Commonwealth v. Robertson

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12-P-1084 Appeals Court
COMMONWEALTH vs. KENVILLE ROBERTSON.
No. 12-P-1084.
Norfolk. March 4, 2015. - August 14, 2015.
Present: Trainor, Wolohojian, & Carhart, JJ.
Rape. Evidence, Prior misconduct, Pattern of conduct.
Practice, Criminal, New trial, Assistance of counsel.
Constitutional Law, Assistance of counsel. Due Process of
Law, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on March 17, 2010.
A motion in limine was heard by Mitchell H. Kaplan, J.; the
cases were tried before Robert C. Cosgrove, J., and a motion for
a new trial was heard by him.
Bernard Grossberg for the defendant.
Marguerite T. Grant, Assistant District Attorney, for the
Commonwealth.
CARHART, J. The defendant appeals from his convictions of
three counts of rape of a child with force, three counts of
aggravated rape of a child, three counts of indecent assault and
battery on a child under fourteen, and assault with intent to
2
rape a child, arguing that (1) the motion judge erred in
allowing the Commonwealth's motion in limine to present prior
bad act evidence, (2) the trial judge erred in allowing prior
bad act evidence as evidence at the trial and in his
instructions to the jury in this regard, and (3) the trial judge
erred in denying his motion for new trial. We affirm.
Background. The jury were presented with the following
evidence at trial. The defendant is the biological father of
the younger brother of the victim, N.M. Although the defendant
did not live with N.M., he had a key to her house and visited
often. N.M. called the defendant, "Dad," and he provided for
her financially.1 In 2004, when N.M. was eight years old, the
defendant began sexually abusing her.2 The abuse occurred while
N.M. and the defendant slept in the same bed, along with N.M.'s
mother and brother. N.M. testified that on numerous occasions
the defendant performed oral sex on her, engaged in vaginal
intercourse, forced her to touch his penis, and touched her
breasts, vagina, and buttocks. The defendant warned N.M. that
1
N.M. testified that one of the reasons she did not report
the abuse was because she knew the defendant was giving her
mother money for a restaurant.
2
At the time when the abuse began, N.M. lived in Boston.
When she was thirteen years old, N.M. moved to Dover, where the
sexual abuse underlying the defendant's convictions took place.
The defendant properly does not raise any issue on appeal
related to the uncharged sexual assaults. Commonwealth v.
Machado, 339 Mass. 713, 715 (1959).
3
if she reported the abuse "the police would get involved," and
N.M. believed that meant she would be taken away from her
family. The abuse continued until N.M. was thirteen years old.
The defendant's biological daughter, J.R., also testified
at trial.3 She stated that from around 1990, when she was
approximately seven or eight years old, until about 1994 or 1996
(when she was eleven or twelve years old), the defendant
sexually abused her.4 During that period of time, J.R. and her
siblings lived with the defendant while their mother remained in
St. Vincent. J.R. testified that the defendant would call her
into his bedroom and then force her to perform oral sex on him
and to engage in vaginal intercourse. The defendant would also
rub her "chest area." J.R. reported the abuse to a teacher, and
a social worker was sent to visit her at home. Subsequently,
the defendant told J.R. that if she continued to report the
abuse, she and her siblings would be put in different foster
3
J.R.'s testimony was the subject of the motion in limine
that the defendant asserts was improperly allowed.
4
Although J.R. testified at trial that the abuse ended in
1994, the parties refer in their motion in limine memoranda and
briefs to the abuse ending in 1996. Because the issue here is
whether the judge abused his discretion by ruling, based on the
facts presented to him, that the abuse was not too remote, we
treat the abuse as having ended in 1996.
4
homes and she would never see them again. Afterwards, J.R.
recanted her allegations.5
Discussion. 1. Prior bad act evidence. "In reviewing the
judge's exercise of discretion in a close case such as this, the
test is not whether we would have made a different decision."
Commonwealth v. Pillai, 445 Mass. 175, 181 (2005) (Pillai).
Instead, we will uphold the judge's decision unless "we conclude
the judge made 'a clear error of judgment in weighing' the
factors relevant to the decision . . . such that the decision
falls outside the range of reasonable alternatives." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted).
Here, the defendant contends that the motion and trial
judges (the judges) abused their discretion in allowing the
Commonwealth's motion in limine to permit the defendant's
daughter, J.R., to testify that the defendant sexually abused
her when she was a child in order to show "the defendant's
pattern of conduct, plans, or to corroborate the testimony of
the alleged victim [N.M.]." Specifically, the defendant claims
that the judges erred because (1) the incidents are factually
dissimilar and too remote in time to constitute a pattern of
5
We note that in both instances, it appears that the
defendant's continued abuse of the victims was tied to his
access to them. His abuse of J.R. ceased shortly after her
mother moved from St. Vincent to Boston and began living with
them and his abuse of N.M. stopped after she reported the abuse
to her mother.
