Commonwealth v. Elliott

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11-P-1277 Appeals Court
COMMONWEALTH vs. JOSEPH ELLIOTT.
No. 11-P-1277.
Essex. January 7, 2015. - June 17, 2015.
Present: Kafker, Meade, & Maldonado, JJ.
Rape. Indecent Assault and Battery. Practice, Criminal, Trial
of indictments together, Severance, Argument by prosecutor,
Defendant's decision not to testify, Instructions to jury,
Presumptions and burden of proof, New trial, Interpreter.
Indictments found and returned in the Superior Court
Department on April 30, 2008.
The cases were tried before Maureen B. Hogan, J., and a
motion for a new trial was heard by her.
James Vander Salm for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
KAFKER, J. The defendant, Joseph Elliott, was indicted on
seven charges of rape and indecent assault and battery that
occurred within a one week time span against identical twin
2
sisters, Karen and Mary.1,2 After a jury trial, the defendant
was convicted of two counts of rape and two counts of indecent
assault and battery against Karen and acquitted of the remaining
counts.
The defendant appeals from the judgments and from the trial
judge's order denying his motion for new trial pursuant to
Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). In
his direct appeal, the defendant contends that the trial judge
abused her discretion in denying his motion for severance, and
that the prosecutor's closing argument violated his
constitutional rights to due process and to remain silent. The
defendant also claims that the judge abused her discretion in
denying his motion for a new trial. The issue presented in that
motion was his claimed hearing impairment and whether the judge
provided adequate accommodations to address the defendant's
hearing difficulties. We affirm.
1. Background. The relevant evidence in this case comes
primarily from the testimony of Karen and Mary. The sisters
testified that the defendant, a longtime family friend,
1
The sisters' names are pseudonyms.
2
The defendant was indicted for three counts of rape, in
violation of G. L. c. 265, § 22(b), and two counts of indecent
assault and battery, in violation of G. L. c. 265, § 13H,
against Karen. Regarding Mary, the defendant was indicted for
one count of rape, in violation of G. L. c. 265, § 22(b), and
one count of indecent assault and battery, in violation of G. L.
c. 265, § 13H.
3
committed a series of sexual assaults against them in a span of
eight days in 2007, when the sisters were nineteen years old.
We briefly summarize their testimony, and reserve certain facts
for our discussion of the issues raised.
The defendant first met Karen and Mary at church when the
sisters were children. Over the years, the defendant became a
longtime friend of the family, and grew particularly close to
the sisters' mother. The defendant often visited the family's
home.
On July 31, 2007, the defendant called Karen and invited
her to come to Salem and clean his mobile home in exchange for
payment. Karen accepted the invitation because she was
unemployed and needed money. While Karen was cleaning the
mobile home, the defendant told her how beautiful she was and
how much he loved and cared for her. Though Karen resisted his
advances, the defendant pushed her onto the bed, held her arms
behind her neck, removed her pants, and penetrated her vagina
with his penis. After the incident, the defendant told Karen to
clean up in the shower, and he then drove her home. Karen did
not tell her mother what happened that day because she "didn't
want to hurt her," as Karen was concerned her mother would blame
herself. Karen later told Mary, "Joe raped me."3 Karen told her
3
Mary was the first complaint witness for the July 31,
2007, rape and sexual assault of Karen.
4
sister not to tell her mother for the reasons discussed above,
and Mary agreed.
On August 4, 2007, Mary was at home in her room, lying on
her bed, listening to her iPod. The defendant arrived at the
house with his mother. While the defendant's mother and the
sisters' mother had a conversation, the defendant went to Mary's
room. After asking Mary how she was doing, the defendant
proceeded to hug Mary and kiss her on the lips. Though Mary
backed away and told the defendant to stop, the defendant put
his hands on her breasts and then down her pants. He then put
his fingers inside her vagina. After the defendant stopped and
left the house, Mary told Karen what had happened. Karen told
Mary she was not ready to tell their mother about her own rape.
