion to suppress statements he made to law
enforcement. We affirm.
Background. We summarize the facts the jury could have
found. The defendant was a close friend of the victim's mother.
The victim (who was fourteen years old) considered the defendant
(who was forty-four years old) family, referring to him as
"Uncle Greg."
On the night in question, the plan was for the victim to
help the defendant with his children that evening, sleep over in
the attic, and babysit the children the next day while the
defendant was at work. After the defendant's children went to
bed, the victim donned a bathing suit and went to the backyard,
where she chatted with the defendant and a woman visiting with
her two children. The visitors left and the victim got into the
inflatable hot tub. The defendant was alternating between
sitting in the hot tub and standing nearby to drink beer and
smoke. He eventually turned on the hot tub's jets.
The turbulence of the jets caused the victim to slip under
the surface; she began to choke on water and was unable to get
herself back up. The defendant put his hands underneath the
victim's armpits, picked her up, and put her over the side of
the hot tub. He jokingly told her, "Don't make me give you
mouth-to-mouth." As the victim continued to cough, her vision
began to darken, and she fell unconscious.
2
The victim woke sometime later to the feeling of pressure
on her shoulders and an "intense throbbing" pain. She realized
that her bathing suit top was off and her bottoms were half way
down. She was positioned on top of the defendant's lap, his
hands pushing her body down by the shoulders, the defendant's
swim trunks were gone, and the defendant's penis was inside her
vagina.
The victim pushed the defendant off and shouted at him to
get away from her. He released her and moved away, apologizing.
The victim dressed hastily and jumped out of the hot tub,
running inside the house and up to the attic. There, she
changed out of her swim clothes and texted her mother "a bunch
of crying emojis." Receiving no response, the victim began
instant messaging her close school friend via Instagram's direct
message feature.
The victim sent her first message to her friend, eighteen
sad face emojis, at 11:10 P.M. The victim then wrote that "[a]
lot" was wrong and she "want[ed] to die"; she declined her
friend's offer to call because she was concerned that "[h]e"
would hear their conversation. Her friend sent messages
comforting her and coaxing her to tell him what happened. Their
written conversation lasted through the night, including a lull
during which the victim continued to send messages to her friend
3
while he was sleeping. The conversation culminated in the
victim disclosing, at approximately 8:52 A.M., "I got raped."
The victim remained in the attic throughout the night,
except for a brief trip downstairs to check on her younger
sister, who was sleeping outside the defendant's room. The
defendant repeatedly approached the bottom of the attic stairs
and called up to the victim, telling her he was sorry and that
he loved her. The defendant also sent remorseful text messages
expressing his love for the victim and hatred for himself; the
victim responded with an accusation of rape, which he did not
deny.2
2 The defendant and the victim exchanged the following text
messages starting at 5:37 A.M. the morning after the assault,
which were read into evidence and some of which the defendant
had deleted.
Defendant: "Sorry, sorry, sorry, infinity."
Victim: "What you did was unforgivable."
Defendant: "[N]ever again, I promise. I love you [four
heart emojis] . . . forever."
Victim: "If you love me, you wouldn't have fucking
raped me."
Defendant: "No more hot tub with just us. I need a kick
in the jimmy."
Victim: "You're not making this any better. You're
making this worse by talking to me when I do
not wish to talk to you."
Defendant: "Okay. Sorry. Bye."
Several hours later, at approximately 9:20 A.M., the texting
resumed.
Defendant: "Please kill me. I feel awful."
Victim: "YOU DIDN'T FEEL THAT WAY WHEN I WAS ASLEEP."
Defendant: "Don't ever drink alcohol. Kill me."
4
Just after the text messaging between the victim and the
defendant started, at around 5:30 A.M., the defendant left for
work. The victim checked on the younger children, eventually
feeding them breakfast, and then spoke with her mother. At
around 8:30 or 9:00 A.M., before her mother got to the house,
the defendant returned. The victim was in the attic, and the
defendant attempted to hand her a "sword" and told her to stab
him with it. The victim declined and instead told the defendant
she was calling the police, which she did. The victim's mother
arrived at the home. Subsequently, several officers responded
to the defendant's address.3
Two officers went to the backyard, where the defendant was
standing. His two children were outside as well. One officer
approached the defendant, while the other stood back. The
officer asked the defendant if he knew why the police were
there. The defendant replied, "I may have inappropriately
touched her." The officer ceased asking questions and went to
confer with other officers.
Soon after this encounter, the defendant was handcuffed,
placed in the backseat of a police cruiser, and advised of his
Defendant: "I hate every minute now because you hate me."
3 The victim was eventually taken to the hospital. While there,
the clothing she was wearing and the clothing she changed into
after the incident were taken from her and examined. The
defendant's DNA was not detected on the victim's underwear.
5
Miranda rights; the defendant stated that he understood his
rights. The arresting officer then asked the defendant what he
meant by his statement in the backyard and the defendant
explained that he may have inappropriately touched the victim's
breasts to keep her from drowning. He further stated that he
may have removed her bathing suit top, once again asserting that
he was trying to save her from drowning. He denied having
intercourse with the victim.