5
operation, and (2) prior bad act evidence cannot be used to
"corroborate" a victim's testimony.6 We disagree.
Although the prosecution cannot introduce evidence of a
defendant's prior bad acts "for the purposes of showing his bad
character or propensity to commit the crime charged," such
evidence may be admissible to show "a common scheme, pattern of
operation, absence of accident or mistake, identity, intent, or
motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).
Prior bad acts involving someone other than the victim are
admissible so long as they are "connected 'in time, place, or
6
Contrary to the defendant's assertion, under decisional
case law prior bad act evidence showing a pattern of conduct
"can be admitted . . . where it corroborates the victim's
testimony." Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818
(1998). See id. at 817-818 ("[C]ase law is particularly clear
that evidence of uncharged sexual misconduct, when not too
remote in time, . . . may also be admitted to corroborate
the victim's testimony . . . ." See also Pillai, 445 Mass. at
183-184, quoting from Commonwealth v. King, 387 Mass. 464, 472
(1982) (prior bad act evidence of sexual assault on different
minor "would likely be admissible not only to show a common
pattern of conduct, but also 'to corroborate[] the victim's
testimony . . .'"); Commonwealth v. Aguiar, 78 Mass. App. Ct.
193, 204 (2010). Even were we to assume that prior bad act
evidence cannot be used to corroborate the victim's testimony,
we cannot say that inclusion in the jury instructions of the
statement that it could be used to corroborate the victim's
testimony gave rise to a substantial risk of a miscarriage of
justice here, given the other evidence presented at trial, see
Commonwealth v. Delong, 72 Mass. App. Ct. 42, 45 (2008), the
fact that the evidence was admissible to show the existence of a
pattern of operation, and the overall brevity of J.R.'s
testimony regarding the sexual abuse. Moreover, the trial
judge's proper and forceful instructions to the jury cured any
prejudice. See Pillai, 445 Mass. at 190. See generally Mass.
G. Evid. § 404(b) (2015).
6
other relevant circumstances to the particular sex offense for
which the defendant is being tried.'" Commonwealth v. Hanlon,
44 Mass. App. Ct. 810, 818 (1998), quoting from Commonwealth v.
King, 387 Mass. 464, 470 (1982) (King).
Here, the defendant's claim that the incidents are too
factually dissimilar to constitute evidence of a pattern of
operation is meritless. First, the circumstances under which
the abuse occurred was similar in both cases. Specifically, the
defendant was, the motion judge found, a "father-like figure" to
the victims and exploited this relationship, along with the
victims' financial dependence on him, in order to keep the
victims from reporting the abuse. See Pillai, 445 Mass. at 181-
182 (cases factually similar where victims were same age, "away
from their homes and dependent on the defendant for parental
protection . . . . [and] [t]he defendant used the same method of
access" to the victims); King, supra at 472. The defendant also
threatened both victims by telling them that they would be taken
away from their families if they reported the abuse.
Additionally, the victims were around the same age when the
abuse began (seven or eight years old). See Commonwealth v.
Aguiar, 78 Mass. App. Ct. 193, 200-201 (2010) (Aguiar) (cases
factually similar where both victims were "between the ages of
six and nine" when abused by the defendant); King, supra.Moreover, the sexual abuse was almost identical in nature. In
7
both instances, the defendant had vaginal intercourse with the
young girls, engaged them in oral sex,7 and touched their
prepubescent chests, and each assault occurred almost
exclusively in the privacy of the bedroom in which the defendant
slept. See Aguiar, 78 Mass. App. Ct. at 204. In these
circumstances, J.R.'s testimony tended to show the defendant's
intent and inclination to commit the charged acts and it
corroborated the pattern of conduct testified to by the victim.
See Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 431
(1985); Hanlon, 44 Mass. App. Ct. at 817. See also Commonwealth
v. Bemis, 242 Mass. 582, 585 (1922). Contrast Commonwealth v.
Yetz, 37 Mass. App. Ct. 970 (1995) (prior consensual incident of
statutory rape not probative of conduct that gave rise to
forcible rape charge and, thus, was inadmissible).
Likewise, we reject the defendant's claim that the
approximately eight-year time period between the incidents
renders the evidence too remote.8 To be admissible, evidence of
7
One difference is that the defendant forced his penis into
J.R.'s mouth, but was unable to do so with N.M. because N.M.
resisted. Such differences, however, "do[] not render the
otherwise factually similar assaults distinct." Aguiar, 78
Mass. App. Ct. at 201.
