Commonwealth v. Scott

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17-P-446 Appeals Court

COMMONWEALTH vs. DERRICK SCOTT.

No. 17-P-446.

Suffolk. April 9, 2019. - November 30, 2020.

Present: Green, C.J., Sullivan, & Ditkoff, JJ.

Rape. Kidnapping. Consent. Deoxyribonucleic Acid. Appeals
Court, Appeal from order of single justice. Jury and
Jurors. Constitutional Law, Jury, Admissions and
confessions, Voluntariness of statement, Assistance of
counsel. Evidence, Admissions and confessions,
Voluntariness of statement. Practice, Criminal, Jury and
jurors, Empanelment of jury, Examination of jurors,
Challenge to jurors, Instructions to jury, Lesser included
offense, Motion to suppress, Admissions and confessions,
Voluntariness of statement, Redaction, Assistance of
counsel, Amendment of indictment or complaint.

Indictments found and returned in the Superior Court
Department on October 13, 2011.

A pretrial motion to suppress evidence was heard by Shannon
Frison, J., and the cases were tried before Mitchell H. Kaplan,
J.

A postconviction motion to compel access to juror
questionnaires was heard by Singh, J., in the Appeals Court.

Alan Edward Zeltserman for the defendant.
Dara Z. Kesselheim, Assistant District Attorney (Amy Martin
2

Zacharias, Assistant District Attorney, also present) for the
Commonwealth.

DITKOFF, J. The defendant, Derrick Scott, appeals after a

Superior Court jury trial from convictions of rape, G. L.

c. 265, § 22 (b), and kidnapping, G. L. c. 265, § 26. He also

appeals from an order of a single justice of this court denying

his postconviction motion to compel the clerk of the Superior

Court to provide him with access to juror questionnaires. We

conclude that a party to a criminal case may be granted access

to juror questionnaires, upon such conditions to preserve their

confidentiality that a judge in an exercise of discretion

considers prudent, if that party demonstrates that the juror

questionnaires would be useful or relevant to postconviction

litigation. Having reviewed the juror questionnaires and

determined that they are not useful or relevant, we affirm the

order of the single justice.

Regarding the defendant's claims of error by the Superior

Court judges, we conclude that the trial judge acted within his

discretion in allowing the Commonwealth's peremptory challenges.

We conclude that the defendant was not entitled to an

instruction on the lesser included offenses of indecent assault

and battery or simple assault and battery where both the

defendant and the victim stated that the defendant penetrated

the victim's vagina, and we reject the defendant's contention
3

that he was entitled to an instruction on withdrawal of consent

because the victim asked him to wear a condom before raping her.

We conclude that the judge who heard the defendant's motion to

suppress properly concluded that the defendant voluntarily made

statements and waived his Miranda rights even where the police

did not inform the defendant why he was under arrest. We

discern no substantial risk of a miscarriage of justice from the

admission of the defendant's recorded police interview where all

redactions requested by the defendant at trial were made.

Finally, we conclude that a defendant does not have a right to

have counsel appointed in connection with a prearraignment

motion to amend indictments. Accordingly, we affirm the

judgments.

1. Background. In October 1996, the victim was a twenty-

one year old senior at Boston University. She was living in an

apartment in the Brighton section of Boston with a college

friend. One day, the defendant knocked on the victim's door and

stated that he was selling magazines for school. The defendant

and the victim started talking, and the victim invited the

defendant inside her apartment. The defendant said that his

name was Derrick and that he was from Georgia. The victim's

roommate was not home at the time.

After approximately an hour, the defendant said, "[I]f I

ask you something do you promise to say yes?" The victim said,
4

"[N]o, I don't promise." The defendant then tried to kiss the

victim, who pushed him away and told him that it was time for

him to go. The defendant put his arm around the victim's neck,

dragged her into her roommate's bedroom, and placed her on the

bed.

The defendant pinned the victim's hands over her head and

pulled down her shorts. She begged the defendant to "please

stop," but he continued. The victim then asked him if he had a

condom and told him that she had one in her purse. When the

defendant got off the victim to retrieve the condom, she grabbed

her roommate's phone. The defendant took the phone from the

victim and threw it before she could use the phone to summon

help.

The defendant then used one hand to pin the victim's arms

and the other to place his fingers inside her vagina. The

victim asked the defendant "to please stop" and told him that

"it really hurt." The defendant did not stop, and pulled down

his pants and "started to rub his penis up and down inside of

[her] vagina, the lips of [her] vagina, up and down really,

really hard." The victim again begged the defendant "to please

stop," and told him that she could not breathe. The defendant

stated that he would let the victim breathe if she "would have

sex with him." As the defendant placed his penis inside the
5

victim's vagina, the victim said, "[P]lease stop, please stop,

why are you going this to me, you're hurting me."

The defendant ejaculated inside the victim and on the

sheets. He then "rubbed his penis up and down kind of inside of

the lips of [the victim's] vagina, hard, a few more times."

Finally, he stopped and put his pants back on. The defendant

said, "I guess you're going to call the police now," then said,

"[H]ave a nice day" and left.

