Commonwealth v. Sylvester
Commonwealth v. Sylvester
Opinion of the Court
The defendant appeals from two convictions of rape of a child under sixteen years of age, G. L. c. 265, § 23, and also appeals from three convictions of unnatural and lascivious acts on a child under sixteen years of age, G. L. c. 272, § 35A. The jury acquitted the defendant of two counts each of rape and unnatural and lascivious acts on one of the three alleged victims. The Appeals Court af
1. Judge’s comments in the presence of the jury. The defendant contends that the judge’s repeated “ridicule [of] defense counsel, threat[s] to cut off her argument, interrupting] and questioning] witnesses, and comment[s] on the evidence,” for which he moved for a mistrial, demonstrated to the jury a bias against the defendant which “could not have been cured by the two sentences in the charge” instructing the jury not to be influenced by colloquies between the judge and counsel.
Equally as important, some of the judge’s conduct interfered with counsel’s ability to put on a full defense. Most
Our examination of the defendant’s claims of error, viewed in the context of the conduct of the entire trial, has convinced us that, in diverse ways, he was deprived of a fair and impartial trial. Commonwealth v. Sneed, 376 Mass. 867, 870 (1978).
While the defendant’s motion raised several issues,
In the case before us, the defendant was accused of committing sexual offenses between May 12, 1979, and December 31, 1979.* ****
In Commonwealth v. Blow, 362 Mass. 196, 200 (1972), we reviewed the guidelines to be employed in considering a motion to sever indictments. We said that joinder of indictments for a single trial is permissible when “several indictments charg[e] different crimes arising out of a single chain of circumstances”; or when “several offenses might have been joined in one indictment, and would be proved by substantially the same evidence, or evidence connected with a single line of conduct, and grow out of what is essentially one transaction, and where it does not appear that any real right of the defendant has been jeopardized.” Id., quoting Commonwealth v. Rosenthal, 211 Mass. 50, 54 (1912). The Commonwealth argues that “since the facts and circumstances surrounding each crime were relevant and logically probative to show a common course of conduct, motive and intent, evidence of each offense would have been admissible even if the charges had been severed.” In support of this argument, the Commonwealth relies on our decision in Commonwealth v. Gallison, 383 Mass. 659 (1981). There, the defendant challenged the joinder of indictments for manslaughter of her daughter and assault and battery on her son. The “nub” of the defendant’s appeal was that “trial of both indictments created a ‘seepage ... of evidence not otherwise admissible’ against her.” Id. at 672. We repeated the general rule that “evidence of other criminal behavior may not be admitted to prove the propensity of the accused to commit the indicted offense but it is admissible for other relevant probative purposes.” Id. at 672. We held that evidence of abuse of the son “formed a temporal and schematic nexus with the treatment of [the daughter]
More recently, in Commonwealth v. King, 387 Mass. 464, 469-473 (1982), we held that evidence of oral sex and the use of a dog to perform sexual acts on the victim’s younger brother “showed a common pattern or course of conduct toward the two children, and was sufficiently related in time and location to be logically probative.” Id. at 472. In King, while the defendant had not been charged with sexual offenses against the victim’s brother, “the uncharged conduct [was] closely related in time, place, age, family relationship of the victims, and form of the sexual acts.” Id. We distinguished these factors from those in Commonwealth v. Welcome, 348 Mass. 68 (1964), where, in a prosecution of indecent assault and battery on a seven year old girl, evidence of unconnected prior sexual offenses with four and six year old girls was “not relevant to prove that the defendant was guilty of the crime for which he was indicted.” Id. at 70. See also Commonwealth v. Ellis, 321 Mass. 669, 670 (1947) (in prosecution for rape of a child under fourteen, where defendant claimed to be impotent, evidence that he had fondled her older sister had the sole effect of showing “that the defendant was a lewd man, and to lead the jury to believe that a man of his character would be likely to commit the crimes charged. . . . [T]he evidence . . . had no tendency to show a lecherous disposition toward the younger child”). Contrast Commonwealth v. Machado, 339 Mass. 713 (1959) (sex offenses with same victim admissible to show the same inclination with respect to that victim).
In the case before us, where the defendant simply denied the charges, evidence of the other offenses would not bear on an essential element of the crime. Cf. Commonwealth v. Gallison, supra. Neither was there any issue respecting the particular factual circumstances. Compare Common
We point out, however, that the admissibility of evidence of other criminal acts is not dispositive of the question whether several indictments should be severed under Mass.
