Opinion
14-P-1104
06-17-2015
COMMONWEALTH v. MARLON MORRIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of multiple rape and indecent assault and battery offenses, both as the principal and under a joint venture theory. The defendant filed a "Motion for New Trial and Renewed Motion for Required Finding of Not Guilty," which was denied, and he now appeals. We reverse the conviction on count five, and affirm the order denying the motion for new trial.
The specific convictions for which the defendant was the principal included rape of a child by force with penis in the genital opening, rape of a child by force with finger in the genital opening, and indecent assault and battery on a child under fourteen, to wit: hand on breast. The convictions under joint venture included indecent assault and battery on a child under fourteen, to wit: codefendant's mouth on breast, and indecent assault and battery, to wit: codefendant's hand on breast. The lesser included convictions included rape of a child, to wit: codefendant's tongue in genital opening and codefendant's finger in genital opening.
Discussion. "On appeal, we examine a decision to deny a motion for a new trial to determine whether there has been an abuse of discretion or other error of law." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635 (2001). "A motion for a new trial is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error." Commonwealth v. Walker, 443 Mass. 213, 224-225 (2005) (citations and quotation omitted). In a motion for new trial, "[t]he defendant has the burden of producing a credible reason to reverse the final decision . . . that outweighs the risk of prejudice to the Commonwealth." Wheeler, supra at 637. "[A] rigorous standard must be applied" to a motion for a new trial, Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353 (2008), and a judge may only grant such a motion "if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).
1. Absence of direct appeal. The defendant's motion for a new trial comes more than nine years after his conviction, and while the passage of time alone does not invalidate his motion, it is a relevant factor that we consider in our review. Wheeler, supra at 636-637. Where a defendant has waited many years to raise claims that could have been resolved on direct appeal shortly after the convictions, such that "the Commonwealth may not be able to reassemble its case against the defendant[] and, even if it could, witnesses' memories would at best be seriously challenged, . . . [t]he desirability of finality in the adjudication of cases and the Commonwealth's interest in the fair and efficient administration of justice are factors to be considered along with the ever-present concern that justice not miscarry for the defendant." Commonwealth v. Curtis, 417 Mass. 619, 623 (1994). The prejudice to the Commonwealth caused by the burden and challenges of reassembling this case for retrial after nine years would be substantial. As evidence to support his new trial motion, the defendant offers his own affidavit, in which he asserts that he asked his trial counsel to appeal his convictions, and the affidavit of his appellate counsel, which merely states that trial counsel told her he had no recollection of discussing a direct appeal with the defendant. "[A] judge is not required to accept the defendant's self-serving affidavit as sufficient to satisfy his burden." Wheeler, supra at 637. See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). The defendant's assertions are not corroborated to any degree by his counsel's affidavit. The motion judge did not abuse her discretion in determining that the defendant had not shown that he had been deprived of a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In short, the defendant has not shown a risk of a miscarriage of justice that would outweigh the prejudice to the Commonwealth.
2. Individual voir dire. The defendant argues that individual voir dire was not adequate with respect to whether potential jurors had been victims of childhood sexual assault, and that trial counsel was ineffective when he acquiesced to the trial judge's line of questioning. We disagree. "[O]n request, the judge must interrogate individually each prospective juror as to whether the juror has been a victim of a childhood sexual offense." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The purpose is to assist the judge in determining the prospective juror's impartiality. Id. at 355-356. Here, the trial judge paid careful attention to this issue and explained that he would ask the jurors "whether they or any member of their family or close friend had ever been involved in a sexual assault, and if they [said] yes, then [he would] inquire as to was it as an adult or a [child] and -- follow up . . . that way." While the questioning may have differed from that in Flebotte, both defense counsel and the prosecutor accepted it, and it achieved its intended purpose. The trial judge eliminated several jurors because he found that they could not be impartial on the basis of their experience with child sexual assault. The defendant failed to demonstrate a lack of impartiality that resulted from undisclosed childhood sexual offenses that the proposed individual voir dire questions would have otherwise revealed. We conclude that the trial judge's method of questioning was proper to uncover "impaired objectivity" of a prospective juror. Id. at 356. In any event, the defendant has not shown that the method of inquiry to which he assented gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Fudge, 20 Mass. App. Ct. 382, 387-389 (1985).
