COMMONWEALTH v. MEALY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of multiple sex offenses including rape of a child with force. The convictions were based on evidence that the defendant sexually abused his daughter for a period of fifteen years beginning when the victim was five years old. On appeal, the defendant claims that the judge abused her discretion in admitting evidence of uncharged prior bad acts. He also argues that the prosecutor's opening statement and closing argument were improper and created a substantial risk of a miscarriage of justice. We affirm.

Discussion. 1. Prior bad acts. Evidence of prior bad acts may not be introduced for purposes of showing the accused's propensity to commit the crimes charged; however, such evidence may be admissible to demonstrate “a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2) (2019). “In sexual assault cases, some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and ‘the probative existence of the same passion or emotion at the time in issue.’ ” Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994). The determination whether the evidence is relevant and more probative than prejudicial is “committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent palpable error” (quotation and citation omitted). Commonwealth v. McCowen, 458 Mass. 461, 478 (2010).

Here, the Commonwealth was permitted to introduce evidence that the defendant forcibly raped the victim when she was fourteen years old during a trip outside of Massachusetts.² The victim testified that “I woke up to him on top of me ․ I felt like I got hit by a truck. He rammed his penis into my vagina the whole way. When he was done, he got up, left the truck, and I was there alone in the dark and scared, and it hurt.” We examine this testimony in the context of the entire trial. McCowen, 458 Mass. at 478. Apart from her description of this uncharged rape, the victim described the defendant's charged conduct in detail. She testified to a pattern of sexual assault and rape that was repeated with regularity over the course of fifteen years. The uncharged rape was but one incident within that pattern. In light of the victim's testimony regarding the repeated and escalating nature of the abuse including forced oral sex, and digital and vaginal penetration, we see no abuse of discretion in the judge's conclusion that evidence of the uncharged rape was admissible “to show the full extent of the relationship,” a permissible purpose in sexual assault cases. Dwyer, 448 Mass. at 128-129.³

The defendant also claims that the victim's testimony that the defendant hit her mother, and the mother's testimony that she observed the defendant “at the computer watching porn,” were evidence of inadmissible other bad acts that prejudiced the defendant. We agree that this evidence should not have come before the jury, but we see no prejudice. The judge sustained objections to the evidence and instructed the jury to disregard the statements, which were brief and not repeated. In short, these were “fleeting comment[s], not likely to influence ․ the jury.” Commonwealth v. Cunneen, 389 Mass. 216, 223-224 (1983).

2. Opening statement. “The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence,” Commonwealth v. Barbosa, 477 Mass. 658, 669 (2017), quoting Commonwealth v. Croken, 432 Mass. 266, 268 (2000), and the prosecutor must have “a good faith expectation that [s]he will be able to do so with relevant and admissible evidence.” Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). The defendant argues that the prosecutor exceeded the bounds of a proper opening statement by arguing her case and attempting to “inflame the passions” of the jury. Because the defendant did not object at trial, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12 (2010).

The defendant's first claim is that the prosecutor's opening statement was argumentative. We disagree. The fact that the prosecutor employed a narrative style rather than repeating an introductory phrase like “the evidence will show,” does not render the opening statement improperly argumentative. The Commonwealth's opening, although graphic and dramatic at times, was borne out by the evidence at trial.⁴ The prosecutor was entitled to describe the evidence she expected to introduce.

Next the defendant focuses on a particular portion of the prosecutor's opening that he claims was designed to create sympathy for the victim. In pertinent part the prosecutor stated, “Most of all, putting on a stoic face and pretending that everything was fine even when it wasn't․ She felt embarrassed. She felt ashamed. She felt helpless. She didn't know how it would affect her family if she told.” At trial, the victim testified without objection to these feelings, which were relevant to explain her delayed reporting of the abuse. The statement was not improper simply because it might evoke an emotional response from the jurors.

