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Appeals Court of Massachusetts.



Decided: November 17, 2021

By the Court (Massing, Lemire & Hand, JJ.1)


The defendant appeals from nine convictions for various offenses, including assault and battery, kidnapping, rape, stalking, and witness intimidation. He argues that the trial judge abused his discretion by excluding expert testimony and that the motion judge abused his discretion by allowing the Commonwealth's motion for joinder of the offenses for trial. We affirm.

Background. The defendant was convicted after a jury trial in the Superior Court of one count of assault and battery; one count of kidnapping; two counts of witness intimidation; two counts of rape; one count of assault and battery of a person over the age of sixty; one count of assault and battery of a family or household member; and one count of stalking. The jury also returned guilty verdicts as to one count of criminal harassment and seven 2 counts of violating a G. L. c. 209A abuse prevention order; however, the judge dismissed these charges after trial as duplicative of the stalking charge.3

The jury could have found the following facts. In October 2017, after thirty-six years of marriage, the defendant and victim separated following an incident in which the defendant forced the victim to engage in sex.4 Although separated, the victim and defendant agreed to share the apartment they had occupied before their separation; the defendant residing there on weekends and the victim residing there on weekdays. On Saturday, December 9, 2017, this arrangement was modified to allow the victim to use the apartment during that weekend to attend a holiday party. The defendant was permitted to be in the apartment that day while the victim was at the party. They had agreed that when the victim was on her way home, the defendant would leave. When the victim texted the defendant that she was returning to the apartment, the defendant falsely responded that he was leaving and “[would] be gone” when she arrived there.5

When the victim returned to the apartment, she opened her shoe closet and the defendant jumped out at her wearing only his underwear. The victim ran away screaming and yelling for help. The defendant chased after her, grabbed her from behind, and carried her back into the apartment. The defendant barricaded the door and prevented her from reaching the security alarm. He then brought the victim into the master bedroom and took her cell phone and keys. While keeping the victim in the bedroom for two hours, he yelled at her about the divorce. The defendant then told the victim that he was going to have sex with her regardless whether she consented to it, and that she risked being “injured” if she refused.6 The victim felt “forc[ed]” to have sex with the defendant and took off her clothes. The defendant then raped the victim twice. The next morning the victim called her sister-in-law to tell her what had happened.

The victim obtained a G. L. c. 209A abuse prevention order (order) against the defendant. The order, which was served on the defendant, allowed the defendant to contact the victim via e-mail regarding their divorce; however, all other contact was prohibited. Notwithstanding his awareness of the order, the defendant contacted the victim several times over the next few months.7 Additionally, on April 2, 2018, the defendant contacted a deacon from the victim's church and asked him to move the victim's car out of the church parking lot to a secluded street nearby where he would be waiting for her. When the deacon declined to assist, the defendant told him he would have to go with “plan B.” The defendant then asked another member of the church to help him kidnap the victim.8 The friend declined, which prompted the defendant to say, “if you can't help me out with this one, I'm going to have to do something that I don't want to do, and I don't want to go that route.”

Discussion. 1. Admission of expert testimony. The defendant first claims that the judge erred by denying his motion to permit Dr. Alice Flaherty to testify as an expert regarding Parkinson's disease and the potential side effects of certain medications used to treat Parkinson's disease. We review the denial of the admission of expert testimony for abuse of discretion. See Commonwealth v. Johnson, 410 Mass. 199, 202 (1991), citing Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). To establish that a judge abused his or her discretion, a defendant must show that there was “ ‘a clear error of judgment in weighing’ the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant was diagnosed with Parkinson's disease in 2011, and sometime after his diagnosis, he was prescribed Mirapex to treat his symptoms. The defendant sought to admit Dr. Flaherty's testimony that Parkinson's disease, as well as the treating medication, Mirapex, can be associated with impaired impulse control, including hypersexuality. He was not offering the expert testimony as part of a lack of criminal responsibility defense, but rather as evidence that he had not formed the specific intent necessary to be convicted on the charges of stalking, witness intimidation, and harassment. Dr. Flaherty was not expected to testify that the defendant suffered from any of the symptoms or side effects described above as a result of his condition or treatment.

The judge, as gatekeeper, must determine whether the proponent of the evidence has met the following “five foundational requirements before expert testimony will be admitted in a criminal case: (1) that the expert testimony will assist the trier of fact; (2) that the witness is qualified as an expert in the relevant area of inquiry; (3) that the expert's opinion is based on facts or data of a type reasonably relied on by experts to form opinions in the relevant field; (4) that the process or theory underlying the opinion is reliable; and (5) that the process or theory is applied to the particular facts of the case in a reliable manner” (citations omitted). Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010), cert. denied, 563 U.S. 990 (2011). See Mass. G. Evid. § 702 (2021). Here, the judge determined that Dr. Flaherty's proffered testimony satisfied the second, third, and fourth foundational requirements, but failed to satisfy the first and the fifth. Specifically, the judge concluded that because Dr. Flaherty was not sufficiently familiar with the defendant's medical history, she could not reliably apply her expertise to the facts of the case and, therefore, her testimony would not assist the jury.