The victim spoke with the police and was transported to a

hospital by ambulance. There, a nurse collected samples from

the victim's vaginal and genital areas. Semen was detected on

the genital swabs, but not the vaginal swabs. In 2000, the

Boston Police crime laboratory created a deoxyribonucleic acid

(DNA) profile from semen on the genital swabs and submitted the

profile to a national database in an attempt to identify the

perpetrator. In 2011, the defendant's DNA profile was entered

into the database after an unrelated arrest.

In April 2014, based on a match in DNA profiles from the

national database, 1 Boston police obtained an arrest warrant for

the defendant, who was living in California. Local police

officers executed the warrant at their request. Two Boston

detectives interviewed the defendant in California.

1 The jury did not hear about either the previous arrest or
the match from the database.
6

The detectives began the recorded interview by advising the

defendant of his Miranda rights. The defendant stated that he

grew up in Georgia and initially denied ever being in New

England or selling magazines. The defendant continued denying

ever having been in Boston after the detectives told the

defendant that his DNA matched a 1996 rape kit from that city.

The defendant, however, described the victim of that crime as a

"young woman" and a "white girl." The detectives pointed out

that they had not provided this information. Eventually, the

defendant acknowledged having what he described as consensual

sex with a "college-age" "[w]hite girl" he met while selling

magazines in Boston. The defendant stated that his penis was

inside that woman's vagina for "maybe two pumps." He stated

that the woman became angry when he left after having sex.

After his arrest, the police obtained an oral swab from the

defendant. His DNA profile was a statistical match to the semen

taken from the victim in 1996 with a vanishingly small random

match probability.

2. Peremptory challenges. When challenging the propriety

of a peremptory challenge, "the burden is on the objecting party

to make a prima facie showing of impropriety that overcomes the

presumption of regularity afforded to peremptory

challenges." Commonwealth v. Rosa-Roman, 485 Mass. 617, 635

(2020), quoting Commonwealth v. Robertson, 480 Mass. 383, 390-
7

391 (2018). "If the judge finds that the presumption has been

rebutted, the burden shifts to the prosecutor to articulate a

nondiscriminatory or 'group-neutral' reason for the

challenge." Commonwealth v. Mason, 485 Mass. 520, 530 (2020),

quoting Commonwealth v. Oberle, 476 Mass. 539, 545 (2017).

"Finally, the 'judge must then determine whether the explanation

is both "adequate" and "genuine."'" Commonwealth v. Sanchez,

485 Mass. 491, 493 (2020), quoting Oberle, supra. "We review a

judge's decision as to whether to allow a peremptory challenge

for an abuse of discretion." Mason, supra.

a. Prospective juror no. 21. After five jurors had been

seated, the Commonwealth used a peremptory challenge on a juror

whom the judge described as the second African-American man to

be examined.2 The juror had not filled out the portion of the

juror questionnaire that asked about prior involvement with the

court system. When asked by the prosecutor, the juror disclosed

that he had been arrested in the same county where the trial was

being held for domestic violence. When the prosecutor asked the

juror whether he believed he had been falsely accused, he

stated, "I can't say that," but then stated that he and his

partner had merely "argued."

2 The first African-American man was excused for cause
because his father was a police officer and he stated that he
would find the testimony of a police officer more credible than
that of a civilian witness.
8

The prosecutor sought to exercise a peremptory challenge to

exclude this juror, the defendant objected, and the judge asked

the prosecutor for the reason for the challenge. The prosecutor

explained that the basis for the challenge was the prior arrest,

the juror's failure to fill out the questionnaire fully, and his

failure to "answer the question of whether he believed he was

falsely accused about it." The judge accepted this explanation

and excused the juror. The defendant objected but did not

question the prosecutor's explanation.

The judge acted within his discretion in allowing this

peremptory challenge. A "prosecutor's concern regarding,

essentially, the ability of the juror to follow simple

instructions," such as to disclose prior involvement with the

court system, is a legitimate one. Commonwealth v. Rodriguez,

457 Mass. 461, 473 (2010). Similarly, the prosecutor could

reasonably be concerned with the juror's equivocal answer

regarding whether he had been treated fairly by her own office.

In this regard, the prosecutor had already used a peremptory

challenge on a female juror who had been similarly ambivalent

about the treatment of her best friend's brother by the same

prosecutor's office 3 and had questioned another female juror

3 When the prosecutor asked that juror whether the brother
was treated fairly, she replied, "I mean, I guess I had my own
opinions, but yes, he was given a fair trial, I guess."
9

about her opinion of the treatment afforded her father and

brother in a prosecution by the same office. 4 The prosecutor was

not required to adopt the defendant's view, expressed for the

first time on appeal, that the juror's explanation was in fact

candid. 5

b. Prospective juror no. 35. After eight jurors had been

seated, the defendant objected to the prosecutor's next

peremptory challenge of an African-American man. This

prospective juror had worked for the Committee for Public

Counsel Services for four years and then as a defense attorney.

