Opinion
10-P-1614
11-17-2011
COMMONWEALTH v. MARK SMITH.
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
We affirm the defendant's conviction on multiple counts of rape of a child using force and indecent assault and battery of a child under the age of fourteen, for substantially the reasons set forth in the Commonwealth's brief. We briefly address below the defendant's several claims of error.
Prior bad acts. The testimony to which the defendant objected at trial, and that comprises the basis for his claim of error on appeal, was elicited by the Commonwealth in rebuttal, after the defendant had elicited testimony on cross-examination of one of the victims regarding the history of violence in the home, the numerous police visits to the home in response to episodes of violence and, in particular, the 2002 incident. The defendant's purpose in introducing such evidence was to impeach the victims' credibility, arguing that they had a motive to fabricate allegations of abuse as a means to cause his removal from the home. The Commonwealth was entitled in response to rehabilitate the credibility of the child witnesses by placing the episodes of violence in context, to furnish an explanation for the victims' late disclosure of the abuse, and more generally to portray the nature of the relationship between the parties. See Commonwealth v. Kebreau, 454 Mass. 287, 298-299 (2009); Commonwealth v. Cruz, 456 Mass. 741, 751 (2010); Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686-687 (2003). The determination of the balance between probative value and prejudice was for the trial judge, and we discern no abuse of discretion in his decision to overrule the defendant's objections.
Voir dire. There is no statutory or other requirement for the judge to conduct inquiry into whether jurors in the venire had close friends who had been victims of physical or sexual abuse as a child or victims of violent crime, or worked for an agency that counseled victims of sexual or physical abuse. 'Other than asking the statutory questions . . . the 'judge has broad discretion as to the questions to be asked, and need not put the specific questions proposed by the defendant." Commonwealth v. Keohane, 444 Mass. 563, 572 (2005), quoting from Commonwealth v. Sanders, 383 Mass. 637, 641 (1981). The judge in the present case included questions concerning such experience by members of the prospective jurors' families and households; we discern no abuse of his considerable discretion in declining to expand the scope of his inquiry to the extent the defendant requested.
Remaining issues. The judge did not abuse his discretion in denying the defendant's motion for a mistrial, based on the departure of two of the victims from the courtroom during the defendant's closing argument, for the reasons explained in the Commonwealth's brief at pages seventeen to nineteen. Similarly, there is no merit to the defendant's contention that the Commonwealth engaged in improper closing argument, for the reasons set forth in the Commonwealth's brief at pages twenty to twenty-three.
Finally, we discern no abuse of discretion in the trial judge's determination to allow in evidence photographs of the victims at the age they were abused, or testimony concerning the state of mind of one of the victims after hearing that her mother expressed disbelief upon learning of her allegations of abuse. Evidence of the victim's state of mind was relevant to her delayed disclosure of the abuse, a matter emphasized by the defendant in an effort to impeach her credibility. See Commonwealth v. McKinnon, 35 Mass. App. Ct. 398, 404-405 (1993). The admissibility of the photographs fell well within the judge's discretion. See Commonwealth v. Torres, 367 Mass. 737, 742 (1975).
Judgments affirmed.
By the Court (Green, Katzmann & Hanlon, JJ.),