Commonwealth v. Jeffrey E. Knight. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-547
COMMONWEALTH
vs.
JEFFREY E. KNIGHT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was a middle-school teacher. Following in-
class incidents involving the same victim at different ages, a
jury convicted the defendant of counts two and three of a four-
count complaint, charging indecent assault and battery on a
child under fourteen and indecent assault and battery in
violation of G. L. c. 265, §§ 13B and 13H. A second count
alleging indecent assault and battery on a child under fourteen
involving the same victim (count one) was dismissed at the
request of the Commonwealth, and the jury returned a not guilty
verdict on an additional count charging assault and battery
(count four). We consider both the defendant's direct appeal
from the judgments of conviction and his appeal from the order
denying his motion for a new trial and request for
postconviction discovery. We affirm.
Background. The victim, whom we will call Maya, was a
student in the defendant's eighth-grade science, technology,
engineering, and mathematics (STEM) class and was thirteen at
the time of the first alleged assault and fourteen at the time
of the second. The class involved hands-on work and "kind of
shop stuff." Maya testified that she felt uncomfortable in the
defendant's class when he looked down her shirt, which he did to
girls "every time [they] were cleaning up," and that, during an
eighth-grade project with Legos that formed the basis for count
three (Lego incident), he came to stand behind her, straddling
her back leg, with his body pressed against a portion of her
back and her buttocks. Maya testified that the defendant often
positioned himself against her like this.
As to the conduct alleged in count two, Maya testified
that, in December of eighth grade, she was using a handsaw to
cut wood as part of a sled-making project when she asked the
defendant to finish a cut for her (sled incident). The
defendant pressed his body against the back of Maya's body and
she could feel his erect penis in the crack between her
buttocks.
Additional facts relevant to specific arguments are
detailed below.
2
Discussion. The defendant has raised many arguments.
Specific arguments not mentioned have been considered and
determined not to require discussion. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
1. Prior bad acts. Evidence of a defendant's prior bad
acts may be admissible for nonpropensity purposes, such as
proving "motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident."
Commonwealth v. Teixeira, 486 Mass. 617, 626 (2021), citing
Mass. G. Evid. § 404(b)(2) (2020). "Even where relevant, prior
bad act evidence 'will not be admitted if its probative value is
outweighed by the risk of unfair prejudice to the defendant.'"
Id., quoting Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).
Such evidence has probative value when it "show[s] a common
pattern or course of conduct" and is "sufficiently related in
time and location to be logically probative." Commmonwealth v.
King, 387 Mass. 464, 472 (1982).
In weighing the risk of unfair prejudice, a court "tak[es]
into account the effectiveness of any limiting instruction."
Commonwealth v. Chalue, 486 Mass. 847, 866 (2021). "On appeal,
the decision will stand absent a clear error of judgment in
weighing the factors relevant to the decision, such that the
decision falls outside the range of reasonable alternatives"
(quotation and citation omitted). Teixeira, 486 Mass. at 627.
3
We grant trial judges "great latitude and discretion" to weigh
the probative value of bad act evidence against the potential
for prejudice (citation omitted). Chalue, supra at 869.
a. Pretrial ruling, Althea's prior bad act testimony.
Before trial, the Commonwealth moved to admit bad act testimony
from three named witnesses: Althea, Edith, and Jade (all
pseudonyms). The defendant filed a motion "to preclude the
Commonwealth from introducing any bad act evidence and all
references to any of the defendant's prior or subsequent bad
acts as impeachment evidence"; it named no witnesses. Althea,
Edith, and Jade later appeared on the Commonwealth's witness
list.
At the hearing, defense counsel introduced the issue by
telling the judge, "[t]he big issue in the prior bad acts is
going to be they want to call . . . [Althea]." The remainder of
that hearing and the judge's written order addressed only
Althea's anticipated testimony. During the hearing, the judge
said, "[i]f there's a pattern of conduct with [Maya] where he
had alleged with other girls gone up behind them during a school
project, pressed his body against them, and they felt an erect
penis that is a modus operandi, that is a pattern of conduct
that I will allow in." In his ruling, the judge excluded as
unfairly prejudicial additional bad act testimony from Althea
4
related to an incident where the defendant allegedly grabbed her
breast in a back room, away from the rest of the class.1
We review the admission of Althea's prior bad act testimony
for prejudicial error and find none. See Commonwealth v. Grady,
474 Mass. 715, 719-720 (2016). Althea testified that, like
Maya, she had been a student in the defendant's seventh-grade
STEM class; like Maya, she felt the defendant press his erect
penis against her buttocks; like Maya, this happened to Althea
when she was working on shop-type projects. Before admitting
this testimony, the judge properly balanced the probative value
against the prejudicial nature and concluded that the evidence
"suggests that, rather than being an isolated incident, the
[d]efendant's conduct towards [Maya] was part of his modus
operandi for selecting and assaulting female students under the
pretext of helping them with class work," and was admissible "to
negate the defenses that the [d]efendant's conduct was
accidental or mistaken for assaultive when it really was not."
