Opinion
No. 10–P–2121.
2012-08-3
COMMONWEALTH v. John HORNEDO.
By the Court (KAZTMANN, SIKORA & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of a four-day trial, a Superior Court jury found the defendant, John Hornedo, guilty of (1) rape of a child with force, G.L. c. 265, § 22A; (2) assault and battery upon a child inflicting bodily injury, G.L. c. 265, § 13J( b ); and (3) threat to commit a crime, G.L. c. 275, § 2.
The defendant argues (1) that the trial judge wrongly refused to question a juror whose impartiality was questioned by defense counsel; and (2) that the judge incorrectly admitted prior bad acts testimony in evidence during trial. For the following reasons, we affirm.
Background. The jury received the following evidence. The defendant is the father of the victim, Jane.
Both Jane and her mother testified for the Commonwealth at trial. Jane was born in July of 2000, and was nine years old at the time of trial in June, 2010. Beginning in October, 2005, and ending in February, 2007, the defendant and the victim's mother lived together in an apartment in Taunton. Jane went to school and lived during the week in Brockton, but spent weekends with the defendant and her mother in Taunton. During more than five of Jane's weekend visits to Taunton, while the mother was absent, the defendant hit Jane with a belt as punishment. Sometimes he made her undress. Once, the defendant struck Jane with a television cord. Another time, the defendant forced Jane to put her foot in scalding bath water, which caused the skin to peel off of her foot. The burn from the hot water caused a scar. On more than five occasions, the defendant forced Jane to put his penis in her mouth.
A pseudonym. See G.L. c. 265, § 24C.
The defendant threatened to hit Jane further if she told anyone about the beatings or rapes. In September, 2007, Jane communicated her allegations of sexual abuse to her mother, who contacted authorities.
The defendant's position was that Jane fabricated the allegations of abuse because she was afraid of her mother, and did not want to be punished for engaging in inappropriate play with her cousins.
The trial judge sentenced the defendant to (1) twelve years and one day in State prison upon the conviction of rape of a child; (2) five years of probation from and after completion of the twelve-year sentence, upon the conviction of assault and battery inflicting bodily injury; and (3) six months in a house of correction to be served concurrently with the rape sentence upon the conviction of the threat to commit a crime. The defendant filed a timely notice of appeal.
1. Empanelment of the disputed juror. The defendant first claims that the trial judge's refusal to make further inquiry of a juror whose impartiality had been challenged by defense counsel after the jury had been sworn violated the defendant's right to a fair and neutral jury. We disagree.
A judge “shall” further examine a juror if it appears that the juror may not stand indifferent. G.L. c. 234, § 28. A judge may accept a juror's representation of impartiality provided that there is not “solid evidence of a distinct bias.” Commonwealth v. Bryant, 447 Mass. 494, 500 (2006), quoting from Commonwealth v. Leahy, 445 Mass. 481, 499 (2005). A trial judge's finding that a juror is impartial “will not be disturbed except where juror prejudice is manifest.” Commonwealth v. Clark, 446 Mass. 620, 630 (2006). Because the trial judge is best situated to observe a juror's demeanor as the juror answers his questions, the judge's determination of impartiality receives great deference. See Commonwealth v. Leahy, supra (“[W]e defer to the [trial] judge, who benefits from the live testimony of the juror”). Absent a defendant's showing of abuse of discretion or a clear error of fact, a trial judge's finding of impartiality will not be overturned. Commonwealth v. Emerson, 430 Mass. 378, 384 (1999).
Here, when the judge inquired whether the juror, any member of his family, or any close friend had been the victim of a sexual assault, the juror in question responded “yes,” but asked that he not be compelled to reveal the identity of the victim in order to protect her privacy. When the judge further questioned whether that knowledge would affect his ability to be fair and impartial, the juror answered unambiguously, “It wouldn't affect my decision, no. It wouldn't affect my way of being fair.” Because the juror clearly answered the judge's inquiry about his ability to be impartial, no further questioning was required. Contrast Commonwealth v. Clark, supra (When asked whether she could be impartial with respect to her views about African Americans, a juror's response that it would “depend on the person's circumstances,” was ambiguous and the juror should have been questioned further. The omission required a new trial.) Additionally, defense counsel failed to use his available peremptory challenge to remove the juror. His expressed concern the next day, after the jury had been sworn, that the juror might be a sexual perpetrator was entirely speculative.