A judge possesses the discretion to exclude expert testimony where the expert is unfamiliar with the facts in the case and, therefore, cannot reliably apply her expertise. See Smith v. Bell Atlantic, 63 Mass. App. Ct. 702, 719 (2005). Similarly, a judge may exclude expert testimony about a medical condition where there is no evidence that the defendant was suffering from that condition at the time of the crime. See Commonwealth v. Talbot, 444 Mass. 586, 589 (2005); Commonwealth v. Laliberty, 373 Mass. 238, 241 (1977). Compare Commonwealth v. Okoro, 471 Mass. 51, 64-65 (2015) (proposed expert would speak generally about teenage brain development and relate that to specific defendant). The judge concluded that since Dr. Flaherty had not examined the defendant and would not provide testimony that the defendant had been experiencing any of the side effects, her testimony would require the jurors to draw improper inferences, based on “pure speculation and surmise,” that his behavior was caused by the medication or his Parkinson's disease. See Commonwealth v. Dostie, 425 Mass. 372, 376 (1997) (jurors may make reasonable inferences but may not use conjecture or guesswork). The judge did not abuse his discretion by excluding Dr. Flaherty's testimony.

2. Joinder of offenses. The defendant also claims that the motion judge erred in allowing the Commonwealth's motion for joinder of the first set of charges that included rape, kidnapping, witness intimidation, and assault and battery, with the other charges for 209A violations, stalking in violation of a restraining order, witness intimidation, and harassment. The judge allowed the motion for joinder because the offenses had a “schematic nexus.” The defendant now argues that joinder was improper because the offenses were not related and the failure to sever was highly prejudicial to him. Joinder is a matter “committed to the sound discretion of the trial judge.” Commonwealth v. Delaney, 425 Mass. 587, 593 (1997), quoting Commonwealth v. Montanez, 410 Mass. 290, 303 (1991). See Commonwealth v. Hoppin, 387 Mass. 25, 32 (1982). We review for an abuse of that discretion.

In assessing whether offenses are related, “the trial judge shall join the charges for trial unless [the judge] determines that joinder is not in the best interests of justice.” Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1979). “Related offenses ․ ‘arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.’ ” Delaney, 425 Mass. at 594, quoting Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). Offenses are related when “the evidence in its totality shows a common scheme and a pattern of operation that tends to prove all the indictments.” Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995). Joinder is appropriate where evidence of the offenses would be admissible in separate trials for each offense. See id. at 495. See also Commonwealth v. Pillai, 445 Mass. 175, 182-183 (2005); Commonwealth v. Gallison, 383 Mass. 659, 672 (1981).

To defeat joinder, “[t]he defendant bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.” Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). “ ‘Prejudice requiring severance does not arise from the mere fact that the defendant's chances for acquittal of [one or more charges] might have been better’ had the offenses been tried separately.” Commonwealth v. Spray, 467 Mass. 456, 469 (2014), quoting Gallison, 383 Mass. at 672. “Rather, the defendant must show that a particular tactic or right was foreclosed by the joinder.” Spray, supra.

The defendant has not met his burden of showing that the offenses here were unrelated. The defendant argues joinder was improper because the rape and kidnapping allegations were not part of a single scheme or plan with the later incidents of stalking, witness intimidation, and harassment. However, the charges concern a connected series of events that took place over several months and all involve the same victim, his wife. Moreover, the later charges stem from an abuse prevention order that was issued following the events that gave rise to the kidnapping and rape charges. Therefore, neither the motion judge nor the trial judge erred in finding that there was a “schematic nexus” between the allegations of the physical and sexual abuse and the later charged conduct. Gallison, 383 Mass. at 673. See Gaynor, 443 Mass. at 260-261 (joinder of four rape cases proper where crimes were committed within four months and involved common plan to prey on addicted women for sex). It is not outside the range of reasonable alternatives for the judge to have found the charges related. Therefore, there was not an abuse of discretion in allowing the motion for joinder. See L.L., 470 Mass. at 185 n.27.

The defendant has also failed to demonstrate that he was prejudiced by joinder of all charges. Evidence of the rape would have been admissible in a trial for the stalking, witness intimidation, and criminal harassment indictments to show motive and to provide context for the defendant's behavior; evidence of the latter offenses would have been admissible as consciousness of guilt evidence with respect to the former. See Pillai, 445 Mass. at 183; Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 617-618 (2007). Because evidence of the allegations in the first set of charges would have been admissible in a trial for the other charges, and vice versa, the defendant was not prejudiced by their joinder.

Judgments affirmed.


2.   The Commonwealth's brief refers to eight convictions for this offense; the record reflects only seven.

3.   The jury acquitted the defendant of additional charges of assault and battery of a person over the age of sixty and assault and battery of a family or household member.

4.   A grand jury declined to indict the defendant in connection with this incident.

5.   The defendant testified that he moved his car out of his assigned parking spot to visitor parking because he knew that the victim would not go into the apartment if she saw his car.

6.   The victim testified that the defendant gave her three “ultimatums”: she could “give it up easily”; the defendant could “take it” from the victim and she would “get injured”; or the victim could try to fight the defendant and he would “go buck wild and do whatever [he] want[ed] to do with [her] and [he] d[idn't] care if [he] die[d] in the process or after.”

7.   On January 28, 2018, the defendant e-mailed the victim an article about loneliness and also texted her asking to talk to their grandson. At the victim's request, the judge amended the order to prohibit all contact, and the defendant was served with the modified order. On March 13, 2018, the defendant again e-mailed the victim. On April 2, 2018, the defendant sent a text message to the victim using a telephone number other than his own.

8.   The defendant asked this friend to find two men to grab the victim at work. One would bring the victim to the defendant, and the other would drive her car to his apartment to make it look like she had come voluntarily.

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