Opinion
20-P-917
03-04-2022
COMMONWEALTH v. Jerome ANTOINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jerome Antoine, was convicted of rape after a second jury trial in the Superior Court, the first trial having ended in a mistrial when the defendant unexpectedly testified about his prior sexual history with the rape victim without complying with the procedural requirements of the rape shield statute, G. L. c. 233, § 21B. On appeal, the defendant argues that the second trial violated the prohibition against double jeopardy and that the prosecutor improperly elicited and used prior bad act evidence to demonstrate the defendant's character or propensity to commit the crime charged. We affirm.
First trial. The first trial took place in 2019, two years after the charged conduct. The victim, who was forty-one years old at the time of the trial, testified that she and the then forty-three year old defendant met as children when she was adopted by the defendant's grandmother. Prior to the rape, they had a close relationship and would see each other frequently. When defense counsel asked the defendant, who testified in his own defense, about his relationship with the victim, the defendant responded that "when we were younger, 20, we used to date, have sex and all that." The defendant's response came as a surprise to the prosecutor, defense counsel, and the judge.
Although defense counsel had not submitted a written motion and an offer of proof to admit this testimony as required by the rape shield statute, see G. L. c. 233, § 21B, the prosecutor did not object. In light of the defendant's unexpected testimony, however, the prosecutor requested that the judge adjourn the trial for the day to allow her to prepare for cross-examination. The judge denied the request. After the prosecutor had cross-examined the defendant for about fifteen minutes, including questioning him about his prior sexual relations with the victim, the judge interrupted to call a break, saying, "[L]et's everybody gather their thoughts and figure out how we're going to approach what has come as a surprise to everybody ... [a]nd we'll deal with this in the morning."
The following morning, the prosecutor moved to strike the defendant's testimony because he had not complied with the rape shield statute. After considering the prosecutor's motion, the judge told the parties that, because the defendant did not comply with the rape shield procedures and the judge had permitted the prosecutor to raise "fairly serious prior bad acts" on cross-examination, he was "inclined to strike the testimony." Defense counsel moved for a mistrial arguing that curative instructions would be insufficient to remove the prejudicial effect of the stricken testimony. The judge agreed and declared a mistrial after striking the testimony.
The defendant argues in his brief that the judge violated his constitutional rights by striking the testimony. We do not address the defendant's claims of error arising from the first trial, other than the double jeopardy claim, because the defendant already received the appropriate remedy for any such errors: a retrial. See, e.g., Commonwealth v. Vardinski, 438 Mass. 444, 452-453 (2003).
Double jeopardy. Prior to retrial, the defendant moved to dismiss the indictment on double jeopardy grounds. The judge who had presided at the first trial denied the motion, stating, "The mistrial requested by the Defendant was, for the most part, caused by the Defendant when he testified about the alleged victim's sexual conduct" without complying with the rape shield statute, and, while some of the prosecutor's cross-examination and the timing of the motion to strike were "problematic, the Court does not find that the prosecutor intentionally provoked the Defendant into requesting a mistrial."
The defendant argues that retrial should have been barred because the prosecutor's conduct -- failing to object to the defendant's direct testimony, eliciting further details about the defendant's prior sexual relations with the victim on cross, then moving to strike the testimony the next day -- was "intended to goad or provoke him into moving for the mistrial." Donavan v. Commonwealth, 426 Mass. 13, 15 (1997). "The question whether the prosecutor's actions were intended to provoke a mistrial presents a question of fact to be determined by the trial judge from the attendant circumstances." Commonwealth v. Cousin, 449 Mass. 809, 819 (2007). We review the judge's determination about the prosecutor's intent for clear error, see id. at 820, according special deference to his denial of the defendant's motion to dismiss because he also presided at the first trial, see Commonwealth v. Brown, 479 Mass. 163, 168-169 (2018).
The judge's findings regarding the prosecutor's intent were not clearly erroneous. Like everyone else in the courtroom, the prosecutor was clearly caught off guard by the defendant's testimony and had little, if any, time to think about how best to proceed, let alone to concoct a strategy to force a mistrial. Indeed, the defendant concedes in his brief that the prosecutor did not intentionally attempt to provoke a mistrial.
