Commonwealth v. Oppenheim , 86 Mass. App. Ct. 359 ( 2014 )

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12-P-1673 Appeals Court
COMMONWEALTH vs. DAVID OPPENHEIM.1
No. 12-P-1673.
Hampshire. May 9, 2014. - September 24, 2014.
Present: Cohen, Sikora, & Agnes, JJ.
Evidence, Admissions and confessions, Authentication,
Credibility of witness, Cross-examination. Practice,
Criminal, Admissions and confessions, Instructions to jury,
Reasonable doubt. Jury and Jurors. Witness, Credibility,
Cross-examination.
Indictments found and returned in the Superior Court
Department on July 13, 2010.
The cases were tried before Mary-Lou Rup, J.
David J. Nathanson (Dan A. Horowitz with him) for the
defendant.
Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.
SIKORA, J. A Superior Court jury convicted the defendant,
David Oppenheim, of five counts of rape of a child. See G. L.
1
Justice Sikora participated in the deliberation on this
case and authored the opinion prior to his retirement.
2
c. 265, § 23. He appeals upon multiple grounds, but argues
principally that the trial judge should have instructed the jury
that, before they could consider a confession contained in an
instant message (IM) conversation,2 the Commonwealth needed to
prove beyond a reasonable doubt that the defendant authored the
confession. For the following reasons, we affirm.
Background. 1. Commonwealth's evidence. From the
Commonwealth's main witnesses, the jury heard the following
evidence. We reserve certain details for discussion of the
appellate issues. In 2002, the defendant and his wife founded a
community theater enterprise entitled the Pioneer Arts Center of
Easthampton (PACE or the center). As the center's chief
executive, the defendant directed musical theater and taught
acting classes.
The victim, Ann Ross,3 testified at length. She first
attended PACE activities in the fall of 2004 at the age of
thirteen. She remained actively involved at the center over the
next four years. She first performed volunteer and intern
2
Instant messaging is "a form of computer communication in
which individuals hold an online conversation via the
[I]nternet. . . . [The] message is transmitted instantaneously
. . . allow[ing] both parties . . . to respond immediately."
Commonwealth v. Disler, 451 Mass. 216, 218 n.3 (2008), quoting
from State v. Lott, 152 N.H. 436, 437 (2005).
3
A pseudonym.
3
chores, then took acting lessons, and ultimately assumed
significant roles in musical productions.
In the fall of 2005, when she was fourteen years old, Ross
accepted the defendant's offer of private acting lessons. The
classes usually took place in the defendant's office or the
theater. The defendant told Ross that, to improve her acting
skill, she needed to experience physical sensations beyond the
knowledge of her age group. He rubbed her arms and kissed her
lips, face, and neck. He told her that she was "really
talented," that she was "going to go far[,] and that he was
going to make sure that that happened." He instructed her not
to tell anybody about their lessons because "society doesn't
understand what I'm doing here."
Ross testified that the sexual activity intensified over
the next two years. The defendant touched Ross "everywhere,"
including her vagina; performed oral sex on her; engaged her in
anal and vaginal sex; and directed her to perform oral sex on
him. Ross had no prior experience in these activities. They
occurred usually at the defendant's office or home, or at the
theater.
The Commonwealth's second principal witness was Ryan
DiMartino.4 DiMartino had attended PACE's musical theater
4
At trial, in February, 2012, DiMartino testified that he
had been born and raised as a female, but that after the events
4
training during the summers of 2005, 2006, and 2007, at
fourteen, fifteen, and sixteen years of age. During those years
DiMartino was known as Emily and lived as a female. In the
course of the summers, DiMartino met, and developed an
undisclosed romantic attraction toward, Ross. During those
periods DiMartino observed Ross and the defendant often alone in
close working proximity.
During the school year of 2007-2008, at age sixteen,
DiMartino performed volunteer work at PACE. On Wednesday
afternoons and evenings DiMartino cleaned and prepared the
theater for evening open microphone activities. The defendant
would admit DiMartino to the locked theater. They began online
chats in October. As of the end of 2007 and the beginning of
2008, the conversations between them became personal and then,
according to DiMartino, "more flirtatious and sexual."
During a Wednesday afternoon in early February of 2008, at
the locked theater, the defendant kissed and caressed DiMartino.