Therefore, Mary did not tell their mother about her rape,
either.
On August 7, 2007, the defendant again called Karen and
asked whether she would like to do some additional paid work for
him, this time at a house in Beverly. Still in need of money,
Karen agreed to go. After completing the work, Karen and the
defendant talked about Karen's family and payment for her work.
The defendant asked her to come upstairs and take a shower with
him. She said no and when he went upstairs, she called Mary and
told her about the shower request and how uncomfortable she
felt. Mary told Karen to have the defendant drive her home.
5
The defendant returned downstairs and sat down next to Karen on
the couch. While on the couch, the defendant put his arms
around Karen, told her to relax, and told her that he loved her.
At that point, he held Karen down as she tried to fight him off
and then put his hand down her jeans and in her vagina. He also
put his hand on her breasts. He next pulled down her jeans, and
while restraining her arms, inserted his tongue into her vagina.
During this altercation, Karen's cellular telephone (cell phone)
rang, and Karen answered. Mary was calling and indicated that
she had told their mother about the defendant's sexual assaults
against both of them. After the defendant spoke with their
mother on his own cell phone, he told Karen:
"You can't do this to me. I loved you. I loved you your
whole life. I thought you loved me. I tried being there
for you and your sister. I don't want to go to jail. You
can't do this to me. You have to lie. Tell them that I
didn't do anything."
2. Discussion. A. Joinder. Rule 9(a)(3) of the
Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979),
provides that "[i]f a defendant is charged with two or more
related offenses, either party may move for joinder of such
charges. The trial judge shall join the charges for trial
unless he determines that joinder is not in the best interests
of justice." The defendant alleges that the offenses regarding
Karen and Mary were improperly joined for trial. "[T]he
decision whether to join offenses for trial is a matter left to
6
the sound discretion of the judge," which will not be reversed
absent "'a clear abuse of discretion.'" Commonwealth v. Pillai,
445 Mass 175, 179-180 (2005), quoting from Commonwealth v.
Walker, 442 Mass. 184, 199 (2004). We conclude that the denial
of the defendant's motion for severance was proper.
To prevail on a claim of misjoinder, the defendant must
demonstrate, first, "that the offenses were unrelated," and
second, "that prejudice from joinder was so compelling that it
prevented him from obtaining a fair trial." Commonwealth v.
Pillai, 445 Mass. at 180, quoting from Commonwealth v. Gaynor,
443 Mass. 245, 260 (2005). Commonwealth v. Aguiar, 78 Mass.
App. Ct. 193, 199 (2010). The defendant fails to meet either
burden.
When determining whether offenses are related for the
purpose of rule 9, a judge may consider a number of factors,
including "factual similarities between the offenses, . . .
whether the offenses were near to each other in time or place,
[and] whether the offenses sprang from the same cause or
motivation." Commonwealth v. Gray, 465 Mass. 330, 335 (2013).
See Commonwealth v. Pillai, 445 Mass. at 180. In light of the
facts that the sisters were identical twins, each of the seven
alleged offenses took place roughly within the span of one week,
and the Commonwealth's theory was that the defendant had
exploited his relationship of trust with the mother in order to
7
gain access to the sisters, the judge properly concluded that
the offenses were related. See Commonwealth v. Pillai, supra at
181-182; Commonwealth v. Aguiar, 78 Mass. App. Ct. at 201-202.
The defendant also failed to demonstrate that he was unduly
prejudiced by the joinder. The issue of prejudice largely turns
on whether evidence of the other offenses would be admissible in
separate trials on each offense. See Commonwealth v. Wilson,
427 Mass. 336, 346 (1998); Commonwealth v. Zemtsov, 443 Mass.
36, 45 (2004). Though "[i]t is settled that evidence of other
criminal conduct is inadmissible to prove the propensity of the
defendant to commit the indicted offense," Commonwealth v.
Mamay, 407 Mass. 412, 417 (1990), such evidence is permissible
to "show a common scheme, pattern of operation, absence of
accident or mistake, identity, intent, or motive." Ibid.,
quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).