No evidence indicated bias on the part of the juror. Therefore, the trial judge's rejection of further questions was an exercise of sound discretion.
2. Prior bad acts testimony. The defendant next argues that the trial judge wrongly admitted testimony of Jane and her mother as evidence of prior bad acts and that the evidence caused unfair prejudice in the minds of the jury. As a general rule, “evidence of uncharged criminal acts or other misbehavior is not admissible to show a defendant's bad character or propensity to commit the charged crime.” Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006), quoting from Commonwealth v. Marshall, 434 Mass. 358, 366 (2001). Such evidence is admissible, however, if relevant to show a “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” Ibid. Evidence of prior bad acts “connected with the facts of the case and not too remote in time ... may be admitted to establish a course of conduct or state of mind.” Commonwealth v. Johnson, 45 Mass.App.Ct. 473, 478 (1998). In sexual assault cases specifically, “evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and ‘the probative existence of the same passion or emotion at the time in issue.’ “ Dwyer, supra at 128–129, quoting from Commonwealth v. Barrett, 418 Mass. 788, 794 (1994).
Because defense counsel did not make contemporaneous objections to the testimony at trial, the standard of review here is whether any wrongly admitted testimony created a “substantial risk of a miscarriage of justice.” Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). A substantial risk of a miscarriage of justice occurs when the court has “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). The evidence and the case are reviewed as a whole. Ibid. In determining whether an error has materially influenced a guilty verdict, we consider: (i) the strength of the Commonwealth's case against the defendant without the incorrectly admitted evidence; (ii) the nature of the error; (iii) whether it is reasonable to conclude that the error materially influenced the verdict; and (iv) whether it can be inferred from the record that counsel's failure to object to the error was not a reasonable tactical decision. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999); Commonwealth v.. Randolph, supra at 297. We address the respective subjects of the challenged testimony.
a. Testimony of Jane and her mother that the defendant beat Jane on previous occasions. Jane's and her mother's testimony that the defendant beat Jane with a belt and television cord, hit her with a curtain rod, and made her hit herself on the hand with a hammer was probative of Jane's relationship with the defendant and his course of conduct toward her. The testimony tended to show a pattern and course of conduct supporting the assault and battery charges, and supported Jane's fear of harm and the reality of the defendant's threat to inflict more harm if Jane disclosed the abuse. This testimony also allowed the jury to view the entire relationship between Jane and the defendant. The prosecutor did not elicit explicit details about this information. Rather, the details emerged from cross-examination by defense counsel as he pursued certain portions of Jane's direct testimony for apparent strategic purposes. The trial judge did not err in admitting the testimony.
b. Testimony that the defendant named his son “Devil.” Both Jane's and her mother's testimony that the defendant named his son “Devil” was not relevant to the course of conduct of the defendant and should have been excluded as evidence of a prior bad act. However, the admission of the testimony did not create a substantial risk of a miscarriage of justice. The Commonwealth had direct testimony of abuse from the victim and her mother, and presented an otherwise strong case against the defendant. Although admission was error, it is apparent that defense counsel made a tactical decision not to object to this evidence, as he notified the judge and the prosecutor that he might choose to elicit the same testimony. Defense counsel used the defendant's designation of the child as “Devil” as a means to challenge the victim's mother about her marriage to another man at the time when she gave birth to the defendant's son. The defendant cannot now convert a strategic decision on the part of his attorney into an error by the judge. Commonwealth v. Simcock, 31 Mass.App.Ct. 184, 196 (1991) (“The consequences of trial tactics may not be converted after conviction into alleged errors by the judge”). The prosecutor did not mention the evidence in her closing argument. The reference remained insignificant. It does not raise any serious question whether the outcome of the trial would have been different if the judge had excluded the evidence.
c. Testimony of the victim's mother that the defendant absconded with rent money when Jane was six months old. As the Commonwealth concedes, the victim's mother's testimony that the defendant had absconded with money which she had given him for rent should not have been admitted, as it is evidence of a prior bad act, and not relevant for another purpose. However, this error did not result in a substantial risk of a miscarriage of justice. As with the testimony discussed above, the victim's mother's testimony that the defendant took rent money emerged from questioning by defense counsel. He sought to introduce evidence of her instability and anger toward the defendant when she had left Jane at the home of the defendant's sister in retaliation for his misuse of the rent money. The omission of objection was again a tactical decision on the part of defense counsel. The totality of the evidence here indicates no substantial risk of a miscarriage of justice.
Judgments affirmed.