Opinion
16-P-643
06-13-2017
COMMONWEALTH v. Thomas GRAHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant, Thomas Graham, was convicted on five counts of indecent assault and battery on a child under fourteen. On appeal, he argues that he received legally insufficient notice of the criminal charges against him, the Commonwealth presented evidence of multiple sexual assaults without specifying which events were the bases for the five counts of indecent assault and battery, and the judge provided an incorrect specific unanimity instruction to the jury. We affirm.
Background. The three victims, Amy (age seven), Mary (age six), and Sarah (age nine), began living with their aunt, her boy friend, and her three children, including the defendant, when the defendant was approximately twelve and one-half years old. Each of the victims detailed repeated sexual contacts initiated by the defendant in the three years the group lived together, many of which began while the girls were playing video games or watching television with the defendant in his bedroom.
The victims' names are pseudonyms.
Each victim testified to between six and nine distinct incidents. Mary and Sarah included descriptions of vaginal or anal penetration.
The defense essentially presented two theories at trial: first, that the complaints were fabricated, and second, that the defendant did not have the means to commit the acts alleged because he was never alone with any of the victims. The defendant and his two older sisters testified that he was never alone with any of the victims; the defendant added that he was never alone while in the home, "[n]ever, ever alone, not one time." The defendant further testified that the victims had never been in his room, that he had never played games or watched television with them, and that he had never touched any of them.
Discussion. The defendant claims that he lacked sufficient notice of the charges against him because the judge erred in allowing the Commonwealth to present evidence of myriad sexual assaults against three different victims "without specifying which assaults were the bases for the five counts" charged. This claim is belied by the record.
First, as the defendant concedes, it is well established that the Commonwealth may proceed in sexual assault cases by alleging that the charged incidents occurred on diverse dates over a specified period of time. See G. L. c. 277, § 20. See also Commonwealth v. King, 387 Mass. 464, 467-468 (1982) ; Commonwealth v. Kirkpatrick, 423 Mass. 436, 440 (1996), overruled on other grounds by Commonwealth v. King, 445 Mass. 217, 241-244 (2005). Second, the defendant could have requested a bill of particulars, but did not do so. See King, 387 Mass. at 468, citing G. L. c. 277, § 34, and Mass.R.Crim.P. 13(b)(1), 378 Mass. 871 (1979). Third, the defendant objected neither to the verdict slips, nor to the specific unanimity instruction provided by the judge, as discussed, infra. Fourth, at an earlier probable cause hearing in this case, all three victims testified in a manner consistent with their trial testimony. Thus, the defendant had substantial pretrial notice of the allegations and nature of the testimony that he would face at trial. Compare Commonwealth v. Montanino, 409 Mass. 500, 513 (1991), overruled on other grounds by Commonwealth v. King, 445 Mass. at 241-244 (noting that on retrial, defendant could use additional information provided through trial testimony in preparing his defense). Finally, on the record before us, we cannot conclude that the defenses of fabrication and lack of access to the victims were impacted by the purported lack of sufficient notice. Apart from the conclusory statements that "there was a significant opportunity to develop alibi defenses," and that he was "hamstrung" by the lack of notice and specificity, the defendant does not persuasively claim that the defense would have changed in a material way had the victims been able to be more precise about the dates and times of the assaults. See Kirkpatrick, supra at 442. Moreover, the defendant did not advance such a claim at trial.
Although the defendant objected to the Commonwealth's pretrial motion to amend the complaint to reflect that the assaults occurred on diverse dates, defense counsel acknowledged that "it's no surprise," and based the objection solely on the Commonwealth's failure to adhere to a procedural deadline.
The defendant also claims that the judge's specific unanimity instruction failed to resolve the lack of specificity inherent in the complaint. The claim is unavailing. Although trial counsel for the defendant proposed a specific unanimity jury instruction, he did not object to the judge's decision to give the model jury instruction to the jury. To the contrary, he tacitly agreed with the judge's choice. Furthermore, he did not object to the instruction that was ultimately provided to the jury. Accordingly, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. We discern no error in the form of that instruction, and do not conclude that the instruction created a substantial risk of a miscarriage of justice. Compare Commonwealth v. Conefrey, 420 Mass. 508, 510, 514 (1995) (failure to provide specific unanimity instruction after proper request and timely objection was not harmless error). ,
We note that in response to a jury question, trial counsel for the defendant agreed that the judge did not need to specify which specific event corresponded to each count.
To the extent we do not discuss other arguments made by the defendant, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgments affirmed.