That conduct became a pattern during private Wednesday afternoon
chores at the theater. The defendant proposed also that they
engage in sexual relations.
at issue he had identified as transgender, transitioned to life
as a man, and in October of 2010 changed his name to "Eli Ryan
DiMartino." For consistency, we shall use his trial-time
identity and, as necessary, employ masculine pronouns.
5
On February 13, the defendant suggested to DiMartino that
he (the defendant) open a new online account with a new online
name to mask his identity against any suspicion of DiMartino's
parents or others about their IM traffic. The defendant and
DiMartino changed the defendant's IM identity to the name
"Allie."
On or about March 9, the defendant and DiMartino discussed,
in person, DiMartino's attraction to Ross. The defendant urged
DiMartino to pursue it. DiMartino asked the defendant whether
any sexual activity "was happening between [Ross and him]." The
defendant responded that they could "talk about it another time"
because he "wasn't sure if he trusted [DiMartino] enough to tell
[him] everything."
Late the following evening of March 10, the defendant
opened an IM conversation with DiMartino about his (the
defendant's) relationship with Ross. In the course of the
extended IM conversation, the defendant related in physical
detail a first seduction of Ross at about age fourteen in the
sound booth of the PACE theater and the accomplishment of both
vaginal and anal penetration of her on that occasion. The IM
related that the defendant had maintained a pattern of sexual
intercourse with Ross through the time of her relationship with
one boyfriend and into the beginning of her relationship with a
successor (college) boyfriend.
6
Subsequently, on a Wednesday afternoon at the PACE theater,
the defendant told DiMartino again that he (the defendant) on
multiple occasions had engaged in vaginal and anal sex with Ross
in the office and in the light booth of the PACE theater
complex.
Carissa Dagenais was the Commonwealth's third principal
witness. From 2004 to late 2006, at ages fifteen to seventeen,
she too performed volunteer work at PACE, and took an acting
class from the defendant. She was familiar with Ross as another
member of the acting class.
During her first year of college (2007-2008), Dagenais
frequently stayed at the defendant's house because she was
"having a hard time at home." In the summer of 2008, she asked
the defendant why she no longer saw Ross at PACE. He answered
that Ross and he had once had a "full-on sexual relationship,"
that she "had started seeing someone else," and that they had
not enjoyed their collaboration in their last musical
production.
In June of 2010, after publication of the charges against
the defendant, he asked Dagenais to appear as a character
witness on his behalf. She at first agreed. In July of 2010,
she decided to report her information about the defendant's
relationship with Ross to the police. In a telephone
conversation with the defendant, she informed him of that
7
intention. He acknowledged the wrongfulness of his actions, but
described the law and his potential punishment as unfair. He
told her that her testimony would ruin his and his family's
lives.
The Commonwealth offered the testimony of two other former
PACE students as pattern-of-conduct evidence. Laura Berkeley5
began an internship in the fall of 2003 at age seventeen. The
defendant offered her private acting lessons and proposed the
technique of accelerated "primitive" experiences for
professional development. The tutorial resulted in sexual
activity (fellatio, cunnilingus, and digital and vaginal
intercourse) in the PACE office area, the green room, and the
sound booth, and at the defendant's home. Her internship
concluded in the spring of 2004.
Marit Bjerkadal participated at PACE during the period of
2003 into early 2005 at ages sixteen, seventeen, and eighteen.
She performed volunteer chores to defray the cost of acting
lessons for her younger sister and herself. She testified that,
in the winter of 2005, the defendant approached her privately,
massaged her shoulders, and proposed payment by sexual favors.
She became frightened and left PACE shortly afterward.
5
A pseudonym.
8
2. Defendant's evidence. Through the testimony of the
defendant's wife and multiple PACE attendees, the defense
emphasized that the defendant and his wife had shared the
management of PACE and often worked there from early morning to
late evening. Their presence on site, together or separately,
depended on the variable circumstances of productions, classes,
maintenance, and appointments, and was generally unpredictable.
The level of activity, the presence of volunteers on irregular
schedules, and the accessibility of the theater to as many as
fifteen persons with keys would preclude the degree of privacy
and secrecy needed to carry out the patterns of conduct alleged
by the Commonwealth. The defendant testified. He denied the
accusations of sexual activity by all students.
Analysis. 1. Admissibility of March 10 IM confession.