He stated that he had "defended folks [for] many worse crimes"

than armed robbery with a firearm, of which the juror had been a

victim. He had known defendant's counsel for more than fifteen

years and had been tried by the same prosecuting office in the

past, when, he stated, he was "falsely accused of motor vehicle

insurance fraud." He went to trial and the case was eventually

4 That juror unequivocally stated that her relatives were
treated fairly, and the prosecutor did not exercise a peremptory
challenge.
5 Similarly, the judge did not err in failing to consider
that -- hours later -- both parties would choose not to
challenge an already seated non-African-American juror for whom
a criminal record check had revealed nondisclosed juvenile
charges and a nondisclosed charge of operating under the
influence. The judge is not required to be clairvoyant, and the
parties may well have different standards for exercising
peremptory challenges that would involve reopening the
empanelment process.
10

resolved by a continuance without a finding. When the defendant

objected to the prosecutor's peremptory challenge, the judge

immediately cut in and said, "[T]he fact is that [the juror] was

a criminal defense lawyer. That's a reasonable basis on which

to exercise a peremptory challenge."

As the Supreme Judicial Court has recently clarified, "the

presumption of propriety [of a peremptory challenge] is rebutted

when 'the totality of the relevant facts gives rise to an

inference of discriminatory purpose.'" Sanchez, 485 Mass. at

511, quoting Johnson v. California, 545 U.S. 162, 168 (2005).

We consider a number of factors:

"(1) the number and percentage of group members who have
been excluded from jury service due to the exercise of a
peremptory challenge;

"(2) any evidence of disparate questioning or investigation
of prospective jurors;

"(3) any similarities and differences between excluded
jurors and those, not members of the protected group, who
have not been challenged (for example, age, educational
level, occupation, or previous interactions with the
criminal justice system);

"(4) whether the defendant or the victim are members of the
same protected group; and

"(5) the composition of the seated jury."

(Footnotes omitted.) Sanchez, supra at 512. Furthermore, "the

possibility of an objective group-neutral explanation for the

strike or strikes . . . may play a role in the first-step
11

analysis as well." Robertson, 480 Mass. at 392,

quoting Commonwealth v. Jones, 477 Mass. 307, 322 & n.25 (2017).

Here, our information on the race of the prospective jurors

is quite limited. At this point in the empanelment process, one

non-African-American man, six women of unknown (to us) race, and

one man of unknown (to us) race had been seated. The prosecutor

had used peremptory challenges only on juror no. 21 and a female

juror. The prosecutor, however, had challenged both of the

jurors who, like juror no. 35, expressed skepticism about the

fairness of the criminal justice system. 6 Only one juror with a

criminal record had been seated, and that juror had reported

only a disorderly conduct charge in college that had been

dismissed. In light of this, the judge faced with a peremptory

challenge of a long-time defense attorney with a criminal record

who believed that he had been wrongly prosecuted by the same

prosecuting office could reasonably determine that "the totality

of the relevant facts" gave rise to no "inference of

discriminatory purpose." Sanchez, 485 Mass. at 511,

quoting Johnson, 545 U.S. at 168.

This case is similar to Commonwealth v. Lopes, 478 Mass.

593 (2018). There, the Supreme Judicial Court affirmed the

trial judge's determination that the presumption of propriety

6 Another juror who opined that he had been treated unfairly
by the criminal justice system had been excused for cause.
12

had not been overcome where a juror's "two significant

experiences with the law provided a sufficient and obvious basis

for the prosecutor's peremptory challenge." Id. at 601.

Contrast Robertson, 480 Mass. at 393 (judge should have inquired

about prosecutor's reasons for peremptory challenge where "[t]he

record offers little insight into what potential neutral reason

the Commonwealth might have offered"). 7 The judge acted within

his discretion.

3. Access to juror questionnaires. Each prospective juror

is required to fill out a confidential juror questionnaire prior

to empanelment. G. L. c. 234A, § 22. See Commonwealth

v. Espinal, 482 Mass. 190, 195 (2019).

"The information elicited by the questionnaire shall be
such information as is ordinarily raised in voir dire
examination of jurors, including the juror's name, sex,
age, residence, marital status, number and ages of
children, education level, occupation, employment address,
spouse's occupation, spouse's employment address, previous
service as a juror, present or past involvement as a party
to civil or criminal litigation, relationship to a police
or law enforcement officer, and such other information as
the jury commissioner deems appropriate."

G. L. c. 234A, § 22. Accord Commonwealth v. Lopes, 440 Mass.

731, 735 (2004). 8 Copies of the completed questionnaires are

7 To be sure, the better practice is for a judge to
pretermit the first step and move directly to requesting an
explanation for a peremptory challenge from the prosecutor. See
Sanchez, 485 Mass. at 514; Lopes, 478 Mass. at 598.
8 On a case-by-case basis, the standard juror questionnaire
may be supplemented by additional questions. See, e.g.,
13

provided to counsel and the judge during empanelment where, of

course, they are invaluable tools for the empanelment process.