The judge noted that the behaviors against Althea and Maya "are
1 We are not persuaded that "the prosecutor incorrectly
represented that [Althea] would be the only prior bad act
witness." This position is inconsistent with the Commonwealth's
witness list and with argument at the prior bad act hearing, and
is not the only reading of the cited portion of the trial
transcript. While the record amply demonstrates that the
parties devoted most of their attention to litigating the
admissibility of Althea's testimony about the defendant's bad
acts, it also demonstrates that the defense were on notice of
the other witnesses.
5
sufficiently connected because they are factually similar in a
number of key ways," including the girls' similar ages and their
presence in the defendant's STEM classes. See Commonwealth v.
Moran, 101 Mass. App. Ct. 745, 748 n.3 (2022).
Balancing the probative value of the evidence against the
risk of unfair prejudice, the trial judge determined that "[t]he
probative value of the in-classroom conduct is substantially
greater than its risk of unfairly prejudicing" the defendant and
noted that a limiting instruction would be given "to further
reduce any risk of unfair prejudice." See Mass. G. Evid.
§ 404(b)(2) (2021). He then gave a forceful and complete
limiting instruction before Althea testified, mitigating any
prejudice. See Commonwealth v. Dorazio, 472 Mass. 535, 542
(2015); Commonwealth v. Montez, 450 Mass. 736, 746 (2008).
b. Additional bad act testimony. In addition to Althea's
testimony about the defendant's pressing his penis against her
buttocks, Althea and three other witnesses testified about other
bad acts by the defendant.
i. Althea's additional testimony. Althea testified that:
(1) more than once, she saw the defendant looking at other
girls' buttocks in a way that made her feel uncomfortable;
(2) the defendant engaged in a physical altercation with one
male student and put his hands on another, threatening to "put
[his] head through this fucking wall"; and (3) Althea heard the
6
defendant make crude comments about women and comment to another
student about that student's body.
ii. Edith's testimony. Another female former student,
Edith, testified that, for female students, the defendant would
"come over and approach you from behind and kind of assist your
hands as his arms, like, wrapped around you," and that the "full
length of his arm" would be "caressing [her] arm and upper back"
in a way that she found "uncomfortable and intimidating."
iii. Jade's testimony. A third female former student,
Jade, testified without objection that the defendant leaned over
her and other girls when they were working on projects in STEM
class; that his shirt touched her back and she felt
uncomfortable; that she felt his "front privates" against her
buttocks; and that he looked at girls' breasts in class. She
also described the defendant's anger in class, saying "it still
honestly affects me" and characterizing the whole class as
"intimidate[d]."
iv. James's testimony. A male former student, James (also
a pseudonym), echoed the testimony about the defendant's looking
at the female students' buttocks and testified about the
defendant's having female students pick up fallen pencils.
James also testified that the defendant had threatened to "shove
[James's] head through a wall" and that the defendant was
"angry" in class.
7
In all, four women (including the victim) testified that
they had experienced an unwanted touching by the defendant
during a STEM class when he was their seventh or eighth-grade
teacher. Three women and a man testified that the defendant was
visibly angry in class and threatened male students with
physical violence. From a review of the record, including the
transcripts, we conclude that neither the appearance of these
witnesses nor the substance of their testimony came as a
surprise to the defendant. While these witnesses' testimony was
not specifically challenged in the defendant's motion in limine,
and therefore that motion did not preserve the issue for appeal,
see Grady, 474 Mass. at 719-720, the judge determined that its
probative value was not outweighed by the danger of unfair
prejudice. See Commonwealth v. Samia, 492 Mass. 135, 148 (2023)
(absent explicit weighing of particular evidence, determination
of admissibility "is implicit in the judge's consideration of
the tender of, and the objection to, the evidence and judge's
ultimate decision to admit it" [citation omitted]).
For the objected-to statements, we review any error under
the prejudicial error standard. Commonwealth v. Cruz, 445 Mass.
589, 591 (2005). "This requires a two-part analysis: (1) was
there error; and (2) if so, was that error prejudicial." Id."An error is not prejudicial if it 'did not influence the jury,
or had but very slight effect.'" Id., quoting Commonwealth v.
8
Flebotte, 417 Mass. 348, 353 (1994). We review unobjected-to
portions of the testimony for a substantial risk of a
miscarriage of justice, asking whether the error, if any, was
"sufficiently significant in the context of the trial to make
plausible an inference that the [jury's] result might have been
otherwise but for the error" (citation omitted). Commonwealth
v. Alphas, 430 Mass. 8, 13 (1999).