The judgments of the Superior Court are reversed. The verdicts are set aside.
So ordered.
APPENDIX.
(Bench Conference Remarks Not Included)
Interchanges with Defense Counsel
Counsel for the defendant (on cross-examination): “Was it a lot of times . . . ?”
The judge: “Is that helpful to the jury? A lot of times or a few times? It doesn’t mean anything does it?”
Counsel for the defendant (on cross-examination): “And how many times did you talk to Bob Reinertson?”
The witness: “I don’t know. I can’t remember.”
Counsel for the defendant: “Was it a lot of times? Just once?” The judge: “He says yes [the witness had not]. How does that help the jury, a lot?”
The judge: “Do you object to what he said to him?”
Counsel for the defendant: “Yes.”
The judge: “All right. Go ahead, son. That’s a new one.”
The judge: “All right. I’m going to allow it. It is not harmful Ms. Lewis. This is how he got involved. I don’t see how it hurts the defendant. There has got to be some point to your objections.”
The judge: “No. I will let her have that.”
Counsel for the defendant: “Thank you very much.”
The judge: “You don’t have to thank me. I only do my duty.”
Counsel for the defendant: “Your Honor, I would expect that my next witness will have rather lengthy testimony, and may we adjourn at this time for lunch?”
The judge: “I’m not hungry at all. Proceed.”
The judge: “Excluded. Next question. I suppose the jury can draw their own conclusions. Give them some credit, too, Ms. Lewis.”
Counsel for the defendant: “Your Honor, I am not offering it for hearsay purposes, but for the fact that the statement was made.”
The judge: “I didn’t know there was such a purpose, a hearsay purpose. No, I’ll exclude it. Save your rights.”
The judge: “I am going to exclude it.”
Counsel for the defendant: “Note the defendant’s objection.”
The judge: “I don’t have to do that anymore. It is done by the reporter.”
The judge: “You know, Ms. Lewis, for a girl [sic] that objected all through to leading questions by the Government, I think they’ve been very patient with you, because you are testifying, and he’s confirming what you say, and that is a classic definition of a leading question. Stop it. I’ll note your objection and your exception. Now, start asking questions the way you should.”
Counsel for the defendant: “Would you note the defendant’s objection again, Your Honor?”
The judge: “To what?”
Counsel for the defendant: “To your comment, Your Honor, respectfully.”
The judge: “Get a question to the witness.”
Counsel for the defendant : “And what did you think you were being brought to the police station for?”
The judge: “Who cares? Excluded.”
Counsel for the defendant: “Note the defendant’s objection.”
The judge: “Oh, yes. I will note your objection.”
The judge: “I am not going to let you let him spill out narrative material here about self-serving statements about what he did in the police station. There is a way to try this case. Get to it.”
Counsel for the defendant: “Who came into the room — which of the three, Joey, Wallie or Louie came into the room?”
(No objection to the question by the Commonwealth)
The witness: “Joey B.....”
The judge: “Is that terribly crucial or helpful to the jury?”
The judge: “Is that his statement, or yours?”
Counsel for the defendant: “I believe it is his, Your Honor.”
The judge: “You mean you want him to adopt it? Go ahead.”
Counsel for the defendant: “Did he ask for these magazines?”
[No objection made by the Commonwealth]
Counsel for the defendant: “I would suggest, Your Honor, that Mr. McAlary [the prosecutor] has attempted to impugn the credibility of
The judge: “I am excluding it. I am excluding it.”
The judge included these remarks in his jury instructions: “[Ljawyers being advocates, any colloquy, any give and take between the Court and any lawyer, either one, should never be considered by you in determining the guilt or innocence of this defendant. It would be improper for you ... to try and assume because the Court may make a remark to this lawyer or that lawyer that the Court has a feeling or is trying to decide facts for you.”
A summary of the trial judge’s comments is appended to this opinion as well as to the opinion of the Appeals Court, S. C., 13 Mass. App. Ct. 360, 369-371 (1982). As that court noted, some “vitriolic remarks to defense counsel” were made during bench conferences, outside the hearing of the jury. Id. at 366 n.2. These remarks were not included in either appendix.
The judge told defense counsel that he would instruct the jury to disregard testimony elicited on cross-examination with respect to the neighbor’s complaint and the defendant’s children. The instruction was not forthcoming, and defense counsel did not object to its omission. Nevertheless, the instruction would have come too late, in our view. Testimony had already been admitted on cross-examination and excluded on redirect examination.