Discussion. 1. First complaint evidence. The defendant
contends that the motion and trial judges committed reversible
error by admitting Instagram messages sent hours before the
disclosure of sexual assault as first complaint evidence.4 He
argues that the statements exceeded the scope of the first
complaint doctrine and impermissibly prejudiced the defense.
We review the judge's decision to admit the messages as
first complaint evidence under an abuse of discretion standard.
Commonwealth v. Holguin, 101 Mass. App. Ct. 337, 340 (2022).
Because the defendant made a timely objection, we will determine
4 Prior to trial, the defendant moved in limine to limit the
scope of first complaint evidence to the single Instagram
message stating, "I got raped." The motion judge ruled that the
twenty-nine pages of messages preceding this disclosure were
part of the first complaint and, as such, admitted the entire
conversation from 11:10 P.M. to 8:52 A.M. The judge excluded
the fifteen pages of text that followed it. The defendant
raised the issue again during trial. The trial judge allowed
one additional redaction but otherwise agreed with and followed
that motion judge's ruling.
6
if there was error, and if so, whether it was prejudicial.
Commonwealth v. Aviles, 461 Mass. 60, 72 (2011). We conclude
that the judge acted within his discretion.
Pursuant to the first complaint doctrine, "the recipient of
a [victim's] first complaint of an alleged sexual assault may
testify about the fact of the first complaint and the
circumstances surrounding the making of that first complaint."
Commonwealth v. King, 445 Mass. 217, 218-219 (2005). A first
complaint witness may testify to "the details of the complaint
itself," including "the [victim's] statements of the facts of
the assault" (citation omitted). Id. at 244. The details of
the first complaint may also include "why the complaint was made
at that particular time." Id. at 245.
Here, the messages from the victim to her friend "were part
of a single, continuous first complaint."5 Holguin, 101 Mass.
App. Ct. at 340. That the exchange of messages paused while the
victim's friend fell asleep does not preclude the admission of
the whole conversation as a first complaint. Where a disclosure
is made in stages over an extended period, it may nevertheless
constitute a single first complaint where it consists of a
"single, tightly intertwined . . . communication," with "no
5 The messages spanned twenty-nine screenshots because only seven
to ten messages were displayed per screen. When typed, the
conversation was eight pages.
7
meaningful gap in time." Commonwealth v. Revells, 78 Mass. App.
Ct. 492, 496 (2010). Here, although the conversation occurred
over the course of approximately nine hours overnight wherein
the recipient slept for approximately five hours, the victim
wanted to and tried to remain in contact with her friend
throughout the evening, and the communications were made to the
same recipient and concerned the same crime. See Holguin, supra
at 340-341. Thus, notwithstanding the gap while the victim's
friend slept, their "successive communications" were "part of 'a
single, tightly intertwined . . . communication.'" Id. at 340,
quoting Revells, supra. Contrast Commonwealth v. Rivera, 83
Mass. App. Ct. 581, 585 n.4 (2013) (one week gap in time between
conversations rendered communications distinct). The message
that the victim had been raped was the natural continuation of
the conversation, rather than a "[r]epetition of the narrative."
Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008).6 We
therefore discern no abuse of discretion in the judge's decision
6 In addition, the dozens of messages exchanged between the
victim and her friend provided vital context of the
circumstances under which the victim ultimately disclosed that
she was raped. Accordingly, the messages leading up to the
message, "I got raped," were properly introduced "to give the
jury as complete a picture as possible of how the accusation of
sexual assault first arose." King, 445 Mass. at 247. See
Revells, 78 Mass. App. Ct. at 495 (oral and written
communications properly introduced as single first complaint to
allow "a fuller assessment of the victim's veracity").
8
to admit the messages preceding disclosure as first complaint
evidence.
2. Sufficiency of the evidence. "To prove indecent
assault and battery on a person age fourteen or older, the
Commonwealth is required to establish that the defendant
committed 'an intentional, unprivileged, and indecent touching
of the victim.'" Commonwealth v. Benedito, 95 Mass. App. Ct.
548, 549 (2019), quoting Commonwealth v. Kennedy, 478 Mass. 804,
810 (2018). At trial, the Commonwealth argued, and the jury
were instructed, that the basis of the indecent assault and
battery charge was the touching of the victim's breasts. The
defendant argues that there was insufficient evidence that he
touched the victim's breasts and therefore that the trial judge
erred in denying his motions for a required finding of not
guilty.7 We disagree.
When evaluating a claim of insufficiency of the evidence,
we consider "whether after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
7 The defendant moved for a required finding of not guilty on the
indecent assault and battery count both at the close of the
Commonwealth's case-in-chief and at the close of all evidence.
Both motions were denied. Since the Commonwealth's position as
to proof did not change with the presentation of the defendant's
case, the analysis of both motions is the same. Commonwealth v.