In the instant case, the common scheme to exploit the mother's
trust and the common sexual attraction to the twins was well
established. Additionally, the testimony of either victim would
be admissible in the other's trial as a first complaint witness,
and was relevant to the timing of the disclosure of each
sister's rape, given that (1) Mary waited to disclose out of
consideration for Karen, and (2) Mary's eventual disclosure
triggered Karen's own disclosure. See Commonwealth v. Aguiar,
78 Mass. App. Ct. at 203 (one victim's disclosure resulted from
8
having overheard conversations concerning other victim's
disclosure). See also Commonwealth v. Pillai, 445 Mass. at 178,
183 & n.11 (joinder proper where first victim's disclosure
prompted second victim to disclose). Moreover, the defendant's
acquittal on three of the charges suggests that he was not
unduly prejudiced by the joinder. See Commonwealth v. Green, 52
Mass. App. Ct. 98, 103 (2001); Commonwealth v. Aguiar, supra at
204.
B. Prosecutor's closing argument. The defendant next
asserts that the prosecutor used his closing argument to comment
on the defendant's decision not to testify and shifted the
burden of proof to the defendant, thereby infringing on the
defendant's constitutional rights to due process and not to
testify. The issue was properly preserved. After reviewing the
prosecutor's remarks "in light of the 'entire argument, as well
as in light of the judge's instruction[s] to the jury and the
evidence at trial,'" Commonwealth v. Johnson, 463 Mass. 95, 111
(2012), quoting from Commonwealth v. Rodriguez, 437 Mass. 554,
565 (2002), we discern no error.
Under both the Fifth and Fourteenth Amendments to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights, the prosecution is forbidden to comment
on a defendant's decision not to testify at trial or to imply
that the defendant's silence is evidence of guilt. See Griffin
9
v. California, 380 U.S. 609, 611-615 (1965); Commonwealth v.
Hawley, 380 Mass. 70, 88 (1980). Similarly, a defendant has the
right not just to remain silent, but "to remain passive, and to
insist that the Commonwealth prove its case beyond a reasonable
doubt without explanation or denial by him." Commonwealth v.
Grant, 418 Mass. 76, 83 (1994), quoting from Commonwealth v.
Madeiros, 255 Mass. 304, 307 (1926). In the case at bar, the
prosecutor began his closing argument by stating:
"I thought when he said he wanted to talk, he was going to
apologize for what he did before. Was [Karen] naive [and]
foolish? You betcha. But was she lying to cover up a
consensual sor[did] affair with this guy? Forget about it.
Where's the evidence that this was a consensual affair?
Where was it presented in this courtroom? There's nothing,
nada, zip, zilch, zero evidence that this was consensual.
Now, the defendant doesn't have to prove anything. The
defendant doesn't have to put on a case. It's the
Commonwealth's burden to prove beyond a reasonable doubt
that the defendant is guilty. And I cherish that burden,
and I would suggest to you I lived up to that burden in
this case." (Emphasis added.)
While it is impermissible for a prosecutor to comment on a
defendant's failure to testify or to make statements that shift
the burden of proof from the Commonwealth to the defendant, "[a]
prosecutor is entitled to emphasize the strong points of the
Commonwealth's case and the weaknesses of the defendant's case,
even though he may, in so doing, prompt some collateral or
passing reflection on the fact that the defendant declined to
testify." Commonwealth v. Nelson, 468 Mass. 1, 12 (2014),
quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).
10
After reviewing the remark in context, we are satisfied that the
prosecutor's closing argument was permissible. The prosecutor
immediately followed up the challenged remark by confirming that
the defendant had no duty to produce evidence at trial. This
undercuts any possibility that the jury would interpret his
remark as an improper comment on the defendant's failure to take
the stand or produce further evidence. See Commonwealth v.
Pena, 455 Mass. 1, 19 (2009).