"Prior bad acts involving someone other than the victim are
admissible so long as they are connected in time, place, or
other relevant circumstances to the particular sex offense for
which the defendant is being tried" (quotation and citation
omitted). Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 55
(2015). In a case of sexual assault, testimony about prior
assaults that took place in similar circumstances, with similar-
aged victims, and were "almost identical in nature," "tend[s] to
show the defendant's intent and inclination to commit the
charged acts and [] corroborate[s] the pattern of conduct
testified to by the victim." Id. at 55-56. "To be admissible,
evidence of sexual assaults with persons other than the victim
must form a temporal and schematic nexus such that it shows a
common course of conduct regarding the victims" (quotation and
citation omitted). Id. at 56.
We have little difficulty concluding that the challenged
evidence about the defendant's approaching female students from
9
behind, leaning over them, and pressing his body into them was
probative, and the defendant does not argue otherwise. We turn
then to the second step and ask whether the judge erred or
abused his discretion in finding that its probative value was
not "outweighed by the risk of unfair prejudice to the
defendant" (quotation and citation omitted). Teixeira, 486
Mass. at 626.
The trial judge did not err in admitting this testimony.
As he concluded, the challenged testimony was relevant to
disprove defenses of mistake or accident, to establish a common
plan or pattern of behavior, and to show the defendant's modus
operandi. Where the defense was that Maya either fabricated the
assaults or, alternatively, misunderstood what she felt,
mistaking a measuring tape (sometimes referred to as a ruler)
for an erect penis, the probative value of the challenged
testimony was not outweighed by the risk of unfair prejudice.
Furthermore, intentional touching was an element of the two
offenses of which the defendant was convicted, see Commonwealth
v. Melo, 95 Mass App. Ct. 257, 261-262 (2019), making evidence
of a common plan or pattern of touching female students in this
manner highly probative. Against that backdrop, evidence that
the defendant stood too close to other female students, put his
arms around them, approached them from behind, pressed his body
into the backs of their bodies, and breathed heavily close to
10
their faces, was, as the trial judge ruled, probative of a
common plan and to negate these defenses. See Commonwealth v.
Feijoo, 419 Mass. 486, 494-495 (1995) (evidence of behavior with
other students would have been admissible at separate trials
where defendant karate teacher used relationship with students
and similar modus operandi to persuade each to engage in sexual
conduct with him). In the circumstances, the danger of unfair
prejudice did not outweigh the probative value of this evidence.
The defendant also challenges testimony about non "modus
operandi" bad acts, including testimony about the defendant's
other inappropriate behaviors toward female students and
testimony about his angry or violent threats to male students.
Like the trial judge, we conclude that the latter should not
have been admitted beyond what was necessary to explain the
students' reluctance to come forward with their allegations.
But these statements collectively did not give rise to a
substantial risk of a miscarriage of justice. See Alphas, 430
Mass. at 13.
The defendant neutralized some of this testimony by
agreeing that "for effect because [he's] thinking about their
safety," he "yelled at students at times." The challenged
testimony amounted to a small portion of the trial evidence and
in this context -- in which the charged crimes did not involve
angry behavior and the defendant chose to testify, giving the
11
jury an opportunity to see his demeanor -- did not threaten to
overwhelm or distract from the more serious crimes for which the
defendant was on trial. Finally, the students' testimony about
the defendant's temper was cumulative, not only of his own
testimony, but also of the principal's.
2. Cross-examination of defendant. The defendant
testified at trial. On cross-examination, the prosecutor asked
him three questions about whether either Maya or Althea had
reasons to fabricate their testimony about him. Defense counsel
did not object.
"It is improper to ask a witness to comment on the
credibility of other witnesses"; in so doing, "a lawyer implies
to a jury that differences in the testimony of the witness and
any other witness could only be the result of lying and not
because of misrecollection, failure of recollection or other
innocent reason" (quotations and citation omitted).
Commonwealth v. Long, 17 Mass. App. Ct. 707, 708 (1984). These
three questions were improper.2
Although improper, in consideration of the entire record,
these few questions did not give rise to a substantial risk of a
2 The Commonwealth's position in its brief that the
"questions would have been better left unsaid" is not a
sufficient acknowledgement of the error.
12
miscarriage of justice.3 There were only three of them; they did
not become a theme of the cross-examination; they were
consistent with the defense theory that Maya fabricated the
assaults; and they were not mentioned by the prosecutor in
closing.4 Moreover, the defendant was not put in a situation
where he was required to testify that another witness was lying.
He handled the questions intelligently and avoided claiming
other witnesses were not truthful. Compare Commonwealth v.
