Commonwealth v. Silva

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16-P-867 Appeals Court
COMMONWEALTH vs. CARLOS SILVA.
No. 16-P-867.
Worcester. March 2, 2018. - July 20, 2018.
Present: Wolohojian, Massing, & Englander, JJ.
Indecent Assault and Battery. Practice, Criminal, Mistrial,
Trial of indictments together.
Indictments found and returned in the Superior Court
Department on April 19, 2013, and June 6, 2014.
The cases were tried before Richard T. Tucker, J.
Michael L. Tumposky (Andrew Courossi also present) for the
defendant.
Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.
ENGLANDER, J. The defendant was convicted by a Superior
Court jury of separate incidents of indecent assault and battery
on three of his step-granddaughters. During trial, a fourth
alleged victim, one of the defendant's daughters, took the stand
and gave some testimony that was inculpatory to the defendant,
2
but ultimately balked and was relieved from testifying further
on self-incrimination grounds. The trial judge accordingly
struck all of the daughter's testimony, instructed the jury to
disregard it, and denied the defendant's motion for a mistrial.
The defendant appeals, claiming, among other grounds, that a
mistrial was required because the daughter's testimony was
"ineradicable" from the minds of the jurors. Because the judge
did not abuse his discretion in denying a mistrial, and because
there was no other reversible error, we affirm.
1. Background. We recite the material facts in the light
most favorable to the Commonwealth. The defendant was charged,
inter alia, with multiple counts of indecent assault and battery
on a child under the age of fourteen, in violation of G. L.
c. 265, § 13B, as to four separate alleged victims; the
defendant was also charged with one count of rape of one of the
victims. As discussed below, while there were some factual
differences in the allegations as to each victim, all accused
the defendant of indecent touching beginning when they were
around four years old, and continuing for many years.
a. Trial testimony. The charges as to all four victims
were joined for trial, and the judge denied the defendant's
motion to sever. The sequence of trial witnesses then proceeded
as follows.
3
i. Maria.1 The first trial witness was Maria, a victim who
was nineteen years old at the time of trial. Maria testified to
a number of occasions where the defendant, her step-grandfather,
touched her in way that made her feel "uncomfortable."
The first incident Maria described occurred in the
defendant's bedroom in his home in Milford when Maria was about
six years old. She stated that the defendant "lure[d]" her
upstairs by whispering her name, and that the defendant then
touched her vagina over her clothes.
Maria testified that the touchings continued at the
defendant's home in Bellingham, from when she was seven or eight
years old until she was thirteen years old. Maria remembered
one particular occurrence when the defendant led her into the
basement, placed her up on a ledge, and rubbed her vagina over
her favorite shorts, which were ruined because the defendant had
motor oil on his hands.
Finally, Maria testified that when she was a sophomore in
high school, on the morning of Thanksgiving she woke up to the
defendant licking the right side of her ear, inserting his
fingers inside her vagina, and continuously saying, "Give me
your pussy." When Maria realized what was occurring she became
angry, pushed the defendant off of her, and yelled at the
defendant; the defendant then left the room.
1 A pseudonym.
4
ii. Karen2 and the motion for a mistrial. The next witness
was Karen, the defendant's daughter, an alleged victim who was
eighteen at the time of trial. After answering some initial
questions posed by the prosecutor, Karen remained silent in
response to questions regarding the defendant's conduct, as
follows:
Prosecutor: "Has [the defendant] ever touched you in a way
that made you feel uncomfortable?"
Karen: "Well, like . . ."
Prosecutor: "Has he ever touched you in a sexual way
that's made you feel uncomfortable?"
(Pause.)
. . .
Prosecutor: "So, let me narrow the time frame. Prior to
2012, when you were a young child living with your father,
did he ever touch you in a sexual way that made you feel
uncomfortable?"
(Pause.)
Prosecutor: "Would you like a glass of water?"
(Pause.)
Prosecutor: "Let me withdraw that question, and ask you,
[Karen], how do you feel about testifying today?"
Karen: "I don't want to. . . . Because I just . . . don't
feel comfortable doing this. . . . I don't feel
comfortable testifying against my own father."
. . .