G. L. c. 234A, § 23. See, e.g., Commonwealth v. Rios, 96 Mass.

App. Ct. 463, 467 (2019). At the completion of empanelment,

counsel must return their copies to the clerk and hold in

confidence the information contained therein. G. L. c. 234A,

§ 23. The questionnaires of those who are not selected are

destroyed; the questionnaires of those who are selected (either

as deliberating or alternate jurors) are retained by the clerk

of court "until final disposition of the case," which should

include the direct appeal. G. L. c. 234A, § 23.

"Except for disclosures made during voir dire or unless the

court orders otherwise, the information inserted by jurors in

the questionnaire shall be held in confidence by the court, the

clerk or assistant clerk, the parties, trial counsel, and their

authorized agents." G. L. c. 234A, § 23. Accordingly, after

empanelment is completed, the clerk may not provide the parties

with access to the questionnaires absent a court order.

Juror questionnaires can provide vital information for

postconviction litigation. For example, a claim based on a

juror's omissions of information from a questionnaire might be

impossible to adjudicate without access to the questionnaire in

Commonwealth v. Billingslea, 484 Mass. 606, 627 (2020);
Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 762 (2016).
14

question. See, e.g., Commonwealth v. Torres, 437 Mass. 460,

468-469 (2002); Commonwealth v. Gonsalves, 96 Mass. App. Ct. 29,

30-31 (2019). A claim of ineffective assistance of counsel

based on counsel's failure to exercise a peremptory challenge

could require the information on a questionnaire.

See Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 309 (2000).

Even where access to a juror questionnaire is not critical,

it may be helpful or otherwise relevant. For example, a claim

of juror bias might be assisted by the information in the

questionnaires. See, e.g., Commonwealth v. Richardson, 469

Mass. 248, 255 & n.13 (2014). Where a party justifies a

challenged peremptory challenge on the basis of a potential

juror's answers on the questionnaire, access to that

questionnaire could be quite useful. See, e.g., Robertson, 480

Mass. at 395 & n.9; Commonwealth v. Maldonado, 55 Mass. App. Ct.

450, 457 & n.2 (2002), S.C., 439 Mass. 460 (2003); Commonwealth

v. Cavotta, 48 Mass. App. Ct. 636, 638-639 & n.3 (2000).

Similarly, in that circumstance, access to the other

questionnaires could be useful for comparison purposes.

Cf. Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts

Comm'n Against Discrimination, 449 Mass. 675, 684-685 (2007)

(discussing comparator evidence).

Where a party wants access to a juror questionnaire and can

demonstrate that such access could potentially assist in
15

litigating a viable postconviction issue, a judge should grant

some form of access while remaining cognizant of the vital

importance of the confidentiality of juror questionnaires.

See Commonwealth v. Womack, 457 Mass. 268, 279 & n.11 (2010)

(confidentiality of questionnaires vital to jurors'

confidence); Commonwealth v. Howard, 46 Mass. App. Ct. 366, 368-

369 (1999) (same). Potential assistance is a relatively low

bar. The judge may structure an order, however, to preserve

that confidentiality to the extent practical, for example, by

impounding the questionnaire so that it will be placed only in

an impounded appendix. Where the usefulness of a questionnaire

is uncertain, a judge may choose to have counsel first view the

questionnaire in camera, returning to request a copy only if the

questionnaire proves significant.

Here, the defendant moved for access to all of the juror

questionnaires in Superior Court after the entry of his appeal

in this court, but he neither filed a timely notice of appeal

from the order denying the motion for access, nor argues in his

brief to this court that this denial was error. 9 Accordingly,

9
The defendant filed a notice of appeal from the denial of
his motion for access 364 days after the motion was denied. He
then specifically asked the clerk not to assemble the record for
appeal. The defendant confirmed at oral argument that this was
a strategic decision.
16

the propriety of that denial is not before us. See Commonwealth

v. Frias, 53 Mass. App. Ct. 488, 495 (2002).

Instead, after unsuccessfully challenging the denial in a

petition under G. L. c. 211, § 3, see Scott v. Commonwealth, 479

Mass. 1034 (2018), the defendant filed a motion with a single

justice of this court to compel the Superior Court clerk to

provide him with access to the juror questionnaires, or, in the

alternative, to determine "that said questionnaires are part of

the record on appeal that should be provided to" the defendant.

It is from the single justice's order denying this motion that

the defendant timely noticed an appeal.

"It is well settled that this court will not reverse an

order of a single justice in the absence of an abuse of

discretion or clear error of law." Howard v. Boston Water &

Sewer Comm'n, 96 Mass. App. Ct. 119, 123 (2019),

quoting Commonwealth v. Springfield Terminal Ry. Co., 77 Mass.

App. Ct. 225, 229 (2010). The single justice, however, lacked

the authority to decide the defendant's appeal of the Superior

Court judge's order denying the defendant's motion for access to

the questionnaires. See DeLucia v. Kfoury, 93 Mass. App. Ct.

166, 168 (2018). That question had to be presented to a panel

of this court by a proper notice of appeal and briefing.

The defendant's alternative claim for relief, that "the

instant request for access to jury questionnaires should be
17

sufficient in itself to establish the right of [the defendant]

to access the questionnaires as he seeks to perfect the direct

appeal of his criminal conviction," is not persuasive. The mere

fact that a document is part of the record on appeal, see Mass.