Before trial both the defendant and the Commonwealth submitted
motions in limine addressing the admissibility of IM
conversations between the defendant and DiMartino, particularly
the March 10 narration of the first instance of the defendant's
sexual intercourse with Ross. The judge conducted an
evidentiary hearing at which DiMartino testified to the same
information later offered at trial concerning the March 10
communication, including commencement of such messages in
October of 2007, and the online name change and preliminary
discussions of February 13 and March 9, respectively.
9
When the prosecutor asked DiMartino what evidence convinced
him that the defendant had authored the March 10 IM, DiMartino
answered that "the tone and language was [what] I was used to
having with [the defendant], the way we would talk in the [PACE]
cafe." DiMartino added that the IM referred to prior in-person
conversations between the two, including discussions about
DiMartino's boyfriend, his mother's anger about his late-night
presence at the defendant's house, and the defendant's sexual
relationship with his wife.6
Defense counsel asked the judge to exclude the IM
conversations in their entirety for lack of proof of their
authenticity, especially because the Commonwealth had not
conducted a forensic examination of DiMartino's computer. The
judge concluded that sufficient evidence "allow[ed] a reasonable
jury to find by a reasonable preponderance of the evidence that
the defendant is the author of the language attributed to him"
in the IM conversations. She allowed the Commonwealth's motion
6
On cross-examination, DiMartino acknowledged that other
people worked in the defendant's office. DiMartino conceded
that no one had examined his computer, that he "suppose[d]"
hacking into a person's instant messenger account "can be done
relatively easily," and that "[i]t's possible" that "even if you
don't hack into someone's account, it's very easy to download
the [IM] communication and just change the words around."
DiMartino admitted also that he did not produce all of his IM
communications with the defendant when he first spoke to the
police.
10
to admit them, and denied the defendant's motion to exclude
them.
At trial, defense counsel objected to the admissibility of
the IM conversations again for lack of authentication. The
judge again rejected the argument:
"I'm satisfied, based on the earlier testimony from
[DiMartino], as well as today's testimony, that there is
sufficient . . . evidence corroborating the fact that this
is a conversation between [DiMartino] and the defendant to
make it admissible. Issues as to whether or not there
could have been someone else who was typing this in and
responding go to the weight and not the admissibility.
"As before, I refer to, I believe, it's the Purdy decision
[Commonwealth v. Purdy, 459 Mass. 442 (2011)], as setting
forth the foundation that needs to be made before this type
of electronic conversation can be admitted."
She informed the parties that she intended to instruct the
jury that, before they could consider an IM conversation between
the defendant and DiMartino, they must be satisfied by a
preponderance of the evidence that "it was the defendant who
[was] on the other side of this conversation." That formulation
followed the language of Commonwealth v. Purdy, 459 Mass. at
447. Accord Mass. G. Evid. § 901(b)(11) (2014). She rejected
defense counsel's position that "since it's a statement of the
defendant, [the jury] should have to be persuaded beyond a
reasonable doubt that it's the defendant." Before the offer in
evidence of DiMartino's description of the March 10 IM
confession, she instructed the jury to find, by a preponderance
11
of the evidence, the defendant to be the author of the IM
confession before they considered its contents.7 DiMartino read
aloud portions of both the February 13 (name change) and March
10 (first encounter) IMs; the Commonwealth introduced the text
of both in evidence.
At the conclusion of all the evidence, defense counsel
repeated the request for an instruction requiring the jury to be
satisfied beyond a reasonable doubt of the defendant's
authorship of the IMs.8 The judge denied the request. She
7
"Please understand that before you can consider these
conversations at all, you must first be persuaded that the
person on the other side of this conversation is, in fact, the
defendant. The prosecution has to prove that to what's called a
preponderance of the evidence, which means that the evidence
must convince you that it's more likely true than not that the
person on the other end of this conversation, the person who is
authoring the other side of the conversation was, in fact, the
defendant. If you're not convinced that the person on the other
end of the conversation -- if you're not convinced that it's
more likely true than not that the other person on the
conversation was, in fact, the defendant, then you may not
consider this conversation at all against the defendant. So you
have to make that preliminary decision as to whether or not the
evidence proves it's more likely true than not that the
defendant is the person at the other [end] of this conversation
before you may consider any of this conversation at all against
the defendant. And in making that decision, you may consider
all of the circumstances about which you will hear evidence
regarding the time of the conversation and other information as
well."
