Opinion
11-P-651
03-14-2012
COMMONWEALTH v. DEDRIC S. PERRY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Dedric S. Perry, was convicted by a jury of two counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. He appeals, claiming that the trial judge erred in not declaring a mistrial after (1) the victim testified to prior uncharged sexual misconduct by the defendant; and (2) the prosecutor attempted to impeach the defendant by referring to improperly procured and previously undisclosed employment records. We affirm.
Prior bad acts. The original indictment charged the defendant with crimes committed between January 1, 2002, and January 31, 2006. On the first day of trial, the victim testified to a specific instance of abuse that occurred sometime between September, 2001, and May, 2002, in which the defendant blindfolded her and forced her to touch his penis. Shortly thereafter, the judge, to his credit, discerned that the defendant had not turned seventeen until August 25, 2002, and therefore the court did not have jurisdiction over crimes he committed before that date. When the trial judge raised this with the parties, who had both overlooked the defendant's date of birth, defense counsel moved for a mistrial. The judge denied the motion, and instead suggested that the date of the complaint be amended. The judge also ruled that the blindfold incident was admissible for the limited purpose of showing the defendant's intent or common scheme of conduct and stated that he was willing to give a limiting instruction upon the request of defense counsel, at that time and at the close of evidence. Defense counsel did not request an immediate limiting instruction, but requested that the judge give an instruction at the close of trial with specific reference to the blindfold incident.
The judge stated, 'It's the Court's intention to give the jury, if the Defendant were to request it right now, a specific limiting instruction at this point in time and also at the conclusion of the evidence that they are not allowed -- if and only if they were to find any of the evidence credible, that they're not allowed to consider it in any way whatsoever regarding any type of bad conduct or propensity. It would be if the Defendant would request it, I'd give that instruction at this point in time and I also would repeat that instruction at the conclusion of the case as well.'
At the close of all evidence, the defendant requested that the judge not give a prior bad act instruction, but instead instruct the jury that they could not convict the defendant based on any actions prior to his seventeenth birthday, specifically the blindfold incident. The judge declined to highlight the incident but allowed defense counsel to argue the point in his closing. The judge instructed the jury that anything the defendant did prior to turning seventeen 'may not be used as a basis for conviction in this case. Such evidence may not be used to demonstrate any bad character or propensity to commit the offense charged.' We note that defense counsel pointed out in his closing that the blindfold incident happened before the defendant was seventeen years old.
'The decision whether to declare a mistrial is within the discretion of the trial judge.' Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). 'Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may 'correctly rel[y] on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant." Ibid., quoting from Commonwealth v. Kilburn, 426 Mass. 31, 37-38 (1997).
'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.' Commonwealth v. Calcagno, 31 Mass. App. Ct. 25, 26 (1991), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). 'Among the purposes for which the evidence may be introduced are to show a pattern of conduct, intent, and the relationship between a defendant and a victim.' Commonwealth v. Helfant, supra. See Mass. G. Evid. § 404 (2011). Additionally, '[i]t is our rule that jurors may be expected to follow instructions to disregard matters withdrawn from their consideration.' Commonwealth v. Crehan, 345 Mass. 609, 613 (1963).
The trial judge acted within his discretion in denying the defendant's motion for a mistrial and instructing the jury as he did. The victim's testimony regarding the blindfold incident was properly admitted for the limited purpose to show the relationship between the victim and the defendant. Additionally, we presume that the jurors followed the judge's instruction that evidence of crimes committed by the defendant as a juvenile could not be used to convict him in this case. The fact that the judge did not specifically mention the blindfold incident did not affect the jury's ability to recognize that the incident happened prior to the defendant's birthday, especially considering that defense counsel highlighted it in closing.
Employment records. The defendant also claims that the trial judge erred in denying his motion for a mistrial, or alternative motion to strike, when the prosecutor referred to employment records which were obtained in violation of Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979) (rule 17), and Mass.R.Crim.P. 14(a)(1)(A), as appearing in 442 Mass. 1518 (2004).
Suffice it to say that the judge acted within his discretion and sanctioned the Commonwealth for its violation of rule 17. The Commonwealth was not allowed to use the records in any manner once the violation became apparent.
For these reasons as well as for substantially those in the brief of the Commonwealth, we affirm the judgments.
So ordered.
By the Court (Kantrowitz, Berry & Vuono, JJ.),