2 A pseudonym.
5
Prosecutor: "Well, let me just ask you that question
again, then: did [the defendant] ever touch you in a
sexual way that made you feel uncomfortable?"
(Pause.)
Defense counsel: "Your Honor, may we approach . . . ,
please?"
The court: "Yes."
There were four separate pauses in this testimony, and the
judge stated that each of them lasted one to one and one-half
minutes. When the prosecutor resumed questioning, Karen stated
that she did not remember if her father had "touched [her] in a
sexual way." The prosecutor then sought to refresh Karen's
memory by showing her grand jury testimony to her, after which
Karen stated that her memory was refreshed but also that she
could not remember if her father had sexually abused her as a
child:
Prosecutor: "After reading that, is your memory refreshed
as to withhold on [sic] [the defendant] sexually assaulted
you as a child?"
Karen: "Yes."
Prosecutor: "So, has your father, [the defendant], ever
sexually abused you as a child?"
Karen: "I said 'yes', so -- I don't remember --"
Prosecutor: "I didn't hear you; I'm sorry, [Karen]."
Karen: "I said 'I said "yes," but I don't remember.'"
Prosecutor: "Okay; but then I asked you if your memory was
refreshed, and you said yes."
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Karen: "I said yes, but I just . . . . I can't remember,
but I said yes."
Karen's testimony was then suspended. Counsel was
appointed, who informed the court the following day that Karen
would be invoking her privilege under the Fifth Amendment to the
United States Constitution. The judge conducted a hearing
pursuant to Commonwealth v. Martin, 423 Mass. 496, 504-505
(1996), after which he determined that Karen had properly
invoked her Fifth Amendment right and would not be compelled to
testify. The result of these actions was that Karen was
excused, her testimony was terminated midstream, and she was
never cross-examined.
The defendant moved for a mistrial. Defendant's counsel
argued that the pauses in Karen's testimony were "the most
prejudicial and pregnant pauses [she had] ever seen in the
history of . . . trying cases." She argued that this prejudice
was heightened because in the Commonwealth's opening statement
the prosecutor had previewed Karen's anticipated testimony.3
Defense counsel also pointed out that she had been unable to
cross-examine Karen, and that she had useful cross-examination
material because Karen had previously recanted to a defense
investigator. The judge denied the motion for a mistrial. He
3 In opening, the prosecutor identified Karen as a victim,
and described her expected testimony of sexual abuse at the
hands of her father.
7
agreed that the circumstances were "unfortunate," but believed
that they could not "have been dealt with any other way than
bringing [Karen] up to the stand."
The judge instead addressed the situation with a curative
instruction, as follows:
"Yesterday, you saw that [Karen] was on the stand, and she
is no longer going to testify. You are to make no
inference against [the defendant] as [sic] the reason for
[Karen's] absence. You are to disregard [Karen's]
testimony in its entirety, and disregard any reference to
[Karen's] allegations entirely. You may not consider any
reference to [Karen's] prior testimony or her demeanor
while on the witness stand. You shall strike it from your
memories as if she never testified and will never testify
in this trial, and you shall not speculate as to the reason
for that. The reason was a legal ruling on my part, so you
shall not speculate any further on that, and you shall not
consider it at all in your deliberations." (Emphasis
supplied.)4
iii. Naomi and Laura.5 Following Karen's appearance, both
Naomi and Laura testified. Each of them was a step-grandchild
of the defendant, as was Maria, the first witness.
Naomi was eighteen years old at the time she testified.
She testified that the defendant began touching her in a way
that made her feel uncomfortable when she was four years old, at
the defendant's house in Milford. She testified to multiple
instances where the defendant touched her buttocks and vagina
4 Later, at the close of the Commonwealth's case-in-chief,
the judge granted an assented-to motion for required findings of
not guilty as to the charges related to Karen.
5 Both names are pseudonyms.
8
with his hands over her clothes. She also testified to a
specific occasion when she was nine years old, in the basement
of the defendant's home in Bellingham, where he zipped down her
jacket, stared at her breasts, and touched her vagina under her
clothes with his hand.
Laura was fifteen years old at the time of her testimony.
Laura testified that the defendant touched her multiple times in
a way that made her feel uncomfortable, from when she was four
years old until she was eight years old. She also testified to
two specific incidents that occurred at the home in Bellingham.
