Commonwealth v. Bowen (Lawyers Weekly No. 11-022-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1413 Appeals Court COMMONWEALTH vs. JAMES M. BOWEN. No. 16-P-1413. Norfolk. October 4, 2017. – February 23, 2018. Present: Green, Hanlon, & Neyman, JJ. Due Process of Law, Probation revocation, Hearing. Practice, Criminal, Revocation of probation, Probation, Stipulation, Waiver, Assistance of counsel, Sentence, Waiver. Waiver. Indictments found and returned in the Superior Court Department on September 2, 1999. A proceeding for revocation of probation was heard by Thomas A. Connors, J.; a motion to reconsider was considered by Douglas Wilkins, J.; and a motion for a new hearing was heard by Connors, J. Stacey Gross Marmor for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. NEYMAN, J. In Commonwealth v. Sayyid, 86 Mass. App. Ct. 479 (2014), this court held that a defendant’s agreement to waive a probation violation hearing must be knowing and voluntary. Id. at 480, 489. Here, we are asked to determine whether a defendant’s stipulation during a probation violation hearing to two alleged violations constituted a breach of due process within the meaning of Sayyid. We hold that the stipulation did not fall within the ambit of Sayyid, and we discern no due process violation. Accordingly, we affirm. Background. 1. Convictions and alleged probation violations. In 2001, the defendant pleaded guilty in Superior Court to six counts of aggravated rape. He was sentenced to concurrent terms of eight to ten years in State prison on the first five counts, and a twelve-year sentence of probation to be served from and after the State prison sentences on the sixth count.[1] The defendant was released from custody in September, 2010, and began serving the twelve-year probation sentence. In June, 2013, the defendant was issued a “Notice of Surrender and hearing(s) for alleged violation(s) of Probation” (notice of probation violation). He stipulated that he had violated the probation conditions, and his probation was extended for an additional year with modified conditions. In October, 2013, the defendant was issued another notice of probation violation. Following a probation violation hearing in December, 2013, the defendant was again found to have violated the probation conditions, but he was still not incarcerated. Instead, his probation was further extended to 2030 with added conditions. On April 16, 2014, a third notice of probation violation was issued and […]
Commonwealth v. Hilaire (Lawyers Weekly No. 11-021-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1528 Appeals Court COMMONWEALTH vs. JAMES CHARLES HILAIRE. No. 16-P-1528. Plymouth. October 6, 2017. – February 21, 2018. Present: Wolohojian, Maldonado, & Wendlandt, JJ. Armed Home Invasion. Robbery. Firearms. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Reasonable suspicion. Evidence, Judicial notice. Practice, Criminal, Motion to suppress, Findings by judge. Indictments found and returned in the Superior Court Department on October 29, 2014. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J. An application for leave to prosecute an interlocutory appeal was allowed by Fernande R. V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. David D. Nielson for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. At issue is whether there was reasonable suspicion to stop the defendant and search his backpack several hours after an armed home invasion had occurred nearby. Taking judicial notice of demographic data he located on his own initiative, the Superior Court judge concluded there was reasonable suspicion and denied the defendant’s motion to suppress. The demographic data should not have been relied upon, both because the judge should not have expanded the factual record with independent research taken on his own initiative without notice to the parties and because they were not relevant. Nonetheless, we affirm the denial of the motion to suppress because we conclude that the facts elicited at the evidentiary hearing established reasonable suspicion to stop the defendant.[1] On July 29, 2014, at approximately 3:05 A.M., East Bridgewater police responded to the area of 601 North Central Street to investigate a report of an armed home invasion with shots fired.[2] It was reported that a large amount of cash and jewelry had been taken. The suspects were described as several young black males, two of whom were carrying backpacks. There was no further description of the men, their features, or their appearance, except that they were said to be wearing “regular clothes.” A short time after the home invasion, three black men fled from a red Toyota Camry in front of 505 North Central Street, leaving the doors of the vehicle open as they ran into neighboring woods. […]
