Opinion
20-P-708
03-04-2022
COMMONWEALTH v. Troy STEWART.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of two counts of rape of a child with force in violation of G. L. c. 265, § 22A. On appeal, the defendant challenges the admission of testimony concerning his prior uncharged physical and sexual abuse of the victim, and claims various errors in the prosecutor's closing argument. We discern no cause to disturb the judgments, and affirm.
1. Prior bad acts. At trial, the judge allowed the victim to testify that the defendant abused her physically and sexually when they were both children, including by hitting her, threatening her with a knife, and orally and vaginally raping her on several occasions. On appeal, the defendant primarily challenges the level of detail allowed in the victim's testimony, claiming that her graphic account of the uncharged prior bad acts unduly prejudiced him and overwhelmed the case. We review the ruling for an abuse of discretion. See Commonwealth v. Veiovis, 477 Mass. 472, 482 (2017).
While the defendant objected to the victim's testimony concerning the childhood sexual abuse, he failed to object to her testimony on physical abuse. On appeal, he challenges both as unduly prejudicial, and we review the ruling on the physical abuse testimony for a substantial risk of a miscarriage of justice only. See Commonwealth v. Morris, 82 Mass. App. Ct. 427, 442 (2012). Admitting the physical abuse testimony was not unduly prejudicial for the same reasons as the sexual abuse testimony.
A defendant's prior bad acts are not admissible to show the defendant's "bad character or propensity to commit the crime charged," but may be admissible to show a "common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Such "evidence is admissible if its probative value outweighs the risk of unfair prejudice" to the defendant, Commonwealth v. Philbrook, 475 Mass. 20, 26 (2016), and "a judge must guard against the risk that evidence of prior bad acts will divert the jury's attention from the charged acts." Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006).
We recognize that "[i]n 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’ " (citation omitted). Dwyer, 448 Mass. at 128-129. Furthermore, as child victims of sexual abuse are particularly susceptible to delayed disclosure, a degree of flexibility is needed for evidentiary rulings in child sexual abuse cases. Cf. Commonwealth v. King, 445 Mass. 217, 230 (2005) (noting flexibility in admitting fresh complaint testimony of child victims); Commonwealth v. Errington, 390 Mass. 875, 879 (1984) (admitting victim's testimony on defendant's prior abuse to explain delayed disclosure); Commonwealth v. McKinnon, 35 Mass. App. Ct. 398, 405 (1993) (admitting defendant's prior bad acts to explain child victim's delayed disclosure).
Here, the defendant's prior bad acts were properly admitted for the limited purpose of showing the nature of the parties’ relationship, the victim's fear of the defendant, and reasons for the delayed disclosure. The evidence was highly probative to the Commonwealth's principal theory that the defendant accomplished the two charged rapes through constructive force, as the victim feared the defendant based on the pattern of abuse she experienced as a child. The victim's prior bad act testimony was consistent with the judge's allowance of the Commonwealth's pretrial motion in limine, in which the judge prohibited the victim from including sensational details and stating that "the incidents occurred more often than she could even count." Furthermore, the trial judge gave proper limiting instructions to the jury before and after the prior bad act testimony, as well as in the final charge. Contrary to the defendant's claim, the victim's prior bad act testimony did not overwhelm the case, as it formed a relatively small portion of her lengthy testimony. The judge's conclusion that the probative value of the prior bad act testimony outweighed the risk of unfair prejudice to the defendant was not an abuse of discretion.
While the victim was allowed, over objection, to state that she felt "gross" after the abusive incidents, the judge exercised her discretion and stopped the victim from elaborating further. This single statement did not render her entire prior bad act testimony unduly prejudicial.
The defendant also argues that the prior bad acts should not have been admitted because the defendant was also a child when the alleged incidents took place. However, the defendant cites no authority for the proposition that prior bad acts should be inadmissible simply because the acts were committed when both the abuser and the victim were children.
2. Closing argument. The defendant challenges various statements in the prosecutor's closing argument. He argues that the prosecutor erred by using the defendant's prior bad acts as propensity evidence and to inflame the jury; injecting personal opinions on the victim's state of mind and vouching for her credibility; shifting the burden of proof to the defendant; and commenting on the defendant's courtroom demeanor. As the defendant objected only to the alleged vouching at trial, we review that claim for prejudicial error and the rest for error and, if error, for a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
a. Injecting personal opinions and vouching. The defendant challenges the prosecutor's statements suggesting that the victim felt shame from the abuse and shielded herself from reality by being in denial. He argues that these statements, based solely on the prosecutor's personal opinions, constituted improper vouching because they attempted to explain why the victim failed to report the abuse in a timely fashion, unfairly bolstering her credibility.
"A prosecutor is permitted to argue the evidence and the reasonable inferences that may be drawn from that evidence." Commonwealth v. Miles, 46 Mass. App. Ct. 216, 219 (1999). See Commonwealth v. Murchison, 418 Mass. 58, 59 (1994). The victim testified that she did not immediately report the rapes because she did not want her family to view her as "disgusting" or "gross," and that she continued to interact with the defendant as if nothing had happened. Based on these statements, the prosecutor could reasonably infer that the victim's shame and denial played a role in her delayed disclosure, and articulating these inferences did not constitute improper vouching. See Commonwealth v. Caillot, 454 Mass. 245, 259-260 (2009) (no improper vouching where prosecutor's remarks were based on inferences derived from evidence).
b. Remaining errors. We find no merit in the defendant's remaining claims of error. First, the prosecutor did not use the defendant's prior bad acts to establish propensity, nor to inflame the jury's sympathy. As noted above, the prior bad act testimony was properly admitted, and thus the prosecutor was entitled to marshal it in her closing argument. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The prosecutor's characterization of the defendant as someone who was "willing to hurt" the victim was proper, as it was grounded in evidence and made in furtherance of the Commonwealth's theory of constructive force.
Next, the prosecutor's rhetorical questions concerning the absence of any motive for the victim to lie did not improperly shift the burden of proof to the defendant. The prosecutor's comments were fair responses to defense counsel's attacks on the victim's credibility in his closing arguments. See Commonwealth v. Polk, 462 Mass. 23, 40 (2012). The prosecutor did not, at any point, suggest that the defendant had a duty to present evidence contradicting the victim's testimony. Contrast Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Therefore, there was no improper burden shifting.
Finally, the prosecutor did not err by commenting on the defendant's unemotional demeanor on the stand, where inferences were limited to the defendant's credibility at trial. See Commonwealth v. Moffat, 486 Mass. 193, 202 (2020) ("[p]rosecutors may ‘properly attack’ a testifying defendant's credibility" by comments on courtroom demeanor [citation omitted]).
Judgments affirmed.