One of those occurred in the defendant's bedroom. Laura
testified that she found the defendant lying on his back in bed
in just his underwear. The defendant asked her to give him a
hug, and when she did the defendant put his hands on her
buttocks and "made [her] move up and down on him."
b. Verdicts. The jury found the defendant guilty, inter
alia, of multiple counts of indecent assault and battery on a
child, with respect to each of Maria, Naomi, and Laura. The
jury also found the defendant guilty of rape with regards to
Maria. The defendant appeals.
2. Discussion. a. Motion for a mistrial/Karen's
testimony. The defendant first argues that Karen's testimony
and the events surrounding it were so prejudicial that a
mistrial was required. Picking up on language from one of our
9
cases, the defendant argues that despite the judge's instruction
to disregard Karen's testimony in its entirety, here the
prejudice was "ineradicable." See Commonwealth v. Thad T., 59
Mass. App. Ct. 497, 508 (2003) ("Only a compelling showing of
ineradicable prejudice would cause us to conclude that the
judge's instructions to disregard [the witness's] testimony were
inadequate").
We review the denial of a motion for a mistrial for abuse
of discretion. See Commonwealth v. Santana, 477 Mass. 610, 625
(2017), citing Commonwealth v. Gallagher, 408 Mass. 510, 517
(1990). The test is not whether we would have made a different
decision, but whether the judge "made 'a clear error of judgment
in weighing' the [relevant] factors" such that his decision
"falls outside the range of reasonable alternatives."
Commonwealth v. Bryan, 476 Mass. 351, 357 (2017), quoting from
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Further,
"[w]hen a jury have been exposed to inadmissible evidence, the
judge may rely on a curative instruction to correct any error
and to remedy any prejudice." Commonwealth v. Durand, 475 Mass.
657, 668 (2016) (quotation omitted).
We discern no abuse of discretion in the denial of the
motion for a mistrial. Without doubt, Karen's testimony, and
the events surrounding it, needed to be addressed by the judge.
The lengthy pauses by Karen, the prosecution's effort to refresh
10
her recollection with grand jury testimony, and the fact that
Karen left the stand without being cross-examined certainly held
the potential for unfair prejudice. The jury could well have
inferred from Karen's abbreviated testimony that she had
previously testified that her father had abused her, but that
she no longer was willing to testify against him. This
possibility of prejudice was exacerbated because the jury had
heard, in the prosecutor's opening, about some of Karen's
expected testimony.
Here, however, the trial judge acted forcefully to avert
this potential prejudice. The judge struck Karen's testimony in
its entirety, and instructed the jury to "strike it from your
memories as if she never testified." The instruction was clear
and direct. In law, Karen's testimony did not exist for
purposes of the defendant's trial. "As long as the judge's
instructions are prompt and the jury do not again hear the
inadmissible evidence . . . a mistrial is unnecessary." Durand,
supra, quoting from Commonwealth v. Garrey, 436 Mass. 422, 435
(2002).
The defendant argues, however, that the jury could not put
the testimony out of their minds despite the judge's
instruction. But the fundamental difficulty with the
defendant's contention is that it requires this court to
conclude that the jury did not follow the judge's very specific
11
instruction to disregard all of Karen's testimony. Such a
conclusion would be at odds with both our case law and our basic
assumptions about how jurors perform their function. Jurors are
presumed to follow the law as instructed. See Commonwealth v.
Williams, 450 Mass. 645, 651 (2008) ("Jurors are presumed to
follow a judge's instructions, including instructions to
disregard certain testimony"). Indeed, our jury system is in
many ways built on this assumption -- on the structure that the
judge provides the law, and that the jurors then follow that
law. See Commonwealth v. Leno, 374 Mass. 716, 719 (1978).
"[We] shall not assume that jurors will slight strong and
precise instructions of the trial judge to disregard the matters
which have been withdrawn from their consideration." Thad T.,
59 Mass. App. Ct. at 508, quoting from Commonwealth v. Gordon,
356 Mass. 598, 604 (1970).
Indeed, the defendant has not pointed to a single
Massachusetts case, and we have found none, where an appellate
court has concluded that a mistrial was required because the
jury would not be able to disregard evidence they were
instructed to disregard in its entirety. The principal case
relied upon by the defendant, Commonwealth v. Funches, 379 Mass.