Commonwealth v. Rodriguez (Lawyers Weekly No. 11-020-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1569 Appeals Court COMMONWEALTH vs. JUAN CARLOS RODRIGUEZ. No. 16-P-1569. Suffolk. November 3, 2017. – February 20, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Controlled Substances. Evidence, Field Drug Test, Scientific test, Indictment. Indictment found and returned in the Superior Court Department on August 5, 2009. The case was tried before Linda E. Giles, J. Edward Crane for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. MASSING, J. In yet another case affected by the wrongdoing of former State chemist Annie Dookhan, see generally Commonwealth v. Scott, 467 Mass. 336 (2013); Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman), we must reverse a defendant’s conviction of trafficking in heroin. See G. L. c. 94C, § 32E(c). In an effort to cure the taint from Dookhan’s association with the case as primary chemist, a police officer testified that he performed a field test of the substance seized from the defendant, which proved that the substance was heroin. The testimony was admitted, over the defendant’s objection, without establishing the scientific reliability of the field test. We conclude that the admission of this evidence was prejudicial error and that the defendant is entitled to a new trial. Background. We recite the basic facts as the jury could have found them, reserving other facts for later discussion. On April 27, 2009, officers of the Boston police department’s drug control unit went to the housing development where the defendant, Juan Carlos Rodriguez, lived to execute three search warrants: one for the defendant’s apartment, one for his motor vehicle, and one for his person. Once inside the defendant’s apartment, the officers used a key recovered from the defendant’s motor vehicle to open a locked bedroom door. In the bedroom’s closet, the police found a total of $ 13,270, a digital scale, and a small pouch that contained nine individually wrapped packages, or “fingers,”[1] of a substance that resembled sidewalk chalk. A search of the defendant’s person yielded two similar packages. Officer Robert England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit manufactured by Safariland. The NarcoPouch 924 test kit is a small, sealed rubber pouch that contains three glass vials filled with chemical solutions. England unsealed […]
Commonwealth v. Jones (Lawyers Weekly No. 10-031-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10944 COMMONWEALTH vs. RYAN JONES. Bristol. November 10, 2017. – February 20, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Homicide. Mental Impairment. Developmentally Disabled Person. Constitutional Law, Sentence, Cruel and unusual punishment. Practice, Criminal, Competency to stand trial, Sentence. Indictment found and returned in the Superior Court Department on August 17, 2006. A hearing on the defendant’s competency to stand trial was held before D. Lloyd Macdonald, J., and the case was tried before Gary A. Nickerson, J. Brett J. Vottero for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. Gaziano, J. A Superior Court jury found the defendant guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty in the death of Valerie Oransky on July 22, 2006. Prior to and during trial, the defendant maintained that he was not competent to stand trial due to an organic brain injury he had suffered as an infant and a current diagnosis of pervasive developmental disorder not otherwise specified. The defendant was the subject of competency hearings before five different Superior Court judges, and was found competent to stand trial at the first, third, fourth, and fifth hearings. At trial, his defense was that he was not criminally responsible. On appeal, the defendant argues that the judge who conducted his third competency hearing erred in finding him competent to stand trial notwithstanding testimony from both prosecution and defense experts that the defendant was not competent. He also argues that a mandatory sentence of life in prison without the possibility of parole, imposed on a developmentally disabled individual, constitutes cruel and unusual punishment in violation of Federal and State constitutional rights. Finally, the defendant asks us to use our extraordinary power under G. L. c. 278, § 33E, to order a new trial or reduce the verdict. For the reasons that follow, we affirm the conviction and decline to exercise our authority to grant relief under G. L. c. 278, § 33E. Procedural history. In August, 2006, a grand jury indicted the defendant on one charge of murder in the first degree. He was arraigned in the Superior Court in September, 2006, and pleaded not guilty. In October, 2007, defense counsel filed a motion seeking an examination of the defendant for […]
