Commonwealth v. Bradshaw ( 2014 )

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12-P-897 Appeals Court
COMMONWEALTH vs. CHRISTOPHER BRADSHAW.
No. 12-P-897.
Middlesex. October 9, 2013. - July 29, 2014.
Present: Cypher, Katzmann, & Maldonado, JJ.
Indecent Assault and Battery. Dangerous Weapon. Evidence,
Relevancy and materiality, Motive, State of mind, Intent,
Inflammatory evidence, Knife. Intent. Practice, Criminal,
State of mind.
Indictments found and returned in the Superior Court
Department on April 29, 2010.
One case was tried before Diane M. Kottmyer, J., and one
case was tried before Paul A. Chernoff, J.
Bruce Ferg, Committee for Public Counsel Services, for the
defendant.
Fawn D. Balliro Andersen, Assistant District Attorney, for
the Commonwealth.
KATZMANN, J. A Superior Court jury convicted the defendant
of indecent assault and battery on a child under the age of
fourteen, G. L. c. 265, § 13B, as a lesser included offense of
aggravated rape of a child, G. L. c. 265, § 23A(a). A second
2
Superior Court jury convicted the defendant of carrying a
dangerous weapon when arrested upon a warrant, G. L. c. 269,
§ 10(b). In this consolidated appeal, the central question is
whether the admission of the defendant's statement that he was
attracted to younger boys -- a category that includes the victim
-- was reversible error because it amounted to impermissible
character or propensity evidence suggesting that the defendant
was likely to have committed the sexual assault. The defendant
also argues that the evidence was insufficient to support the
dangerous weapon conviction. We affirm.
Background. 1. The party incident. The first jury could
have found the following. On the evening of April 1, 2010, the
defendant attended a party at the townhouse of the victim's
mother, Mona. 1 The victim, Billy, lived in the townhouse with
Mona and his sister, Sarah. At the time of the incident, Billy
was nine years old and Sarah was twelve. During the party,
several adults -- including the defendant and Nirva Guirand, a
friend of the defendant and of Mona -- were gathered upstairs in
the mother's bedroom and drinking alcohol. At the relevant
time, Billy was asleep on the couch downstairs in the living
room. Sarah testified that she left her bedroom late at night
1
Pursuant to G. L. c. 265, § 24C, we employ a pseudonym for
the victim. To further insulate his identity, pseudonyms also
have been assigned to the family members discussed in this
opinion.
3
to go down to the kitchen. When she had partially descended the
flight of stairs, she saw Billy lying asleep on the living room
couch. 2 She saw that his shirt was raised and his pants were
pulled down mid-way. Sarah testified that the defendant was
leaning over Billy and licking his genital area. She testified
that lights were on in the living room and that she was able to
see the incident clearly. 3
Sarah returned upstairs and told Mona about what she saw,
generating substantial commotion in the household. After Billy
woke up, he told Guirand that the defendant had not touched his
leg and that he did not notice any change to his clothing or to
the sheet covering him while he was asleep. 4 (Mona and Sarah
testified that Billy was a sound sleeper.) The defendant did
not testify, but in a statement to the police, he said that on
the night in question he was intoxicated, and went downstairs
and smoked a cigarette in the back yard and spoke to Billy, who
was awake. The results of forensic testing of Billy's
underpants and pajama pants for sperm, seminal fluid residue,
2
Billy routinely slept on the couch rather than in his
bedroom.
3
Sarah was not wearing glasses when she discovered the
defendant and Billy on the living room couch. Sarah
acknowledged that her vision is blurry without her glasses. She
also testified that her vision was better at the time of the
incident than at trial.
4
Billy's conversation with Guirand was read into evidence
by stipulation.
4
and amylase (a component of saliva) were negative. The chemist
who processed the sexual assault evidence collection kit
testified that it is easy for amlyase to rub off or be washed
off clothing.