283, 292 (1979), provides him no help. Funches is relevant in
that it involved a situation where, as here, a witness began
testifying and provided inculpatory testimony, but then was not
12
able to be cross-examined as to that testimony (as the witness
refused to answer). Id. at 287-288. Unlike in this case,
however, in Funches the witness's inculpatory testimony was not
struck, and the jury were never instructed to disregard it. See
id. at 287. The testimony in Funches thus was before the jury,
and infected their verdict. Id. at 291-294. Funches is
inapposite where, as here, the testimony was struck in its
entirety during trial.
The defendant also points to the decision in Bruton v.
United States, 391 U.S. 123, 135-137 (1968), where the United
States Supreme Court concluded that a jury would be unable to
follow a judge's instructions as to the use of evidence in a
criminal trial. While the analogy has some force, we think
Bruton and its line of cases are distinguishable. Bruton
addressed circumstances where criminal codefendants were tried
together, and where the prosecution introduced an out-of-court
statement of one of the codefendants that directly inculpated
the other. Id. at 124. Prior to Bruton, this evidence would
often be admitted, with judges instructing the jury that the
out-of-court statement was admissible only against the
codefendant who made the statement, while it must be disregarded
as to the other defendants. Id. at 126. Bruton held that the
admission of a codefendant's out-of-court statement in a joint
trial, where that statement directly implicated his codefendant,
13
violated the confrontation clause of the United States
Constitution; part of Bruton's rationale was that the limiting
instruction given to the jury was not sufficient to cure the
confrontation clause issue, because the parsing required of the
jury was asking too much of them. Id. at 126, 128-129. It was
in that context -- where the jury were instructed to consider
the evidence against some defendants but not others -- that
Judge Learned Hand wrote that he doubted the jury could engage
in the "mental gymnastic" required by such an instruction. Id.at 132 n.8, quoting from Nash v. United States, 54 F.2d 1006,
1007 (2d Cir. 1932).6
Here, unlike in the Bruton cases, the judge struck the
testimony and the jury were instructed to disregard it in its
entirety. It was simply not evidence. The judge was of course
able to assess the jury when they heard Karen's testimony, and
when he gave his corresponding instruction to disregard that
6 There are a few cases in other jurisdictions where the
striking of testimony was held inadequate, and thus a mistrial
was required. Toolate v. Borg, 828 F.2d 571, 572-575 (9th Cir.
1987), is one such decision, but in Toolate it was a codefendant
who initially took the stand, implicated both the defendant and
himself, and then refused cross-examination. Toolate thus is
distinguishable from this case. Id. at 572. See also United
States v. Ritz, 548 F.2d 510, 520-521 (5th Cir. 1977) (reversal
required where witness who was husband of one codefendant and
father of two others was compelled to invoke Fifth Amendment
privilege in front of jury).
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testimony. The decision to deny the motion for a mistrial was
not outside the range of reasonable outcomes on the facts here.7
2. Motion to sever. The defendant next argues that the
judge erred by not granting the defendant's pretrial motion to
sever the charges into four separate trials, one for each
victim. The charges were joined as "related" under
Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979). Offenses are
"related" if they are "based on the same criminal conduct or
episode or arise out of a course of criminal conduct or series
of criminal episodes connected together or constituting parts of
a single scheme or plan." Rule 9(a)(1). The purpose of the
rule is to promote judicial economy and efficiency, and to avoid
multiple similar trials and their concomitant burdens on
witnesses and the courts. See Commonwealth v. Hoppin, 387 Mass.
25, 32 (1982); Commonwealth v. Hernandez, 473 Mass. 379, 394
(2015). Related offenses accordingly "shall" be joined for
7 The defendant argues that a mistrial was also required due
to a question the prosecutor asked on cross-examination of
Karen's sister (another of the defendant's daughters): "And you
know what [your mother] is charged with?", to which the sister
answered, "Yes." The question should not have been asked.
Indeed, it is difficult to understand how the prosecutor thought
it was proper to bring up pending, unproven, and unspecified
charges against the defendant's wife. The testimony does not
change our view, however, that a mistrial was not required. The
judge sustained an objection made immediately after the answer
was given, and no further questions were asked on the subject.