Commonwealth v. Polanco (Lawyers Weekly No. 11-019-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1217 Appeals Court COMMONWEALTH vs. JORGE POLANCO. No. 16-P-1217. Middlesex. October 11, 2017. – February 20, 2018. Present: Milkey, Massing, & Ditkoff, JJ. Controlled Substances. Practice, Criminal, Speedy trial, Dismissal, Motion to suppress, Required finding. District Court, Arraignment. Constitutional Law, Search and seizure. Search and Seizure, Exigent circumstances. Indictments found and returned in the Superior Court Department on August 7, 2014. A motion to dismiss was heard by Kathe M. Tuttman, J.; a pretrial motion to suppress evidence was heard by her; and the cases were tried before her. Murat Erkan for the defendant. Sandra Weisberger, Assistant District Attorney, for the Commonwealth. DITKOFF, J. The defendant, Jorge Polanco, appeals from his Superior Court convictions of trafficking in heroin, G. L. c. 94C, § 32E(c), and a school zone violation, G. L. c. 94C, § 32J. We must decide whether to consider time spent in District Court when calculating the time to be included for purposes of a speedy trial under Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979), in Superior Court. Consistent with the plain language of the rule, we conclude that the time the charges were pending in District Court should not be included in the calculation. Accordingly, the motion judge properly denied the defendant’s motion to dismiss. Rejecting the defendant’s challenges to the denial of his motion to suppress and the sufficiency of the evidence, we affirm. Background. In April and May of 2013, law enforcement including the Billerica police department were conducting an investigation of a suspected heroin trafficker known as “Johnny,” later identified as the defendant. As part of that investigation, Billerica police conducted controlled narcotics purchases using an informant. When the police approached the sellers in those controlled purchases, the sellers admitted to being “runners” for “Johnny,” whom they identified as the source of the narcotics. One of the runners agreed to cooperate with the investigation. Shortly thereafter, the cooperating runner received a telephone call from “Johnny,” directing him to customers at a house located at 48 Rogers Street.[1] Prior to that day, that residence had not been a target of the investigation, and the police had not yet identified “Johnny” as the defendant. The police followed the runner to the residence. A motor vehicle pulled up outside the residence, and two men exited the vehicle and spoke […]
Pinney v. Commonwealth (Lawyers Weekly No. 10-030-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12197 FREDERICK PINNEY vs. COMMONWEALTH. February 15, 2018. Homicide. Constitutional Law, Double jeopardy. Practice, Criminal, Mistrial, Double jeopardy. Frederick Pinney is charged with murder in the first degree. After his first trial ended in a mistrial, he moved to dismiss the indictment on the basis that the evidence presented was legally insufficient to warrant a conviction, and therefore retrying him would violate the guarantee against double jeopardy. The trial judge denied the motion, and Pinney then filed a petition pursuant to G. L. c. 211, § 3, in the county court, seeking review of that decision. A single justice denied the petition, and Pinney appeals. We affirm. Background. Pinney was indicted in 2014 for the murder of Tayclair Moore. His trial commenced in January, 2016, and lasted several days. At the close of the Commonwealth’s case, Pinney moved for a required finding of not guilty, which the trial judge denied. He renewed the motion orally later that day at the close of all the evidence; the judge took no action on the motion at that time. Pinney renewed the motion again, in writing, several days later while the jury were deliberating; again the judge took no immediate action. After deliberating for several days, the jury reported to the judge that they were deadlocked, leading the judge to give them, the following day, an instruction pursuant to Commonwealth v. Rodriquez, 364 Mass. 87, 101–102 (1973) (Appendix A), and Commonwealth v. Tuey, 8 Cush. 1, 2–3 (1851). Later that day, the foreperson informed the judge that one of the deliberating jurors had discussed the deliberations with the alternate jurors. The judge conducted an individual voir dire of the jurors, determined that the deliberating and alternate jurors had improperly communicated, and concluded that the jurors had engaged in misconduct. On this basis, Pinney filed a motion for a mistrial that the judge allowed. The judge later denied Pinney’s renewed motion for a required finding of not guilty. Pinney subsequently filed a motion to dismiss the indictment, claiming that the evidence was insufficient to warrant a guilty verdict and that double jeopardy principles thus barred any retrial. The trial judge denied that motion as well. Discussion. In certain circumstances, allowing a retrial of a defendant whose first trial has ended in a mistrial would infringe on the defendant’s […]
