COMMONWEALTH v. DANIEL JOYCE (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of rape of a child aggravated by age difference, three charges of rape of a child, and two charges of indecent assault and battery on a child. On appeal the defendant argues that the trial judge erred in admitting prior bad act evidence, that various statements in the prosecutor's closing argument were improper, and that all of his convictions should be vacated as duplicative because the judge failed to give an instruction on separate and distinct acts. Separately, the Commonwealth acknowledges that the conviction of rape of a child aggravated by age difference should be vacated because there is a substantial risk that it constitutes an ex post facto violation. We are constrained to vacate the conviction of rape of a child aggravated by age difference and the convictions of indecent assault and battery on a child. We otherwise affirm.

Background. The Commonwealth elicited the following evidence. The victim grew up living with her mother, siblings, and the defendant, who is her stepfather. The defendant was a father figure to the victim and often watched the children after school.

The victim testified that, in 2003, when she was around six years old and living with her family in Douglas, she saw the defendant anally rape her sister in his bedroom. The defendant then grabbed the victim by her ankles and said, “[I]t's your turn.” The defendant placed the victim on her hands and knees and anally raped her in the same way that he had raped her sister. The victim also testified that the defendant raped her and her sister in this way two or three other times while they lived in Douglas.

In 2005, when the victim was around seven years old, the family moved to Northbridge. There, the defendant continued to rape the victim, both anally and vaginally, sometimes as often as every other day. The victim and her sister both recalled an incident where the defendant anally raped them in his bedroom, as he had when they lived in Douglas. The victim further recalled that, when she was around ten or eleven years old, the defendant started forcing her to perform oral sex on him. He also touched her breasts with his hands, licked her nipples, kissed various parts of her body, and performed oral sex on her. On one occasion the defendant came into the bathroom while she was showering and raped her vaginally from behind. The victim frequently suffered from painful urination after incidents of abuse.

The abuse continued until 2010 when the victim was twelve years old. The victim first reported the abuse in 2011 to her boyfriend at the time.

Discussion. 1. Prior bad act evidence. The defendant was charged with offenses that were alleged to have occurred in Northbridge on divers dates between January 2005 and November 2010. Prior to trial the Commonwealth filed a motion in limine seeking to introduce evidence that the defendant raped the victim in Douglas before the family moved to Northbridge, and that on several occasions the defendant also raped the victim's sister, who then watched as he raped the victim in the same room.¹ The trial judge, over the defendant's objection, allowed the motion, reasoning that the prior bad acts showed “opportunity, intent, identity, nature of the relationship, absence of mistake or accident, and [modus operandi].”

We review the judge's decision for abuse of discretion. See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014). While prior bad acts are “inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged,” they may be admitted to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation” (citation omitted). Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Even if relevant to a proper purpose, however, prior bad act evidence “will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Id.

Here, the judge was within her discretion to admit evidence of the uncharged rapes of the victim that occurred in Douglas. The evidence was probative to show “a pattern of conduct and the existence of the defendant's sexual interest in the victim.” Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015). It also provided “the history of the relationship [between the defendant and the victim] to give context to the jury.” Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780 (2016).

While not contesting that the evidence of the uncharged conduct was probative, the defendant claims that it was unduly prejudicial. We disagree. The evidence comprised a small portion -- five out of forty-seven pages -- of the victim's testimony on direct examination. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 74 (2018) (no error in admission of evidence of uncharged conduct where “the bulk of the victim's testimony and all four Commonwealth exhibits concerned the charged conduct ․ [and a] much smaller portion of the victim's testimony concerned the uncharged conduct”). The uncharged conduct was also “supported only by the victim's testimony, so the admission required no change in the defense theory that she was fabricating the abuse.” Id. Moreover, the judge instructed the jury in her final charge about the proper use and purpose of bad act evidence. Although the defendant correctly observes that a contemporaneous instruction might have more effectively mitigated any prejudicial effect, he did not request such an instruction at trial. Thus, the timing of the instruction was “ultimately in the discretion of the trial judge.” Commonwealth v. Peno, 485 Mass. 378, 396 (2020), quoting Commonwealth v. Bryant, 482 Mass. 731, 737-738 (2019).

We likewise see no abuse of discretion in the judge's decision to admit evidence about the defendant's rape of the victim's sister. The defendant contends that this evidence -- which came in through the testimony of the victim, the sister, and the first complaint witness -- should have been precluded on collateral estoppel grounds because the Commonwealth nol prossed the rape charge in a prior criminal case relating to the defendant's abuse of the sister.² The defendant relies on Commonwealth v. Dorazio, 472 Mass. 535, 547 (2015), where the court held that “the collateral estoppel protections necessarily embraced by art. 12 warrant[ed] the exclusion of [evidence relating to a prior acquittal in] a subsequent criminal proceeding involving alleged unlawful sexual conduct with minors.” But as expressly stated in the opinion, this “holding is limited to prior bad act evidence for which a defendant was acquitted” and “does not apply to the admission of prior bad act evidence ․ where the criminal charges were dismissed before trial.” Id. at 547 n.13. Because the charge at issue here was nol prossed before trial, the admission of the prior bad act evidence did not run afoul of Dorazio.³

