COMMONWEALTH v. GRACE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant, Sumkit Grace, of two counts of indecent assault and battery on a person over fourteen years of age (one involving his daughter, J.G., and one involving his daughter's friend, C.D.), G. L. c. 265, § 13H; and one count of open and gross lewdness, G. L. c. 272, § 16.² On appeal, the defendant contends: (1) the judge abused her discretion in joining the charges; (2) the judge erred in not instructing the jury on using prior and subsequent bad act evidence for the various charges; (3) the judge improperly admitted prior and subsequent bad act evidence; and (4) his trial counsel was prejudicially ineffective. We affirm.

Discussion. 1. Joinder. We review claims of misjoinder for an abuse of discretion. See Commonwealth v. Clarke, 418 Mass. 207, 217 (1994). To prevail, the defendant must show “that the offenses were unrelated, and that prejudice from the joinder was so compelling that it prevented him from obtaining a fair trial.” Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). Whether charges involving multiple victims of sexual assault are related depends on “whether the victims were of similar age and gender, or shared other characteristics; the proximity in time of the assaults; and whether there were similarities in the details of the crimes -- for example, in terms of location, the manner in which the defendant gained access, or the acts themselves.” Commonwealth v. Silva, 93 Mass. App. Ct. 609, 618 (2018).

We are satisfied these factors were met in the context of this case. Here, both victims were teenage girls who attended the same high school and were good friends. The defendant, therefore, had virtually equal access to both girls by virtue of his role as a parent of one of the two friends. The assaults occurred mostly in the same place (his home) and around the same time period (the girls' early high school years). The assault of his daughter's friend arose at least in part out of his relationship to his daughter. Accordingly, the judge did not abuse her discretion in joining the two cases for trial.

2. Jury instructions. While the defendant correctly asserts the judge erroneously failed to instruct the jury to not use evidence of one of the charged offenses as evidence of the defendant's propensity to commit the other offense, we are not persuaded that the error created a substantial risk of a miscarriage of justice.

A jury may not use “ ‘other bad acts’ evidence” as proof of “the defendant's bad character or propensity to commit the crimes charged.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Whenever a jury hears such evidence, the judge must “instruct the jury with particular care what to do in order to avoid diversionary misuse of the material.” Commonwealth v. Mills, 47 Mass. App. Ct. 500, 505-506 (1999). Because the charges involving the two separate victims were joined, evidence supporting the charges pertaining to one victim was simultaneously other bad act evidence of the charges pertaining to the other victim. This overlap could have been addressed by a clear instruction to the jury on how to parcel evidence but the judge did not so “instruct the jury with [such] particular care.” Id.

In the absence of an objection, however, we must determine whether the omission “created a substantial risk of a miscarriage of justice.” Commonwealth v. McCray, 93 Mass. App. Ct. 835, 845-846 (2018). We are tasked to “review the evidence and the case as a whole, considering the strength of the Commonwealth's case, as well as the nature and significance of the alleged errors,” and reverse only when “we are left with uncertainty that the defendant's guilt has been fairly adjudicated.” Commonwealth v. Chase, 433 Mass. 293, 299 (2001). We are left with no such uncertainty here. The Commonwealth had a strong case, and the judge's other instructions served to mitigate the error.

Here, both victims gave unequivocal testimony concerning the offenses perpetrated on them. The defendant also gave a statement to the police, which was played to the jury, in which he admitted to grabbing C.D.'s buttocks and flicking his daughter's nipple, and the judge instructed the jury on unanimity and their duty to separately evaluate the evidence in each of the offenses. Further, the judge instructed the jury against the use of the other prior bad act evidence that came in at trial as propensity evidence for the charged conduct. The judge's instruction in this other context properly alerted the jury to proper use of the bad act evidence.

3. Remaining claims. a. Admission of other bad act evidence. The defendant raises a separate challenge to the admission of the other bad act evidence.³ This claim also lacks merit, as the evidence was properly admitted to establish opportunity and “lack of mistake” when committing the sexual assaults. Commonwealth v. Vera, 88 Mass. App. Ct. 313, 321 n.5 (2015).

b. Improper police testimony. We also see no merit to the defendant's claim that in the recorded police interrogation played for the jury, the police accused him of lying and having inculpatory evidence beyond what was before the jury. While such statements could be problematic, Commonwealth v. Amran, 471 Mass. 354, 360 (2015), our review of the transcript of this interrogation does not reveal any such statements.