R. A. P. 8 (a), as amended, 378 Mass. 932 (1979) ("The original

papers and exhibits on file, the transcript of proceedings, if

any, and a certified copy of the docket entries prepared by the

clerk of the lower court shall constitute the record on appeal

in all cases"); 10 Maldonado, 55 Mass. App. Ct. at 457 n.2, does

not necessarily mean that any party is entitled to unfettered

access, or indeed any access, to it. When, for example, a judge

conducts an in camera hearing on a witness's invocation of the

privilege against self-incrimination pursuant to Commonwealth

v. Martin, 423 Mass. 496, 504-505 (1996), the transcript of that

hearing is a part of the record on appeal and is reviewed by the

appellate court but is not accessible to the parties under any

circumstances. See Pixley v. Commonwealth, 453 Mass. 827, 834-

835 (2009); Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 628

(2010). As we have stated, whether a party is entitled to

access to the juror questionnaires is a question for the trial

10The Massachusetts Rules of Appellate Procedure were
wholly revised, effective March 1, 2019. See Reporter's Notes
to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate
Procedure, at 466 (LexisNexis 2019). The analysis would be the
same under the current version of Mass. R. A. P. 8 (a), as
appearing in 481 Mass. 1611 (2019).
18

court judge upon a showing that such questionnaires would

potentially be useful or relevant in litigating a postconviction

matter, and the defendant did not appeal from the judge's ruling

in this regard. Accordingly, the single justice properly denied

the defendant's motion.

Even though the defendant has waived his right to review of

these issues in this appeal, we are cognizant that the juror

questionnaires are, in fact, relevant to the defendant's issue

concerning the peremptory challenges, which involve, among other

things, a juror's failure to answer a question on the

questionnaire. Although juror no. 21's questionnaire has been

destroyed (because he was not seated), whether any other seated

jurors failed to answer a question or otherwise displayed

similar nonracial characteristics as the struck jurors in their

questionnaires is important information. Accordingly, as we

have done in the past when a question concerning the use of

peremptory challenges on the basis of race has been raised, we

ordered the questionnaires from the trial court and have

reviewed them carefully. See Maldonado, 55 Mass. App. Ct. at

457 & n.2.

None of the seated jurors failed to answer a question on

the questionnaire. None of the seated jurors described any

experience as a defense attorney or in a related job. Regarding

criminal records, one juror reported being charged with
19

disorderly conduct in college, but the judge read that

information into the record. Three other jurors described a

criminal history of a relative or partner, but again the judge

read that information into the record. One juror stated that a

distant relative had served time for draft resistance in World

War II. This information was not read into the record, but it

is not helpful to the defendant. Accordingly, nothing in the

juror questionnaires calls into question our conclusions

regarding the peremptory challenges.

4. Instruction on lesser included offenses. At trial, the

defendant requested the judge to instruct the jury on two lesser

included offenses of rape, indecent assault and battery, and

simple assault and battery. The trial judge declined, reasoning

that no view of the evidence supported either instruction. "A

lesser included offense instruction should be given where 'the

evidence at trial presents "a rational basis for acquitting the

defendant of the crime charged and convicting him of the lesser

included offense."'" Rios, 96 Mass. App. Ct. at 476,

quoting Commonwealth v. Donlan, 436 Mass. 329, 335 (2002). In

deciding whether a lesser included offense instruction is

appropriate, "we draw all reasonable inferences from the

evidence in favor" of the defense. Commonwealth v. Dyous, 436

Mass. 719, 731 (2002). Nonetheless, "even when evidence is

introduced that would justify conviction for a lesser included
20

offense, the defendant is not entitled to an instruction

thereupon unless the proof on the 'elements differentiating the

two crimes is sufficiently in dispute so that the jury may

consistently find the defendant innocent of the greater and

guilty of the lesser included offense.'" Donlan, supra,

quoting Commonwealth v. Souza, 428 Mass. 478, 494 (1998).

Here, the victim unambiguously testified that the defendant

penetrated her vagina, both digitally and with his penis. The

defendant likewise unambiguously stated that there was

penetration; he told the police that his penis "was in the

vagina." Although the defendant focuses on the victim's

testimony that she saw the defendant ejaculate and that he

"rubbed his penis up and down kind of inside the lips of [her]

vagina," that testimony casts no doubt upon this element. It is

well settled that "[i]ntrusion into the vagina itself is not

required to make out the wrongful penetration. Touching by the

male of the vulva or labia . . . is intrusion enough." Donlan,

436 Mass. at 336, quoting Commonwealth v. Baldwin, 24 Mass. App.

Ct. 200, 204-205 (1987). 11

Although the jury had the right to disbelieve any portion

of the evidence, and could have selectively disbelieved portions

11For this reason, the defendant's statement in closing
argument that "the penis didn't go into the vagina here" is a
non sequitur, if it was intended as a remark on the element of
penetration.
21

of the victim's testimony, "the mere possibility that the jury

might not credit a portion of the Commonwealth's evidence" is

not enough to entitle the defendant to an instruction on a

lesser included offense. Donlan, 436 Mass. at 337. Where the

case was tried on the question whether the victim consented to

the penetration and not whether it occurred, no rational jury

could have convicted the defendant of the lesser included

offenses while acquitting him of rape.