In addition, the judge gave "clear, strong, and correct
instructions," Commonwealth v. Nelson, 468 Mass. at 13 (other
citation omitted), regarding both the Commonwealth's burden and
the defendant's right not to testify or present evidence. The
judge's thorough instructions adequately cured any potential
prejudice posed by the prosecutor's remarks. See Commonwealth
v. Pena, 455 Mass. at 20; Commonwealth v. Tu Trinh, 458 Mass.
776, 788 (2011); Commonwealth v. Nelson, 468 Mass. at 13.
Compare United States v. Skandier, 758 F.2d 43, 45 (1st Cir.
1985) (judge's instructions cured only one of "double barreled"
dangers posed by prosecutor's remark).
C. Motion for new trial. The defendant argues that he is
entitled to a new trial because the trial judge failed to ensure
that his hearing difficulties were adequately accommodated,
thereby violating his State and Federal constitutional rights
and his rights under G. L. c. 221, § 92A. For the reasons
11
stated below, we conclude that the denial of the defendant's
motion for a new trial was proper.
Pursuant to Mass.R.Crim.P. 30(b), a trial judge "may grant
a new trial at any time if it appears that justice may not have
been done." In the instant case, at the request of both
parties, the motion was decided by the trial judge based on the
trial record and the affidavits provided, without an evidentiary
hearing. We defer to the judge's factual findings, Commonwealth
v. Scott, 467 Mass. 336, 344 (2014), and evaluate the judge's
denial of the defendant's motion for a new trial "only to
determine whether there has been a significant error of law or
other abuse of discretion." Commonwealth v. Acevedo, 446 Mass.
435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass.
303, 307 (1986) (deferential review where motion judge, who was
also trial judge, held nonevidentiary hearing on motion for new
trial).
i. Rights of deaf and hearing-impaired persons. In
accordance with Massachusetts statutory requirements and the
principles of due process, deaf and hearing-impaired persons are
entitled to court-provided accommodations to address their
hearing loss. As acknowledged by the trial judge and the
Commonwealth in its brief, a defendant's hearing abilities also
implicate his constitutional rights to be present at trial, to
consult with his lawyer, to confront witnesses against him, and
12
to testify. Cf. United States v. Carrion, 488 F.2d 12, 14 (1st
Cir. 1973), cert. denied, 416 U.S. 907 (1974). In addition to
constitutional considerations, statutory protections for deaf
and hearing-impaired defendants, at least in regard to sign-
language interpreters, are set forth in G. L. c. 221, § 92A.
Section 92A, as amended by St. 1983, c. 585, § 9, provides that
"[i]n any proceeding in any court in which a deaf or hearing-
impaired person is a party or a witness, . . . such court . . .
shall appoint a qualified interpreter to interpret the
proceedings." Though the phrase "hearing-impaired" is not
defined by either statute or case law, G. L. c. 6, § 191,
inserted by St. 1985, c. 716, § 2, defines the comparable term
"hard of hearing" as "a condition of or person with some absence
of auditory sensitivity with residual hearing which may be
sufficient to process linguistic information through audition
with or without amplification under favorable listening
conditions, or a condition of or person with other auditory
handicapping conditions." See Commonwealth v. Smith, 431 Mass.
417, 420 (2000) (when interpreting undefined statutory terms, it
is permissible to reference language from other statutes).
During jury empanelment, defense counsel requested
equipment to assist with the defendant's hearing difficulties:
Defense counsel: "Can I just bring up one other matter I
forgot? He has some hearing difficulties. He's not deaf
or anything like that. But when he testifies, I worry
13
about him hearing questions. Could I request -- I know
there are usually standard hearing apparatus. I never made
the request in advance.
Prosecutor: "(inaudible)."
Defense counsel: "I'll check. I don't need it now. But
just once it gets going."
The court: "Okay."