Sanchez, 96 Mass. App. Ct. 1, 5-7 (2019) (no prejudicial error
where prosecutor asked defendant five questions about whether
victim had "lied," as evidence was otherwise compelling; defense
was that victim did not tell truth; and prosecutor did not refer
to testimony in closing), and the cases collected in
Commonwealth v. Johnson, 412 Mass. 318, 328 (1992) (same), with
Long, 17 Mass. App. Ct. at 707-708 (asking defendant at least a
3 We decline the defendant's invitation to review for
prejudicial error. "An objection at the motion in limine stage
will preserve a defendant's appellate rights only if what is
objectionable at trial was specifically the subject of the
motion in limine." Grady, 474 Mass. at 719. This rule applies
only where the defendant "has already sought to preclude the
very same evidence at the motion in limine stage, and the motion
was heard and denied." Id. Although the defendant filed a
pretrial motion to preclude the Commonwealth from asking
witnesses "for an opinion regarding the credibility of another
witness," the motion was neither heard nor ruled on. In the
circumstances, it was incumbent on trial counsel to object at
trial in order to protect the defendant's appellate rights.
4 Having reviewed the Commonwealth's closing, we do not
agree that the prosecutor used the defendant's answers to these
questions in closing.
13
hundred questions about testimony of other witnesses and
improperly communicating to jury that defendant was lying).
3. Challenged witness testimony. The defendant takes
issue with the testimony of four witnesses: Maya's mother,
Maya, Joanne (a pseudonym for another female former student),
and assistant principal Sandler. Maya's mother's testimony was
not supplemental first complaint testimony. On direct
examination, she did not, as the defendant now maintains,
"repeat[] what [Maya] and others told" her, but rather described
the school personnel's responses to Maya's disclosures. This
testimony was permissible. One defense theory was that Maya had
either fabricated or exaggerated her claims; in support of this
theory, the defendant sought to introduce evidence of the school
officials' reactions to Maya's initial disclosures, which
reactions, he implied, were inconsistent with receiving a report
of a sexual assault. This testimony from Maya's mother was
permissible rebuttal to that theory. See Commonwealth v.
Bryant, 482 Mass. 731, 735 (2019).
We are likewise unpersuaded by the claim based on two
snippets of Maya's first complaint-related testimony. While the
snippets were hearsay, the references were fleeting and were not
repeated, and -- had there been an objection -- could have been
admitted for context and state of mind, rather than for the
truth of the matter asserted. See Commonwealth v. Trotto, 487
14
Mass. 708, 727-728 (2021). The claim based on Joanne's
challenged testimony is likewise unavailing. Joanne was
available for cross-examination and impeachment, and it was for
the jury to determine whether and how much of her testimony to
credit. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005),
S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011) ("If, from
the evidence, conflicting inferences are possible, it is for the
jury to determine where the truth lies, for the weight and
credibility of the evidence is wholly within their province").
Sandler's unobjected-to testimony about learning of Maya's
disclosures and Sandler's conversation with Maya's mother
similarly created no substantial risk of miscarriage of justice.
The defense had introduced guidance counselor Leanne McCarthy's
interview of Maya and Sandler's notes about Sandler's
conversations with McCarthy as topics on direct examination,
consistent with the defense attack on Maya's credibility,
seeking to show that her story was enhanced over time. The
challenged questions by the prosecutor addressed this testimony.
Having opened the door by asking Sandler about these statements
in the witness's notes, counsel's failure to object can be
understood as a recognition of the latitude afforded the
Commonwealth in responding. See Commonwealth v. Parreira, 72
Mass. App. Ct. 308, 318 (2008) (where defendant's strategy
involved highlighting to whom, what, and when victim disclosed,
15
no error in permitting Commonwealth to elicit further testimony
on same topic). The admitted testimony did not exceed the
bounds of what had been explored on direct examination and its
admission was not error. As to the admission of Sandler's
notes, the judge properly gave a limiting instruction as to
their use, which the jury are presumed to follow. Commonwealth
v. Watkins, 425 Mass. 830, 840 (1997).
4. Demonstrative evidence. We are not persuaded that the
judge abused his discretion by denying the defendant's request
to demonstrate at trial how his apron and tape measure moved.
"The permission to perform or make experiments or illustrations
in the presence of the jury rest[s] in the sound judicial
discretion of the" trial judge (citation omitted). Commonwealth
v. McGee, 469 Mass. 1, 9 (2014). There was ample evidence from
which the defense could argue that the defendant wore an apron
during the time of the assaults, including a photograph of him
in an apron and witness testimony describing him in an apron.5
The related claim that the judge "unfairly restricted the
defense by prohibiting [a witness] from answering whether Knight
kept his tape measure in his apron pocket" misinterprets the
testimony; the judge sustained an objection to a question about
5 Similarly, we find no merit in the defendant's argument
that counsel should have had another person play the student in
the demonstration of how the defendant might stand behind a
student to help them with a project.
