Opinion
No. 15–P–529.
07-15-2016
COMMONWEALTH v. William LORA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, William Lora, was convicted on three counts for rape of a child with force, and three counts of indecent assault and battery on a person fourteen years or older. He was acquitted of intimidation of a witness. On appeal, he contends that the judge committed reversible error by (1) giving an incorrect first complaint instruction, (2) failing to give a Bowden instruction, and (3) admitting evidence of the defendant's prior bad acts. We affirm.
Commonwealth v. Bowden, 379 Mass. 472 (1980).
Background. We summarize the relevant facts, reserving more detailed discussion in some instances for our analysis. In August, 2007, the fourteen year old victim and her sixteen year old brother, Alex, moved to Lynn to live with their father, the defendant. Their older brother, Jose, also lived “[o]n and off” in the defendant's apartment. The victim initially slept on a couch, but subsequently slept with the defendant on a sofa bed. A couple of weeks after the victim's arrival, the defendant started caressing her inner thighs and stomach, at night, on the sofa bed. The defendant then started touching the victim's breasts under her T-shirt and bra, and massaged her genital area underneath her underwear. The touchings occurred on more than one occasion. In September, after the victim started high school, the defendant continued to molest her and had sex with her on multiple occasions. The victim would “keep telling him to stop,” but the defendant continued to rape her. As he did so, he usually held the victim's arms to her stomach. The molestation continued until a Friday in November, a few days before Department of Children and Families (DCF) investigators went to the apartment, at which time the victim disclosed to an investigator that she was “having sex with [the defendant].” The DCF investigators removed the victim and Alex from the apartment, took them to the police station, and then placed them in an emergency foster home.
DCF investigators went to the apartment on Tuesday, November 13, 2007, to investigate allegations of neglect regarding the victim and Alex. The allegations originated with the victim's and Alex's biological mother, who reported to DCF that the defendant had told her that “the children were having sex among themselves.”
Discussion. 1. First complaint instruction. The defendant challenges the following portion of the judge's initial first complaint instruction:
“You may not consider [the first complaint] testimony as substantive evidence that the assault, in fact, occurred. And by that, I mean if [the victim] had not testified in court that a sexual assault occurred, and all you heard was evidence that she told someone else that a sexual assault occurred, you would have no substantive evidence that a sexual assault occurred.”
In addition, the defendant challenges the first complaint instruction in the final charge. The defendant contends that those instructions misstated the law, and confused the burden of proof because they advised the jurors that they “had substantive evidence of sexual assaults because [the victim] testified.” We disagree.
The trial judge gave a first complaint instruction immediately before the victim's testimony regarding her disclosure of the abuse to the first complaint witness, a DCF investigator; before the testimony of that first complaint witness; and in his final jury charge. On appeal, the defendant challenges the initial instruction and the instruction in the final charge.
First, the defendant did not properly preserve the issue at trial. The defendant objected to the initial first complaint instruction, “[j]ust for the record ... as hearsay.” He did not object on the basis that the instruction misstated the law or confused the burden of proof, as he now argues for the first time on appeal. He also did not object to the first complaint instruction in the final charge. Thus, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Smith, 449 Mass. 12, 17 (2007) (unspecified objection fails to properly preserve question of judge's failure to follow model jury instructions); Commonwealth v. McCoy, 456 Mass. 838, 850 (2010) (where defendant did not object to witnesses' testimony at trial review limited to whether alleged errors created substantial risk of miscarriage of justice).
Second, the instructions did not shift the burden of proof or misstate the law. To the contrary, the instructions essentially tracked the first complaint template in Commonwealth v. King, 445 Mass. 217, 247–248 (2005), explained the limited specific purpose for which such evidence could be considered, and advised that the first complaint testimony was not “substantive evidence that the assault, in fact, occurred.” The challenged portion of the instructions merely clarified the meaning of the term “substantive evidence” and reinforced that first complaint testimony could not be viewed as evidence of the assault. Viewing the instructions in their entirety, we see no risk that the jury would have understood the instruction to mean that they should credit the victim's testimony that the sexual assault had indeed occurred. Moreover, the judge instructed the jury as to their “unique function to decide ... credibility,” and their role as the sole, exclusive judges of the facts. He also instructed that any rulings or statements made by the judge are not evidence and “none should be taken by [the jury] as a suggestion that [the jury] decide the case in a certain way.” Finally, the judge's instructions on the burden of proof were thorough and clear, such that the jury could not have been confused as to where the burden lay. See Commonwealth v. Owens, 414 Mass. 595, 607 (1993) (“Jury instructions must be construed as a whole to prevent isolated misstatements or omissions from constituting reversible error”); Commonwealth v. Walker, 466 Mass. 268, 284 (2013), quoting from Commonwealth v. Batchelder, 407 Mass. 752, 759 (1990) (“When evaluating jury instructions, “we consider the charge in its entirety, to determine the ‘probable impact, appraised realistically ... upon the jury's factfinding function’ ”). We discern no error, and thus no substantial risk of a miscarriage of justice.