5. Instruction on withdrawal of consent. In Commonwealth

v. Sherman, 481 Mass. 464, 472-473 (2019), the Supreme Judicial

Court held that, where a victim consents to sexual penetration

but withdraws consent during the course of sexual intercourse,

the Commonwealth must prove that the victim communicated the

withdrawal of consent to prove that a rape occurred. Such

withdrawal of consent may be communicated through resistance,

words, or gestures, such as attempting to move away. See id. at

474. "[T]he 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." Id.

It is unsurprising that the defendant failed to request

such an instruction, as Sherman was decided over three years
22

after the trial here. 12 The defendant now claims that such an

instruction should have been given, because the victim's request

that the defendant use a condom while raping her evidenced her

consent. We review this claim for a substantial risk of a

miscarriage of justice, see Sherman, 481 Mass. at 475-476, and,

finding it without merit, we discern none.

Society long ago moved beyond the point where a victim's

request that a rapist use a condom could be considered consent.

See People v. Ireland, 188 Cal. App. 4th 328, 336 (Cal. Ct. App.

2010) (noting standard instruction in California that

"[e]vidence that the woman requested [the defendant] to use a

condom or other birth control device is not enough by itself to

constitute consent"); Mack v. State, 338 Ga. App. 854, 857

(2016) (fact that victim asked defendant to put on condom did

not negate her fear); State v. Troutman, 148 Idaho 904, 911

(2010) (whether defendant wore condom "is irrelevant to the

12The defendant suggests that he somehow did request a
Sherman instruction when he asked for an instruction consistent
with Commonwealth v. Lopez, 433 Mass. 722, 727-728 (2001), in
which the Supreme Judicial Court rejected the proposition that a
defendant is entitled to an instruction on the defense of an
honest and reasonable mistake as to the victim's consent. The
judge, however, opined that his instruction was consistent with
Lopez and invited the defendant to submit any proposed language.
The next morning, the defendant said, "I think the instruction
is okay." Even if we could somehow discern what the defendant
was thinking, this would not preserve the issue. See
Commonwealth v. King, 77 Mass. App. Ct. 194, 197 (2010), S.C.,
460 Mass. 80 (2011).
23

consent question"); Tyson v. State, 619 N.E.2d 276, 295-296

(Ind. Ct. App. 1993) (victim's testimony that she asked

defendant, "Please put a condom on" during assault "could not,

as a matter of law, lead a reasonable person to believe that

[the defendant] was reasonably mistaken as to [the victim's]

consent to sexual intercourse"); State v. Anderson, 66 So. 3d

568, 580 (La. Ct. App. 2011) (rejecting contention that there

was consent where victim testified "she asked him to use a

condom"; "Defendant fails to cite any case law to support that

use of a condom necessarily equates with consensual sex").

Here, the victim testified that the sexual encounter with

the defendant was nonconsensual at all times. She pushed the

defendant away when he first tried to kiss her, and asked that

he use a condom only once he had dragged her into the bedroom

and pinned her arms down while ignoring her pleas to stop. To

be sure, the defendant told the police that the victim had

consented to the entire sexual encounter. The Supreme Judicial

Court, however, has held that "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." Sherman, 481 Mass. at 475. As there was no

basis for concluding that the victim initially consented to

intercourse and then withdrew that consent, there was no basis

for a Sherman instruction. See Commonwealth v. Butler, 97 Mass.
24

App. Ct. 223, 235 (2020) (not reasonable to believe that

incapacitated individual in protective custody and under

defendant police officer's control consented to indecent assault

and battery).

6. Motion to suppress statements. a. Standard of review.

The motion judge denied the defendant's motion to suppress his

statements during the police interview, finding that (1) the

defendant knowingly, intelligently, and voluntarily waived his

Miranda rights, and (2) his statements were voluntary. "On

appeal, we review a ruling on a motion to suppress by accepting

'the judge's subsidiary findings of fact absent clear error but

conduct an independent review of [the] ultimate findings and

conclusions of law.'" Commonwealth v. Polanco, 92 Mass. App.

Ct. 764, 769 (2018), quoting Commonwealth v. Ramos, 470 Mass.

