Opinion
No. 11–P–1290.
2013-04-2
COMMONWEALTH v. Gary MERCURE.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, a former pastor at Our Lady of The Annunciation Parish (Annunciation Parish) in Queensbury, New York, was indicted by a Berkshire County grand jury for sexually assaulting two former Annunciation Parish altar boys during separate visits to Massachusetts. One victim was alleged to have been assaulted in the fall of 1986 during a day trip to the Appalachian Trail in or around Monterey, and the second victim was alleged to have been assaulted in February, 1989, during a ski trip to the Brodie Mountain ski resort in New Ashford. Over opposition of the defendant, the resulting four indictments were joined for trial in Superior Court. A jury convicted the defendant of three counts of rape of a child by force and one count of indecent assault and battery on a child under age fourteen. On appeal, the defendant raises several issues, which we address in turn.
1. Prior bad acts. The defendant claims that the judge abused his discretion in admitting evidence that, between 1981 and 1993, the defendant committed uncharged sex crimes against the two named victims and six other males when they were altar boys in his parish. The incidents, objected to in limine, and at trial, occurred outside Massachusetts. In his written decision on the Commonwealth's motion in limine, the judge denied the Commonwealth's request as to the testimony of two of the proposed witnesses, essentially, on the grounds that their testimony related to vague or isolated events with no probative force, but allowed the motion as to the testimony of the two victims and four of the other witnesses, observing that the evidence was offered to show a common plan to isolate and rape altar boys whose families had close ties to the Annunciation Parish.
At trial, the Commonwealth chose to present the testimony of only three of these four witnesses.
We note that the judge also ordered an individual voir dire of those four witnesses prior to trial.
The defendant contends that this prior bad acts testimony should not have been admitted because it constituted improper propensity evidence, and its prejudicial effect outweighed its probative value. We disagree. While it is clear that “the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purpose of showing his bad character or propensity to commit the crime charged,” Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting from Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423 Mass. 356, cert. denied, 519 U.S. 1045 (1996), it is also well established that the rule does not render inadmissible such evidence if relevant for other purposes. Thus, evidence of prior bad acts may be admitted, for example, to show a common plan, pattern of conduct, intent, or motive; see Commonwealth v. King, 387 Mass. 464, 472 (1982), Commonwealth v. Helfant, 398 Mass. 214, 224–225 (1986); to show a modus operandi, see Commonwealth v. Chartier, 43 Mass.App.Ct. 758, 760–761 (1997); or to counter a defendant's denial, see Commonwealth v. Maimoni, 41 Mass. 321, 327 (1996).
A judge's determination on the issue of admissibility of prior bad act evidence is subject to review for abuse of discretion. Commonwealth v. Barbosa, 457 Mass. 773, 794 (2010). In reviewing the judge's exercise of discretion, we will uphold the judge's decision unless we are convinced that “no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.” Commonwealth v. Ira I., 439 Mass. 805, 809 (2003), quoting from Commonwealth v. Bys, 370 Mass. 350 Mass. 350, 361 (1976). Viewing the judge's ruling under that deferential standard, we find no abuse of discretion.
2. The limiting instructions. The judge provided the jury with limiting instructions regarding the proper use of the testimony of the three witnesses, who were unnamed in the indictments, both during the trial and again in his final jury instructions. The defendant argues that the judge erred in failing to provide, sua sponte, contemporaneous limiting instructions prior to the bad acts testimony of the two victims. In addition, he contends that limiting instructions given by the judge failed to instruct the jury on the limited purposes for which that evidence properly could be considered by them.
The judge stated: “You have heard testimony from three witnesses.... And these witnesses provided evidence relating to the conduct of the Defendant with respect to them in New York State. Now, as I have indicated to you repeatedly and it's very important and that's why I'm stating it again, the Defendant is not charged with committing any crime with respect to these witnesses and is only charged with the four indictments that are before you involving [the two victims]. The evidence that was offered regarding these other boys and those events was introduced again for a very limited purpose and may only be considered by you solely to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, motive or probable existence of the same passion or emotion at the time at issue. You may not consider this evidence as proof that the Defendant has a criminal personality or bad character or for any other purpose. Specifically, you may not use it to conclude, that if the Defendant committed the acts against these other young men, that he must also have committed the charges that are before you.”
The judge did not instruct the jury that they could consider the prior bad acts as evidence of inclination, see Commonwealth v. King, supra at 470, or disposition, see Commonwealth v. Piccerillo, 256 Mass. 487, 489 (1926), thereby avoiding the thorny issue of explaining the difference among the concepts of predisposition, inclination, and disposition.
The defendant neither requested contemporaneous limiting instructions prior to the testimony of the two victims, nor did he object to the limiting instructions given by the judge. Therefore, we review the instructions to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
There is no merit to the defendant's claim that the judge erred in failing to give a contemporaneous limiting instruction as “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).