Massachusetts Rule of Criminal Procedure 9 provides in material part: “(a) JOINDER OF OFFENSES. (1) Related Offenses. Two or more offenses are related offenses 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.
“(d) RELIEF FROM PREJUDICIAL JOINDER. (1) In General. If it appears that a joinder of offenses or of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts, grant a severance of defendants, or provide whatever other relief justice may require.”
“(2) Motion by the Defendant. A motion of the defendant for relief from prejudicial joinder shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known.”
The motion for relief from prejudicial joinder, with its supporting affidavit, raised five issues: (1) that joinder would not be “in the best interests of justice” and “would deny the defendant... a fair trial”; (2) “that the evidence regarding one alleged victim is not admissible to prove the in
The indictments relating to one victim covered the period between May 12,1979, and December 31,1979; two of the counts therein specified “divers dates and times between June 1, 1979 and December 31, 1979.” The indictments relating to the other two victims specified one-month and four-month time frames, respectively, between September and December, 1979. The defendant has raised no question respecting the specificity of the charges. See Commonwealth v. King, 387 Mass. 464, 467-469 (1982).
Since there must be a new trial it is unnecessary for us to discuss this issue raised in regard to the prosecutor’s opening statement, as the remarks objected to by the defendant are unlikely to be repeated at retrial.
Concurring Opinion
(concurring). I agree that the defendant did not receive a fair trial and that a new trial is appropriate. However, I do not believe that on retrial the judge should have discretion to deny a request of the defendant that the indictments involving different victims be tried separately.
Indictments involving one victim may not be joined with indictments involving another victim unless the evidence as to one victim would be admissible in a separate trial as to the other. Commonwealth v. Gallison, 383 Mass. 659, 672 (1981). Commonwealth v. Blow, 362 Mass. 196, 200 (1972). Here the evidence as to one victim should not be admissible in a separate trial as to the other victim.
Multiple offenses are alleged to have taken place at the defendant’s apartment on different occasions involving several victims who claim to know the assailant from having met him at a neighborhood store. It is clear from these allegations that the identity of the alleged assailant will not be the critical issue at retrial. The court recognizes this. Supra at 757. It is equally clear that the assailant’s state of mind will not be a contested issue. The critical issue at a separate trial for offenses against any one of the victims will be whether the alleged offenses against the victim actually occurred. Consequently, the question before this court is whether evidence of offenses against one child ought to be admitted at a trial for offenses against another child to show that the latter offenses occurred. The only possible relevance of evidence of offenses against one child on the issue whether offenses against another child actually occurred is its tendency to show that the defendant had a
The admission of such evidence is unfairly prejudicial to the defendant because its marginal probative value on the question whether the offense occurred is far outweighed by the danger that a jury with that information will find him guilty without being satisfied beyond a reasonable doubt that the indicted offense occurred. See McCormick, Evidence § 188 (2d ed. 1972). This court has held many times, and it should continue to hold, that evidence of other crimes is inadmissible if its only relevance is to show a disposition to commit the indicted offense. Commonwealth v. Gallison, supra at 672. Commonwealth v. Schoening, 379 Mass. 234, 242 (1979). Commonwealth v. Baker, 368 Mass. 58, 85-86 (1975). Commonwealth v. Murphy, 282 Mass. 593, 598 (1933).
In Commonwealth v. Welcome, 348 Mass. 68 (1964), the defendant was tried for indecent assault and battery on a child under the age of fourteen. This court held that evidence that the defendant had assaulted other young girls was inadmissible to prove the defendant guilty of the crime charged. Id. at 70-71. The court states (supra at 755-756), that Welcome was not overruled by Commonwealth v. King, 387 Mass. 464 (1982), and Commonwealth v. Gallison, supra, but inexplicably it fails to follow Welcome, which is indistinguishable in any significant way from this case.
Commonwealth v. Gallison, supra, is not inconsistent with Welcome. In Gallison, this court held that evidence of other crimes was admissible, not to prove that the defendant committed the alleged criminal act, as the court would permit here, but to prove the defendant’s state of mind as an element of manslaughter. Id. at 672.
In sum, the court’s failure to require severance of the indictments against the defendant is inconsistent with the principles and specific holdings of its earlier cases. In this
Reference
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- Commonwealth vs. Elmer Sylvester
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