COMMONWEALTH v. RIDER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a consolidated jury trial, the defendant, Blake A. Rider, was convicted of five counts of indecent assault and battery on a child under fourteen. See G. L. c. 265, § 13B. The guilty verdicts arose from three sets of charges corresponding to three different girls in the defendant's blended family: his biological daughter, Jane (a pseudonym); his stepdaughter, Jill (a pseudonym); and his adopted daughter. He appeals, arguing that (1) the trial judge erred by admitting evidence of prior bad acts, in violation of a pretrial discovery order; (2) the prosecutor misstated the evidence in her closing argument; and (3) the judge abused her discretion by permitting the prosecutor to cross-examine the defendant's wife about her lack of contact with her two biological children. We affirm.

Discussion. 1. Prior bad acts. Before trial, the defendant moved to have the Commonwealth identify all prior and uncharged bad acts it intended to introduce at trial. The Commonwealth represented that it did not intend to introduce any. A discovery order issued. However, at trial the three girls were permitted to testify, over defense counsel's repeated objections, that the defendant came into their bedroom at night and watched them undress. This occurred during the approximately two-year time period the offenses took place.² The defendant contends that these were inadmissible uncharged or prior bad acts, offered by the Commonwealth in violation of the discovery order, and otherwise inadmissible. We therefore review for error, and if there was error, to determine whether “the error did not influence the jury, or had but very slight effect” (quotation and citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

As with all evidentiary questions, we review the judge's ruling for an abuse of discretion or other error of law. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The prosecutor argued, and the judge ruled, that the testimony did not concern prior bad acts, because the acts were contemporaneous. We agree with the defendant that this was error. The conduct was not contemporaneous. The only testimony offered to fix the uncharged conduct in time placed the incidents in the same two- to three-year period as the charged offenses. There was no testimony to suggest that these acts were contemporaneous in the sense that they occurred either immediately before or after the charged conduct, or as part of the charged conduct. The acts were disclosed to the defendant, in that they were contained in the police report, see Mass. R. Crim. P. 14 (a) (1) (vii), as appearing in 442 Mass. 1518 (2004), but once the representation was made that no other “evidence of alleged criminal conduct, wrongs, or bad acts” would be offered, the Commonwealth was obligated to notify the defendant of its intent to introduce the evidence if it intended to deviate from its prior representations and the subsequent court order that relied on those representations. See Commonwealth v. Bryant, 390 Mass. 729, 744 (1984).

However, the defense was not “materially hurt in its preparation by having to meet ․ unexpected [evidence.]” Commonwealth v. Eneh, 76 Mass. App. Ct. 672, 678 (2010).³ See generally Commonwealth v. Stote, 433 Mass. 19, 22-23 (2000). The evidence of other acts did not harm or undermine the theory of the defense. Contrast Eneh, supra. at 678-679. Defense counsel effectively cross-examined the witnesses, the defendant testified and denied the conduct took place, and other family members testified, refuting other portions of the girls' testimony. The defense at trial was that the girls (and other siblings) had contrived the story to affect the outcome of a contested custody dispute. The jury plainly rejected this theory. “[T]he delayed disclosure” of the prosecutor's use of the evidence did not “contribute[ ] to the verdict.” Id. at 682.

The defendant also maintains that the evidence was inadmissible as a prior bad act. “The nature of so-called prior bad act (or other act) evidence under Mass. G. Evid. § 404(b)․ is that it reflects badly on the character of the defendant and might show a propensity to commit the crime charged, which poses a risk of unfair prejudice to the defendant.” Commonwealth v. Veiovis, 477 Mass. 472, 481-482 (2017). See Mass. G. Evid. § 404(b) (2020).

The testimony was admissible as evidence of grooming. “The term ‘grooming’ has been used to ‘refer[ ] to deliberate actions taken by a defendant to expose a child to sexual material; the ultimate goal of grooming is the formation of an emotional connection with the child and a reduction of the child's inhibitions in order to prepare the child for sexual activity.’ ” Commonwealth v. McDonagh, 480 Mass. 131, 135 n.6 (2018), quoting Commonwealth v. Christie, 89 Mass. App. Ct. 665, 673 n.10 (2016). “Where relevant, evidence of grooming may be introduced for the nonpropensity purposes of demonstrating the defendant's intent, preparation, plan, or design.” McDonagh, supra. Here, the evidence of the defendant's other acts -- watching the victims undress, grabbing at their clothes, and inquiring about their bra sizes as they changed -- was relevant because it established his ongoing efforts to accustom the victims to increasingly invasive sexual behavior and to reduce their ability to resist his efforts to cross sexual boundaries. The conduct was probative of preparation, plan, and design.

Even given a proper nonpropensity purpose, the “probative value [of such evidence must] not [be] outweighed by the risk of unfair prejudice to the defendant.” Veiovis, 477 Mass. at 482. See Mass. G. Evid. § 404(b)(2). The trial judge should have issued a limiting instruction concerning the permissible use of the testimony. See Commonwealth v. Gollman, 51 Mass. App. Ct. 839, 845 (2001), rev'd on other grounds, 436 Mass. 111, 113–115 (2002) (“[A]ll cases where prior bad acts are offered invite consideration of the potency of this type of evidence, the risk that it may be misused, and the importance, in jury trials, of delivering careful limiting instructions”).