2. Bowden instruction. The defendant claims that the trial judge erred by not giving a so-called Bowden instruction. We disagree. As the Supreme Judicial Court has held, “a judge is not required to instruct on the claimed inadequacy of a police investigation. ‘Bowden simply holds that a judge may not remove the issue from the jury's consideration.’ “ Commonwealth v. Boateng, 438 Mass. 498, 506–507 (2003), quoting from Commonwealth v. O'Brien, 432 Mass. 578, 590 (2000). “In this case, the judge did not remove the inadequacy of the police investigation from consideration by the jury and so complied fully with Bowden's only requirement.” Commonwealth v. Williams, 439 Mass. 678, 687 (2003). See Commonwealth v. Bresilla, 470 Mass. 422, 439 (2015). Indeed, the defendant presented the issue of claimed inadequate police work through examination of witnesses and in his closing argument. There was no error. See Williams, supra (“There was no error because the giving of such an instruction is never required. In other words, there is no Bowden instruction”).
3. Prior bad acts. At trial, Jose, the defendant's son and older brother of the victim and Alex, testified that he and his family had experienced prior physical abuse from the defendant. The prior abuse scared him because he did not know “what [the defendant] might do” to him. The defendant claims that this evidence was highly prejudicial and inadmissible. We disagree.
Jose testified, inter alia, that the defendant had told him that Alex was a sexual deviant, and that Jose should protect the defendant. Jose was subsequently told that the victim and Alex had been “taken away” because they had been having a sexual relationship. Thereafter, Jose told the police that he had been molested by Alex. Jose manufactured this claim in order to protect his father. Jose later returned to the police station to “go with the story about Alex” because the defendant pressured him and threatened to “kick [Jose] out to the street” if he did not do so. At a later date, the defendant admitted to Jose that he had “done [ ]thing[s] to” the victim. Jose subsequently revealed to the police, and at trial, that Alex had not sexually molested him, and that he had been pressured by the defendant “to say all those things about Alex, so it'll help [the defendant] win this case.”
On direct examination, Jose testified that he, his siblings, and his mother had experienced “physical abuse” from the defendant, but did not elaborate further. On cross-examination, Jose explained that the physical abuse last occurred when he was in the fourth grade. He recalled the defendant “striking” him because he was not “doing [his] homework.”
The admission of prior bad acts evidence is “a matter on which the opinion of the trial judge will be accepted on review except for palpable error.” Commonwealth v. Young, 382 Mass. 448, 462–463 (1981). Here, the judge held a voir dire and determined, on the record, that the evidence was probative of Jose's state of mind, and that its probative value outweighed any prejudicial impact. The judge found that the evidence was not “the kind of testimony that the jury is going to use to convict the defendant of this particular—they're not going to say because he did that, he did this. They're not even going to say, I think, ‘cause he did that, he's a bad person.” The record supports the judge's ruling. The evidence was relevant to the witness intimidation charge and to Jose's state of mind. See G.L. c. 268, § 13B. It explained why he lied to the police and why the defendant intimidated him. The testimony was brief, not inflammatory, and the Commonwealth did not reference it in closing argument. Furthermore, the defendant elicited on cross-examination that the last incident of physical abuse against Jose, who was twenty-three years old at the time of trial, occurred when he was seven years old. Finally, the jury acquitted the defendant of the witness intimidation charge, which suggests that the evidence did not unfairly impact the jury. There was no error.
The defendant did not request a limiting instruction, and thus the judge was not required to provide one. See Commonwealth v. Monsen, 377 Mass. 245, 252 (1979).
Judgments affirmed.