This brief exchange was the full extent of any discussion during
trial relating to the defendant's hearing problems. As the
judge explained in her memorandum of decision and order on
defendant's motion for new trial, "The court did not deny his
request [for a hearing apparatus] but allowed it. Defense
counsel was referred to the clerk and court officers to obtain
such equipment." The trial judge's allowance of that request
was proper. Had she denied the request, such denial, at least
without further proceedings to confirm the defendant's hearing
abilities, would have been improper.
In his motion for a new trial, the defendant alleged that
after his trial counsel was referred to the court officers to
obtain hearing assistance equipment, he was told that the
equipment was not available. The judge expressly rejected this
contention, which was contradicted by the court officers, whose
affidavits she credited. See Commonwealth v. Buckman, 461 Mass.
24, 43 (2011) ("A judge is not required to credit assertions in
affidavits submitted in support of a motion for a new trial, but
may evaluate such affidavits in light of factors pertinent to
credibility, including bias, self-interest, and delay");
14
Commonwealth v. Wen Chao Ye, 52 Mass. App. Ct. 850, 860 (2001)
("The credibility, weight, and impact of the affidavits in
support of the motion were matters left to the discretion of the
trial judge" deciding the new trial motion). The court
officers' affidavits stated that the defendant never requested
such equipment and if such equipment had been requested, it
would have been provided because the equipment was available.
The judge further explained that the defendant was represented
by experienced counsel, who would have objected to the failure
to provide the necessary equipment had it been denied by the
court officers after the judge allowed counsel's request.
The defendant further asserts that he was not able to hear
the sisters' testimony at trial, and was thus unable to
effectively assist his counsel in confronting those witnesses,
in violation of his rights under Sixth and Fourteenth Amendments
to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. Again, the judge's
findings of fact reject this contention. The judge found that
though the defendant does suffer from some hearing loss,4 this
4
In connection with his motion for new trial, the defendant
submitted the results of several hearing tests for the trial
judge's consideration. Based on tests conducted prior to the
date of trial, the judge found that the defendant suffered from
"mild 30 db hearing loss in his right ear." The judge
discredited later tests conducted after the defendant filed his
motion for new trial due to the subjective nature of such tests,
15
did not prevent him from hearing testimony and effectively
communicating at trial. The judge emphasized that the courtroom
was equipped with microphones that amplified the testimony and
both attorneys had loud voices and spoke loudly. She also
observed the defendant over the course of five days of trial,
during which he did not show any indication that he had any
difficulty hearing witness testimony, the questions of the
lawyers, or the judge. The judge observed that the defendant
consulted with his lawyer and managed to communicate effectively
with the judge both during a colloquy regarding his decision not
to testify and during sentencing. These findings of fact are
supported by the trial record, and the judge's credibility
findings are final. See Commonwealth v. Buckman, 461 Mass. at
43; Commonwealth v. Scott, 467 Mass. at 344. Finally, the
defendant claimed that his decision not to testify was
influenced by his fear that he would be unable to hear the
questions put to him on cross-examination. The judge likewise
rejected this contention, finding it not credible. She relied
in part on an affidavit of the assistant district attorney who
asked defense counsel whether the defendant would be testifying
and was told by defense counsel, "No, not after he saw what you
did to his sister" during cross-examination.
and the defendant's motivation to exaggerate his claim of
hearing loss after trial.
16
ii. Further judicial intervention. The defendant suggests
that the judge nonetheless violated his constitutional and
statutory rights by not doing more on her own during trial,
without any request from counsel. We disagree. The judge's
findings of fact are dispositive. The defendant never requested
the communication access real-time translation (CART) equipment
from the court officers, and had he done so, the CART equipment
would have been provided. To obtain further action by the
judge, defense counsel must bring the defendant's hearing
difficulties to the judge's attention or the circumstances at
trial must make it clear that additional judicial intervention
is necessary. See Crivello v. All-Pak Mach. Sys., 446 Mass.