We conclude, however, that the judge's failure to give a limiting instruction did not prejudice the defendant because it is clear “that the error did not influence the jury, or had but very slight effect” (quotation and citation omitted). Flebotte, 417 Mass. at 353. The defendant was convicted of multiple offenses involving three different children, all of whom testified, as did their brother. Where the defense -- that the allegations of indecent assault and battery were fabricated to gain an advantage in a custody dispute -- was rejected, the jury's credibility determination was clear. The disputed evidence pales by comparison, and would have had little if any effect on the jury.

2. Closing argument. The defendant contends that the prosecutor misstated the evidence in her closing argument when she said that the defendant “dragged” and “pull[ed]” Jane into a bathroom. Jane testified that she “went to the bathroom” with him, and the defendant testified that he followed her to the bathroom.

There was evidence that the defendant grabbed or pulled one of the children on a different occasion, and in this sense the prosecutor misstated the evidence. Commonwealth v. Santiago, 425 Mass. 491, 499 (1997). However, “[t]he jury have the ability to discount hyperbole and other improper statements, ․ and trial judges' instructions are generally adequate [to] cure errors in the arguments.” Commonwealth v. Camacho, 472 Mass. 587, 609 (2015), quoting Santiago, 425 Mass. at 495. The trial judge's jury instruction that the attorneys' arguments were not evidence and that the jury should rely on their recollections of the testimony, given in response to the defendant's objection, was sufficient to cure any prejudice from the misstatement.⁴

3. Cross-examination. The defendant's wife testified for the defense, corroborating her husband's testimony in certain respects and contradicting that of the children. The defendant maintains that it was error for the judge to permit the prosecutor to cross-examine the witness regarding her lack of contact with her children, including Jill, during the pretrial time period.

The lack of a complete appellate record regarding the basis and scope of the judge's ruling obstructs meaningful appellate review. Contrast Commonwealth v. Imbert, 479 Mass. 575, 577 (2018). On this record, we do not know exactly what her ruling was.⁵ It appears that the judge limited the inquiry in the initial sidebar, and that the witness's answer, in which she volunteered information not responsive to a yes or no question, may have come as a surprise.

Based on what we have before us, the judge did not abuse her discretion, both because the question was relevant to dispute the defendant's characterization of the family as a happy one, and because the mother's lack of contact with her children was admissible as a “reasonable cross-examination to show bias.”⁶ Mass. G. Evid. § 611(b)(2) (2020). If the witness's explanation was improper, the prosecutor made no mention of the testimony in her closing statement. On this limited record, there has been an insufficient showing that the judge abused her discretion or that the defendant was prejudiced.

Judgments affirmed.

FOOTNOTES

2.   The defendant also objected to similar testimony from the children and other witnesses, viz.: testimony that the defendant had spoken to the sisters about their bra sizes and had them undress; testimony that he grabbed at their clothes when they changed; and testimony of the first complaint witness stating that one of the girls told her that he watched them undress.

3.   There is no suggestion of bad faith. See Commonwealth v. Nolin, 448 Mass. 207, 224 (2007).

4.   The defendant also contends that the Commonwealth mischaracterized his wife's testimony as inconsistent with the police report. Her testimony about an incident in the bathroom involving the defendant and Jane was inconsistent with what she had previously told police, because she had earlier left out that the defendant called her two minutes before she arrived home to let her know that Jane wanted to talk about menstruation. See Commonwealth v. Perez, 460 Mass. 683, 699 (2011), quoting Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995) (“An omission from the earlier statement is inconsistent with a later statement of fact when it would have been natural to include the fact in the initial statement”). There was no error in referring to the inconsistency.

5.   On the first occasion the prosecutor asked a question there was a prolonged sidebar, much of which was not transcribed. The defendant objected to a ruling deemed “indiscernible,” although the judge indicated that some testimony could be relevant to refute the defendant's claim that they had a happy family. The prosecutor also made an untranscribed request that was denied. The question was not answered. When the prosecutor then asked, several transcript pages later and over the defendant's objection, whether the witness had had any contact with either of her children, she replied that she was not “allowed to because of these proceedings,” an apparent reference (based on defense counsel's representations) to the fact that she had been under investigation and her counsel had advised her not to be in contact with her children. The prosecutor immediately requested a sidebar, and stated after a few moments that she was sorry, although it is not clear from the partial transcription what she was sorry about. The defendant objected at length on the grounds of prejudice, and the judge offered to give a limiting instruction, which the defendant ultimately decided to forego. Throughout, portions of the sidebar were designated indiscernible.

6.   As the judge noted, there was no court order barring the mother's contact with the children, and her decision to cease contact with her children was hers to make. The defendant suggests that the decision was coerced or compelled by the circumstances, and the witness placed an explanation on the record which suggested she had no choice. The jury were not required to credit that explanation, but if they accepted it, her answer was not necessarily prejudicial.