8
"You have heard testimony that certain electronic messages
were sent by the defendant. Before you may even consider these
messages as evidence, you must be satisfied beyond a reasonable
doubt that the defendant actually created and transmitted these
messages. If you do not find that these messages were created
12
instructed the jury that they could consider an IM conversation
if "convince[d]" that the defendant "was the author of those
portions of the conversation . . . attributed to him . . . . If
the evidence does not persuade you that [the defendant] was the
author of those statements, you must disregard the instant
message conversation in your deliberations."
On appeal the defendant pursues the contention that the IM
confession of March 10 requires a finding of authorship beyond a
reasonable doubt (1) because confessions carry potent probative
force, and (2) because online communications carry a
susceptibility to impersonation or fabrication, especially in
the absence of forensic confirmation. For several reasons we
decline to extend the standard of proof beyond a reasonable
doubt to the admissibility of online admissions and to the
jury's acceptance of their authorship.
a. Preliminary facts. It is axiomatic that the
prosecution must establish each prima facie element of a crime
by proof beyond a reasonable doubt. However, the "prevailing
general rule" in the Commonwealth is that the preponderance of
the evidence standard applies to resolve "preliminary facts
bearing on conditional or logical relevance." Commonwealth v.
Bright, 463 Mass. 421, 428, 432 (2012). See Commonwealth v.
by the defendant, you should disregard the messages and any
testimony about them."
13
Rosenthal, 432 Mass. 124, 127 n.4 (2000) ("Although the
Commonwealth must, of course, prove all essential elements of
the crime beyond a reasonable doubt . . ., preliminary questions
of fact need only be proved by a preponderance of the
evidence"); Commonwealth v. Toon, 55 Mass. App. Ct. 642, 655
n.18 (2002) ("The Commonwealth need not prove each subsidiary
fact beyond a reasonable doubt before an inference is permitted
as to an essential element of the offense. . . . Only the
elements of the offense need be proven beyond a reasonable
doubt"). See also United States v. Holmquist, 36 F.3d 154, 168
(1st Cir. 1994) (rejecting argument that proponent must
establish authentication beyond a reasonable doubt). Although
we recognize that the "stronger the link between preliminary and
ultimate factfinding, the greater the danger that error in the
former will distort the reliability of the latter," Saltzburg,
Standards of Proof and Preliminary Questions of Fact, 27 Stan.
L. Rev. 271, 283 (1975), we are not persuaded to require proof
beyond a reasonable doubt of the preliminary fact of authorship
of electronically transmitted confessions. Several
considerations lead to that conclusion.
First, as a matter of authority, the Supreme Judicial Court
has concluded that, before admitting an electronic communication
in evidence, a judge must determine whether sufficient evidence
exists "for a reasonable jury to find by a preponderance of the
14
evidence that the defendant authored" the communication.
Commonwealth v. Purdy, 459 Mass. at 447. See Mass. G. Evid.
§ 901(b)(11) & Note (2014). Care & Protection of Laura, 414
Mass. 788, 792 (1993) ("Thus, in criminal cases, the heightened
burden of proof is not applied to subsidiary facts, but rather
only to the elements of the crime charged"). We agree with the
trial judge's conclusion that Purdy strongly indicates that the
preponderance of the evidence standard governed the jury's
determination whether the defendant authored the IM confession.
As argued by the Commonwealth in its brief, "It makes no sense
for a judge to ask herself whether a jury could find by a
preponderance of the evidence that the defendant sent the IMs
only later to instruct the jurors that they must [make this
finding] beyond a reasonable doubt." See Commonwealth v.
Bright, supra (rejecting proposed rule that "would result in the
judge and jury each applying a different standard in determining
whether to admit the out-of-court statements of coventurers").
Furthermore, the preponderance of evidence standard applies
to the admissibility and jury's consideration of facts even
highly probative of guilt. The United States Supreme Court has
held that a "guilty verdict is not rendered less reliable or
less consonant with [the standard of proof beyond a reasonable
doubt] simply because the admissibility of a confession is
determined by a less stringent standard." Lego v. Twomey, 404
15
U.S. 477, 487 (1972). See Bourjaily v. United States, 483 U.S.
171, 175 (1987) (admissibility of evidence may hinge on
preliminary factual questions resolved by proof by reasonable
preponderance). See also Commonwealth v. Azar, 32 Mass. App.