8
Preliminarily, we note that, based on the defendant's 2010
assault with intent to rape indictment, based on an incident in
September, 2000, see note 16, infra, the motion judge could have
found that the time span between the incidents was actually less
than four years. We need not rely on that possibility in
reaching our decision, however, because we agree with the motion
8
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." Hanlon, 44 Mass. App.
Ct. at 818, quoting from Commonwealth v. Barrett, 418 Mass. 788,
794 (1994). "There is no bright line test, however, for
measuring remoteness." Hanlon, supra at 819. Indeed, where the
uncharged misconduct is, as here, part of a "'continuing course
of related events,' or the conduct is unusual and particularly
similar to the charged acts, the allowable time period is
greater." Ibid. Here, because the defendant's pattern of
conduct with N.M. and J.R. was distinctly similar, we do not
believe the interval of time was too great. See id. at 819-820
(uncharged assaults separated by six and nine years, but
intervening period not eventless); State v. John G., 100 Conn.
App. 354, 360-365 (2007) (striking similarity between sexual
assaults on defendant's young prepubescent granddaughters
rendered evidence admissible despite eight-year gap); State v.
Beckham, 145 N.C. App. 119, 121-122 (2001) (fourteen- and
twelve-year gaps between two uncharged acts and the crime
permissible given "striking similarities"); State v. McCombs,
410 S.C. 90, 99-101 (2014) (uncharged act preceding crime by
judge that "[b]ecause of the nature of th[e] abuse, it is not
surprising that there was a lapse of many years between" the
incidents, "as there was no evidence that an opportunity for the
defendant to engage in this course of conduct existed . . . ."
9
eight years not too remote because incidents were similar in
that they involved prepubescent girls at the defendant's home).
Moreover, the apparent lack of access to N.M. or to J.R. during
the intervening period in question bolsters our conclusion that
the length of time between the conduct does not render the
evidence too remote.9 See Commonwealth v. Kater, 432 Mass. 404,
414-416 (2000) (two "strikingly similar" crimes ten years apart
not so temporally remote as to preclude admission of earlier
crime where defendant spent most of that time in prison);
Aguiar, 78 Mass. App. Ct. at 202 (no error in joinder, as
conduct not too remote despite six and one-half year interval
between assaults because defendant's ability to abuse victims
was "completely dependent on establishing a close relationship
with" and having access to them); State v. Jacob, 113 N.C. App.
605, 611-612 (1994) (evidence not too remote where defendant
lacked access to daughter after divorce and where other daughter
had not yet reached prepubescent age); State v. Hopkins, 698
A.2d 183, 186 (R.I. 1997) (ten-year time span between incidents
did not render prior bad act evidence involving victims of
similar age and relationship and similar modus operandi
inadmissible). Indeed, the gap in time reflects the fact that
9
The evidence in this case suggested that during the eight-
year gap in question, no young girl had a relationship with the
defendant similar to that of J.R. or N.M., apparently because
the defendant did not have access to such a potential victim.
10
for sex offenders like the defendant who prey on prepubescent
girls within their family and household the pool of potential
victims is significantly limited. Cf. 803 Code Mass. Regs.
§ 1.40(7) (2013) ("Offenders who limit their sexual offending
behavior to Intrafamilial Victims have, in most cases, the
fewest number of potential victims from which to prey upon").
In sum, we conclude that the defendant's need for access,
coupled with the "similarity in the method by which the
defendant committed the various offenses" (emphasis in
original), Pillai, 445 Mass. at 182 (quoting from Commonwealth
v. Mamay, 407 Mass. 412, 417 [1990]), renders the evidence
admissible, notwithstanding the time span of as much as eight
years between the incidents. See Commonwealth v. Sharpe, 454
Mass. 135, 144 (2009) (seven-year gap did not render evidence
inadmissible where "there was a continuum of similar conduct
throughout the relationship"); Hanlon, 44 Mass. App. Ct. at 820
(evidence not too remote despite nine-year gap because it
"demonstrate[d] the ongoing nature of the defendant's
behavior").
Finally, we reject the defendant's claim that the judges
erred in allowing admission of the evidence because it was
unduly prejudicial.10 Contrary to the defendant's claim, J.R.'s
10
The defendant contends that the highly prejudicial nature
of J.R.'s testimony is evidenced by the testimony of J.R.'s
11
testimony here was neither overwhelming nor "extremely
detailed."11 Moreover, before allowing J.R. to testify regarding
the sexual abuse, the trial judge "gave careful limiting
instructions to the jury." Hanlon, 44 Mass. App. Ct. at 820.