The testimony itself told the jury very little, even in context.
It was within the judge's discretion not to order a mistrial
based upon the testimony, either taken alone or in combination
with Karen's testimony.
15
trial unless the judge "determines that joinder is not in the
best interests of justice." Rule 9(a)(3).
Our review of a judge's decision on a motion to sever is
for a "clear abuse of discretion." Commonwealth v. Pillai, 445
Mass. 175, 180 (2005) (citation omitted). "[T]o prevail on a
claim of misjoinder, the defendant 'bears the burden of
demonstrating that the offenses were unrelated, and that
prejudice from the joinder was so compelling that it prevented
him from obtaining a fair trial.'" Id., quoting from
Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).
There was no clear abuse of discretion here. In
considering the question, we are guided by several prior
decisions of this court and the Supreme Judicial Court that have
allowed the joinder of charges involving multiple victims of
sexual offenses, against a single defendant. See, e.g., Gaynor,
supra at 259-263; Pillai, supra at 179-184; Commonwealth v.
Souza, 39 Mass. App. Ct. 103, 110-112 (1995); Commonwealth v.
Torres, 86 Mass. App. Ct. 272, 275-276 (2014). These cases
collectively identify the factors to consider in deciding
whether joinder is appropriate: whether the victims were of
similar age and gender, or shared other characteristics; the
proximity in time of the assaults; and whether there were
similarities in the details of the crimes -- for example, in
16
terms of location, the manner in which the defendant gained
access, or the acts themselves.
The facts here fall comfortably within those cases that
have allowed joinders to stand. Here, each of the victims was
one of the defendant's stepchildren or daughters, and the abuse
of each occurred within the defendant's home. Each of the
victims was first assaulted at around the same age -- between
four and six years old -- and for each victim the assaults were
repeated over years. And there were similarities, as well, in
the defendant's behavior both leading up to and during the
incidents; for example, the defendant often would find means to
isolate the child victims in a room in his home (such as the
basement) before beginning the assault. Similar facts are
echoed in the cases that have previously upheld joinders of
charges involving multiple victims of sexual assault. See
Souza, 39 Mass. App. Ct. at 111-112; Torres, 86 Mass. App. Ct.
at 276.
In determining the propriety of joinder, one important
consideration is whether, if the cases were severed into trials
of individual victims, the testimony of the other victims of
assault nevertheless would have been admitted in each trial
regarding an individual victim. See Souza, 39 Mass. App. Ct. at
111. The question is material, because if the assaults on the
other victims would not have been admitted in the trials of an
17
individual victim, the Commonwealth should not benefit from
joinder by thereby gaining the admission of otherwise
inadmissible evidence.
We believe the testimony of each of the victims likely
would have been admissible at any individual trial. Evidence of
prior bad acts may not be used to show bad character or the
general propensity to commit crime, but it may be admissible to
prove opportunity, intent, preparation, plan, knowledge, pattern
of operation, or common scheme or course of conduct, as long as
the probative value of the evidence is not outweighed by the
risk of unfair prejudice. See Commonwealth v. Mazariego, 474
Mass. 42, 56 (2016); Mass. G. Evid. § 404(b) (2018). Here,
there was sufficient identity of location, time periods,
relationships to the defendant, and similarities in the acts
charged such that the other assault evidence likely would have
been admissible to show a common pattern or course of conduct.
See Commonwealth v. King, 387 Mass. 464, 471-472 (1982)
(evidence of prior acts of sexual abuse, forming "temporal and
schematic nexus," properly admitted [citation omitted]).
In short, the judge did not abuse his discretion in
refusing to sever these cases for trial, and we discern no
reversible error in the conduct of the trial, either.8
8 The defendant also contends that the prosecutor, in
closing, improperly cited to certain testimony from the
18
Judgments affirmed.
defendant's son as evidence of the defendant's bad character.
There was no objection to the prosecutor's statement at trial,
however, and we find no substantial risk of a miscarriage of
justice in this case. See Commonwealth v. Brown, 479 Mass. 600,
609-610 (2018).
To the extent we have not explicitly discussed them, we
have carefully considered the defendant's remaining arguments,
and we find them to be without merit.