740, 742 (2015). Where, as here, there is a video recording of

the interview of the defendant, we "may independently review

[the] documentary evidence, and . . . findings drawn from such

evidence are not entitled to deference." Commonwealth

v. Tremblay, 480 Mass. 645, 654-655 (2018). Accord Commonwealth

v. Molina, 467 Mass. 65, 72 (2014), quoting Commonwealth

v. Hoyt, 461 Mass. 143, 148-149 (2011) ("we will 'take an

independent view' of recorded confessions and make judgments

with respect to their contents without deference to the fact
25

finder, who 'is in no better position to evaluate the[ir]

content and significance'").

b. Waiver of Miranda rights. The Commonwealth bore the

initial burden of proving beyond a reasonable doubt that the

defendant's waiver of Miranda rights was "voluntary, knowing,

and intelligent." Commonwealth v. Clarke, 461 Mass. 336, 342

(2012). Accord Commonwealth v. Rivera, 482 Mass. 259, 265-266

(2019). "Relevant factors in this analysis include the manner

in which the interrogation is conducted, whether Miranda

warnings were given, the defendant's physical and mental

condition, and the defendant's individual characteristics, such

as age, education, intelligence, and emotional stability." Id.

at 266. Whether a waiver is voluntary depends on "the totality

of the circumstances." Commonwealth v. Gallett, 481 Mass. 662,

668 (2019).

Here, the defendant "was informed of his Miranda rights and

indicated verbally and in writing that he understood the

warnings." Gallett, 481 Mass. at 669. The defendant was

thirty-six years old at the time of the interrogation, his

emotional and physical condition was unremarkable, and there is

no indication that the defendant had cognitive limitations that

would affect his waiver and voluntary statements. The

detectives made no intentional misrepresentations that could

have undermined the defendant's ability to make a free choice,
26

and they did not impermissibly maximize the apparent strength of

the Commonwealth's case. See id. at 670-671; Commonwealth

v. Spray, 467 Mass. 456, 467-468 (2014).

The detectives' failure to inform the defendant of the

charges against him until midway into the interview did not

vitiate the voluntariness of the defendant's Miranda waiver,

contrary to his claims. At no point did the detectives make a

false statement about the charges in Boston, but they did avoid

telling the defendant he was charged with rape until after he

had categorically denied ever being in Boston. "[A]ny lack of

disclosure regarding the ground for an arrest is not the type of

'trick[ery]' that would prevent the defendant's waiver from

being knowing, intelligent, and voluntary." Commonwealth

v. Cartwright, 478 Mass. 273, 281-282 (2017),

quoting Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985).

"The police are not required to 'inform a suspect of the nature

of the crime about which he is to be

interrogated.'" Commonwealth v. Hensley, 454 Mass. 721, 738

(2009), quoting Medeiros, supra. Accord Molina, 467 Mass. at 76

n.13 (failure to inform suspect of nature of crime "does not

itself render a statement involuntary").

c. Voluntariness of statements. To use the defendant's

statements as evidence against him at trial, the Commonwealth

also "must show that any statement made [by a defendant] after a
27

waiver was voluntary, as a product of the defendant's 'rational

intellect and free will.'" Rivera, 482 Mass. at 266,

quoting Commonwealth v. Hoose, 467 Mass. 395, 403 (2014). In

deciding whether the Commonwealth met its burden, we may

consider, among other relevant factors, "the defendant's age,

education, intelligence, physical and mental stability, and

experience with the criminal justice system." Commonwealth

v. Siny Van Tran, 460 Mass. 535, 559 (2011).

Here, the defendant at all times displayed a knowing

comprehension of the questions asked of him and voiced lucid and

logical responses, which reflected an effort to exonerate

himself. See Commonwealth v. Libby, 472 Mass. 37, 49 (2015)

(defendant's exculpatory explanations of events suggested

statements were product of defendant's own free will). The

defendant responded appropriately to substantive questions posed

by the officers, demonstrating an understanding of the nature of

their questioning. See Tremblay, 480 Mass. at 656-658

(defendant was responsive to police questions and even minimized

his culpability, leading to conclusion that defendant's

statements were voluntarily given). Based on the totality of

the circumstances, we see no reason to disturb the motion

judge's ultimate finding that the Commonwealth had established,

beyond a reasonable doubt, that the defendant had knowingly,

intelligently, and voluntarily waived his Miranda rights and
28

that he made his statements to the police voluntarily.

See Gallett, 481 Mass. at 672; Libby, supra at 48-50.

7. Redaction of video-recorded interrogation. The parties

spent considerable effort during trial redacting the video

recording of the interview. The Commonwealth's original

position was that the defendant's denials should not be

admitted, but the trial judge disagreed. The parties then

discussed the scope of redactions. The defendant, although

noting that he wanted the entire interview suppressed, explained

that he "want[ed] more of it rather than less of it" to be

admitted. The parties presented the disputed redactions to the

trial judge, and the judge ruled on them, siding with the

Commonwealth on some redactions and with the defendant on

others.

On appeal, the defendant proposes additional redactions.

Because the defendant did not request these redactions at trial,

review is waived and we consider only whether there was a

substantial risk of a miscarriage of justice. See Commonwealth

v. Rivera, 97 Mass. App. Ct. 285, 292 (2020); Commonwealth

v. Sanchez, 96 Mass. App. Ct. 1, 8 n.8 (2019). We discern none.