Commonwealth v. Buckley (Lawyers Weekly No. 10-029-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12344 COMMONWEALTH vs. ROGELIO R. BUCKLEY. Plymouth. October 5, 2017. – February 14, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Controlled Substances. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion, Consent, Motor vehicle. Threshold Police Inquiry. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on April 19, 2013. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J., and the cases were tried before Richard J. Chin, J. The Supreme Judicial Court granted an application for direct appellate review. Matthew Malm for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Ivan Espinoza-Madrigal, of New York, Oren M. Sellstrom, & Oren N. Nimni for Lawyers’ Committee for Civil Rights and Economic Justice & others. Rebecca Kiley, Committee for Public Counsel Services, & Derege B. Demissie for Committee for Public Counsel Services & another. Jeff Goldman, Vanessa M. Brown, Matthew R. Segal, Rahsaan D. Hall, Jessie J. Rossman, & Carlton E. Williams for American Civil Liberties Union of Massachusetts. Daniel F. Conley, District Attorney, & John P. Zanini, Cailin M. Campbell, & David D. McGowan, Assistant District Attorneys, for District Attorney for the Suffolk District. CYPHER, J. In this appeal we are asked to reconsider one tenet of our search and seizure jurisprudence: that a traffic stop constitutes a “reasonable” “seizure” for purposes of art. 14 of the Massachusetts Declaration of Rights where a police officer has observed a traffic violation, notwithstanding the officer’s underlying motive for conducting the stop. See Commonwealth v. Santana, 420 Mass. 205 (1995). For the sound legal and practical reasons discussed below, we decline to depart from that tenet as the general standard governing the validity of traffic stops under art. 14. We affirm the denial of the defendant’s motion to suppress, and we also affirm the judgment of conviction. Facts. We recount the facts found by the motion judge, supplemented by uncontroverted testimony at the motion hearing. Commonwealth v. Cordero, 477 Mass. 237, 238 (2017). On January 25, 2013, Whitman police Detectives Joseph Bombardier and Eric Campbell were conducting surveillance of a three-unit apartment building out of […]
Commonwealth v. Dabney (Lawyers Weekly No. 10-028-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12349 COMMONWEALTH vs. KENYA DABNEY. Suffolk. November 6, 2017. – February 13, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Trafficking. Deriving Support from Prostitution. Rape. Assault and Battery. Jury and Jurors. Practice, Criminal, Jury and jurors, Voir dire, Instructions to jury. Evidence, Impeachment of credibility. Witness, Impeachment. Indictments found and returned in the Superior Court Department on February 4, 2015. The cases were tried before Linda E. Giles, J. The Supreme Judicial Court granted an application for direct appellate review. David Rangaviz, Committee for Public Counsel Services, for the defendant. Nicholas Brandt, Assistant District Attorney, for the Commonwealth. Emma Quinn-Judge & Zoraida Fernandez, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief. GAZIANO, J. The defendant was convicted by a Superior Court jury of human trafficking, deriving support from prostitution, rape, and two counts of assault and battery. On appeal, he argues that, during voir dire, the judge improperly prevented his attorney from asking members of the venire whether they would expect an innocent defendant to testify. He also contends that the evidence presented was insufficient to sustain a conviction of human trafficking, and that the judge’s instruction to the jury regarding the human trafficking charge was inadequate. The defendant claims further that the judge erred in allowing the introduction of certain records and then retroactively ordering them to be redacted, which prevented defense counsel from using the records for impeachment purposes. We conclude that the judge did not abuse her discretion in limiting defense counsel’s questioning during voir dire, the evidence against the defendant was legally sufficient, the jury instructions were proper, and there was no abuse of discretion in the judge’s evidentiary ruling. Accordingly, we affirm the convictions.[1] Background. a. Facts. We recite the facts the jury could have found, reserving certain details for later discussion. Commonwealth’s case. The victim and the defendant met in approximately June, 2014, and started dating a few months later. The two began living together in a house in Chelsea belonging to “Uncle Otis,” a friend of the defendant; they also sometimes stayed in a house in Revere. Around the time the victim and the defendant started dating, the defendant encouraged the victim to begin prostituting herself. He told her […]