Ct. 290, 292, 298-302 (1992), S.C., 435 Mass. 675 (2002), in
which the jury convicted the defendant of murder in the second
degree upon evidence that included his prior bad acts of
battering the victim. On direct appeal, Azar argued that the
trial judge wrongly failed "to instruct the jury that prior bad
acts of the defendant . . . had to be proved beyond a reasonable
doubt." Id. at 309. Despite the inculpatory force of prior bad
acts, we rejected the proposed necessity of their proof beyond a
reasonable doubt. Ibid.9
b. Confirming circumstances. In Commonwealth v. Purdy,
supra at 449, the court approved of a reasonable preponderance
standard of admissibility of electronic communications because
9
The defendant cites Commonwealth v. Tucker, 189 Mass. 457
(1905), in support of a requirement that a jury find authorship
of an inculpatory communication beyond a reasonable doubt. In
that instance the Commonwealth introduced handwritten sales
slips to show that the defendant had authored a separate
document. Id. at 470. The judge instructed the jury that
"unless the Commonwealth shows by . . . proof beyond a
reasonable doubt, that the writing upon these slips was actually
made by the defendant, . . . the jury should wholly disregard
them and all the great body of evidence which they have heard
about them." Id. at 473. The Supreme Judicial Court disposed
of the appeal on other grounds; it did not reason or hold that
the Commonwealth must prove authorship beyond a reasonable
doubt. Id. at 475.
 16
"confirming circumstances" beyond the sender's self-
identification tended to corroborate the authenticity of the
message from the apparent author. DiMartino provided such
circumstances for the March 10 IM. They included the familiar
tone of the exchange, the sender's references to prior
discussions with DiMartino about DiMartino's boyfriend's height,
DiMartino's mother's anger, the height and personal habits of
the sender's wife, the sender's recent decision to shave his
beard, the location of DiMartino's bedroom window at home, the
sender's approaching appointment with a client in South
Deerfield, and mention of the sender's son. DiMartino knew of
these elements and could have manufactured their appearance in
the prolonged IM conversation over its intermittent span of
almost four hours. However, that effort would have been
elaborate and generally inexplicable.
c. Humane practice analogy. We have weighed the analogy
proposed by the defendant to the Massachusetts humane practice
rule. That instruction directs a jury to disregard
incriminating statements attributed to a defendant unless the
Commonwealth proves beyond a reasonable doubt that the defendant
made the statements voluntarily. See Commonwealth v. Tavares,
385 Mass. 140, 149-150, cert. denied, 457 U.S. 1137 (1982);
Commonwealth v. Watkins, 425 Mass. 830, 834-835 (1997). The
defendant correctly notes that the "usual terms" of the
17
instruction forbid jurors to consider incriminating statements
unless persuaded "beyond a reasonable doubt, after considering
all the evidence, that the defendant had made the statements and
that they were voluntary as a 'product of his own free will and
his rational intellect'" (emphasis supplied). Commonwealth v.
Almonte, 444 Mass. 511, 522 (2005). See Commonwealth v.
Watkins, supra at 835.10
However, the humane practice rule "responds to two specific
concerns" not present here. Commonwealth v. Bright, 463 Mass.
at 433. One is the inducement of an admission or confession "by
trained interrogators wielding the authority of the State."
Ibid. The rule stands guard against the powerful evidentiary
effect of any guile, pressure, or coercion employed by
governmental interrogation. The second is the constitutional
policy of art. 12 of the Massachusetts Declaration of Rights
prohibiting the compulsion of an accused to "furnish evidence
against himself." Commonwealth v. Hoyt, 461 Mass. 143, 152 n.11
(2011), quoting from art. 12 of the Massachusetts Declaration of
Rights.. In this case, the IMs at issue passed between two
private individuals engaged in voluntary communication. Both
the letter and the purpose of the humane practice rule appear
inapplicable. We see no inclination of the court in the Purdy
10
For an excellent synopsis of the rule, see Brodin &
Avery, Massachusetts Evidence § 12.1, at 644-647 (8th ed. 2007).
18
or the Bright decisions to extend an elevated standard of proof
for admissibility and ultimate fact finding to general
electronic messaging between private communicants in voluntary
circumstances.