c. Other alleged assaults on J.G. The defendant also challenges J.G.'s testimony about assaults committed outside the time period named in the complaint.⁴ J.G. referred to this conduct only once, the judge instructed the jury that they could not use such testimony as propensity evidence, and we presume the jury to abide by the judge's instruction. Commonwealth v. Johnston, 467 Mass. 674, 692 (2014). We discern no prejudice.

d. C.D.'s testimony regarding a second indecent assault and battery charge. The defendant's challenge to the admission of C.D.'s testimony regarding a separate indecent assault and battery that resulted in a required finding of not guilty is also unavailing. At the time, the evidence was properly admitted in support of one of the charges in the complaint, and, once the judge removed the charge from the jury's consideration, he properly instructed the jury to confine themselves to the remaining charges. In any event, this evidence was admissible to show lack of mistake for the remaining charge involving C.D. See Vera, 88 Mass. App. Ct. at 321 n.5.

e. Struck testimony. The defendant claims he was prejudiced by the admission of inadmissible first complaint testimony even though the judge struck the evidence and instructed the jury to disregard it. We presume the jury to have followed the judge's instructions to disregard a witness's testimony, see Silva, 93 Mass. App. Ct. at 615, and we see no extraordinary circumstances that would cause us to conclude otherwise. See id.

4. Ineffective assistance of counsel. The defendant contends, for the first time on appeal, that his trial counsel was prejudicially ineffective for failing to object to the admission of other bad act evidence, for failing to object to the prosecutor's mention of C.D.'s testimony regarding the indecent assault and battery charge that did not go to the jury, and for failing to request an instruction on separating the evidence for each charge. We disagree. Of all the evidence the defendant now challenges, trial counsel only failed to object to J.G.'s testimony about the assaults before her fourteenth birthday and the admission of the recorded interrogation. Trial counsel was not ineffective in either scenario.

To prevail on this claim, the defendant must show that his “attorney's performance fell measurably below that which might be expected from an ordinary fallible lawyer and ․ [that] such ineffectiveness has likely deprived the defendant of an otherwise available substantial defense.” Commonwealth v. Seino, 479 Mass. 463, 472 n.12 (2018), citing Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). However, counsel is never ineffective for failing to raise a futile objection, see Commonwealth v. Boria, 460 Mass. 249, 253 (2011), or one that “would not have accomplished anything for the defense.” Commonwealth v. Connolly, 454 Mass. 808, 829 n.24 (2009).

Here, an objection to the police recording would have been futile because the defendant's statements were all admissible hearsay, and the judge clearly instructed the jury that the police officers' questions were not evidence. Similarly, an objection to J.G.'s impermissible testimony would not have accomplished anything for the defense given how brief the statement was and the judge's proper limiting instruction.

Where the prosecutor's references to C.D.'s testimony in closing argument were not improper, counsel was not ineffective for failing to object to it. Here, the prosecutor properly argued the “testimony submitted at trial and its logical conclusions.” Commonwealth v. Freeman, 430 Mass. 111, 118 (1999). Furthermore, the prosecutor only used that testimony to show lack of mistake and the defendant's state of mind, which are proper uses for other bad act evidence. Vera, 88 Mass. App. Ct. at 321 n.5.

Finally, even if counsel should have requested that the judge give an instruction on separating the evidence of the various charges, we discern no resulting prejudice. As we noted earlier, the Commonwealth's case was sufficiently strong such that counsel's mishap was not “likely to have influenced the jury's conclusion.” Commonwealth v. Silva, 455 Mass. 503, 526 (2009), quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

Judgments affirmed.

FOOTNOTES

2.   The Commonwealth also charged the defendant with additional charges of another count of indecent assault and battery on a person over fourteen years of age, delivering liquor to a person under age twenty-one, and witness intimidation. The judge allowed the defendant's motion for required findings of not guilty on the additional indecent assault and battery and witness intimidation charges. The judge continued without a finding the charge of delivering liquor.

3.   Specifically, Grace complains about C.D.'s claim that on March 9, 2014, Grace asked “if [she] would suck his dick or if he could chomp on [her] box” while he touched her leg and upper thigh. The Commonwealth also introduced statements Grace made to the police in which he stated that “there's [sic] creepy old guys out there, dirty old men, you know, they'll tell you, you know, you can suck my dick, do all this, that and the other thing.”

4.   The complaint alleged inappropriate contact on “diverse dates and times,” after J.G.'s fourteenth birthday.