Opinion
20-P-597
06-16-2021
COMMONWEALTH v. Domingo PALMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant, Domingo Palma, of two counts of rape of a child in violation of G. L. c. 265, § 23, and four counts of indecent assault and battery on a child under the age of fourteen in violation of G. L. c. 265, § 13B. The victim, whom we shall call Sally, is the daughter of the defendant's former girlfriend (mother). On appeal, the defendant argues that the judge erred by failing to grant a mistrial after the mother testified that the defendant had threatened her with a firearm despite having been informed that the judge had excluded that evidence. We affirm.
Background. Prior to trial, defense counsel filed a motion in limine that sought to prevent the mother from testifying, as she had stated in a previous interview, that the defendant had threatened her with a firearm. At the hearing on the motion, the prosecutor agreed that such testimony was not admissible, and the motion was allowed without objection. At trial, however, despite having been advised by the prosecutor not to reveal anything about the alleged threat or the defendant's use of a firearm, the mother testified in response to a question posed by defense counsel that she believed Sally was frightened of the defendant "because [the defendant] used to threaten me with a revolver." Defense counsel immediately moved to strike the answer, which the judge did. Defense counsel then requested a mistrial, which the judge denied. The judge offered to instruct the jury that the stricken testimony was not evidence in the case; however, because defense counsel believed that a curative instruction was not adequate in the circumstances, he elected instead to explore the issue through further questioning to undermine the mother's credibility. Thereafter, in response to defense counsel's questions on cross-examination, the mother testified that (1) the defendant threatened her on three occasions by showing her a revolver; (2) she never told her children about the threats because she did not want to scare them; (3) the defendant always carried the gun "in case anyone of color approach[ed] him" because "[h]e hates people of color"; and (4) he carried the gun in the glove compartment of his truck or underneath the seat of his car. On the following day, before the trial recommenced, the judge offered to strike all the testimony regarding the firearm and threats in its entirety, but defense counsel declined.
We note that the decision of defense counsel to pursue the issue on cross-examination was a conscious strategic decision that was not unreasonable at the time it was made. The mother was hostile toward the defendant, and defense counsel's decision to exploit that hostility effectively demonstrated her bias which, in turn, significantly diminished her credibility.
The defendant testified that he did not own a firearm. He also testified that a few days before he was arrested, he had attempted to end his relationship with the mother, and that the mother responded by threatening him, stating that he would have "a lot of trouble."
In his closing argument, defense counsel relied on the mother's testimony regarding the alleged threats with a firearm to support his theory that she was not credible. He argued that it was unlikely that the mother would not have told her older sons about the defendant threatening her with a gun and that her allegation that he carried the gun because he hated people of color was an attempt to impugn his character in front of the jury. By contrast, in her closing remarks the prosecutor told the jury to ignore the testimony altogether. She argued:
"The testimony you heard about gun possession and threats are a distraction. The defendant is not charged with those things. It is not your job to determine whether he's guilty or not guilty of those things. Completely put it out of your mind. Do not be distracted by it. Focus on what is important. Focus on the charges in this case. Focus on the allegations of what the defendant did to [Sally]."
In his final charge to the jury, the judge specifically addressed the testimony about the defendant's alleged threats and use of a firearm and instructed the jury as follows:
"Let me say a word about certain testimony you heard in this case. Recall that during [the mother's] testimony, at one point she testified in certain terms [threats] allegedly made against her by the defendant involving a gun. I initially struck that testimony from that point, which means you must disregard. However, upon further questioning by defense counsel [the mother] testified further about those alleged threats and about the alleged firearm. That testimony was not stricken but I want to provide this instruction now after close of the evidence.
"First, this case is not about any threats or any other conduct by the defendant directed at [the mother] and this case also does not in any way concern any firearm. Testimony from [the mother] on those matters do not bear in the issue you need to decide in this case which concerns alleged conduct alleging the defendant and [Sally].
"Second, I'll advise the jury that no charges are pending now and no charges have ever been brought against Mr. Palma related to any threats or other conduct directed at [the mother], or related to any firearms."
Discussion. The defendant argues that the mother's initial disclosure that he had threatened her with a firearm required the judge to declare a mistrial and that no curative instruction was adequate to cure the prejudice that flowed from the improper testimony. We disagree.
The parties do not agree on the applicable standard of review. The Commonwealth maintains that the only issue preserved on appeal is whether a mistrial should have been granted based on the mother's initial disclosure that the defendant had threatened her with a firearm. The defendant argues that because he was forced to elicit additional testimony from the mother, we should consider all of the mother's testimony in determining whether there was prejudicial error. We need not resolve this disagreement because we assume without deciding that we should consider all the testimony in determining whether a mistrial was required and in evaluating the issue of prejudice.
We review the decision not to declare a mistrial for an abuse of discretion, affording deference "to that judge's determination of whether [there was] prejudicial error, how much any such error infected the trial, and whether it was possible to correct that error through instruction to the jury." Commonwealth v. Amran, 471 Mass. 354, 359 (2015), quoting Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). Here, there is no question that the testimony at issue was inadmissible and that the mother violated the pretrial ruling excluding evidence of the defendant's alleged prior bad acts. However, because the judge immediately struck the mother's initial response and clearly and forcefully instructed the jury in his final charge that they were to disregard the stricken answer and further instructed the jury that the additional testimony about the alleged threats and the reasons why the defendant allegedly had a firearm elicited by defense counsel was not relevant to the charged offenses, we are satisfied that any potential prejudice was sufficiently neutralized.
Furthermore, we do not agree with the defendant's assertion that the Commonwealth did not have a strong case. To the contrary, Sally's allegations of sexual abuse were corroborated by additional compelling evidence. Sally's brother testified that the defendant would visit Sally's room at night and that he saw them in bed together twice. The mother and Sally's other brother described a telephone call between Sally and the defendant that the brother claimed to have recorded. That same brother testified that the defendant referred to himself and Sally as a couple and mentioned that they had had sexual intercourse. In addition, a voicemail that Sally left on the defendant's telephone telling the defendant "Baby[,] I miss you, can't wait ... for us to be together again," was played for the jury. Sally testified that the defendant asked her to leave the voicemail for him. Finally, Sally testified that the defendant took photographs of himself and Sally together. The photographs, which were admitted in evidence, showed the defendant and Sally in Sally's room. The defendant was shirtless and kissing Sally, and Sally was kissing the defendant's nipples. Although the defendant testified at trial and denied that he had touched Sally inappropriately, he acknowledged that on one occasion he fell asleep in bed with Sally while they were watching a movie, and that Sally had once kissed him and put her tongue in his mouth. With respect to the photographs depicting the defendant and Sally kissing, the defendant claimed that the mother had taken the photographs and told them to kiss. The defendant also admitted that Sally had left him the voicemail that was introduced in evidence; he testified that he had reported receiving the voicemail to the mother because he thought that it was inappropriate.
For the most part, the brother summarized his interpretation of the defendant's statements. At one point, paraphrasing, the brother described the defendant as saying, "Oh, no, my love. We're going to go, we're going to leave this. After we leave this, we're going to talk about our future and our lives together."
In sum, in light of the strength of the evidence, the strong jury instructions, and defense counsel's strategic decision to rely on the improper testimony to support his theory that the mother was not a credible witness, we discern no abuse of discretion in the judge's decision not to declare a mistrial.
Judgments affirmed.