16
the measuring tape that (1) assumed facts not in evidence,
(2) misstated testimony, and (3) was leading. Counsel made no
effort to rephrase the question in an admissible form.6
5. The complaint. a. Lego incident. Citing Commonwealth
v. Barbosa, 421 Mass. 547 (1995), the defendant challenges his
conviction of indecent assault and battery based on the Lego
incident on the ground that the Lego incident was never
presented to the issuing clerk-magistrate and therefore the
defendant was convicted of a charge for which the clerk-
magistrate did not find probable cause. This issue is raised
for the first time on appeal; we review to determine whether the
error, if any, created a substantial risk of a miscarriage of
justice. See Commonwealth v. Randolph, 438 Mass. 290, 296
(2002).
We review de novo, viewing the evidence submitted to the
clerk-magistrate in the light most favorable to the
Commonwealth, Commonwealth v. Brennan, 481 Mass. 146, 149
(2018), and assessing "whether the complaint application
contains 'sufficient evidence to establish the identity of the
6 The defendant claims that, even if none are individually
prejudicial, the cumulative effect of the alleged trial errors
is prejudicial. There were only two trial errors -- the
admission of testimony about non "modus operandi" bad acts and
three improper questions to the defendant -- but they were not
prejudicial, and we thus decline to engage in a cumulative
effect analysis.
17
accused . . . and probable cause to arrest him.'" Commonwealth
v. Humberto H., 466 Mass. 562, 565 (2013), quoting Commonwealth
v. McCarthy, 385 Mass. 160, 163 (1982). "This standard is
'considerably less exacting than a requirement of sufficient
evidence to warrant a guilty finding.'" Brennan, supra, quoting
Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). "To
establish probable clause, the complaint application must set
forth 'reasonably trustworthy information sufficient to warrant
a reasonable or prudent person in believing that the defendant
has committed the offense.'" Humberto H., supra, quoting
Commonwealth v. Roman, 414 Mass. 642, 643 (1993).
The affidavit in support of the complaint included
allegations that the defendant "would stand behind [Maya] in a
'sex position' and would get close every class she had with him"
(emphasis added), that she could feel his penis against her back
and buttocks, that she first felt this in seventh grade, and
that she felt it on at least three other specified occasions.
Just as the date of an offense is not an essential element, see,
e.g., Commonwealth v. Knight, 437 Mass. 487, 492 (2002), details
like the particular project in which the defendant was involved
are not essential. See Commonwealth v. Hobbs, 385 Mass. 863,
870 (1982) (no grounds for reversal "when the particular terms
of the indictment from which the evidence . . . depart[s] were
merely 'surplusage' -- unnecessary to describe the crime -- and
18
did not mislead the defendant, confuse the jury, or raise the
danger of retrial after acquittal"). Unlike in Barbosa, 421
Mass. at 552, where one indictment might have pertained to
either of two crimes committed on the same date, the allegations
here were sufficient to allege multiple indecent assaults and
batteries occurring on different dates. There was no error.7
b. Amendments to complaint. We likewise discern no error
in the amendments to the complaint.8 We first distinguish
substantive amendments, which are not permitted, from amendments
as to form, which are permitted in the absence of prejudice or
material change. Knight, 437 Mass. at 492; Hobbs, 385 Mass. at
869.
The complaint, brought in September 2018, was twice
amended. The requested amendments related to the dates of
offenses. As the defendant acknowledges, this is ordinarily a
matter of form. See Knight, 437 Mass. at 492. Here, however,
The defendant also challenges his conviction of indecent
7
assault and battery based on the sled incident. The affidavit
in support of the criminal complaint explicitly described the
sled incident -- including that the victim felt the defendant's
penis on her buttocks, that "his voice sounded as if he was
turned on, and that she could hear him breathing" -- and
identified the incident as having happened during the victim's
eighth-grade year. The complaint alleged that Maya was enrolled
in the STEM class for twelve days of her eighth-grade year
before she turned fourteen. Viewing the evidence in the light
most favorable to the Commonwealth, and mindful of the probable
cause standard, we see no error.
8 The defendant was convicted of counts two and three, so we
address only the amendments to those counts.
19
he maintains that, because Maya turned fourteen during the
course of the sexual assaults and different sections of the
statute (carrying different maximum penalties) apply when the
victim is under fourteen, the date changes became substantive.
We need not address this question because we conclude that the
challenged amendments did not have the effect of changing the
victim's age from under fourteen to fourteen or over.9
For count two (sled incident), the alleged date changed
twice. It began as a date on which Maya was thirteen then
changed (1) to a range of dates including when Maya was thirteen
and fourteen, and (2) again to a range of dates on which Maya
was thirteen. Similarly, for count three (Lego incident), the
alleged date was initially a single date on which Maya was
fourteen and was twice amended to allege a range of dates during
which she was either thirteen and fourteen or -- as tried --
fourteen. Where the defendant was charged with the same crimes
of which he was convicted, and where the charges, as tried,
carried the same potential penalties as those for which he was
9 We note that "[a]ge is an element of the offense of
indecent assault and battery on a child under the age of
fourteen," but not an element of the charge of indecent assault
and battery on a person fourteen or older. Commonwealth v.
