Commonwealth v. Silva
Commonwealth v. Silva
Opinion
*609 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 *610 the defendant, 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.
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."
*702 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 *611 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.
ii. Karen 2 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."
...
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.)
*612 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 *703 [ 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."
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
,
The defendant moved for a mistrial. Defendant's counsel argued that the pauses in Karen's testimony were "the most prejudicial *613 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 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 *704 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 with his hands over her clothes. She also testified to a specific occasion *614 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 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
.,
We review the denial of a motion for a mistrial for abuse of discretion. See
Commonwealth
v.
Santana
,
*615 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 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.
*705
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
,
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 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
,
Indeed, the defendant has not pointed to a single Massachusetts case, and we have found none, where an appellate court has
*616
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
,
The defendant also points to the decision in
Bruton
v.
United States
,
*706
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 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),
Our review of a judge's decision on a motion to sever is for a
*618
"clear abuse of discretion."
Commonwealth
v.
Pillai
,
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,
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
,
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
,
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
,
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
Judgments affirmed .
A pseudonym.
A pseudonym.
In opening, the prosecutor identified Karen as a victim, and described her expected testimony of sexual abuse at the hands of her father.
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.
Both names are pseudonyms.
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
,
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.
The defendant also contends that the prosecutor, in closing, improperly cited to certain testimony from the 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
,
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.