Immediately after the incident, Guirand went downstairs and
found the defendant in the back yard, smoking a cigarette. She
asked him if Sarah "might have seen him touching himself or
using the bathroom," and the defendant said no. Several days
after the incident, the defendant called Guirand by telephone.
In response to Guirand's question, "Did you touch [Billy]?" the
defendant replied, "I don't think so." Then the defendant
stated to Guirand that "lately he's been finding himself
attracted to younger guys," particularly between the ages of
nine and fourteen, because they had not yet "developed and . . .
started to have facial hair." 5
5
Guirand testified as follows on direct examination by the
prosecutor:
Q.: "During that conversation, . . . did [the defendant]
also tell you about a certain feeling that he had had
as of late?"
(Here defense counsel objected and was overruled.)
A.: "He said lately he's been finding himself attracted to
younger guys."
Q.: "Did he provide an age range?"
A.: "He said between fourteen and nine."
5
2. The arrest. The second jury had the following evidence
before them. On April 7, 2010, an arrest warrant was issued for
the defendant with respect to the April 1 incident. Detective
Beth Halloran of the Cambridge police department called the
defendant and asked him to meet to "discuss some paperwork."
She planned to arrest him at the meeting but did not inform him
of that. The defendant chose the location -- near Central
Square in Cambridge -- and asked to meet Detective Halloran
alone. Prior to this planned meeting, Detective Halloran had
had several telephone conversations and one face-to-face meeting
with him at the police station during her investigation. For
safety reasons, Detective Halloran arranged for three other
detectives, in plain clothes, to station themselves at various
locations surrounding the scene of the planned arrest.
When the defendant arrived at the agreed-upon location for
the meeting, at approximately 8:30 P.M., Detective Halloran and
the defendant recognized each other based on their previous
meeting. When the defendant approached Detective Halloran, who
was standing still, he kept walking. She testified as to their
interaction:
"He proceeded to continue walking past me, so I joined in
with his walk, and I said, 'Where are we going?' And he
Q.: "Did he explain or did he give a reason for that?"
A.: "He said he didn't like them once they developed and
they started to have facial hair."
6
said, -- I said, "What are we doing," and he said, 'Keep
walking.' So, I walked with him, and I said, 'Where are we
going,' and he said, 'We're going to the tracks.' And I
said, 'What tracks?'"
Detective Halloran was aware of nearby train tracks and joined
the defendant in walking toward them. One of the other police
officers, Detective James Diggins, began walking toward
Detective Halloran and the defendant. When they approached each
other, both officers took the defendant to the ground and then
told him that he was under arrest. The defendant initially
resisted but was quickly subdued.
When Detective Diggins first took hold of the defendant, he
noticed an object sticking out of the top of the backpack that
the defendant was wearing. When the defendant was forced to the
ground, both detectives noticed a knife on the ground outside of
the bag. The knife was later identified as a large kitchen
knife. It measured fourteen and one-quarter inches in total
length, including a nine-inch blade. There was no evidence that
the defendant ever held the knife during the meeting or arrest.
Discussion. 1. Defendant's statement. With respect to
the defendant's statement that he was attracted to young boys,
which was admitted over the defendant's objection (see note 5,
supra), the defendant argues first that it was impermissible
character or propensity evidence suggesting that he was likely
7
to have committed a sexual assault on a boy. 6 Second, the
defendant argues that, even if the statement were probative of
his motive, intent, or state of mind, it should have been
excluded because its unfair prejudicial effect substantially
exceeded its probative value. We disagree. 7
"[A]s a general rule, evidence of a person's character is
not admissible to prove that he acted in conformity with that
character on a particular occasion." Commonwealth v. Bonds, 445
Mass. 821, 829 (2006), quoting from Liacos, Brodin, & Avery,
Massachusetts Evidence § 4.4.1, at 130 (7th ed. 1999). But
otherwise inadmissible character evidence may be admitted for a
proper purpose, such as proving motive or intent. See
Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See also
Commonwealth v. Simpson, 434 Mass. 570, 579 (2001) (defendant's
statement showing state of mind admissible notwithstanding that
"in other circumstances [it] could tend to prove guilt by
evidence of bad character"). See generally Mass. G. Evid. § 404
6
The defendant also argues that the evidence was
impermissibly admitted as bad acts evidence. Regardless of
whether any bad acts evidence with respect to sexual acts would
have been admissible had it been introduced, the evidence in
question did not pertain to acts in the first instance: it
pertained only to the nature of the defendant's sexual
attraction.
