COMMONWEALTH vs. KEVIN G. MEDEIROS.

RUBIN, J. In this criminal case, the defendant was convicted of rape of a child with force, assault and battery, and aggravated rape, with the only evidence supporting aggravation being that the rape was committed as part of a joint venture. His codefendant, who is not a party to this appeal, was convicted only of

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assault and battery, and not of rape. [Note 1] The defendant contends that his conviction of aggravated rape cannot stand in light of his codefendant's acquittal on the rape charges, and that his trial counsel was ineffective.

I.

We summarize the evidence in the light most favorable to the Commonwealth. At the time of the rape, the victim was fifteen years old, and lived during the summer with her mother in a campground in Rochester. One evening in July, 2003, after an argument with her mother, she wandered the campground. She met her friend, who was about fourteen years old, and later that night, they ran into the defendant and codefendant, both of whom she knew. The four walked together, and between 11:00 P.M. and midnight, the friend departed, leaving the victim with the defendant and the codefendant.

The three arrived in the area of a deserted campsite. The victim stopped and bent down to tie her shoe. When she stood up, the defendant and the codefendant were behind her, one on each side. They each grabbed one of her arms and pulled her toward the vacant tent. The victim tried "wiggling away from them." The codefendant unzipped the tent, and the defendant pushed the victim inside.

The victim, who was the sole witness for the Commonwealth, testified that, at that point, she "thought they were joking around." The defendant laid on the tent floor a box spring and mattress that had been pushed up against a side of the tent. The codefendant closed the front of the tent.

The defendant pushed the victim onto the mattress, and pulled off both her T-shirt and tank top. She told him to stop. The codefendant held up her arms so that she could not push the defendant away. The defendant removed her pants and undergarments, leaving her naked on the bed.

The codefendant kept holding the victim. She told the defendant

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and the codefendant to stop. Although she struggled, the defendant raped her vaginally while the codefendant held the victim's left leg.

According to the victim's testimony, the defendant continued for "a couple of hours," but after twenty or thirty minutes, the codefendant left the tent, saying "he was getting out of there because he didn't need this on him." The victim was crying and speaking loudly. She testified that she wanted it over. The defendant then forced the victim to engage in oral sex for approximately twenty minutes.

After the defendant left, the victim gathered her clothing and dressed. She returned to her campsite. At that point, it was approximately 3:00 A.M. The victim did not tell her mother what had happened because her mother was angry at her for keeping late hours. In the morning, her mother confronted her about having been out so late. The mother told the victim that she would be sent to New Hampshire to live with her father because she was getting in trouble at the campsite. Her mother left and when she returned she was upset because she had heard something had happened between the victim and the defendant. The mother asked the victim what had happened. The victim told her mother about the rape, her mother called the police, and the victim was ultimately taken to the hospital.

The defendants, who were represented separately, called one witness, another resident of the campground, who testified that the victim was, in fact, with a group of girls during the time the assault was alleged to have occurred. In their closing arguments, the defendants argued that the victim fabricated the claim of rape to avoid being sent away from the campground by her mother.

II.

The defendant argues that, because the codefendant was acquitted of all the rape charges against him, and convicted only of simple assault and battery, the defendant's conviction of aggravated rape based on a theory of joint venture as the aggravating factor was impermissible. Joint venture liability means that two people have acted together. Proof of a joint venture requires the Commonwealth to show "that the defendant was present at the scene of the crime, that he had knowledge that another intended to commit the crime and shared the intent to commit the crime,

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and that, by agreement, he was willing and available to help the other if necessary." Commonwealth v. Netto, 438 Mass. 686, 701 (2003).

Had the codefendant, convicted only of assault and battery, been found a joint venturer with the defendant, the jury could have convicted the codefendant of rape on the joint venture theory. The jury acquitted him instead. The codefendant was present at the scene of the crime, and the defendant's argument proceeds on the premise that the codefendant's acquittal of rape necessarily means that the jury found that he either did not share the intent to commit the crime with the defendant, or that he was not willing and able by agreement to help him. This would mean that the jury found no joint venture. [Note 2] And in the absence of a joint venture, the defendant argues, he could not be convicted of aggravated rape in this case, where the only aggravating factor of which evidence was presented and on which the jury was charged was that the crime was committed as part of a joint venture. [Note 3]

There is some logic to the defendant's argument. Our general

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rule is that "mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Commonwealth v. Scott, 355 Mass. 471, 475 (1969). We have said that this "rule recognizes the power, possibly salutary, of juries to compromise and to act out of leniency." Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 33 (1984). The defendant, however, points to an arguably contrary, long-standing rule in the context of conspiracy that "if at a single trial for conspiracy all but one of the defendants are acquitted of the charge, a conviction of the remaining defendant must be set aside." Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982). The defendant argues in essence that just as "one cannot commit a conspiracy alone," ibid., one cannot commit a joint venture alone, and that, consequently, in the face of his codefendant's acquittal on the rape charges, his conviction of aggravated rape cannot stand.