In light of our disposition as to the propriety of individual voir dire, we need not address the defendant's ineffective assistance of counsel claim.
3. The uncharged conduct. The defendant unsuccessfully challenged the allowance of the Commonwealth's motion in limine to allow the victim to testify about the defendant's uncharged conduct of anal rape and attempted oral rape. "It is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial," Commonwealth v. Whelton, 428 Mass. 24, 25 (1998), and "any harm resulting from a ruling in limine is purely speculative." Commonwealth v. Jones, 464 Mass. 16, 18 (2012). The defendant did not object when the victim testified at trial and, therefore, did not give "the judge an opportunity to reconsider the issue in [the] context" of trial. Ibid. Thus, we examine to determine whether allowing the evidence of uncharged conduct was error and whether that error created a substantial risk of a miscarriage of justice. See ibid. We conclude that the evidence was properly admitted.
Admission of uncharged conduct rests in the sound discretion of the judge. See Commonwealth v. Fallon, 423 Mass. 92, 97 (1996). "In sexual assault cases, some 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." Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006) (quotation omitted). The judge must engage in the "balancing of prejudice and probative value." Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 79 (2014). The uncharged conduct here occurred during the same criminal episode as the charged acts and was therefore "connected with the facts of the case" and was not "too remote in time." Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001) (quotation omitted). The victim's testimony about the uncharged conduct was properly admitted to allow the Commonwealth to "show the whole transaction." Ibid. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). The victim's testimony shows the defendant's state of mind and the element of force at the time of the charged acts, where the defendant pulled the victim's hair, told the victim to "shut up" when she asked him to stop, swore, called the victim a "bitch," smiled as he inflicted "horrible" pain, and attempted to force the victim to suck his penis after the anal rape. Although the evidence was prejudicial to the defendant's case and theory of consent, it was not unfairly so; the probative value was not substantially outweighed by the prejudicial effect.
4. Duplicative convictions. The defendant argues that his convictions on counts seven, eight, and nine for indecent assault and battery are duplicative of his convictions of forcible rape. As the Commonwealth notes, the indictments specified which action was charged in each count: penis in genital opening, finger in genital opening, and tongue in genital opening for the rape charges, and hand on breast and mouth on breast for the indecent assault and battery charges. Moreover, the acts that constituted indecent assault and battery were entirely separate from, and not necessary to, either the force or penetration required for rape. In her instructions, the trial judge emphasized that the indictments were "separate" and that the jury "ha[d] to be careful and . . . take each indictment separately." There was "little chance that the jury could have based the convictions on the same acts." Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000).
5. Count five. Contending insufficiency of evidence, the defendant argues that the trial judge erred in denying his motion for a required finding of not guilty as to count five, which charged rape of a child with force as a joint venturer by means of the codefendant placing her finger in the victim's genital opening. The Commonwealth argues that because there was evidence that the codefendant used both her tongue and hands on the victim's breasts, a rational trier of fact could have inferred that the codefendant used both her tongue and hands on the victim's genital opening as well. While the jury are permitted to make reasonable inferences, drawn from the evidence, Commonwealth v. Reaves, 434 Mass. 383, 389-390 (2001), they cannot rely on "the piling of inference upon inference or conjecture and speculation" to establish the essential elements of the crime. Commonwealth v. Armand, 411 Mass. 167, 169 (1991). Here, even when viewing the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), a jury could not reasonably make the inference that the codefendant used her hands and tongue on the victim's genital opening. There was no evidence to support this inference and the evidence was thus insufficient on count five.
On count five, the defendant was convicted as a joint venturer of the lesser included offense of rape of a child.
The victim testified that the codefendant was "still feeling on [her]," but there was no evidence that the codefendant penetrated or even contacted the victim's genital opening with her hand.
6. Cumulative errors. Finally, we reject the defendant's claim that the cumulative errors "made a difference in the case." Other than the reversal on count five, the remaining issues raised by the defendant are without merit, and he has shown no manifest injustice or constitutional defect requiring the allowance of a new trial. See Wheeler, 52 Mass. App. Ct. at 638.
The judgment is reversed as to count 5 and the verdict is set aside. The remaining judgments are affirmed, as is the order denying the motion for new trial.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 17, 2015.