Dobbins, 96 Mass. App. Ct. 593, 595-596 & n.3 (2019). This
distinction is an independent reason for concluding that the
amendment to count three was one of form.
20
originally charged, the amendments to the dates of offense were
not substantive.10
6. Denial of motion for new trial and request for
postconviction discovery. The defendant maintains that his
motion for a new trial based on ineffective assistance of
counsel and request for postconviction discovery were
erroneously denied. We address his arguments in turn, bearing
in mind that a motion for a new trial may be granted "if it
appears that justice may not have been done." Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001). We examine the
denial of a new trial motion only for "a significant error of
law or other abuse of discretion," (citation omitted),
Commonwealth v. Lys, 481 Mass. 1, 4 (2018), as such motions
should be "granted only in extraordinary circumstances."
Commonwealth v. Comita, 441 Mass. 86, 93 (2004). Where, as
here, the "motion judge and the trial judge were one and the
same, we extend special deference." Commonwealth v. DeJesus, 71
Mass. App. Ct. 799, 811 (2008).
a. Trial counsel's performance; prejudice to defendant. A
successful claim for ineffective assistance of counsel requires
10 We decline to consider the defendant's claim that
reversal is required even if the amendments were as to form,
which does not rise to the level of appellate argument. See
Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628(2019).
21
a showing that (1) counsel's performance fell "measurably below
that which might be expected from an ordinary fallible lawyer";
and (2) such conduct deprived the defendant of "an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). We give deference to
counsel's tactical decisions unless they were "manifestly
unreasonable" when made. Commonwealth v. White, 409 Mass. 266,
273 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728
(1978).
i. Lack of motion to dismiss. The defendant maintains
that trial counsel was ineffective in not moving to dismiss the
complaint. We considered the sufficiency of the complaint to
support counts two and three in our discussion of the amendments
thereto and found it adequate. Failure to pursue a futile
motion does not amount to ineffective assistance of counsel.
Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert.
denied, 520 U.S. 1245 (1997).
We also perceive no ineffective representation in not
filing a motion to dismiss based on the submission of the
complaint application to two assistant clerks-magistrate -- if
indeed that happened, a factual matter as to which we express no
opinion. See Commonwealth v. McCravy, 430 Mass. 758, 763 (2000)
22
(after no bill, resubmission of evidence to different grand jury
not prohibited).11
ii. Failure to object during cross-examination. The judge
concluded, and we agree, that defense counsel erred by not
objecting to the prosecutor's questions about two witnesses'
motivations to lie. We exercise our discretion to reach this
issue, despite its being inadequately briefed, because the judge
and we have concluded there was error.12 "A witness should not
be asked and is not permitted to comment on the credibility of
another witness because '[t]he fact finder, not the witness,
must determine the weight and credibility of testimony.'"
Sanchez, 96 Mass. App. Ct. at 5, quoting Commonwealth v.
Triplett, 398 Mass. 561, 567 (1986). Here, the prosecutor asked
11 For these same reasons, the defendant cannot prove that
the postconviction discovery he sought "would have materially
aid[ed] the defense against the pending charges" (citation
omitted), Commonwealth v. Morgan, 453 Mass. 54, 62 (2009), such
that it was error for the judge to deny his request.
12 We decline to exercise our discretion to consider the
argument that counsel was ineffective through failure to "object
to numerous instances of inflammatory and prejudicial prior bad
act testimony and ultimate issue testimony" from a number of
other witnesses, supported only by citations to pages of the
transcript and neither individually described nor analyzed. See
Mass. R. A. P. 16 (a) (4). We have determined that the
admission of this testimony was not prejudicial, and counsel has
presented no reason for us to conclude that, in the absence of
this testimony, the outcome would have been different. See
Commonwealth v. Amirault, 424 Mass. 618, 652 (1997), quoting
Strickland v. Washington, 466 U.S. 668, 693 (1984) ("not every
error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding").
23
the defendant to do just that, three times asking variations on
the question: What would be the witness's motivation to lie?
Each time, without objection, the defendant answered.
As discussed above, the admission of these statements did
not give rise to a substantial risk of a miscarriage of justice.
