Commonwealth v. Anderson
Commonwealth v. Anderson
Opinion of the Court
The defendant was indicted on three counts of rape of a child, in violation of G. L. c. 265, § 23. His first trial ended in a mistrial. The defendant was retried in August, 2014, before a different trial judge and a second jury, which convicted him of all three counts. We affirm.
1. Uncharged conduct. For the first time on appeal, the defendant argues that testimony about uncharged conduct overwhelmed the trial and that the resulting prejudice requires reversal.
On this record, we discern no such abuse. The testimony regarding the defendant's "grooming" behavior certainly had probative value. It had a strong logical connection to the charged conduct and was relevant to show the defendant's escalating sexual and grooming behavior against the victim leading up to the charged rapes. See Commonwealth v. Calcagno,
Even were we to assume for the sake of argument that the judge erred in not excluding or limiting the prior bad act evidence sua sponte, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Azar,
2. The victim's use of the terms "rape" and "raped." The defendant next argues that he was unfairly prejudiced by the victim's use of "rape" or "raped" six times during her testimony, which lasted for two days. The defense objected the first time that the word was used, and the trial judge immediately provided a curative instruction, informing the jury that the determination whether a rape occurred was ultimately their decision. In these circumstances, we discern no prejudicial error. See Commonwealth v. Griffin,
3. Uncle Terrence. The defendant also argues that he was prejudiced by the prosecutor's occasional use of the phrase "Uncle Terrence" in reference to the defendant. Prior to trial, the defendant moved to have the prosecutor refrain from using "Uncle Terrence," and the trial judge allowed the motion; however, the prosecutor referred to the defendant as "Uncle Terrence" several times during the trial.
This was not prejudicial error. Referring to the defendant in this manner on a few isolated occasions was not suggestive of bad character or criminality; instead, when read in context, it simply mirrored the fact that the victim referred to the defendant as "Uncle Terrence." Contrast Commonwealth v. Carter,
4. First complaint witness. The defendant further argues that the trial judge erred in allowing the victim's husband to testify as the first complaint witness without conducting a voir dire to determine whether, as set forth in police reports, the victim first disclosed the sexual abuse to two other relatives. We review the trial judge's decision not to conduct a voir dire before admitting first complaint evidence for abuse of discretion. Commonwealth v. Murungu,
Where there is contradictory evidence as to the identity of the first complaint witness, the judge normally should conduct a voir dire before making a determination. Commonwealth v. Stuckich,
5. Motion for a mistrial. The defendant additionally argues that the trial judge abused her discretion in failing to declare a mistrial after the victim, in response to defense counsel's repeated questions about why she needed money on the day of the rapes, responded that counsel should ask the defendant when he testified. We review a trial judge's order denying a motion for a mistrial for abuse of discretion, Commonwealth v. Saunders,
The judge gave an extensive curative instruction to the jury immediately after the comment; she again repeated that instruction in her final charge to the jury. See Commonwealth v. Bryant,
6. Closing argument. The defendant also contends that the prosecutor's misstatements during closing argument warrant reversal. Because the defendant did not object at trial, we review any errors in the closing argument to determine whether they created a substantial risk of a miscarriage of justice. Commonwealth v. Dirgo,
First, the defendant argues it was error for the prosecutor to state that the victim and the other witnesses had "no motive to lie." We disagree. Defense counsel, in her closing argument, repeatedly had questioned the credibility of these witnesses. In such a situation, the prosecutor properly may ask the jury to consider whether these witnesses had a motive to lie. Commonwealth v. Polk,
Second, the defendant argues that the prosecutor improperly appealed to the jury's emotions by referencing the age of the victim. We disagree. The victim's age was relevant to the charge of statutory rape. Contrast Commonwealth v. Santiago,
We agree, however, with the defendant that the prosecutor's statement, suggesting it was the jury's "job" to find the defendant guilty, was improper. In particular, the prosecutor stated: "[j]urors, it is now your turn to speak. The word 'verdict' literally means to speak the truth. It is your job now, speak your verdict. Find him guilty." Imploring the jury to "do their 'job' " was improper. Commonwealth v. Degro,
Nevertheless, the error did not create a substantial risk of a miscarriage of justice. To begin, the trial judge instructed the jury, after the prosecutor's closing argument, that the closing argument was neither evidence nor a substitute for evidence. The judge also took care to emphasize repeatedly to the jury that only admitted evidence could be considered. Furthermore, in the context of the strength of the evidence of the defendant's guilt, it is unlikely that this improper remark changed the outcome of the trial.
7. Ineffective assistance of counsel. Finally, the defendant argues that he was denied effective assistance of counsel because defense counsel failed to adequately prepare for trial, failed to object to the prosecutor's improper closing argument, and failed to object to the prior bad act evidence.
Because the defendant's claim of ineffective assistance is made on the basis of the trial record alone, without any affidavit of defense counsel setting forth her strategy, this challenge is in its "weakest form." Commonwealth v. Peloquin,
To begin, as we set forth supra, the error in the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice. As such, it was not unreasonable for defense counsel to fail to object. See Commonwealth v. Johnson,
Judgments affirmed.
The defendant opposed the Commonwealth's motion in limine to introduce the prior bad act evidence on different grounds than the one he presses on appeal. See Commonwealth v. Whelton,
The other candidate for first complaint witness was not on the witness list and was not otherwise available.
The defendant also argues that the prosecutor misstated evidence, including by: (1) referring to testimony from the defendant's wife, which was not stricken; (2) characterizing the defendant's wife's incredulousness when the defendant alleged that the victim made sexual advances; and (3) characterizing the defendant's statement to his cousin as an admission. Having reviewed the prosecutor's argument and the evidence in question, we discern no error.
We do not determine how such a claim might fare on a motion for a new trial where the record of defense counsel's decision-making would presumably be more fulsome.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.