The defendant also claims that the prosecutor suggested to the jury that they had a duty to convict the defendant. Again we disagree. The prosecutor stated, “I am confident that after you hear from [the victim] and after you hear the evidence in this case you will know what the truth is, and at that time I'll ask you to deliver a true and just verdict.” This statement was not improper.

3. Closing argument. We agree with the defendant that the prosecutor erred on two occasions in her closing argument. First, the prosecutor referred to a telephone call between the defendant and his wife by stating, “[O]ne of the responses to [the wife] is: They will kill me if they find out that I'm a pedophile. Essentially.” The defendant's wife actually testified that the defendant said to her, “I can't talk to them. They would kill people like this -- like that in this place.” The prosecutor's use of the term “pedophile” misstated the evidence. Second, the victim testified that the reason she disclosed the abuse was because she learned that the defendant was living near children and she was worried that he might also abuse them. Defense counsel objected and the testimony was stricken. During closing argument, the prosecutor improperly referenced this stricken testimony.⁵

These comments should not have been made. A prosecutor “must restrict [her] closing argument[ ] to the evidence and the inferences that can be drawn from the evidence.” Commonwealth v. Jones, 432 Mass. 623, 628 (2000). However, there was no objection at trial and we discern no substantial risk of a miscarriage of justice. See Grandison, 433 Mass. at 441-442. The comments were brief and the other evidence against the defendant was strong. In addition to the victim's testimony, the jury heard that when the defendant was confronted by the allegation that he had sexually abused his daughter, he responded, “I loved [her] too much.” Considering the improper comments in the context of the entire argument, the strength of the Commonwealth's case, and the judge's instructions to the jury, we cannot say it is likely that the comments influenced the jury. See Commonwealth v. Burns, 49 Mass. App. Ct. 677, 679 (2000).⁶

Finally, we see no merit in the defendant's claim that the prosecutor's argument shifted the burden of proof to the defendant. After carefully reviewing the challenged comments,⁷ we conclude that they related specifically to the defendant's voice mail communications with the victim after the abuse was disclosed. They were not improper comments on the defendant's right to remain silent during trial. See Commonwealth v. Teixera, 396 Mass. 746, 752 (1986) (“Comment on a defendant's silence or failure to deny accusations against him under circumstances where the defendant might be expected to speak is permissible”).

Judgments affirmed.

FOOTNOTES

2.   There is a dispute whether this issue was preserved. The margin endorsement on the Commonwealth's motion in limine seeking to introduce evidence of the out-of-State rape indicates that the motion was “allowed by agreement.” However, the defendant objected to the evidence at trial “[s]ubject to the motion in limine.” We need not resolve this conflict as we discern no error in the admission of this evidence.

3.   The judge properly instructed the jury regarding the limited purpose for which they could consider evidence of the uncharged conduct.

4.   The prosecutor began her opening statement by saying, “This defendant, Paul Mealy, raped and sexually abused his biological daughter ․ [The victim's] very first memory of this was when she was approximately five years old. She remembers her father climbing on top of her ․ As [the victim] got older, seven, eight, nine, the abuse got worse. This man would sneak into his daughter's bedroom at night and get into her bed. She remembers him touching her body, kissing her all over ․”

5.   The prosecutor stated that the victim had “learned that [the defendant] was living next door to a bunch of children, and she was worried about that, concerned. So she goes and speaks to Detective Lynn Pena.”

6.   The defendant also challenges the prosecutor's use of the word “monster” to describe the defendant. This was not error because the victim described the defendant as a monster during her testimony.

7.   The defendant challenges three comments that the prosecutor made when referring to three voice mail messages that the defendant left for the victim. The prosecutor stated: (1) “Why would he be saying this? Wouldn't you expect him to say things like: I can't believe you accused me of that”; (2) “No mention of: I can't believe you did this to me”; and (3) “Wouldn't you expect there to be something about: I can't believe you falsely accused me. Not a word. Not a mention.”