We also reject the defendant's argument that the judge's limiting instructions, though less than perfect, were fatally flawed. The Commonwealth presented the prior bad acts as part of a common plan or scheme, and the judge's overall instructions, though overly broad regarding the proper use of that evidence, were correct. Therefore, any error in the instructions did not create a substantial risk of a miscarriage of justice.
The defendant correctly notes that contrary to the judge's instruction, the “probable existence of the same passion or emotion at the time at issue” is not a legitimate basis to admit evidence of uncharged sexual conduct directed at a person other than the named complainant. See King, 387 Mass. at 470.
3. Prosecutor's closing argument. The defendant claims that the prosecutor invited the jury to convict the defendant based upon the prior bad acts evidence, and improperly argued to the jury that the crimes charged in the indictments were merely a small part of a larger universe of abuse by a defendant who would not “suddenly stifle those criminal urges” upon entering Massachusetts. We are not persuaded that the statements at issue, placed in context, were erroneous.
“Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). In his closing argument, defense counsel argued that the victims falsely accused the defendant of isolated, remote incidents of sexual abuse in Massachusetts only after they learned that the statute of limitation in New York had expired, thus he could not be prosecuted civilly or criminally for his conduct in that State.
In response, the prosecutor argued, that the victims' abuse in Massachusetts was merely a small part of a much larger pattern of abuse which they had suffered at the hands of the defendant in New York. There was no error.
4. Alleged violation of first complaint doctrine. Warren County (New York) District Attorney Kate Hogan testified for the Commonwealth, without objection, regarding her investigation of the uncharged sexual abuse charges made against the defendant in New York. The defendant argues that her testimony violated the first complaint rule enunciated in Commonwealth v. King, 445 Mass. 217 (2005), and Commonwealth v. Stuckich, 450 Mass. 449 (2008). We disagree.
The first complaint doctrine, announced by the Supreme Judicial Court in Commonwealth v. King, supra at 243, prohibits introduction of testimony from more than one witness concerning a victim's reports of a sexual assault, limiting such testimony to that of the first person told of the assault.
In Commonwealth v. Stuckich, supra at 457, the court held that the description of the investigative process is similar in effect to multiple complaint evidence because the fact that the Commonwealth “brought its resources to bear on [an] incident creates the imprimatur of official belief in the complainant.”
The investigation conducted by Hogan did not include any of the crimes committed by the defendant in Massachusetts. Rather, they involved acts committed by the defendant in New York that were essentially unchallenged by the defendant. Moreover, the apparent aim of the testimony was to rebut the suggestion that Hogan's office discussed with the victims the Massachusetts' statute of limitations after advising them that the defendant could not be prosecuted in New York. See Commonwealth v. Kebreau, 454 Mass. 287, 298 (2009) (testimony offered to rebut questions raised by the defendant is not first complaint testimony and therefore admissible); Commonwealth v. Aviles, 461 Mass. 60, 69–70 (2011) (evidence of a victim's complaint of a sexual crime, not admissible as first complaint evidence, was admissible to rebut a defense theory of fabrication).
5. Motion for mistrial. On direct examination, the prosecutor asked one witness (who was not named in the indictments) to explain his delay in making the disclosure. This witness stated, “I pondered on it for months. It drove me crazy.... I didn't want to do that to my mom and dad. I just came forward because I know he's still doing it.” Defense counsel objected to the statement, and the judge sustained the objection and directed the jury to disregard the last comment. The defendant later moved for a mistrial, and the judge, after meeting with counsel at sidebar, denied the motion.
Defense counsel alerted the judge that this witness had made such a statement at an earlier hearing on a motion in limine. Acknowledging defense counsel's concern, the judge ordered the prosecutor to avoid that statement by instructing her, “if you get into areas like that, if you could shut him off or avoid that or any response of that nature.”
We discern no abuse of discretion in the denial of the motion for mistrial since this issue involved a single improper statement; the statement was not directly elicited by the prosecutor; the judge sustained the objection and instructed the jury to disregard the statement; and the judge, in his final instructions to the jury, cautioned them to base their verdict only on the evidence allowed at trial. See Commonwealth v. Cohen, 412 Mass. 375, 384 (1992) (“[I]t is the trial judge who was best positioned to determine whether there was prejudice to the defendant” sufficient to require a mistrial). See also, Commonwealth v. Pontes, 402 Mass. 311, 316 (1988) (improper remarks reviewed in context of the entire argument, the evidence at trial, and any instructions from the judge); Commonwealth v. Grandison, 433 Mass. 135, 143 (2001) (passing comment unlikely to have made difference to jury).
Finally, in view of our rulings on the issues on appeal, there is no basis for the defendant's claim that the cumulative errors at trial require a new trial
Judgments affirmed.