The defendant's claim on appeal conflicts with his argument in his motion to dismiss, in which he maintained that the prosecutor acted in bad faith.
Rather than argue that the prosecutor intentionally caused a mistrial, the defendant now argues that "recklessly" causing a mistrial or generally intending to commit the underlying misconduct is sufficient to bar retrial. Both arguments are at direct odds with binding precedent requiring specific intent by the prosecutor to cause a mistrial. See Cousin, 449 Mass. at 819-820, quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982) ("a finding supported by the evidence that there was no such intent ‘is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment’ "); Donavan, 426 Mass. at 14-15 (refusing to extend double jeopardy protections to cases in which prosecutor's "mere negligence" caused mistrial). Even if double jeopardy protections in Massachusetts were extended to the scenarios urged by the defendant, his second trial would still have been proper, because, as the motion judge found, the defendant's own testimony, not any misconduct by the prosecutor, was the underlying cause of the mistrial.
The Supreme Judicial Court recently declined to reconsider the Kennedy Donavan rule. See Perrier v. Commonwealth, 489 Mass. 28, 29 (2022).
Prior bad act evidence. On retrial before a different judge, the victim testified during the Commonwealth's case-in-chief that the defendant raped her on May 22, 2017, the anniversary of her adoptive mother's death, after a family gathering at her house. The defendant testified that he had not even attended that gathering, but that, several days earlier, he and the victim had consensual sex at her house following a celebration of his birthday.
The Commonwealth recalled the victim as a rebuttal witness. The victim denied that she had ever had consensual sex with the defendant, including on the night they celebrated his birthday. She further testified, without objection by the defendant, that she woke up in her bed on several occasions when she was between the ages of seven and sixteen years old to the defendant "humping" her with his penis between her legs, and, after she turned sixteen, the defendant would occasionally "rub [her] butt" without her consent. After the judge gave defense counsel an opportunity to confer with the defendant, defense counsel chose not to recall the defendant.
In closing argument, the prosecutor referred to the victim's allegations of prior sexual advances by the defendant. She argued that touching the victim without her consent was a "pattern" for the defendant; that the defendant's prior conduct was "the same behavior" as the charged conduct "except the difference is, is that he penetrated her vagina" on May 22, 2017; that the defendant "had been waiting [since childhood] to do this ... and finally got his chance"; and that the victim "had never consented to any sexual touching by him" and "[t]here is no reason to believe that this time would be any different."
While "[t]he Commonwealth may not introduce evidence of the defendant's other bad acts in order to demonstrate bad character, or a propensity to commit the crimes charged," such evidence may be admissible if it is relevant for a nonpropensity purpose and its probative value is not outweighed by the risk of undue prejudice. Commonwealth v. McDonagh, 480 Mass. 131, 140-141 (2018). If prior bad act evidence is properly admitted, the prosecutor may not use it during closing argument to demonstrate the defendant's bad character or criminal propensity. See Commonwealth v. Howard, 469 Mass. 721, 744 (2014). Because the defendant did not object to the admission of the prior bad act evidence in the victim's rebuttal testimony or to the prosecutor's use of this evidence during closing argument, we review only for error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Silvelo, 486 Mass. 13, 20 (2020) ; Commonwealth v. Proia, 92 Mass. App. Ct. 824, 828 (2018).