The trial judge reiterated the limiting instruction in his final
charge to the jury and emphasized that the jury could not
consider the evidence for the purpose of showing propensity.12
See Pillai, 445 Mass. at 190 ("We presume that the jury followed
sister at the hearing on the motion for new trial that two
jurors, both under a mistaken belief that J.R.'s sister was
J.R., approached the sister and said that "if it wasn't for
[her], then [her] dad wouldn't be convicted." Preliminarily, we
note that given the brevity of J.R.'s testimony, we think it
unlikely that the defendant was "convicted . . . based solely
on" J.R.'s testimony. In any event, however, an individual
juror's statement concerning jurors' subjective mental processes
"is not permissible to impeach a verdict." Hanlon, 44 Mass.
App. Ct. at 816. Moreover, we agree with the judge that the
jurors' statements do not indicate that the jury used J.R.'s
testimony for improper purposes.
11
Indeed, defense counsel argued in his closing argument
that J.R.'s testimony was brief and, at times, lacked detail.
Cf. Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006).
12
Specifically, the trial judge instructed: "You may
consider whether [J.R.'s] testimony corroborates the testimony
of [N.M.] and shows a common scheme and pattern of behavior,
modus operandi, if you will, and you may consider it to the
extent it shows motive and intent. You may not consider this
evidence for any other purpose. Specifically, you may not use
it to conclude that if you determine that the defendant
committed acts with his daughter, it must follow that he
committed acts with the complainant, as well. Moreover, you may
not take this testimony as substitute for the proof that the
defendant committed the crimes charged in the indictments, nor
may you consider it as evidence that the defendant has a
criminal personality or a bad character."
12
the judge's instruction"); Commonwealth v. Delong, 60 Mass. App.
Ct. at 528, 535-536 (2004). Accordingly, we conclude that the
probative value of the evidence was not outweighed by the risk
of unfair prejudice to the defendant.13
2. Ineffective assistance. Finally, the defendant's claim
that the judge erred in denying his motion for new trial because
his trial counsel provided ineffective assistance is meritless.14
First, contrary to the defendant's claim, trial counsel renewed
his objection to the admission of J.R.'s testimony on the first
day of trial while discussing preliminary matters, and again
immediately before opening statements.15 In any event, because
the prior bad act evidence was properly admitted, counsel did
not provide ineffective assistance by choosing to "forgo a
futile motion." Commonwealth v. Delong, 72 Mass. App. Ct. 42,
51 (2008).
13
We also reject the defendant's claim that he was
prejudiced by the prosecutor's use of the word "they" in her
closing argument. Notwithstanding her use of the word "they,"
the prosecutor carefully explained to the jury the exact conduct
underlying each indictment, thus eliminating the risk that jury
would convict the defendant based on uncharged conduct.
14
The trial judge also heard and denied the defendant's
motion for new trial. Accordingly, we extend "special
deference" to his denial of the defendant's motion. See
Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
15
Indeed, the judge expressly stated that the defendant's
rights, with respect to the prior bad act evidence, were saved.
13
Likewise, after reviewing the trial transcripts, we cannot
say that counsel's decision to elicit information regarding the
September, 2000, incident16 on his cross-examination of J.R. was
"manifestly unreasonable when made." Commonwealth v. Henley, 63
Mass. App. Ct. 1, 8 (2005). See Commonwealth v. Montez, 450
Mass. 736, 759 (2008) ("When counsel's strategic decisions are
in issue, we must show 'some deference to avoid characterizing
as unreasonable a defense that was merely unsuccessful'"
[citation omitted]). Trial counsel's assistance is not
ineffective merely because another "attorney would now assemble
the factual components of an attack on a cooperating witness's
credibility differently than trial counsel . . . ."
Commonwealth v. Walker, 438 Mass. 246, 251 (2002), quoting from
Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002). Here,
defense counsel explained at sidebar that he was attempting to
inquire into the 2000 incident to show J.R.'s bias.17 Moreover,
his questioning of J.R. regarding the incident was part of his
16
In September, 2000, the defendant was arrested after he
picked J.R. up by her neck and threw her on the bed. J.R.
testified that the defendant did this because she refused to
change her jeans, which he thought were too tight. In 2010, the
defendant was indicted in Suffolk County for assault with intent
to rape based on the September, 2000, incident. These charges
were pending at the time of trial.
17
More specifically, he suggested the possibility that she
may have "puffed up" the 2000 incident to involve an attempted
rape.
14
overall strategy to discredit J.R. by suggesting that she
fabricated the allegations of sexual abuse. Compare
Commonwealth v. Coonan, 428 Mass. 823, 827-828 (1999). In sum,
the judge did not abuse his discretion in denying the
defendant's motion for new trial based on ineffective assistance
of counsel.
Judgments affirmed.
Order denying motion
for new trial affirmed.