This is dispositive of the defendant's claim that counsel's
failure to object to them rose to the level of ineffectiveness
that would warrant a new trial. See Commonwealth v. LaChance,
469 Mass. 854, 858 (2014), cert. denied, 577 U.S. 922 (2015)
("To prevail on a claim of ineffective assistance of counsel,
however, a defendant must also show that counsel's deficiency
resulted in prejudice . . . which, in the circumstances of
counsel's failure to object to an error at trial, is essentially
the same as the substantial risk standard").
iii. Six claims of foregone exculpatory or impeachment
evidence. The defendant renews his claim that counsel was
ineffective by not introducing evidence that in 2017, before any
of the dates alleged in the complaint as amended, the defendant
had been diagnosed with erectile dysfunction, since this
evidence -- he posits -- "was critical to rebut [Maya]'s claim
24
that what she felt for 60 seconds was a 'really hard' erect
penis."13
We have reviewed the medical evidence proffered to the
District Court judge about the defendant's diagnosis and
conclude that he neither erred nor abused his discretion when he
found that the decision not to introduce that evidence (1) was
not "manifestly unreasonable" when made (citation omitted),
White, 409 Mass. at 273, and (2) did not deprive the defendant
of "an otherwise available, substantial ground of defence."
Saferian, 366 Mass. at 96. The diagnosis was ambiguous; it did
not undermine the notion that the defendant could achieve an
erection; and, to the extent the defendant quibbles with Maya's
testimony as to the durations of the assaults, that is not
relevant to guilt or innocence, nor so central to Maya's
credibility that we are persuaded it was manifestly unreasonable
not to introduce this evidence at trial.
We are equally unpersuaded that counsel was ineffective by
not trying -- whether through the testimony of Maya's mother or
through impeachment of Maya -- to cast doubt on Maya's testimony
by contrasting it with her initial statements to McCarthy or by
trying to bring in unrelated, purportedly false statements by
13In their affidavit in support of the motion for a new
trial, trial counsel explained that they decided against using
this information at trial because they believed the diagnosis
postdated the bad acts committed against Althea.
25
Maya. "In cases where tactical or strategic decisions of the
defendant's counsel are at issue, we conduct our review with
some deference to avoid characterizing as unreasonable a defense
that was merely unsuccessful." White, 409 Mass. at 272.
"Although the failure to pursue an 'obviously powerful form of
impeachment' can theoretically rise to the level of
unreasonableness that would constitute ineffective assistance,
we have repeatedly stated that, generally, the failure to
impeach a witness does not, on its own, constitute ineffective
assistance" (citation omitted). Commonwealth v. Valentin, 470
Mass. 186, 190 (2014). See id. (not ineffective assistance not
to impeach percipient witness who testified that murder
defendant said about victim, "[D]ie, motherfucker"; counsel used
other methods to highlight inconsistent testimony). These
decisions were not ineffective assistance of trial counsel.
As to the claim that it was ineffective for counsel not to
offer the grand jury testimony of a nontestifying witness
(McCarthy), the defendant has made no showing that this
testimony would have been admissible. See Commonwealth v.
Clemente, 452 Mass. 295, 314-315 (2008), cert. denied, 555 U.S.
1181 (2009), and abrogated in part on other grounds by
Commonwealth v. Zanetti, 454 Mass. 449 (2009) (prior grand jury
testimony of unavailable witness admissible where "the party
seeking the admission of the grand jury testimony can establish
26
that the Commonwealth had an opportunity and similar motive [to
that of a jury trial] to develop fully a [now unavailable]
witness's testimony at the grand jury" [emphasis added]). This
was not ineffective.
iv. Failure to request jury instructions. Given that the
trial judge agreed that a limiting instruction was appropriate
for Althea's testimony, and that he gave such an instruction, it
seems likely that had he been asked he would have given a
similar instruction contemporaneously with other witnesses'
testimony. The defendant asserts that trial counsel's admitted
oversight in not requesting such instructions amounted to
ineffective assistance. Not every oversight rises to the level
of ineffective assistance of counsel, however, and where the
judge gave the limiting instruction in connection with Althea's
testimony, and then gave a general instruction about prior bad
act evidence as part of his final instructions, we are not
convinced that any failure resulted in prejudice to the
defendant. See Commonwealth v. Delong, 60 Mass. App. Ct. 122,
131-132 (2003), S.C., 60 Mass. App. Ct. 528 (2004) (reasonable
tactical decision not to request limiting instruction for bad
act evidence, "as such instructions typically highlight the
permissible uses of evidence, as well as the limitations").
Nor was it manifestly unreasonable not to ask for an
instruction on accident or the lesser included offenses of
27
assault and battery. The defense was that the touchings never
happened, not that they happened but were accidental or not
indecent. Counsel strategically chose not to pursue an accident
defense because it was inconsistent with this defense; not
asking for the lesser-included instruction was also consistent
with this strategic decision. Trial counsel also recalled that
the judge rejected a similar request from the prosecutor, and
the judge and prosecutor recalled that the judge rejected the
request when the defendant objected. Finally, the instruction
was not warranted where, as discussed below, both the sled
incident and the Lego incident involved an indecent touching
based on Maya's testimony.
v. Claimed errors by prosecutor. Citing to pages of the
trial transcript and the record, and without further discussion
or explanation, the defendant claims that the prosecutor
violated pretrial rulings, thus rendering the trial unfair. To
the extent we are sufficiently informed to be able to consider
the issue, for the reasons described by the trial judge, we
disagree.