7
Because the contested statement is the statement of a
party opponent, it could not be excluded on hearsay grounds.
Commonwealth v. Marshall, 434 Mass. 358, 365 (2001). See
Commonwealth v. Bright, 463 Mass. 421, 435 (2012) (statement of
party opponent is nonhearsay); Mass. G. Evid. § 801 (2014).
8
(2014). Whether evidence is relevant is "entrusted to the trial
judge's broad discretion." Commonwealth v. Simpson, supra.
The judge admitted the statement for a limited purpose.
Before the testimony was given, the judge correctly instructed
the jury, "You may consider it solely on the limited issue of
whether or not the defendant had a motive to commit the crime
that was charged in this indictment, and as to his state of mind
and intent." We agree with the trial judge that the statement
was relevant with respect to the limited issues of motive, state
of mind, and intent. The defendant's statement that he was
attracted to boys between the ages of nine and fourteen is
relevant to explaining why he would touch a nine year old boy
like Billy sexually and what the defendant might have been
thinking the night that the incident occurred. Not only did the
defendant make this statement within several days after the
incident, he did so in response to Guirand, his friend, asking
him whether he had touched Billy. Only after the defendant
answered, "I don't think so," did he proceed to explain that
recently he had been attracted to younger boys. That his
uncertain denial was followed with a statement that he was
attracted to young boys reveals that the attraction he described
was probative of a motive to engage in the alleged sex act and
of his state of mind at the time when the incident occurred.
See Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990),
9
quoting from Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957)
("An admission in a criminal case is a statement by the accused,
direct or implied, of facts pertinent to the issue, which
although insufficient in itself to warrant a conviction tends in
connection with proof of other facts to establish his guilt").
Just as "evidence of the commission of similar crimes by
the same parties though committed in another place, if not too
remote in time, is competent to prove an inclination to commit
the [acts] charged in the indictment . . . and is relevant to
show the probable existence of the same passion or emotion at
the time in issue," Commonwealth v. King, 387 Mass. 464, 470
(1982), quoting from Commonwealth v. Bemis, 242 Mass. 582, 585
(1922), so too is the defendant's statement about his sexual
attraction admissible to prove the "probable existence of the
same passion or emotion" at the time the incident occurred. Cf.
Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998)
(evidence of sexual acts admissible to show common plan or
scheme). It is plausible that the defendant may never have
acted on his stated proclivity, in contrast to a case involving
the admission of evidence of similar crimes -- where a defendant
has already committed those acts. But the evidence here is
sufficiently probative with respect to questions of motive,
intent, and state of mind that it survives the threshold inquiry
into relevance. See Commonwealth v. Sicari, 434 Mass. 732, 750
10
(2001) ("Evidence is relevant if it has 'a rational tendency to
prove an issue in the case,' or render a 'desired inference more
probable than it would be without [the evidence]'" [citations
omitted]).
Second, the defendant argues that even if there were a
proper purpose for the testimony, such as showing motive or
intent, it should not have been admitted because the prejudicial
effect substantially exceeded the probative value. We disagree.
"We review a judge's decision whether the probative value
of evidence is substantially outweighed by the danger of unfair
prejudice under the abuse of discretion standard." Commonwealth
v. Bishop, 461 Mass. 586, 596 (2012). See Mass. G. Evid. § 403
(2014). We will not overturn such a decision absent palpable
error. Commonwealth v. Bonds, 445 Mass. at 831.
Here, the judge carefully engaged in the required balancing
of prejudice and probative value. Compare Commonwealth v.