In addition, the judge did not abuse her discretion in determining that the probative value of the evidence was not outweighed by a risk of unfair prejudice to the defendant. The evidence was highly probative of a common plan or pattern of conduct by the defendant, and the testimony of the sister and the first complaint witness corroborated the victim's testimony about the abuse she experienced. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998) (“Evidence of uncharged acts similar to the offense charged is admissible to show a common plan or pattern of conduct which may explain the defendant's intent or modus operandi; to corroborate the victim's testimony; or to counter the defendant's denial” [citations omitted]). The uncharged acts also “formed a temporal and schematic nexus” with the charged acts. Commonwealth v. King, 387 Mass. 464, 472 (1982) (“both children lived in the same house with the defendant, the sexual acts took place during the same time period, the victims were of similar age ․ and the form of the sexual conduct ․ was similar”). And again, the judge instructed the jury in her final charge to consider the bad act evidence only for permissible purposes, mitigating the risk of unfair prejudice to the defendant. We presume that the jury followed this instruction. See Peno, 485 Mass. at 396.

2. Closing argument. The defendant challenges various portions of the prosecutor's closing argument as improper. Because the defendant did not object to the closing at trial, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015).

The defendant contends that the prosecutor improperly vouched for the credibility of the Commonwealth's witnesses and expressed her personal opinion about the evidence by describing those witnesses as “believable” and “credible,” the defendant's testimony as “unrealistic” and having “no credibility whatsoever,” and the victim's demeanor on the stand as “frank,” “open,” and “direct.” The defendant also challenges the following passage on the same basis:

“[The victim] was living with her great grandmother. She had no reason at this time, absolutely no reason to make this up. She was out of that hell. But it haunted her, and she finally told someone. Even then, they kept it a secret until 2012. Where is the motive to lie? There is none. [The victim] is out of the house. She doesn't benefit from making up this story. She waited and waited until she finally told someone.”

We do not agree that these statements constituted improper vouching. Improper vouching occurs when “an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). The prosecutor here did neither but, rather, “argue[d] from the evidence why [a witness] should be believed.” Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). Moreover, the statements were “within the prosecutor's right of retaliatory reply” to the defendant's closing, which focused on why the victim should not be believed. Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting Commonwealth v. LeFave, 407 Mass. 927, 939 (1990).

We also disagree with the defendant's argument that the prosecutor appealed to the jury's sympathies and inflamed their passions by describing the victim's living situation as “hell” and the defendant's conduct as “prey[ing].” These statements were “excusable hyperbole” and did not create a substantial risk of a miscarriage of justice. Commonwealth v. Costa, 414 Mass. 618, 629 (1993).

The defendant next argues that the prosecutor misstated the evidence in several ways. Some of the challenged statements were plainly grounded in the evidence or based on fair inferences therefrom.⁴ We therefore focus our discussion on the defendant's remaining two arguments.

The defendant challenges as “pure speculation” the prosecutor's statement that “if [the victim's] mother took her to the doctor, and told the doctor about the painful urination, they would find ․ that urinary tract infections are a well-documented symptom following sexual abuse and genital manipulation.” This statement has a basis in the victim's testimony describing a doctor's appointment that she had in 2012.⁵ Although the defendant asserts that it was improper for the prosecutor to refer to “a hypothetical doctor's diagnosis,” even assuming this was error, we see no substantial risk of a miscarriage of justice, as the statement was brief and, immediately before the closing arguments, the judge instructed the jury that closings are not evidence. See Commonwealth v. Lyons, 426 Mass. 466, 471 (1998) (“We review the prosecutor's remarks in the context of his entire closing argument, the judge's instructions to the jury, and the evidence produced at trial”).

We likewise reject the defendant's claim that the prosecutor's statement -- “In the shower, when [the victim] was in there, again the magic words, it's time” -- entitles him to a new trial. This was, at worst, a minor factual error. The victim testified that, while she could not remember what the defendant said before entering the shower, she “knew that it was time for him to put his penis in [her] vagina.” Furthermore, the prosecutor's misstatement, if any, did not create a substantial risk of a miscarriage of justice in light of the victim's testimony that the defendant said “it's time” before he raped her on other occasions. The judge also instructed the jury that they were “the sole and exclusive judges of the facts” and that their memory of the evidence controlled. Again, we presume that the jury followed the judge's instructions. See Pena, 485 Mass. at 396.

3. Ex post facto violation. The Commonwealth acknowledges that there is a substantial risk that the defendant's conviction of rape of a child aggravated by age difference constitutes an ex post facto violation because the aggravated rape statute, G. L. c. 265, § 23A, took effect in 2008, but the judge did not instruct the jury to limit their consideration to conduct committed by the defendant while the statute was in effect. We agree. Cf. Commonwealth v. Fredette, 480 Mass. 75, 87 (2018) (upholding conviction based on predicate felony that did not exist when defendant committed offense would give ex post facto effect to statute that later created predicate felony). We therefore vacate the conviction of rape of a child aggravated by age difference.⁶

4. Separate and distinct acts. The judge did not instruct the jury that the convictions must be based on separate and distinct acts, and the defendant did not object or bring the issue to the judge's attention. We therefore review the defendant's claim of duplicative convictions to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Kelly, 470 Mass. 682, 699 (2015).