Kelley, 370 Mass. 147, 150 n.1 (1976).
9
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
"Questions of credibility are to be resolved in the
Commonwealth's favor, and circumstantial evidence is sufficient
to establish guilt beyond a reasonable doubt." Commonwealth v.
Miranda, 458 Mass. 100, 113 (2010).
Here, in the light most favorable to the Commonwealth, the
evidence was sufficient to demonstrate that the defendant
committed an indecent assault and battery by touching the
unconscious victim's breasts.8 The defendant admitted that he
removed the bathing suit top of an unconscious teenage girl and
the victim confirmed her top was removed when she was
unconscious. Further, the defendant told the victim, "Don't
make me give you mouth-to-mouth" before she passed out, and when
the victim regained consciousness, she was being raped by the
defendant. In addition, one of the police officers testified
that he observed an oval injury on the victim's shoulder
"consistent with a bite mark, red in color." There was a
8 The Commonwealth may have taken on more of a burden than
necessary by conceding it needed to prove that the defendant
touched the victim's breasts. This court has held that "in
certain circumstances, removing a person's clothes may
constitute indecent assault and battery." Commonwealth v. Cruz,
93 Mass. App. Ct. 136, 140 (2018). For example, in Commonwealth
v. Kopsala, 58 Mass. App. Ct. 387, 393 (2003), we upheld a
conviction of indecent assault and battery where the defendant
"pulled up the victim's shirt, exposing her breasts, unbuttoned
her jeans and pulled them off, and removed her panties."
10
thirty-year age gap between the victim and the defendant, and
the defendant was in a position of trust and authority with the
victim. Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566-
567 (2002) (in evaluating whether touching is indecent, our
cases have considered disparity in age and sophistication
between victim and defendant, among other things). Despite the
defendant's assertion that his touching of the victim's breasts
and removal of her top were accidental and necessary to save her
from drowning, the jury could have reasonably discredited this
assertion and inferred that the defendant removed the victim's
top for the purpose of indecently revealing and touching her
breasts.
3. Motion to suppress. The defendant asserts that the
motion judge erred in denying his motion to suppress statements
he made to police the morning after the assault. He argues
that, at the time he told police he "may have inappropriately
touched [the victim]," he was in the functional equivalent of
custody and thus entitled to Miranda protections.9 The defendant
further argues that statements he made after being arrested and
9 "Miranda warnings seek to protect an individual's 'fundamental'
right under the Fifth Amendment to the United States
Constitution that '[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.'" Commonwealth
v. Cawthron, 479 Mass. 612, 616 (2018), quoting Miranda v.
Arizona, 384 U.S. 436, 468 (1966).
11
given Miranda warnings were inadmissible as fruit of the
poisonous tree.
In "reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error 'but
conduct an independent review of [their] ultimate findings and
conclusions of law.'" Commonwealth v. Clarke, 461 Mass. 336,
340 (2012), quoting Commonwealth v. Scott, 440 Mass. 642, 646
(2004). "Miranda warnings are only necessary where one is the
subject of 'custody and official interrogation.'" Commonwealth
v. Larkin, 429 Mass. 426, 432 (1999), quoting Illinois v.
Perkins, 496 U.S. 292, 297 (1990). It is the defendant's burden
to establish the necessary facts to prove custody. Larkin,
supra.The evidence at the suppression hearing established that
the defendant was not in custody when he told police he may have
inappropriately touched the victim. See Commonwealth v. Groome,
435 Mass. 201, 211-212 (2001) (factors relevant to custody
include [1] place of interrogation; [2] whether officers
conveyed to defendant any belief or opinion that defendant is
suspect; [3] nature of interrogation; and [4] whether, at time
statement was made, defendant was free to end interview, as
evidenced by whether interview terminated with arrest). The
defendant made the statement while standing in his own backyard,
a "neutral site" with which he was familiar. Commonwealth v.
12
Lavendier, 79 Mass. App. Ct. 501, 504 (2011). Neither of the
officers present stated to the defendant that he was a suspect,
and the singular question asked was "investigatory rather than
accusatory." Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007).
The nature of the questioning was not aggressive, consisting
only of a brief, conversational exchange in which the defendant
was neither restrained nor threatened. See Commonwealth v.
Bryant, 390 Mass. 729, 737-738 (1984). Finally, although the
interaction culminated in the defendant's arrest, this was only
after the questioning officer conferred with his colleagues and
learned more of the defendant's role in the alleged crimes. At
the time the defendant made his statement, the officers had
given no indication by word or action that he was not free to
leave. See Commonwealth v. Medina, 485 Mass. 296, 304 (2020).
The defendant was not in custody when he spoke to police in his
backyard, and his fruit of the poisonous tree argument withers
accordingly. Thus, the motion judge did not err in denying the
13
defendant's motion to suppress.
Judgments affirmed.
By the Court (Henry, Shin &
Hodgens, JJ.10),
Clerk
Entered: July 24, 2023.
10 The panelists are listed in order of seniority.
14