When presented with a similar argument in Commonwealth v. Wojcik, 43 Mass. App. Ct. 595, 602 (1997), we indicated in dictum that it might be correct. We distinguished that case from the conspiracy cases, and affirmed the convictions, saying, "We are not faced here with a circumstance in which a defendant was convicted of a crime based on joint enterprise and other defendants were acquitted of similar charges in the same trial." Ibid. We also used similar language in affirming a conviction in Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235 (1991), saying, "We do not have here a defendant convicted of a crime based on joint enterprise and all other defendants acquitted of similar charges in the same trial," though we noted in a footnote that "[t]he conclusion that this verdict configuration in the same trial requires reversal of all guilty verdicts is not a necessary

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one." Id. at 235 n.6, citing United States v. Bucuvalas, 909 F.2d 593 (1st Cir. 1990), and Commonwealth v. Nighelli, 13 Mass. App. Ct. 590, 595 (1982). Finally, an early case suggests that the rule we apply in conspiracy cases applies more broadly to contexts like that involved here. See Commonwealth v. Slate, 11 Gray 60, 63 (1858) (suggesting that the rule for conspiracy cases applies to any offense that "involve[s] from its character, as in the case of a charge of a conspiracy or a riot, the united act of two or more individuals to constitute an offence in either").

The defendant's argument, though, ultimately is foreclosed by our more recent decision in Commonwealth v. Clements, 51 Mass. App. Ct. 508 (2001), S.C., 436 Mass. 190 (2002). [Note 4] In Clements, the defendant was convicted of murder in the second degree as a joint venturer. Id. at 509. His codefendant was acquitted of all charges. Ibid. Yet his codefendant was the only person who could have been his principal. See id. at 522-523. See also id. at 536 (Duffly, J., dissenting) ("[T]he Commonwealth must have presented evidence sufficient to establish, beyond a reasonable doubt, that [the codefendant] was the principal in the shooting"). Indeed, a review of the transcript in the Clements case reveals that the jury were instructed they could convict the defendant on a joint venture theory only if he was acting as a joint venturer with his codefendant.

In Clements, "[w]e . . . reject[ed] the defendant's claim that the verdict of acquittal of [the codefendant] and the verdict of guilty as to the defendant on the theory of joint venture are inconsistent verdicts which require reversal of the defendant's conviction of second degree murder." Id. at 523. [Note 5] We stated that "mere inconsistency of verdicts does not render a guilty verdict

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erroneous." Ibid., quoting from Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 341 (1999).

Clements is controlling here. The defendant therefore is not entitled to a new trial on this issue.

II.

The defendant also claims ineffective assistance of trial counsel. The standard is well-known: to prevail on an ineffective assistance claim, the defendant must show that "there has been serious incompetency, inefficiency, or inattention of counsel . . . falling measurably below that which might be expected from an ordinary fallible lawyer," and that the failure "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If the defendant argues that counsel's strategy or tactics were faulty, he must show that the challenged tactical judgments were "manifestly unreasonable." Commonwealth v. Gonzalez, 443 Mass. 799, 809 (2005), quoting from Commonwealth v. Parker, 420 Mass. 242, 248 n.7 (1995).

In this case, the defendant has not initially brought this claim as part of a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), but raises it for the first time on direct appeal. As the Supreme Judicial Court has explained, this approach is "strongly disfavor[ed]." Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). Consequently, when presented with an ineffective assistance claim in this procedural posture, we will reverse only if the factual basis for the claim "appears indisputably on the trial record." Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

A.

The defendant's attorney introduced the victim's unredacted medical records in order to impeach the victim during cross-examination; while the records had not been subpoenaed as required by G. L. c. 233, §§ 79 and 79G, the trial judge, at defense counsel's request, and over the Commonwealth's objection, allowed them in evidence. The medical records contained inconsistencies

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with the victim's trial testimony, including the fact that at the hospital she had not alleged that she was orally penetrated, which she did allege at trial, and that at the hospital she had alleged digital penetration, although at trial she did not. The records also included a record signed by a physician that indicated that her "clinical impression" was "sexual assault." They contained notations of the victim's statements that she was "raped" or "sexually assaulted," and they contained a recounting of her report of the incident that named the defendant repeatedly throughout. The records also indicated that the victim suffered no bruising, swelling, or bleeding, recording only tenderness in the bilateral area of her thighs. [Note 6]

The defendant argues first that trial counsel was ineffective both in submitting in evidence the victim's medical records and in failing to redact them. The records were introduced at the defendant's request and over the objection of the Commonwealth that the admission did not comply with G. L. c. 233, §§ 79 and 79G. Their introduction was central to the defense strategy. In this case, the defense chose to admit that the victim had contemporaneously claimed she had been sexually assaulted, had been sent to the hospital, and had repeated her claims there. The defense theory was that the victim's claim of rape was made up in order to have an explanation for the late night out that resulted in the victim's mother's decision to send the victim to live with her father.