Little, 453 Mass. 766, 772 (2009). The judge acknowledged the
potential prejudicial effect and admitted the postincident
statement only after careful analysis as to its probative value.
Indeed, the judge excluded a second statement by the defendant,
made one year prior to the incident, that he was attracted to
young boys, because of its unduly prejudicial effect. See
Commonwealth v. Paulding, 438 Mass. 1, 12 (2002) (selective
admission of several of defendant's prior convictions indicative
11
of judge's proper balancing of prejudicial effect and probative
value). With respect to the statement that was admitted, the
judge provided a contemporaneous instruction, repeated in her
final charge to the jury, correctly limiting the use of the
statement to possible motives for the alleged act and the
defendant's state of mind and intent at the time of the
incident; she also instructed the jury explicitly that they
could not use the information for propensity purposes. See
ibid.The defendant's reliance on Commonwealth v. Darby, 37 Mass.
App. Ct. 650 (1994), and on Commonwealth v. LaSota, 29 Mass.
App. Ct. 15 (1990), is misplaced. The circumstances of those
cases bear little resemblance to those we address here. In
Darby, this court concluded that it was reversible error to
allow the Commonwealth to introduce two photographs: one of the
child victim fondling himself while naked and one of the
defendant clothed but with his erect penis exposed.
Commonwealth v. Darby, supra at 652, 655-656. With respect to
the photograph of the victim, we concluded that its relevance,
limited to the issue of the child's sexual knowledge, was
"marginal at best" and that there already was "a plethora of
evidence" on that issue. Id. at 654. We concluded that the
photograph of the defendant was "not, directly or inferentially,
relevant to any issue in the case." But it would have a
12
prejudicial effect, encouraging the jury to convict him because
he was a "lewd man." Ibid., quoting from Commonwealth v.
LaSota, supra at 27. While inferential leaps could not connect
the photographs in Darby to the issues in that case, here not
even a small jump is necessary to link the defendant's statement
to a central issue in this case: several days after the
incident the defendant acknowledged that he was sexually
attracted to a category of people that included the victim of
the alleged sexual assault. See Commonwealth v. Jaime, 433
Mass. 575, 579 (2001) ("[I]n balancing the probative value
against the risk of prejudice, the fact that evidence goes to a
central issue in the case tips the balance in favor of
admission").
Similarly, this court's conclusion in LaSota that the
admission of evidence that purportedly bore on sexual
proclivities was reversible error is a far cry from what is at
issue in this case. In LaSota, where the defendant was charged
with several sexual offenses against his minor daughter, we held
that the admission of a pamphlet extolling the virtues of incest
was reversible error. 29 Mass. App. Ct. at 17, 22, 28. We
concluded that the material had no relevance: the Commonwealth
did not establish a link between the pamphlet, found in the
defendant's attic among other papers, and the defendant's
beliefs or behavior. Id. at 25-26. In contrast with LaSota,
13
where there was "no evidence that the defendant . . . approved
of [the pamphlet's] content," id. at 25, there is no daylight
between the content at issue here and the defendant's own
beliefs: it is his own statement about his own attraction that
is at issue. Moreover, whereas the defendant in LaSota
testified that he received the pamphlet at least several years
before the claimed abuse began, id. at 23, here the defendant's
statement was made within several days of the incident and in
response to a friend's questions with respect to the incident. 8
LaSota was also "not a case in which the disputed evidence had
direct connection with the crime charged." Id. at 26. Contrary
to the defendant's contention, this case provides precisely that
sort of connection. The judge did not abuse her discretion in
admitting the defendant's statement to Guirand.
2. Dangerous weapon. General Laws c. 269, § 10(b), as
appearing in St. 1974, c. 649, § 2, prohibits a person, "when
arrested upon a warrant for an alleged crime," from being "armed
with or ha[ving] on his person, . . . a . . . dangerous weapon." 9
"The statute is designed to 'discourage[] the carrying of
8
We note again that, in her careful balancing of probative
value and prejudicial effect, the judge excluded evidence of a
similar statement the defendant made one year prior to the
incident, while admitting only the statement at issue here --
made within days of the incident.
