Opinion
No. 11–P–1132.
2012-06-7
COMMONWEALTH v. Michael HARROO.
By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, after a jury trial, of various crimes connected with his rape and abuse of his daughter over a number of years.
He raises a single issue in this appeal, namely, whether it was error to admit evidence of some of the defendant's earlier (uncharged) assaults on the victim in Trinidad and, if so, whether the error resulted in a substantial risk of a miscarriage of justice.
Specifically, the defendant was convicted of multiple counts of rape, assault and battery by means of a dangerous weapon, assault and battery, indecent assault and battery on a child under the age of fourteen, and incest.
Finding no error, we affirm. “It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose ... such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b) (2011). “[W]hen a defendant is charged with any form of illicit sexual intercourse, evidence of the commission of similar crimes by the same parties though committed in another place, if not too remote in time, is competent to prove an inclination to commit the [acts] charged in the indictment ... and is relevant to show the probable existence of the same passion or emotion at the time in issue.” Commonwealth v. King, 387 Mass. 464, 470 (1982), quoting from Commonwealth v. Bemis, 242 Mass. 582, 585 (1922). Additionally, “testimony concerning other sexual contacts between the parties is admissible to ‘render it not improbable that the act might have occurred.’ “ Ibid., quoting from Commonwealth v. Piccerillo, 256 Mass. 487, 489 (1926).
Contrary to the defendant's argument, the colloquy at sidebar was not sufficient to preserve the defendant's rights because there was no objection to the judge's decision to admit the testimony, to the judge's limiting instruction, or when the evidence was offered and came in evidence. See Commonwealth v. Lonardo, 74 Mass.App.Ct. 566, 573 (2009) (error is unpreserved where there is no contemporaneous objection to testimony). See also Commonwealth v. Ashman, 430 Mass. 736, 741 n. 2 (2000) (motion in limine not enough to preserve issue for appeal).
Evidence of the Trinidad assaults was not introduced until the redirect examination of the victim, when the judge determined that it had become especially probative as a result of the defense cross-examination. Defense counsel suggested during his cross-examination that the victim had contracted chlamydia from a boyfriend in Trinidad or, alternatively, that her abuser was someone else (other than the defendant) in Trinidad. The defendant also suggested that the victim had delayed revealing the abuse, despite having opportunities to disclose it. The prosecution was entitled to rebut these suggestions on redirect and to corroborate the victim's testimony with evidence tending to show the history of her relationship with the defendant and an explanation for her motivation. See ibid.; Commonwealth v. Frank, 51 Mass.App.Ct. 19, 24 (2001). Similarly, once the defendant questioned the victim on cross-examination about the fact that she had witnessed someone try to kill her mother in Trinidad, the prosecution was entitled to elicit on redirect that that person was the defendant.
The evidence of the defendant's prior sexual contact with the victim in Trinidad is of a sort that we previously have admitted in similar circumstances. See Commonwealth v. Calcagno, 31 Mass.App.Ct. 25, 27 (1991) ( “[E]vidence of prior sexual acts was highly probative. It demonstrated the defendant's long-standing desire for sexual contact with the victim and his long-term pattern of indulging that desire. It was thus relevant to show the defendant's ‘inclination’ to commit the act charged and his ‘passion’ for the victim”). Like the victim in Calcagno, the victim in this case testified in detail only about the two most relevant Trinidad assaults (the first time, and the time her father took her from the airport to rape her), and her testimony otherwise was confined to stating the general frequency and character of the abuse. See id. at 28. Additionally, “the testimony concerned abuse which occurred continually up to the time of the incident which was the subject of the present complaint.” Ibid. Contrast Commonwealth v. Gillette, 33 Mass.App.Ct. 427, 430–432 (1992) (testimony about defendant's statement “that he would be the one to take his daughter's virginity” was probative of attitude and intent, but was outweighed by risk of unfair prejudice where statement was made seven years before any alleged abuse and before daughter even was born).
We specifically have admitted evidence of prior sexual abuse of a victim by her stepfather outside Massachusetts as evidence of a common scheme, the entire relationship between the parties, the defendant's motive, and to demonstrate his sexual desire for the victim. Frank, 51 Mass.App.Ct. at 23–24. In Frank, we determined that the risk of unfair prejudice to the defendant was eliminated by the judge's instruction, which was similar in all material aspects to the limiting instruction given in this case. Id. at 24.
Moreover, here, the trial judge carefully circumscribed the limits of the testimony concerning the earlier assaults, constraining it in terms of detail, scope, and time.
In Frank, supra, the judge instructed that “the defendant was not charged with any acts that occurred in Rhode Island or Florida; the jury were not to use evidence of any out-of-State conduct ‘as a substitute for proof that the defendant committed the crimes charged’ in Massachusetts; they could accept such evidence on ‘the limited issue of the relationship between the defendant and [the victim]’ and the question whether there was ‘any pattern’ of conduct, but not ‘as proof that the defendant has a criminal personality or bad character.’ “ Here, the judge similarly instructed that the defendant was not on trial for his actions in Trinidad and that the evidence was admitted for the limited purpose of “addressing such issues as pattern and course of conduct and the nature of the relationship between the defendant and his daughter ... [and] ... such questions as the defendant's state of mind, intent, and motivation.”
In light of the probative value of the testimony, the fact that it did not come in until the defendant opened the door, the judge's careful limitations on its introduction, and the judge's effective and clear instruction, we discern no error.
Judgments affirmed.