Opinion
No. 10–P–1811.
05-27-2016
COMMONWEALTH v. Jaime BOUDREAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal from the judgments and the order denying the motion for new trial, the defendant was convicted of two counts of indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B, one count of rape of a child, in violation of G.L. c. 265, § 23, one count of indecent assault and battery on a person fourteen years of age or older, in violation of G.L. c. 265, § 13H, and one count of disseminating harmful material to a minor, in violation of G.L. c. 272, § 28.
The defendant argues on appeal that the trial judge incorrectly permitted the introduction of past bad acts evidence, specifically a number of uncharged sexual incidents between the defendant and his two alleged minor victims. Among those was an uncharged rape by force of the minor girl. We agree with the defendant that the probative value of that evidence depends on its marginal value in showing the “nature of the relationship,” Commonwealth v. Butler, 445 Mass. 568, 575 (2005), or the “probable existence of the same passion or emotion at the time in issue.” Commonwealth v.. Bemis, 242 Mass. 582, 585 (1922).
The defendant is correct that the trial judge applied the incorrect standard in deciding to admit the evidence of those past bad acts. The judge said, “The question is whether its probative value is substantially outweighed by the danger of undue prejudice and contemplation of the limiting instruction. The court doesn't consider whether the probative value outweighs the undue prejudice” (Emphasis added). In fairness to the judge, the Supreme Judicial Court had, prior to the trial in this matter, occasionally articulated the test to require a determination whether the risk of unfair prejudice “substantially” outweighed the probative value of the evidence. See, e.g., Commonwealth v. Marrero, 427 Mass. 65, 67 (1998). While this case was on appeal, however, the Supreme Judicial Court “clarif[ied]” that such evidence must be excluded if the risk of unfair prejudice simply “outweigh[s]” its probative value. Commonwealth v. Crayton, 470 Mass. 228, 249 & 250 n. 27 (2014). We conclude, however, that the change is immaterial because, even if the admission of that evidence were error, in light of the strength of the Commonwealth's case it was not prejudicial.
The defendant next argues that the first complaint testimony was improper because it was essentially about the uncharged rape, rather than about the other unlawful sexual acts with which the defendant was charged. We conclude, however, that the admission of this first complaint evidence, even if error, did not create a substantial risk of a miscarriage of justice.
The defendant's counsel did not object to the first complaint witness's testimony about the uncharged rape.
The defendant argues also that the motion judge, who was also the trial judge, erred in concluding that the courtroom was not closed during trial, and that the closure requires a new trial. To be sure, courtroom officers did testify that the courtroom was closed during jury voir dire for every trial in the courthouse during the time period when the defendant's trial occurred. Further, because the transcript indicates that counsel for the defendant sought permission for two individuals to enter the courtroom, counsel understood the courtroom to be closed on the day of trial. Nonetheless, even were we to conclude that the judge's finding that the courtroom was not closed was clearly erroneous—a question we need not and do not reach—counsel failed to raise an objection at the time of trial. As described above, the transcript demonstrates—and the defendant himself argues—that counsel was aware of the closure. In these circumstances, and even if the decision not to object was not a tactical one, Commonwealth v. Morganti, 467 Mass. 96, 97 (2014), holds that the objection was waived by counsel's failure to raise it, and that that failure did not amount to ineffective assistance of counsel.
Finally, the defendant argues that the global positioning system (GPS) monitoring was imposed because of a misperception that it was mandatory in his case under G.L. c. 265, § 47. That mandatory requirement, however, is not retroactive and does not apply to the defendant's case. See Commonwealth v. Cory, 454 Mass. 559 (2009). Having read the transcript we conclude that the defendant has not met his burden of showing that the GPS monitoring—to which there was no objection and to which defense counsel agreed—was imposed because of a misperception that it was mandatory in his case.
Judgments affirmed.
Order denying motion for new trial affirmed.