With regard to the three charges of rape of a child, there is no substantial risk that the jury based the convictions on the same act. The judge instructed the jury that they “must consider these charges separately with respect to each indictment” and “must go through [the] analysis for each indictment separately.” Because the counts of the indictment charging rape of a child were identical, the jury would have understood that they needed to find separate acts underlying each count. The evidence lends further support to our conclusion; because the victim testified to a continuing course of rapes over several years, there is no substantial risk that the jury returned three convictions based on a single rape. Cf. Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996) (where child victim testifies to continuing pattern of sexual abuse, no risk of lack of jury unanimity because “jury will either believe that a consistent and repetitive pattern of abuse has occurred ․ or they will disbelieve it”). We see no “significant possibility” of duplicative convictions in these circumstances (emphasis omitted). Kelly, 470 Mass. at 701.

We reach a different conclusion with regard to the convictions of the lesser included offense of indecent assault and battery on a child. See Commonwealth v. Suero, 465 Mass. 215, 219 (2013) (“the crime of indecent assault and battery on a child ․ is a lesser included offense of the crime of rape of a child”). “That the judge instructed the jury ․ that they must consider each indictment separately did not equate to informing the jury that these ․ charged offenses must be factually based on separate and distinct acts” from those underlying the greater offenses charged. Kelly, 470 Mass. at 701. Because the instructions do not allow “us to know on which facts each conviction rested,” we are bound by Kelly to vacate the convictions of the lesser included offense as duplicative. Id. at 702.

Conclusion. The judgments on count one of the indictment, charging rape of a child aggravated by age difference, and counts five and six, charging indecent assault and battery on a child, are vacated, and the verdicts on those charges are set aside. The remaining judgments are affirmed.

So ordered.

FOOTNOTES

1.   The Commonwealth explained to the trial judge that the victim remembered “that that happened with her sister for several years, whereas [the sister] will indicate that she only remembers one instance when they were together that that happened.” Consistent with this representation, the victim testified to multiple such incidents that occurred in both Douglas and Northbridge, whereas the sister testified to only one incident that occurred in Northbridge.

2.   The defendant was charged with rape and assault and battery in that prior case. After the Commonwealth nol prossed the rape charge, the defendant pleaded guilty to assault and battery. The victim's sister testified at trial in this case that she recanted her allegations of rape because her mother convinced her “it was a dream.”

3.   The cases cited by the defendant do not support his argument that the evidence relating to the nol prossed charge should be considered as equivalent to acquittal evidence. Commonwealth v. Sitko, 372 Mass. 305 (1977), involved a situation where the Commonwealth moved to amend the indictment during trial. In rejecting the defendant's claim that the amendment was a “disguised nolle prosequi,” the court noted in passing that a defendant will be “treated as acquitted” of a charge if (unlike here) the charge is nol prossed “during trial.” Id. at 308. Commonwealth v. Miranda, 415 Mass. 1, 6 (1993), stands for the limited proposition that the Commonwealth cannot nol prosse an indictment, inform the defendant that trial would proceed only on a subsequent indictment, and then resurrect the original indictment at trial “absent a new and proper indictment.” Lastly, Commonwealth v. Mogelinski, 473 Mass. 164, 171 n.5 (2015), notes in passing that the Commonwealth cannot refile charges that were dismissed in exchange for the defendant's pleading guilty to other charges, but it does not address whether evidence relating to the dismissed charges would be admissible in a later proceeding. And, even assuming it would be inadmissible, nothing in the record before us shows that the Commonwealth agreed to nol prosse the rape charge in exchange for the defendant's pleading guilty to assault and battery. Nor did the defendant raise any such assertion to the judge.

4.   Specifically, we see no error in the following statements: the defendant “knew that he was going to take advantage of these two little sisters ․ and he was going to use them for his own pleasure”; the victim's “body got used to it and it became normal”; the victim's mother “wanted a husband to support her” and “didn't want to lose the father figure that her daughters had”; and the victim's mother “panicked” and “tried to call the District Attorney's Office to make it all go away” when the victim's sister disclosed the abuse.

5.   During that testimony the victim responded affirmatively to the question: “And do you recall that [the doctor] told you that ․ pain [in] urination, otherwise known as dysuria is a ․ documented symptom of sexual abuse and/or genital manipulation[?]” The defendant did not object.

6.   There was some discussion at oral argument whether the appropriate disposition would be to reduce the conviction to the lesser included offense of rape of a child. But, as discussed infra, because the judge did not instruct on separate and distinct acts, there is a risk as to this particular charge that the jury convicted the defendant based on the same act as one of the lesser offenses. Thus, reducing the conviction would be improper.