We are similarly unpersuaded by the claim that the
prosecution improperly coached Maya at a break in her testimony.
The record reflects that, without interruption or objection,
counsel questioned Maya about this discussion, and she testified
that "the district attorney's office" told her she was "doing
28
well." There is no record support for the defendant's
contention that this conversation "led to [Maya] changing her
testimony" about her initial meeting with McCarthy. We see no
error in the trial judge's conclusion that this interaction did
not necessitate a new trial.
It is the responsibility of a trial judge to determine
whether testimony may incriminate a witness. Pixley v.
Commonwealth, 453 Mass. 827, 832 (2009). After hearing Officer
Lopes's testimony, the judge -- sua sponte, it appears -- raised
a concern about legal exposure for other school officials who
were mandated reporters and would testify. The judge told the
lawyers, "I am going to put it on you" to inform the witnesses
that he would conduct a voir dire on the issue. Where McCarthy,
the school guidance counselor and a mandated reporter, had been
aware of the alleged sexual assaults on Maya for approximately
three months before disclosing them to the Department of
Children and Families, she was so exposed. See G. L. c. 119,
§§ 21 (defining "mandated reporter"), 51A (c). On this record,
we see no error in the judge's determination that there was no
prosecutorial misconduct in the circumstances surrounding
McCarthy's decision not to testify. See Pixley, supra at 834("[A] defendant has no constitutional right to the testimony of
a defense witness who invokes [their] privilege against self-
incrimination").
29
vii. Cumulative effect of any errors. Because we discern
error only in the failures to object to non "modus operandi" bad
act evidence and the three questions on cross-examination of the
defendant, which errors did not create a substantial risk of a
miscarriage of justice, we need not consider the cumulative
effect of trial counsel's decisions.
b. Lack of evidentiary hearing and ruling on
reconstruction of record.
"Whether to hold a hearing on a motion for a new trial is
within the judge's discretion, . . . and the judge may
'decide a motion for a new trial without an evidentiary
hearing where no substantial issue is raised by the motion
or affidavits.' . . . When the motion judge is also the
trial judge, as in this case, [he] may use [his] 'knowledge
and evaluation of the evidence at trial in determining
whether to decide the motion for a new trial without an
evidentiary hearing.' . . . We give substantial deference
to a judge's conclusion in this regard."
Commonwealth v. Morgan, 453 Mass. 54, 64 (2009). As the
discussion above reveals, we see no abuse of discretion in, and
therefore no reason to disturb, the trial judge's conclusion
that the motion and affidavits raised no substantial issue
requiring an evidentiary hearing.
In a case in which portions of a trial transcript are not
available, the motion judge is responsible for "determin[ing]
whether the reconstructed record is adequate to present any
errors alleged by the defendant." Commonwealth v. Harris, 376
Mass. 74, 79-80 (1978). The judge's rulings on and
30
comprehensive analysis of the defendant's posttrial motions
reveal that he determined that the reconstructed record was
adequate. As "[t]here is 'enough in the record pertinent to the
point to enable us to decide [this appeal] without resort to
speculation,'" Matter of M.C., 481 Mass. 336, 345 (2019),
quoting Commonwealth v. Bottiglio, 357 Mass. 593, 597 (1970), we
discern no error.
7. Evidence was legally sufficient. The defendant
challenges the sufficiency of the evidence to prove an
"indecent" touching in the Lego incident. Maya testified that
the defendant "straddl[ed] [her] back leg and had his body
pressed up against [her] body," with his "chest and upper thigh"
touching "the top of [her] butt." Viewed in the light most
favorable to the Commonwealth, Commonwealth v. Latimore, 378
Mass. 671, 677 (1979), this evidence was sufficient to support
the verdict. See Commonwealth v. De La Cruz, 15 Mass. App. Ct.
52, 59 (1982) (touching buttocks is indecent assault and
battery).
The defendant also challenges the sufficiency of the
evidence to prove that the sled incident happened when Maya was
under fourteen. As amended, at the time of trial, count two of
the complaint alleged indecent assault and battery on a child
under the age of fourteen on a date before Maya's fourteenth
birthday. The jury heard evidence of both the date of Maya's
31
birthday and the timing of the sled incident. Viewed in the
light most favorable to the Commonwealth, the evidence was
sufficient to support the verdict.
Judgments affirmed.
Order denying motion for a
new trial and request for
postconviction discovery
affirmed.
By the Court (Henry,
Hershfang & Smyth, JJ.14),
Clerk
Entered: October 9, 2024.
14 The panelists are listed in order of seniority.
32