Opinion
14-P-362
10-27-2015
COMMONWEALTH v. MARK H. GOEWEY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of three counts of rape of a child, aggravated by age difference, and two counts of indecent assault and battery of a child under age fourteen. On appeal, he argues that (1) it was error to permit the victim's sister to testify that the defendant had sexually abused her, and that the judge should have given a contemporaneous limiting instruction regarding that testimony rather than during the final charge; (2) it was error to admit testimony about an incident in which the defendant fought with the victim over a telephone, and the judge's limiting instruction regarding that testimony confused the jury, compounding its prejudice; (3) the Commonwealth's expert should not have been permitted to testify about the role of memory in delayed disclosure and the effect the manner of questioning can have on a victim of child sexual abuse; (4) testimony that the victim had threatened to cut herself should have been excluded; and (5) the prosecutor's misstatement in closing regarding the timing of the defendant's attempt to contact the victim resulted in a substantial risk of a miscarriage of justice. We affirm.
1. Sister's testimony. The decision to admit other bad act evidence is committed to the "sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.'" Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting from Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). Evidence of a defendant's other bad acts "is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). This evidence is, however, admissible "to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation." Ibid. (quotation omitted). Even if relevant to one of these purposes, "the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Ibid.
The judge allowed the Commonwealth's motion in limine to permit the victim's sister to testify that the defendant had, on multiple occasions, sexually assaulted her and the victim simultaneously on weekend mornings while the three of them watched cartoons. The defendant does not take issue with the judge's conclusion that this evidence was admissible to establish a pattern of conduct. Instead, he argues that the probative value of the evidence was outweighed by its prejudice. This argument is without merit.
Here, as in Commonwealth v. King, 387 Mass. 464, 472 (1982), "[t]he evidence . . . showed a common pattern or course of conduct toward the two children, and was sufficiently related in time and location to be logically probative." The evidence in this case evinced the same "temporal and schematic nexus" that allowed the court in King to conclude that the trial judge did not abuse his discretion when he admitted evidence of acts of sexual abuse perpetrated by the defendant on the victim's brother, where "both [the victim and the victim's brother] lived in the same house with the defendant, the sexual acts took place during the same time period, the victims were of similar age . . ., and the form of the sexual conduct . . . was similar." Ibid. (quotation omitted). See Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 55-58 (2015).
The fact that the testimony at issue in this case was more detailed than that in King does not necessitate a different result. See King, supra. First, as discussed further below, the judge gave a detailed limiting instruction. Second, given that some of the sexual assaults in this case occurred not just "during the same time period," ibid., but at the same time, any additional prejudice to the defendant by the other bad act evidence in this case is outweighed by its additional probative value.
The defendant argues that the judge was required to explain on the record her balancing of the probative value of the evidence against its prejudicial impact. The defendant points to no case imposing such a requirement. In any event, the record does not support the defendant's argument; indeed, the judge referred explicitly to the highly relevant nature of the evidence and, from that, we may infer that she also considered its prejudicial impact.
In addition, the defendant argues that the evidence should have been excluded because it complicated matters for the jury and raised collateral, time-consuming issues. We are unpersuaded. Although the judge had the discretion to exclude the evidence on that basis, see Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 408 (2001), she was not required to do so.
The defendant argues that the judge erred when she waited until her final charge to give the jury a limiting instruction regarding the victim's sister's testimony. He also argues that the instruction given was incomplete and confusing. Because the defendant did not object at trial, we review to determine whether there was error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
While there is a preference that limiting instructions "be given the same day as the testimony at issue," Commonwealth v. Linton, 456 Mass. 534, 551 n.12 (2010), "the law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant." Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). The defendant admits he made no request for a contemporaneous limiting instruction, and the judge was not required to give one sua sponte.
There was also no error in the limiting instruction as given. When reviewing a trial judge's charge to the jury, we "look . . . at the impression which the charge makes as a whole," keeping in mind that "judges are not required to deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words." Commonwealth v. Sinnott, 399 Mass. 863, 877-878 (1987). Thus, notwithstanding the defendant's implication to the contrary, the fact that the judge did not repeat verbatim a portion of the Superior Court Criminal Model Jury Instruction § 7.7.2 (Mass. Cont. Legal Educ. 2d ed. 2013), did not make her instruction deficient per se. Moreover, the judge's paraphrase of the model language relayed to the jury its essence.
Compare "You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that if the defendant committed the other act, [he] must also have committed this charge," Superior Court Criminal Model Jury Instruction § 7.7.2, with "You may not take [the evidence of defendant's sexual assault of the victim's sister] as a substitute for proof that [the defendant] committed the crimes charged here . . . . [This evidence] was admitted solely for the purpose of whether it evinces -- for you -- a pattern of conduct . . . ."