Commonwealth v. Ortiz (Lawyers Weekly No. 10-026-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12273 COMMONWEALTH vs. ANTHONY C. ORTIZ. Hampden. October 3, 2017. – February 12, 2018. Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Consent, Fruits of illegal search. Consent. Evidence, Result of illegal search. Indictments found and returned in the Superior Court Department on March 25, 2015. A pretrial motion to suppress evidence was heard by Edward J. McDonough, Jr., J. An application for leave to prosecute an interlocutory appeal was allowed by Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Cynthia Cullen Payne, Assistant District Attorney (Bethany Lynch, Assistant District Attorney, also present) for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant. GANTS, C.J. In this case we must decide whether a driver’s consent to allow the police to search for narcotics or firearms “in the vehicle” authorizes a police officer to search under the hood of the vehicle and, as part of that search, to remove the vehicle’s air filter. We hold that it does not. A typical reasonable person would understand the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk. Because the police here exceeded this scope by searching under the hood and removing the air filter, and because the search was not otherwise supported by probable cause and was not a lawful inventory search, the Superior Court judge’s order granting the defendant’s motion to suppress is affirmed. Background. We summarize the facts as found by the motion judge, supplemented by uncontroverted evidence that the judge explicitly or implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On January 23, 2015, Officer Jared Hamel and Detective Boyle[1] of the Holyoke police department were on patrol in an unmarked police cruiser when they heard loud music coming from a vehicle. The officers determined that the loud music posed a public safety hazard under a local ordinance that prohibits excessively loud music in a motor vehicle. Officer Hamel activated the […]
Commonwealth v. Kennedy (Lawyers Weekly No. 10-025-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12345 COMMONWEALTH vs. CHRISTOPHER J. KENNEDY. Hampshire. October 3, 2017. – February 9, 2018. Present (Sitting at Greenfield): Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ. Indecent Assault and Battery. Indecent Exposure. Assault and Battery. Mistake. Practice, Criminal, Instructions to jury, Jury and jurors, Voir dire, Challenge to jurors. Jury and Jurors. Evidence, First complaint. Indictments found and returned in the Superior Court Department on October 15, 2014. The cases were tried before Daniel A. Ford, J. The Supreme Judicial Court granted an application for direct appellate review. Merritt Schnipper for the defendant. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: David Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services. Thomas J. Carey for Kari Hong & others. Wendy J. Murphy for Women’s and Children’s Advocacy Project at New England Law|Boston. GAZIANO, J. A Superior Court jury convicted the defendant of indecent assault and battery on a person over fourteen, G. L. c. 265, § 13 H, assault and battery, G. L. c. 265, § 13 A (a), and indecent exposure, G. L. c. 272, § 53. The charges stemmed from an encounter between the victim, M.M., and the defendant, a State trooper, who met on a dating Web site and exchanged flirtatious messages. They arranged to meet in person for coffee, and M.M. agreed to the defendant’s suggestion that they finish their conversation at her apartment. Once inside, the defendant exposed himself to M.M. She immediately informed the defendant that he had the wrong idea, and repeatedly told him, “No.” Despite M.M.’s requests to stop, the defendant advanced toward her, grabbed her wrist, and forced her to touch his penis. She told him, “No means no,” and that he had to leave. He then apologized and left the apartment. At trial, the defendant requested a jury instruction on mistake of fact, asserting that he honestly and reasonably had believed that M.M. had consented to the contact leading to the charges, and would not have been offended by his act of exposing himself. The request was denied. The defendant appeals from the denial and from the admission of what he asserted was unnecessary first complaint evidence. We conclude that the trial judge did not err in declining to give an […]