Finally, we conclude that the judge correctly conveyed the
standard of reasonable preponderance to the jury in her final
charge. During DiMartino's testimony, she properly instructed
the jury that "the evidence must convince you that it's more
likely true than not" that the defendant authored the IMs
attributed to him. Although the final charge instructed the
jury to be "convince[d]" or "persuade[d]" by the evidence, we
are satisfied that, after receipt of the contemporaneous and
final instructions, the jury understood the duty to find it
"more likely true than not" that the defendant authored the IM
confession before they could consider it. See, e.g.,
Commonwealth v. Cryer, 426 Mass. 562, 572 (1998) ("In
determining the propriety of a jury instruction, we must
consider the instruction in the context in which it was
delivered, in order to determine its probable effect on the
jury's understanding of their function"). In particular, the
use of the word "convince[d]," if anything, connotes a
requirement greater than a mere reasonable preponderance.
In sum, in response to an objection to the authenticity or
authorship of a self-inculpatory electronic message, the judge
19
will determine its admissibility and the jury its credibility by
a reasonable preponderance of the evidence. Counsel will be
able to contest both issues by argument regarding the presence
or the absence of confirming circumstances.
2. Witness character evidence. The defendant argues that
the prosecutor improperly elicited testimony of the "good
character and good works" of multiple prosecution witnesses,
including Ross, DiMartino, Dagenais, Berkeley, and Bjerkadal;
and that in closing comments the prosecutor improperly exploited
that testimony "to bolster the credibility" of those witnesses.
The prosecutor did call for testimony of those witnesses'
educational achievements, professional aspirations, and
extracurricular activities. In particular she established that
each of them had gone forward to serious college programs in the
arts or other disciplines.
As 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). See
Mass. G. Evid. § 404(b) & Note (2014). In this instance the
defendant did not object to the introduction of the credentials
of the enumerated prosecution witnesses. Consequently we
inspect the issue for the presence of error and a resulting
20
substantial risk of a miscarriage of justice; we assess the
evidence as a whole, and consider (i) the strength of the
Commonwealth's case, (ii) the precise nature of the claimed
error, (iii) the significance of the error, and (iv) the
possibility that the omission of objection resulted from a
reasonable tactical decision. Commonwealth v. Azar, 435 Mass.
at 687. Under those criteria, relief is rare. See, e.g.,
Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).
Here, if we assume without deciding that some excessive
credentialing reached the jury, it would not approach the level
of the requisite substantial risk. First, the strength of the
Commonwealth's case was considerable. Five percipient witnesses
testified to a pattern of conduct. The jury assessed each
witness's credibility and the credibility of the defendant, all
under direct and cross-examination. The jury received evidence
of an electronic confession and testimony of four other oral
admissions from DiMartino and Dagenais. The significance of
incremental biographical data was not appreciable amid the total
evidence.
Second, defense counsel made tactical use of DiMartino's
crowded curricular and extracurricular agenda during involvement
with PACE. Defense counsel cross-examined him vigorously to
propose that these augmented activities and certain personal and
21
family matters kept DiMartino occupied, stressed, and removed
from events at the center.
The prosecutor's references to the subsequent
accomplishments of the witnesses in closing argument did not
constitute error, and certainly not error creating a substantial
risk. The rule is that a "prosecutor may make a fair response
to an attack on the credibility of a government witness."
Commonwealth v. Chavis, 415 Mass. 703, 713 (1993), citing
Commonwealth v. Simmons, 20 Mass. App. Ct. 366, 371 (1985). See
Commonwealth v. Smith, 404 Mass. 1, 7 (1989). In his
immediately preceding summation, defense counsel had
characterized the prosecution's main witnesses as untrustworthy
"actresses."11 The prosecutor was entitled to cite their
achievements as a responsive indication of their reliability.
3. Cross-examination of DiMartino. Because the prosecutor
elicited favorable background information from DiMartino, the
judge permitted defense counsel "some leeway" for impeachment of
11
He argued:
"Let's never lose sight of the fact, ladies and
gentlemen, that all of these people that testified in this
case, they're all little actresses, they're all into the
drama. And, when you have a place like PACE that accepts
everyone, that's open to everyone, you're going to draw
people with baggage. You're going to draw people like Ryan
DiMartino and Carissa Dagenais. People who I suggest to
you are unstable people. We don't screen people when they
come to PACE. They accepted pretty much everyone. You're
going to attract people like Laura [Berkeley]."
22
his character. Defense counsel proposed a range of subjects.
The judge allowed all but two: DiMartino's involvement in self-
mutilation (cutting) and bondage. The judge did not consider
self-mutilation to be relevant, and feared that testimony about
bondage would "inflame the jury." Defense counsel objected to
the restriction; we therefore review the issue for prejudicial
error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
"The established rule is that an appellate court will not
overrule a trial judge's determination as to the proper scope of
cross-examination unless the defendant shows a clear abuse of
discretion and prejudice." Commonwealth v. Crouse, 447 Mass.
