Summary
The Massachusetts Supreme Judicial Court reviewed convictions for indecent assault and battery on children under fourteen arising from two complaints tried together. The court upheld joinder, rejected challenges concerning excluded evidence, ineffective assistance, variance, prosecutorial conduct, unanimity instructions, and other claims, but concluded that the evidence supported only one of the two counts involving one complainant. The court affirmed in part, reversed in part, and remanded for resentencing.
Topics
Practice areas
Questions Presented
- Whether the two complaints charging indecent assault and battery on separate children were properly joined for trial under Mass. R. Crim. P. 9.
- Whether the trial judge improperly excluded evidence concerning the complainants' home lives and possible motives to fabricate.
- Whether trial counsel rendered ineffective assistance by failing to present additional impeachment and fabrication evidence.
- Whether a variance between the bill of particulars and the trial evidence concerning the date of one assault prejudiced the defendant.
- Whether prosecutorial statements and rebuttal testimony deprived the defendant of a fair trial.
- Whether the trial judge was required to give a specific unanimity instruction concerning the individual touchings supporting each count.
- Whether the evidence was sufficient to support two separate convictions based on the touching of one complainant's breast and nipple.
- Whether the sentence imposing community parole supervision for life was legally valid.
Holdings
- The trial judge did not abuse her discretion by joining the complaints because the offenses were related under Mass. R. Crim. P. 9 and the defendant failed to show compelling prejudice that prevented a fair trial.
- The absence of a sua sponte limiting instruction regarding the use of the other offense did not create a substantial risk of a miscarriage of justice, although giving an appropriate instruction is the better practice.
- The record did not establish that the trial judge broadly precluded evidence of the complainants' home lives or that the defendant was denied his rights to present a defense and confront witnesses.
- Trial counsel was not ineffective for failing to present the proposed impeachment and fabrication evidence because the challenged strategy was not manifestly unreasonable when undertaken.
- The variance between the bill of particulars identifying August 18, 1999, and the complainant's trial testimony that the assault occurred sometime in July or August did not prejudice the defendant.
- The prosecutor's challenged opening statement, rebuttal testimony, and closing remarks, considered individually and cumulatively, did not deprive the defendant of a fair trial.
- The trial judge's failure to give a sua sponte specific unanimity instruction identifying the particular touching supporting each count did not create a substantial risk of a miscarriage of justice.
- The evidence supported only one conviction for the conduct involving the complainant Rose because the touching of her breast and nipple was a single act rather than two separate crimes.
- The sentence imposing community parole supervision for life could not stand because the relevant statutory provisions were unconstitutional as applied to a first-time sexual offender.
Key quotations
“The decision whether to join offenses for trial is a matter left to the sound discretion of the judge” (179)
“Offenses are related if “the evidence in its totality shows a common scheme and pattern of operation that tends to prove” each of the complaints” (180)
“The evidence here showed a common pattern or course of conduct toward the two children, and was sufficiently related in time and location to be logically probative.” (183)
“With no evidence that the touching of the breast and nipple were in any way separate events, we cannot conclude that the evidence supported a conviction of two separate crimes beyond a reasonable doubt.” (193)
Factual background
The defendant was accused of sexually assaulting two thirteen-year-old girls during separate sleepovers at his home, months apart. In each episode, he awakened the girl during the night and touched her breasts and other intimate areas while attempting to prolong the encounter. A jury convicted him on two counts involving one complainant and six counts involving the other.
Procedural history
A District Court jury convicted the defendant on eight counts of indecent assault and battery on a child under fourteen. The trial court denied the defendant's motion for a new trial. The Appeals Court reversed based on improper joinder. The Supreme Judicial Court affirmed some rulings, reversed one duplicative conviction, vacated the sentence, and remanded for resentencing.
Remand instructions
Affirm the remaining convictions and the denial of the motion for a new trial, reverse the duplicative second conviction on Rose's complaint, vacate the sentence including lifetime community parole supervision, and remand to the District Court for resentencing consistent with the opinion.