We reject the defendant's contention that he preserved the issue in a pretrial discussion with the judge. Prior to retrial, the defendant filed an appropriate motion under the rape shield statute. On the first day of the second trial, before impaneling the jury, the judge indicated that she would allow the motion. The prosecutor stated she would not question the victim about prior bad acts during her case-in-chief, and the judge responded that the prosecutor would not therefore be foreclosed from calling the victim as a rebuttal witness. Defense counsel responded, "I have no objection ... should [prior incidents] be elicited on direct of my client." Two days later, just before the defendant testified, the prosecutor again raised the possibility of calling the victim as a rebuttal witness to testify generally about the history of unwanted advances if the defendant testified that they had consensual sex the week before the rape. Again, defense counsel did not object, but asked if he would be permitted to call his client to rebut the rebuttal. These discussions did not preserve the defendant's claim on appeal that prior bad act evidence was improperly admitted during the victim's rebuttal testimony. Appellate rights are preserved with timely and precise objections, see McDonagh, 480 Mass. at 137-138, not by the absence of objections. This is not a case in which the defendant is excused from making a contemporaneous objection because "he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied." Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
We discern no error in admitting the victim's challenged testimony. Evidence of the defendant's prior sexual advances was relevant and admissible for a number of proper purposes: to establish the defendant's motive, intent, and state of mind; to explain the relationship between the defendant and the victim; and to rebut the defendant's consent defense. See Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006) ; Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71-73 (2018) ; Mass. G. Evid. § 404(b)(2) (2021). Any undue prejudice from the testimony did not outweigh its probative value. The challenged testimony covered fewer than five of approximately one hundred transcript pages of the victim's testimony, see Childs, supra at 74, and the victim did not go into detail about the uncharged conduct, contrast Dwyer, supra at 129-130. Moreover, the defendant's prior advances were remote in time, reducing the risk of prejudice because the age of the allegations may have caused the jurors to discount them. See Commonwealth v. Helfant, 398 Mass. 214, 228 n.13 (1986). Finally, during cross-examination of the victim, defense counsel responded to the uncharged past conduct indirectly by eliciting testimony about the close relationship between the defendant and the victim before the rape.
The defendant does not argue that the prior bad acts "were too temporally remote to be admissible." Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 819 (1998). He does argue, for the first time on appeal, that "a child's uncharged actions should not be permitted to be used as ‘bad act evidence.’ " While the law treats youthful transgressions differently for some purposes, see, e.g., Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 659-661 (2013) (juvenile offenders treated differently from adults for purposes of sentencing), the use of prior bad act evidence is not one of them. This court has permitted the admission of bad act evidence against juvenile defendants. See, e.g., Commonwealth v. Iago I., 77 Mass. App. Ct. 327, 331-332 (2010) ; Commonwealth v. Rise, 50 Mass. App. Ct. 836, 842-843 (2001).
In summation, the prosecutor argued from the evidence that the defendant had wanted to have sex with the victim since childhood, that the victim never consented, and that there was no reason to believe she had consented on May 22, 2017. The fact that the defendant had consistently made unwanted sexual advances toward the victim, if believed, was probative of the defendant's motive and intent and on the contested issue of consent. See Childs, 94 Mass. App. Ct. at 72. On the other hand, the prosecutor's argument that the prior sexual advances were "the same behavior" as the rape allegation or amounted to a "pattern" was improper. The defendant's acts of "humping" the victim when they were adolescents was not so like the charged conduct to show a common course of conduct or modus operandi. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817-820 (1998). Had the defendant objected, the judge could have provided a limiting instruction on how the jury should have considered the evidence. In the absence of such an instruction, however, the jury might have accepted the prosecutor's invitation to use the victim's rebuttal testimony to conclude, improperly, that the defendant had raped the victim in 2017 because he had engaged in similar conduct in the past.
Nevertheless, considered "in the context of the prosecutor's entire argument, the judge's instructions to the jury, and the evidence at trial," the prosecutor's improper propensity argument did not create a substantial risk of a miscarriage of justice. Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234 (2016). See Commonwealth v. Grandison, 433 Mass. 135, 142-143 (2001). As defense counsel argued in closing, this case turned almost exclusively on whether the jury believed the victim or the defendant. If the jurors were not inclined to believe the victim's rape allegations during the case-in-chief, but instead believed the defendant's testimony that he and the victim had consensual sex a few days before, the jury were not likely to have believed the victim's rebuttal testimony either. We are confident that the jury's decision would have been the same even in the absence of the prosecutor's improper propensity argument. See Silvelo, 486 Mass. at 20 ; Commonwealth v. Grady, 474 Mass. 715, 722 (2016).
For similar reasons, we discern no prejudicial error from the prosecutor's improper reference to excluded evidence about the victim's move to South Carolina following the rape. Whether the victim's family actually "broke up" after she came forward with her allegations against the defendant as the prosecutor argued was a collateral issue -- the victim's testimony on the issue was after all excluded on relevancy grounds -- and the judge mitigated the error by specifically instructing the jury to disregard the prosecutor's statement about why the victim moved. See Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
Judgment affirmed.