Opinion
No. 11–P–903.
2013-05-21
COMMONWEALTH v. William SENAY.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of rape, in violation of G.L. c. 265, § 22( b ), and of indecent assault and battery on a person with an intellectual disability, in violation of G.L. c. 265, § 13F. The charges arose from the defendant's sexual abuse of the victim, an adult who is physically and mentally disabled due to a rare genetic disorder.
Before us is the defendant's consolidated appeal from his convictions and from the denial of a motion for a new trial. We consider the issues raised by the defendant in turn.
1. Admission of “bad act” evidence. The defendant challenges the admission, over his objection, of evidence of his behavior towards the victim's aunt. Because the evidence was susceptible of the interpretation that the defendant had attempted to intimidate the victim's aunt in order to deter her from testifying against him, it was admissible to show consciousness of guilt. See, e.g., Commonwealth v. Scanlon, 412 Mass. 664, 676–677 (1992). Moreover, the judge's thorough and correct instructions to the jury on how to utilize evidence of other acts of alleged misconduct protected the defendant from any improper effect the testimony could have had on the jury.
2. Admission of first complaint testimony. The defendant challenges the admission, over his objection, of first complaint testimony by the victim's mother describing the victim's disclosure of the sexual assaults to her. Contrary to the defendant's position, the identity of the perpetrator was not the sole live issue in the case. The defendant disputed whether he ever had any contact with the victim, whether he brought the victim into his apartment, and whether the alleged assaults ever took place at that location. Accordingly, first complaint evidence was admissible to corroborate the victim's testimony that the defendant repeatedly had assaulted the victim at the defendant's apartment. See Commonwealth v. King, 445 Mass. 217, 246–247 (2005). The judge did not abuse her discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
3. Admission of evidence of defendant's nephew's assault. The defendant argues that it was unfairly prejudicial for the judge to admit testimony and photographic evidence relating to a May, 2006, assault and battery upon the victim by the defendant's nephew, who resided with the defendant. “We entrust questions of relevancy and prejudicial effect to the sound discretion of the trial judge, whose determinations we will not disturb except for ‘palpable error.’ “ Commonwealth v. Carey, 463 Mass. 378, 388 (2012), quoting from Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).
Here, the evidence unquestionably was relevant. The assault by the defendant's nephew took place shortly before the defendant first took the victim from his home to the defendant's apartment, where the defendant's nephew was among the group present. Thus, it was relevant to show how the defendant came to know the victim. The assault also was severe enough to leave the victim with bruises and scratches on his arm. Thus, it was independently relevant to explain the victim's fearful state of mind when he arrived at the defendant's home and saw that the defendant's nephew was present.
Any risk of unfair prejudice was ameliorated by the judge's contemporaneous instruction that the defendant was not charged with the nephew's assault and that the information was admitted to give them a “picture of the entire scenario” of the defendant's relationship to the victim. Likewise, in the final charge, the judge again instructed that the jury could not find the defendant guilty based on his “relationship to or association with” his nephew. We discern no abuse of discretion.
4. Exclusion of alleged evidence of prior false accusations. There is no merit to the defendant's contention that the judge erroneously precluded the admission of records and reports ostensibly showing that the victim had made prior false allegations of sexual abuse. See generally Commonwealth v. Bohannon, 376 Mass. 90 (1978). The argument fails if only because the defendant did not demonstrate that the accusations described in the documents were false, thus failing to meet a critical prerequisite to their admission. See Commonwealth v. McDonough, 400 Mass. 639, 651 (1987).
5. Denial of motion for new trial. The defendant claims that the trial judge abused her discretion in denying his motion for a new trial without a hearing. The motion was based upon testimony adduced from individuals not involved in the present case, during grand jury proceedings occurring after the trial in this action. According to the defendant, this testimony was newly discovered and suggested that the victim may have been confused about the defendant's identity. See Commonwealth v. Buck, 64 Mass.App.Ct. 760, 762–763 (2005).
“A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.” Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Here, the judge agreed with the defendant that the testimony qualified as newly discovered evidence, but concluded that, at most, it related only to the victim's credibility and was not material to whether the defendant raped and assaulted him. See Commonwealth v.. Toney, 385 Mass. 575, 581 (1982). For this reason and for the other reasons set forth in the judge's thorough decision on the defendant's motion, the judge was entitled to conclude in her discretion that the motion raised no substantial issue and that no real doubt had been cast on the defendant's guilt.
Judgments affirmed.
Order denying motion for new trial affirmed.