Opinion
No. 11–P–1885.
2012-11-16
COMMONWEALTH v. Souleymane Yacouba ISSA.
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of one count of stalking, G.L.c. 265, § 43( a ). At the same trial, the charge of murder in the first degree, G.L.c. 265, § 1, resulted in a mistrial because of a hung jury. The defendant challenges his stalking conviction on three grounds, arguing that (1) the joinder of the stalking charge with the murder charge was improper and denied him a fair trial; (2) the admission of remote bad acts unfairly prejudiced him; and (3) the trial judge, in sentencing him on the stalking charge, improperly punished him for uncharged assaults.
Discussion. 1. Joinder of charges. The defendant first argues that joinder of the stalking charge with the murder in the first degree charge was improper. The trial judge ordinarily has discretion to join or sever the prosecution of multiple offenses. See Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). See also Mass.R.Crim.P. 9(a), 378 Mass. 859 (1979). “The defendant bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.” Gaynor, supra. The defendant contends that the offenses were not sufficiently related and that joinder was not in the best interests of justice. a. Relatedness. “Two or more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.” Mass.R.Crim.P. 9(a)(1). “Factors that may be considered in determining whether offenses are related for purposes of joinder include factual similarities, and closeness of time and space.” Gaynor, supra (citations omitted). “[O]ffenses are related if the evidence in its totality shows a common scheme and pattern of operation that tends to prove all the indictments.” Ibid., quoting from Commonwealth v. Delaney, 425 Mass. 587, 594 (1997), cert. denied, 522 U.S. 1058 (1998).
Here, the offenses are related because they evolved from the same “course of criminal conduct,” i.e., the defendant's hostile relationship with the victim. The crimes involved the same victim. Contrast Commonwealth v. Sylvester, 388 Mass. 749, 756 (1983); Commonwealth v. Jacobs, 52 Mass.App.Ct. 38, 49 (2001). The Commonwealth's theory was that the years of mental and emotional abuse inflicted by the defendant through stalking the victim culminated in the defendant killing her. See Commonwealth v. Feijoo, 419 Mass. 486, 494–495 (1995). Therefore, we conclude that the stalking charge and murder charge were sufficiently related for purposes of joinder.
b. Interests of justice. The defendant correctly points out that the question of fairness often turns “on whether evidence of the defendant's other offenses would have been admissible at a separate trial on each set of indictments.” Commonwealth v. Wilson, 427 Mass. 336, 346 (1998). The judge must weigh “the defendant's interests against judicial economy.” Sylvester, supra at 758. Case law, however, supports the position that a murder charge may be joined with a stalking charge without offending the interests of justice. See Commonwealth v. Cruz, 424 Mass. 207, 210 (1997) (murder); Commonwealth v. White, 60 Mass.App.Ct. 193, 196–197 (2003) (armed assault with intent to murder). According to the defendant, those cases are inapposite because they concerned the spillover of stalking evidence to the murder charge, whereas here the defendant is concerned that evidence of murder prejudiced the stalking case against him. We are not persuaded by this argument.
Although some of the evidence admitted to support the murder charge would likely not be admissible in a separate trial for stalking, it did not render the joinder contrary to the interests of justice. The judge here was concerned with spillover of evidence, particularly with evidence from the stalking charge into the murder case. See Cruz, supra; White, supra. The judge repeatedly instructed the jury to consider each charge separately. See White, supra at 200. We presume the jury followed the judge's instructions. Commonwealth v. Toolan, 460 Mass. 452, 468 n. 25 (2011). We therefore conclude that the judge did not abuse her discretion in joining the two charges.
2. Prior bad acts. The defendant contends that evidence of prior bad acts occurring prior to time frame set forth in the indictment (September 8, 2005–March 21, 2009) was improperly admitted and unfairly prejudiced the defendant. First, the defendant argues that the prior bad acts were not admitted for a valid purpose. “Generally, evidence of a defendant's prior misconduct may not be admitted to show bad character or propensity to commit the crime charged. Such evidence may be admitted, however, for other, permissible purposes, including, for example, to ‘show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.’ “ Commonwealth v. Montez, 450 Mass. 736, 744 (2008), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) (citation omitted). Prior bad acts also may be admitted to “demonstrate the hostile nature of the relationship between the defendant and [victim].” Commonwealth v. Butler, 445 Mass. 568, 575 (2005). Here, the prior bad acts demonstrated just that. Even if we accept the defendant's contention that the nature of the relationship is not a separate category for admission of prior bad acts, but only sheds light on the intent or motive, his argument still fails. The hostile relationship demonstrated a clear motive for the defendant to stalk the victim.