729, 733-734 (2006) (defendants did not request interpreter and
circumstances at trial did not indicate that defendants required
interpreter); United States v. Carrion, 488 F.2d at 15 (judicial
intervention required when court put on notice that defendant
may be experiencing "significant language difficulty"); United
States v. Barrios, 457 F.2d 680, 682 (9th Cir. 1972) (lack of
judicial intervention not abuse of discretion if need for
interpreter not apparent and services not requested). Under
either scenario, the judge must be put on notice. Such was not
the case at the defendant's trial.
The defendant has not shown that the judge had any reason
to suspect that he was unable to hear witnesses or participate
17
in his defense. Nothing during trial alerted the judge to any
hearing problems the defendant might be experiencing. Defense
counsel, who was in the best position to know about his client's
hearing difficulties at trial, raised no objections. Thus, we
are not persuaded by the defendant's argument that the judged
erred by not doing more.
The defendant makes much of the language in G. L. c. 221,
§ 92A, which provides in pertinent part that the rights provided
by the statute for interpreters for deaf and hearing-impaired
persons may not be waived unless the waiver is knowingly,
voluntarily, and intelligently made in writing, by the deaf or
hearing-impaired person themselves.5 At the outset we note that
the express rights provided by § 92A refer to qualified
interpreters,6 not the CART services which the defendant on
appeal claims he was entitled to, and the defendant here does
5
The statute states that the judge "shall appoint a
qualified interpreter to interpret the proceedings, unless such
deaf or hearing-impaired person knowingly, voluntarily, and
intelligently waives, in writing the appointment of such
interpreter. Such waiver is subject to the written approval of
counsel where such deaf or hearing-impaired person is being
represented by counsel. In no event shall the failure of the
deaf or hearing-impaired person to request an interpreter be
deemed a waiver of such appointment."
6
The statute defines "[q]ualified interpreter" as "a person
[who is] skilled in sign language or oral interpretation and
transliteration, has the ability to communicate accurately with
a deaf or hearing-impaired person and is able to translate
information to and from such hearing-impaired person." G. L.
c. 221, § 92A.
18
not know sign language and did not seek sign language
assistance. Regardless of whether § 92A is limited to sign
language interpreters,7 the judge did not treat the claim as
waived. Rather, she concluded that (1) she initially granted
the defendant's request for CART assistance in the event he
needed it, (2) the defendant chose not to request the CART
equipment as he was able to hear the testimony and participate
in his defense and chose not to testify for other reasons, and
7
Limiting § 92A to sign language interpreters would appear
to defeat the "over-all objective" of G. L. c. 221, § 92A, see
Sellers's Case, 452 Mass. 804, 810 (2008), namely, to ensure
that deaf and hearing-impaired persons can understand and fully
participate in the legal proceedings in which they are involved.
The original version of the statute, St. 1971, c. 459, granted
deaf persons a right to a "qualified interpreter," but did not
define that term. The term was first defined in an amendment to
the statute in 1983, see St. 1983, c. 585, § 9, before modern
technology-based interpretation services were available.
Moreover, the Massachusetts Commission for the Deaf and
Hard of Hearing (MCDHH), which works directly with the
Administrative Office of the Trial Courts to address
communication access needs within Massachusetts courts, already
provides CART and other noninterpreter services for deaf and
hard-of-hearing persons. Similar to G. L. c. 221, § 92A, the
statute that governs the function of the MCDHH, G. L. c. 6,
§ 194, inserted by St. 1985, c. 716, § 2, states that the MCDHH
will provide services to the deaf and hard-of-hearing community,
including "interpreter services." This phrase has been broadly
construed by the MCDHH to mean "any assistive communication
service that enables a deaf or hard of hearing individual to
participate in communication at a level comparable to that of a
hearing person."
Given the changing landscape of services available to deaf
and hard-of-hearing persons, as well as the already available
administrative support within our courts for services other than
interpreters, we see no reason to limit the scope of services
available under § 92A.
19
(3) his hearing difficulties were exaggerated in connection with
the motion for new trial.
3. Conclusion. For the reasons stated above, we affirm
the convictions and the order denying the defendant's motion for
a new trial.
So ordered.