2. Victim's other bad act testimony. Other bad act evidence may be admitted to explain the victim's state of mind, if its prejudicial impact does not outweigh its probative value. Commonwealth v. Hall, 66 Mass. App. Ct. 390, 395 (2006). Here, the evidence of a violent incident between the victim and the defendant concerning a telephone was probative of the victim's state of mind, and in particular of her fear of the defendant. See id. at 394-395. Moreover, any prejudice from this testimony was diminished because the "testimony did not implicate conduct of a sort with which the defendant was charged." Id. at 395.
The defendant argues that the judge's instruction concerning the testimony confused the jury and added to the prejudice of the testimony. The defendant did not object to this instruction at trial; we again review for a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. at 556, 563-564. The Commonwealth admits that the judge mistakenly characterized the victim's testimony of the telephone fight incident. The victim testified that the defendant choked her and pushed her down a flight of stairs. In her limiting instruction, however, the judge described the testimony as relating a "threat that was allegedly made by the defendant to the witness." Even if this amounted to error, it would not be "reasonable to conclude that the error materially influenced the verdict" such that it created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). The judge's limiting instruction came in the middle of the victim's testimony regarding this incident, and we discern no risk that the jury substituted the judge's characterization of the testimony for their own recollection.
3. Expert's testimony. The defendant argues that it was error for the Commonwealth's expert, Margaret Miller, a psychologist, to testify about the role of memory in delayed disclosure and the effect the manner of questioning can have on a victim of child sexual abuse, because these topics exceeded what the Commonwealth indicated would be the scope of Dr. Miller's testimony, and she was unqualified to testify about these topics. The alleged errors are unpreserved.
As to the first argument, we are persuaded that Dr. Miller's testimony fell within the Commonwealth's pretrial disclosure that it intended to ask Dr. Miller about "the reasons for delayed disclosure of child sexual abuse." It is evident that some of these reasons might implicate childhood memory and the manner in which victims of child sexual abuse respond to questioning. As to the defendant's second argument, considering Dr. Miller's uncontroverted testimony that she is a psychologist with over twenty years' experience treating the victims of child sexual abuse, the judge did not exceed her broad discretion in concluding that she was qualified to offer testimony on these issues. Commonwealth v. Cortez, 438 Mass. 123, 127 (2002).
4. Testimony regarding victim's threat to cut herself. The defendant argues that it was error to admit testimony that the victim had threatened to cut herself, that the judge should not have allowed the prosecutor to mention this incident and draw an inference therefrom in closing argument, and that the prosecutor's mention of the incident in her closing argument impermissibly appealed to the jury's sympathies. The defendant failed to object to both the testimony and the prosecutor's reference to it in closing argument.
"Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action." Mass. G. Evid. § 401 (2015). The contested testimony from the victim's mother about an incident in which the victim threatened to cut herself helps show, if nothing else, her mental state at that time. It also tends to explain why the victim failed to disclose the abuse she suffered. Because the reason the victim delayed disclosure was "of consequence in determining the action," the testimony was relevant.
Once admitted, the testimony was available for the prosecutor to invoke in her closing argument. See Commonwealth v. Guy, 441 Mass. 96, 110 (2004). The inference the prosecutor drew -- that the victim's troubled mental state was in part a consequence of the alleged sexual abuse she suffered -- was "reasonable and possible," even if not "necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). In a word, the inference was "fair." Commonwealth v. Guy, supra. That the inference might engage the jury's sympathy does not mean, at least in these circumstances, that the prosecutor could not draw it. In any event, the judge instructed the jury that they could not be "swayed by sympathy," an instruction we presume they followed. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997).
5. Closing. The prosecutor misspoke when he stated in closing that the defendant tried to contact the victim after he heard of her allegations. The only evidence on the timing of the defendant's attempt to contact the victim was to the contrary. The misstatement, however, does not require reversal. "In determining whether an error in closing argument requires reversal, we consider whether defense counsel made a timely objection; whether the judge's instructions mitigated the error; whether the error was central to the issues at trial or concerned only collateral matters; whether the jury would be able to sort out any excessive claims or hyperbole; and whether the Commonwealth's case was so strong that the error would cause no prejudice." Commonwealth v. Harris, 443 Mass. 714, 732 (2005). At least four of these five issues favor the Commonwealth: defense counsel did not make a timely objection; the judge's final charge to the jury mitigated the error; the error was not central to the issue of whether the defendant sexually assaulted the victim; and the jury were in a position to correct the prosecutor's misstatement. Contrast ibid. (erroneous argument created substantial risk of a miscarriage of justice where four of the five factors favored the defendant and where "[t]he error went to the entire crux of the defense, and indeed was directed at the principal disputed issue at trial").
The judge mitigated the error in her final charge when she remarked, "I want to remind you that closing argument as I told you -- is not evidence. It is oratory. It is the attorneys' opportunity to summarize the evidence and argue the inferences. However, as you'll remember, what the attorneys say the evidence is, is not only not controlling, it may not even be accurate. And so, you must rely upon your memory of the evidence."
Judgments affirmed.
By the Court (Meade, Wolohojian & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 27, 2015.