9
The statute also prohibits the possession of specifically
defined weapons under any circumstances. G. L. c. 269, § 10(b).
The defendant was not charged under this provision.
14
dangerous weapons which can be used against arresting
officers.'" Commonwealth v. Turner, 59 Mass. App. Ct. 825, 827
(2003), quoting from Commonwealth v. Thompson, 15 Mass. App. Ct.
974, 974 (1983). "[T]he term 'dangerous weapon' embraces
objects that are dangerous per se, i.e., objects that are
'designed and constructed to produce death or great bodily harm'
-- objects, in other words, that are 'designed for the purpose
of bodily assault or defense' -- and objects that are dangerous
as used, i.e., 'those things that become dangerous weapons
because they are "used in a dangerous fashion."'" Commonwealth
v. Turner, supra at 828 (citations omitted). "The essential
question, when an object which is not dangerous per se is
alleged to be a dangerous weapon, is whether the object, as used
by the defendant, is capable of producing serious bodily harm."
Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).
This case turns on "whether the evidence permitted the fact
finder to conclude that the defendant used or handled the knife
in a manner that made it a dangerous weapon." 10 Commonwealth v.
Turner, supra at 829. The defendant argues that, because he
never removed the knife from his bag to use or even hold it, it
was not dangerous. We disagree.
10
The judge correctly instructed the jury that the kitchen
knife is not dangerous per se. The Commonwealth does not argue
to the contrary.
15
The defendant is correct that merely carrying a kitchen
knife, without more, would not be prohibited by the statute.
See id. at 830. However, this case is not like Turner where,
"[w]hatever the knife's potential for harm at other times and in
other circumstances, the defendant did not use it in a manner
that was capable of causing serious harm or even the
apprehension of serious harm." Id. at 829. In Turner, the
defendant's knife was folded in his back pocket, invisible to
the arresting officers, and the defendant consented to a
patfrisk because he had nothing "on him." Id. at 826. By
contrast, here, the defendant had positioned a large kitchen
knife such that its handle was protruding from the top of his
backpack, both making it visible and providing the defendant
easy access to an unsheathed knife even without removing the
backpack he was wearing. 11
The context of each arrest is important as well. In
Turner, the defendant was simply stopped on the street after the
driver of the vehicle he was riding in committed a traffic
violation, ibid.; here, the defendant was meeting at an arranged
location with a police officer whom he knew to be conducting an
investigation of him. Moreover, the defendant had asked
11
When the knife slid out of the bag -- after the officers
began to take the defendant to the ground -- it was unsheathed.
It is a reasonable inference that it was unsheathed while in the
bag, facilitating rapid access and use.
16
Detective Halloran to meet him alone and then asked her to walk
with him to a relatively secluded area, at night, from the busy
location at which they had agreed to meet. 12 The manner in which
the defendant carried the knife and the circumstances
surrounding his carrying the knife defeat any suggestion that he
was doing so with an innocent purpose. See Commonwealth v.
Blavackas, 11 Mass. App. Ct. 746, 748, 752-753 (1981) (kitchen
bread knife with eight-inch blade found in defendant's purse
would not support conviction under G. L. c. 269, § 10[b], if
defendant was carrying it "for an innocent purpose"). Under the
circumstances, even though the defendant never wielded the
knife, there was sufficient evidence for the jury to conclude
that the defendant used the knife "in a manner that was capable
of causing serious harm," placing him within the ambit of the
statute. Commonwealth v. Turner, supra at 829.
Judgments affirmed.
12
Even if the defendant only brought the knife for his own
protection rather than for offensive use, that would be
sufficient, under the circumstances, to support the conclusion
that it was a dangerous weapon. See Commonwealth v. Thompson,
15 Mass. App. Ct. at 974 (steak knife carried in pocketbook and
intended for protection was dangerous weapon).