The defendant vaguely asserts that accusatory statements by

the officers should have been redacted. The interview, however,

did not include "repeated statements [by the officers] that they

did not believe the defendant." Commonwealth v. Santos, 463
29

Mass. 273, 288-289 (2012) (admission of officers' frequent

accusations that defendant was lying improper). The defendant

also asserts that a reference to the defendant's being on

probation was mistakenly retained. The parties, by their own

description, "went to great pains . . . to make sure that every

mention of every arrest that [the defendant] ever had, including

the [operating under the influence] prior arrest, anything

having to do with bad acts or encounters with the law [was]

excised." That the parties missed one mumbled reference to

probation does not create a substantial risk of a miscarriage of

justice. Similarly, it is difficult to find error, much less a

substantial risk of a miscarriage of justice, from the inclusion

of the defendant's criticism of his coworkers as possible

criminals. In sum, we can discern no substantial risk of a

miscarriage of justice. See Rivera, 97 Mass. App. Ct. at 293-

294. Accord Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324

(2016) ("Having elected to pursue this approach at trial, the

defendant cannot change tactics on appeal based on the fact that

he did not achieve the desired result").

8. Amendment of indictments. "Under the Sixth Amendment

to the United States Constitution and art. 12 [of the

Massachusetts Declaration of Rights], the defendant has a right

to counsel at every 'critical stage' of the criminal

process." Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510
30

(2011), quoting Commonwealth v. Woods, 427 Mass. 169, 174

(1998). "In order to constitute a critical stage, the accused

must require assistance in 'coping with legal problems or

assistance in meeting his adversary,' and the Sixth Amendment

does not apply where there is no possibility 'that the accused

might be misled by his lack of familiarity with the law or

overpowered by his professional adversary.'" Commonwealth

v. Sargent, 449 Mass. 576, 580 (2007), quoting United States

v. Byers, 740 F.2d 1104, 1118 (D.C. Cir. 1984). See Robinson

v. Commonwealth, 445 Mass. 280, 286 (2005) ("because the

suppression hearing in this case would have required the taking

of evidence and also involved the admissibility of substantial

evidence that could determine the outcome of the case,"

suppression hearing was critical stage); Commonwealth v. Medina,

64 Mass. App. Ct. 708, 721 (2005) (right to counsel at hearings

at which evidence is taken).

Here, as the fifteen-year statute of limitations approached

in 2011, 13 the Commonwealth had a DNA profile of the suspect but

did not know his identity. See G. L. c. 277, § 63, as amended

by St. 1996, c. 26. Accordingly, the Commonwealth secured

13The statute of limitations for the kidnapping charge
would have expired before this time, had the defendant remained
a usual and public resident of Massachusetts. See G. L. c. 277,
§ 63. As it happened, the statute of limitations was tolled by
the defendant's nonresidence. See Commonwealth v. White, 475
Mass. 724, 731 (2016).
31

indictments against "John Doe, (a black male, approximately

5'11" tall, with a thin build, brown eyes, age 18-19 and

identified by the DNA profile appended hereto in appendix A-

CC#60-531557)." 14 On March 20, 2014, after the defendant was

identified, but before he was arraigned, the Commonwealth

obtained an ex parte amendment of the indictments to substitute

the defendant's name.

The defendant contends that he was entitled to the

appointment of counsel for this prearraignment, prearrest

hearing. The right to counsel protected by the Sixth Amendment,

however, does not attach "until the time of

arraignment." Commonwealth v. Celester, 473 Mass. 553, 567

(2016). See Rothgery v. Gillespie County, Tex., 554 U.S. 191,

199 (2008), quoting 1 W.R. LaFave, J.H. Israel, N.J. King, &

O.S. Kerr, Criminal Procedure § 1.4(g), at 135 (3d ed. 2007)

(right to counsel "attaches at the [defendant's] initial

appearance," when "the magistrate informs the defendant of the

charge" against him and "determine[s] the conditions for

pretrial release"). The Supreme Judicial Court has held the

same with respect to the art. 12 right. Celester, supra. "The

14In Commonwealth v. Dixon, 458 Mass. 446, 447-448 (2010),
the Supreme Judicial Court held that a similar John Doe
indictment, which identified the accused by his unique DNA
profile and a physical description, comported with statutory
requirements and had the legal effect of tolling the statutory
limitations period.
32

arraignment signals 'the initiation of adversary judicial

proceedings' and thus the attachment of the Sixth Amendment

. . . ." Michigan v. Jackson, 475 U.S. 625, 629 (1986).

Interpreting art. 12, the Supreme Judicial Court has

consistently held that the right to counsel "attaches at the

time judicial proceedings are commenced." Commonwealth

v. Neary-French, 475 Mass. 167, 172 (2016). See Commonwealth

v. Ortiz, 422 Mass. 64, 67 n.1 (1996) ("There is no authority

for the proposition that the right to counsel under the Sixth

Amendment . . . or under art. 12 . . . arises prior to

arraignment"). Accordingly, the defendant had no right to

counsel at the time of the amendment of the indictments.

9. Conclusion. The judgments are affirmed. The order of

the single justice denying the defendant's motion to compel is

affirmed.15

So ordered.

15The defendant also filed a notice of appeal of the denial
of his motions for postconviction discovery. The defendant has
not briefed the denial of these motions, so any issue regarding
them is waived. See Frias, 53 Mass. App. Ct. at 495.