This defense strategy did not work, but it does not "appear[] indisputably on the trial record" that its employment with its attendant introduction of the medical records was manifestly unreasonable. The alternative might have been a credibility contest with the defendant offering no explanation at all for why the victim might have been, as he argued, falsely claiming to have been raped, and without the evidence of inconsistency that the defendant relied upon in an attempt to portray the allegations against him as false.

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Turning to the redaction the defendant now argues that his trial counsel should have sought, and assuming without deciding that the defendant would have been entitled to it, his complaint about counsel's failure to object is disposed of by what we have just said. The defendant urges that the victim's detailed account of the sexual assault should have been redacted; that its references to the defendant by name should have been redacted; and that three other references in the report to the victim reporting that she had been sexually assaulted should have been redacted.

This argument ignores the strategic choice made by trial counsel. In closing, trial counsel argued that the victim's statements at the hospital were inconsistent with her testimony at trial precisely because the story she was telling was not true. This argument would have been unavailable without the jury knowing that she had, indeed, reported that she was raped by the defendant, and having before them the details of her contemporaneous account. The defendant does not explain why, in light of defense counsel's trial strategy, it would have made any sense to seek the redactions he now suggests. [Note 7]

Without a developed record including, for example, an affidavit from trial counsel explaining why he sought to introduce the records without redaction, we cannot determine the precise rationale behind trial counsel's decisions. But in light of trial counsel's trial strategy, which, as we have said, was not sufficiently obviously unreasonable to amount to ineffective assistance, we can say that it does not "appear[] indisputably on the trial record" that trial counsel's choices fell below what might be expected, or that they "deprived the defendant of an otherwise available, substantial ground of defence."

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B.

Finally, the defendant argues that the victim impermissibly provided self-corroborating testimony. See Commonwealth v. Montanez, 439 Mass. 441, 448 (2003) (impermissible self-corroboration to testify about the action a guidance counselor took as a result of a conversation with the victim), overruled in part by Commonwealth v. Stuckich, 450 Mass. 449, 457 n.11 (2008). Specifically, the defendant argues that the victim's testimony of action taken by her mother and the police was self-corroborative, conveying, first, that the victim was sufficiently credible that her mother was moved to call the police; second, that she was sufficiently credible that the police requested her to go to the hospital for a medical examination; and third, that she was sufficiently credible that the police arrested the defendant. We examine each piece of testimony in turn.

First, the victim did not in her direct testimony testify that it was her mother, rather than she, who called the police. Rather, as the Commonwealth points out, this testimony was elicited by defense counsel on cross-examination. Its purpose was to show, consistent with the defense strategy, that the victim herself had not called the police, but that her mother had done so. This was more consistent with the defense theory of a false accusation originally made by the victim to persuade her mother not to send her away.

Even assuming the testimony about the victim's mother calling the police was self-corroborative -- a question we need not address -- at most the defendant's argument amounts to a further challenge to trial counsel's strategy, and as we have explained above, at least in this procedural posture, the claim of ineffective assistance for the choice of strategy is without merit.

Second, we do not think the testimony in this case about the police asking the victim to go to the hospital can be characterized as self-corroborative. The evidence indicated that the hospital trip was for investigatory purposes and that the decision to send the victim to the hospital did not depend on the credibility of the victim. The victim testified in part as follows:

Q.: "Now, when you spoke to the police, did you go into great detail about what happened?"

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A.: "They didn't say I had to. They never asked. They asked me to give a brief description of what happened."

Q.: "They didn't go into any detail at all?"

A.: "Nope. Because they said I would have to do it at the hospital."

This testimony indicates that the hospital trip was procedurally required wholly independent of, and indeed prior to, anything the victim said to the police. [Note 8] Since the evidence was admissible, there was no error in failing to object to it.

This leaves the defendant's argument that counsel should have objected to testimony by the victim that, as the defendant puts it, "conveyed to the jury that she was sufficiently credible such that the police arrested the defendant." Contrary to the defendant's claim, however, the victim provided no such testimony. In response to the question to which the defendant points ("And did you see if [the defendant] was placed under arrest at that time?"), the victim responded that the last she saw before going inside was the defendant standing near a police cruiser and talking with a police officer. [Note 9]

Judgments affirmed.

BERRY, J. (dissenting). The jury were charged in this case that, as to the two codefendants tried together, proof of aggravated rape under G. L. c. 265, § 22(a), [Note Dissent-1] depended on the existence of

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a joint venture. The codefendant was acquitted of the joint venture of aggravated rape, and was only convicted of assault and battery. The defendant alone was convicted as a joint venturer of aggravated rape. The majority affirms the defendant's conviction. Based on the current state of joint venture law and binding precedent, I respectfully dissent.