558, 572 (2006). See Mass. G. Evid. § 611(b)(1) & Note (2014).
Here the judge permitted defense counsel to question DiMartino
about multiple sensitive topics, including struggles with gender
identity and change, the deaths of family members, depression
and medication, and multiple sexual preferences and practices.
The judge reasonably could draw a line short of questions
regarding self-mutilation and bondage upon the ground that
prejudicial impact then overrode probative value. That
limitation did not abuse discretion or create any error. Any
putative error would have had little or no effect on the
23
verdicts. See Commonwealth v. Flebotte, supra; Commonwealth v.
Graham, 431 Mass. 282, 288 (2000).12
4. Empanelment of students. General Laws c. 234A, § 3,
inserted by St. 1982, c. 298, § 1, provides that "[n]o person
shall be exempted or excluded from serving as a grand or trial
juror because of . . . occupation." In Commonwealth v. Brown,
449 Mass. 747, 772 (2007), the court interpreted the statute to
mean that "[s]tudents are not to be excused simply by virtue of
their occupation. As with any other hardship excuse[s], those
for students must be based on an individualized finding and not
a blanket rule." On appeal the defendant contends that the
judge "systematically excused" students and as a result created
a substantial risk of a miscarriage of justice because college-
age jurors more likely would understand the susceptibility of
instant messaging to falsification.
Jury selection began on January 23, 2012, and consumed
almost five days. The judge informed each day's venire that the
trial would extend into early February. On each morning she
advised the venire generally that "this county [Hampshire] [has]
12
We have considered the defendant's remaining evidentiary
arguments (1) that the judge wrongly excluded testimony about a
Web log (blog) post from Dagenais undermining her credibility,
and (2) that the judge wrongly permitted cross-examination of
the defendant about an electronic mail (e-mail) photograph
belatedly disclosed by the Commonwealth. Neither ruling
constituted error causing prejudicial harm to the defendant.
24
a large number of students," and that "if you're a full-time
student and you feel it would be a real hardship for you to miss
that many classes, you should bring that to my attention,
because that could certainly be grounds for excusing you." This
phrasing remained consistent for each venire.13
Over the five-day empanelment the judge excused a total of
nineteen students for hardship, seventeen college students and
two high school students. Defense counsel did not object to any
of the excusals. The judge seated one student as a juror.
("I'm a student but I think I can handle the hardship.")
The assertion of improper systematic exclusion for
occupation fails upon two independent grounds. First, G. L.
c. 234A, § 74, inserted by St. 1982, c. 298, § 1, requires
prompt objection by a party to any "irregularity or defect" in
the empanelment process.14 "Under [that provision], a defect in
jury empanelment does not warrant reversal unless a defendant
13
Hampshire County contains Amherst College, Hampshire
College, Mount Holyoke College, Smith College, and the
University of Massachusetts at Amherst.
14
In relevant part, the statute reads:
"Any irregularity in . . . selecting, . . . excusing, . . .
[or] impanelling . . . jurors; . . . or any defect in any
procedure performed under this chapter shall not be
sufficient . . . to set aside a verdict unless objection to
such irregularity or defect has been made as soon as
possible after its discovery or after it should have been
discovered and unless the objecting party has been
specially injured or prejudiced thereby."
25
objects to it 'as soon as possible after its discovery or after
it should have been discovered and unless [he] has been
specially injured or prejudiced thereby.'" Commonwealth v.
Vuthy Seng, 456 Mass. 490, 495 (2010), quoting from G. L.
c. 234A, § 74. See Commonwealth v. Mora, 82 Mass. App. Ct. 575,
578-579 (2012). The defendant did not object to the excusal of
any student and has not substantiated any prejudice beyond the
general hypothesis of his loss of the students' special online
savvy.
If timely objection had preserved the merits, the record
would not show a violation of G. L. c. 234A, § 3. The judge did
not confer a categorical exemption on students. She instead
identified full-time student status as an available, but not
automatic, ground of hardship and excusal. The initiative
remained with the student. Of the nineteen excusals, fifteen
students brought their hardship status to the judge's attention
by raising their juror identification cards. The judge's
respect for their requests was reasonable. The defendant has
not argued that a one-to-two-week absence from classes would not
qualify as a hardship.
Judgments affirmed.