In addition, the prior acts were not too remote to be admissible. The prior misconduct must “bear the ‘temporal and schematic nexus' necessary ... to demonstrate a common course of conduct or the defendant's state of mind.” Commonwealth v. Yetz, 37 Mass.App.Ct. 970, 971 (1995), quoting from Commonwealth v. Gallison, 383 Mass. 659, 672–673 (1981). The defendant points to case law showing that prior bad act evidence often occurs within weeks or days of the crime. See, e.g., Commonwealth v. Andrade, 422 Mass. 236, 240 (1996). The defendant argues that the acts occurring before the indictment period—some as much as six years prior—were too remote. However, “[t]emporal remoteness of the conduct is less significant where there is an ongoing and overlapping pattern of similar conduct .” Commonwealth v. Sharpe, 454 Mass. 135, 144 (2009) (prior conduct seven years before crime charged). Here, the acts occurring prior to the dates contained in the indictment show the hostile relationship between the victim and defendant, and were not so remote as to unfairly prejudice the defendant.
The probative value of the prior bad acts was not outweighed by their prejudicial effect. See Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). This determination rests within the trial judge's sound discretion, and we will not disturb her decision “absent palpable error.” Commonwealth v. Valentin, 420 Mass. 263, 270 (1995). The judge made careful rulings on the motions in limine to determine which evidence could come in and which must be excluded, see White, 60 Mass.App.Ct. at 200, and we find no palpable error in her conclusions.
Accordingly, we conclude that the admission of prior bad acts was not in error.
We likewise conclude that evidence of the defendant's marriage was not unfairly prejudicial. This evidence was probative of the true relationship between the defendant and the victim.
Finally, the defendant argues that the judge's limiting instructions on the acts occurring prior to the dates contained in the indictment were insufficient to prevent their prejudicial effect. Despite the defendant's argument that the judge's instructions were complex and confusing, jury instructions need only “adequately express[ ] the substance of the idea.” Commonwealth v. Brewster, 46 Mass.App.Ct. 746, 751 (1999). Here, before hearing testimony from witnesses who planned to discuss events occurring before the date in the indictment, the judge instructed the jury on proper use of that evidence. She also instructed the jury at the close of trial about which evidence could be considered on the stalking charge and which evidence could be considered only as to motive or intent. Again, we presume that jurors follow the judge's instructions. Toolan, 460 Mass. at 468 n. 25. We conclude that the instructions adequately conveyed the proper uses of the evidence. See Commonwealth v. Glacken, 451 Mass. 163, 168–169 (2008).
3. Sentencing. The defendant, who had no record of past convictions, was sentenced to three to four years in State prison. The defendant argues that this sentence was unprecedented and was based, in part, on uncharged assaults on the victim. We disagree.
As to the unprecedented nature of the punishment, the Massachusetts stalking statute permits punishment “by imprisonment in the state prison for not more than 5 years.” G.L.c. 265, § 43( a ). Although the sentence departed from the sentencing guidelines, there was nothing improper about its length. A judge may exceed the sentencing range based on findings of aggravating circumstances. See G.L.c. 211E, § 3( a )(2). Such findings were made here.
“A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence.” Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). Although “[i]t is black letter law in the Commonwealth that a defendant cannot be punished for uncharged conduct,” Commonwealth v. Henriquez, 56 Mass.App.Ct. 775, 778 (2002), S. C., 440 Mass. 1015 (2003), the judge may consider “reliable evidence of the defendant's prior misconduct” to meet the goals of “punishment, deterrence, protection of the public, and rehabilitation.” Goodwin, supra at 92–93. Due process is not offended “so long as the judge does not permit the sentence to vary because she thinks the defendant is guilty of other misconduct.” Id. at 93. The judge here noted that she limited herself to the evidence of the case, which included testimony about violence between the defendant and the victim. The physical violence against the victim, which the defendant argues were uncharged assaults, was properly encompassed within the stalking charge. See White, 60 Mass.App.Ct. at 195, 202 (repetitive acts of violence formed basis for stalking charge). Because the judge limited herself to evidence introduced at trial and did not punish the defendant for uncharged conduct, the defendant is not entitled to resentencing on the stalking conviction.
Judgment affirmed.