Given emerging concepts in other jurisdictions concerning the law of joint venture and conspiracy, further development of our Massachusetts criminal law on such issues may be in order, particularly the sustainability of the conviction of a single defendant joint venturer in a consolidated trial, wherein all other alleged codefendant joint venturers are acquitted. However, on the existing state of the law of joint venture in Massachusetts, as set forth in Supreme Judicial Court precedent (which we are bound to follow), the defendant's conviction should not stand.

As matter of existing Massachusetts law, "if at a single trial for conspiracy [and I would add joint venture] all but one of the defendants are acquitted of the charge, a conviction of the remaining defendant must be set aside." Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982). Accord Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235 (1991) ("We do not have here a defendant convicted of a crime based on joint enterprise and all other defendants acquitted of similar charges in the same trial"); Commonwealth v. Wojcik, 43 Mass. App. Ct. 595, 602 (1997) ("We are not faced here with a circumstance in which a defendant was convicted of a crime based on joint enterprise and other defendants were acquitted of similar charges in the same trial").

One case, Commonwealth v. Clements, 51 Mass. App. Ct. 508 (2001), S.C., 436 Mass. 190 (2002), deviates from the precedent set out in the aforecited cases, all of which are also

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cited in the majority opinion. Clements does not, I believe, support the weight placed on it in the majority's analysis. [Note Dissent-2], [Note Dissent-3]

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When Cerveny, supra, one of the controlling cases, was decided in 1982, courts across the country, State and Federal, "generally held that the acquittal of all persons with whom a defendant is alleged to have conspired [or, I would add, engaged in a joint venture] precludes conviction of the remaining defendant." See Annot., Prosecution or Conviction of One Conspirator as Affected by Disposition of Case Against Coconspirators, 19 A.L.R.4th 192, 197 (1983) (hereinafter A.L.R. Annotation). On this generally held issue of law, the Supreme Judicial Court's Cerveny case is included in the A.L.R. Annotation. See id. at 28 (Supp. 2008).

This "general rule," I would submit, applies equally to joint venture law, in that the law governing proof of the elements of a joint venture shares commonalties with and, in the main, is analogous to, the elements of proof of a conspiracy. These commonalities are evident in the congruent holdings in Cerveny, supra, concerning conspiracy law principles, and Coleman, supra, and Wojcik, supra, concerning joint venture law principles. That being so, if all coconspirators -- except one jointly tried conspiracy defendant -- and if all joint venturers -- except one jointly tried joint venturer defendant -- are acquitted of the

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crime of conspiracy or joint venture, a conviction of the sole remaining conspirator or joint venturer cannot stand.

This exception, prevalent in old State and Federal law, was known as the "rule of consistency" exception to inconsistent verdicts. See A.L.R. Annotation, supra at 204-205. However, in recent developments, the rule of consistency among coconspirators -- a rule that I believe is equally applicable to joint venture -- once widely applied in Federal conspiracy cases (many of which are included in the compendium of Federal and State case law in the A.L.R. Annotation, supra), has been eroding. [Note Dissent-4] To that end, the rule of consistency was reconsidered, and rejected, by the United States Court of Appeals for the First Circuit in United States v. Bucuvalas, 909 F.2d 593 (1st Cir. 1990). [Note Dissent-5]

However, there has not been occasion, to the extent I can determine, for the Supreme Judicial Court to reconsider the rule of consistency in relation to Massachusetts criminal law concerning acquittals of all alleged coconspirators or, as most pertinent to this appeal, concerning, in a consolidated trial, the acquittal of the alleged codefendant coventurer on an indictment for aggravated rape by joint venture, leaving just one codefendant guilty of the requisite joint venture element of proof under the

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aggravated rape statute. G. L. c. 265, § 22(a). [Note Dissent-6], [Note Dissent-7]

There may be compelling reasons in this case not to follow the rule of consistency embedded in the holding in Cerveny, 387 Mass. at 285: "if at a single trial for conspiracy [and, I would add, for joint venture] all but one of the defendants are acquitted of the charge, a conviction of the remaining defendant

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must be set aside." However, further formulation of Massachusetts criminal law on such issues -- perhaps to address inconsistent verdicts in a joint venture trial for aggravated rape, and perhaps to review whether the rule of consistency should be abandoned in a consolidated trial such as this one, where only one codefendant joint venturer charged with aggravated rape by joint venture is found guilty while the alleged codefendant joint venturer is acquitted -- rests with the Supreme Judicial Court.

Based on the present state of Massachusetts law and existing precedent, I respectfully dissent from the affirmance of the defendant's conviction of aggravated rape.