Com. v. Mullane

826 N.E.2d 207

63 Mass. App. Ct. 317

COMMONWEALTH v. David MULLANE.

No. 03-P-834.

Appeals Court of Massachusetts, Middlesex.

Argued December 13, 2004.

Decided April 22, 2005.

Further Appellate Review Granted June 9, 2005.

COPYRIGHT MATERIAL OMITTED

George Hassett, Milton, for the defendant.

David W. Cunis, Assistant District Attorney, Cambridge, for the Commonwealth.

Present: GREENBERG, LAURENCE, & COHEN, JJ.

GREENBERG, J.

We reverse the judgments of keeping premises for unlawful sexual intercourse (G.L. c. 272, § 6) and keeping a house of ill fame (G.L. c. 272, § 24) because of the erroneous admission of evidence, objected to by the defense but admitted by the judge. As will appear, the evidence involved an incident that occurred nineteen months prior to the episode at issue and added little probative value to the Commonwealth's case, but at the same time created unfair prejudice against the defendant.

1. Facts. a. August, 1999. Police officers and defense witnesses told different stories during trial, but there was no doubt that unlawful sexual activity was taking place at 238 Broadway in Cambridge; the issue was whether the defendant knew and was in control of the premises in the late summer of 1999.¹

For four days in late August, 1999, Cambridge police officers conducted a surveillance operation of 238 Broadway, a building owned by the Mullane Realty Trust, which the defendant owned. The two-story building, located in East Cambridge, housed several businesses. The targets of the investigation were Oasis Group, a massage parlor, and the Broadway Institute of Massage Therapy.²

On August 27, 1999, around 12:35 P.M., several Cambridge police officers, members of the "special investigations" unit, armed with a search warrant, conducted a raid of the premises. A newly minted member of the vice squad, posing as a customer of Oasis Group, walked into the waiting room and spoke to Katherine Mullane, the defendant's daughter, about obtaining a massage. The other members of the team waited outside to allow him approximately twenty minutes to see if his assigned masseuse would solicit him for sexual favors before they executed the warrant.

The plan went slightly awry when Katherine Mullane, having obtained the requisite entry fee of fifty dollars, immediately introduced the officer to "Adrianne," who led him down a corridor into her massage room. The officer disrobed and lay face down on the massage table, clad only with a towel. The back rub progressed, the two engaged in small talk, and the officer asked Adrianne whether she did any "extras." She asked him if he had ever had a massage before, and he said, "yes." At some point he indicated that he had been to the Old English Club for a massage. She then asked if he was a police officer, and he responded in the negative. There was some general talk about the price, and the officer stated he had seventy dollars with him. She indicated that he could roll over any time he wanted. This, of course, put a crimp in his plan because less than half of the planned twenty-minute waiting period had elapsed. A beeper that the officer had in his discarded trousers would not sound for another ten minutes, signaling the entry of the other police officers to execute the search warrant. Not wanting to raise Adrianne's suspicions, the officer flipped over onto his back. Adrianne removed her top and skirt and stood naked beside him. She began to stimulate his genitals, a sexual practice she called a "hand release." At this moment, the officer became apprehensive and said that he needed to use the bathroom. He stalled, and later, when he returned to the massage room, Adrianne asked him if he wanted her to finish. Just then, the beeper mercifully went off, and Detective Louis Cherubino, leading the team executing the warrant, knocked on the exterior door and announced the team's entry into the premises.

The police team found Katherine Mullane and Patrick Mullane, the defendant's son, behind the reception room window. The entry created enough commotion that the officer, who was still in the massage room with Adrianne, could hear noise and people shouting, "police, police." Slight pandemonium broke out as the police officers made their way into the various massage rooms. They came upon one unsuspecting customer, with his pants unzipped, standing next to a woman. The woman jumped up on the table and began to demonstrate stretching exercises.

During the search, Detective Cherubino seized numerous documents that purportedly linked the defendant to the businesses, few of which bore specific dates (and none of which were reproduced in the record). The officers collected, among other things, customer receipts, loose currency, and a small video camera that had been mounted on the wall above the reception area, along with over twenty videotapes. A forensic expert collected specimens from the various massage rooms, several of which turned out to contain semen and sperm cells.

The foregoing summary of testimony at trial covers the events that occurred on August 27, 1999, at Oasis Group, previously known as Oasis Chiropractic. We now focus upon the evidence of the prior bad acts, which was admitted in evidence over objection.

b. November, 1997 — January, 1998. Just before the opening statements, the Commonwealth moved in limine to allow testimony about events that occurred at the same location about nineteen months before the events for which the defendant was indicted. At that time, from November 27, 1997, to January 22, 1998, there was a business at that location known as the Broadway Health Club. The Broadway Health Club and David Mullane were then being investigated. The prosecutor stated that, among other things, he would introduce evidence through two police officers that, in January, 1998, various types of sexual gratification were available at the Broadway Health Club in exchange for a fee. The prosecutor indicated that he would particularly focus on the fact that in 1998, if propositioned, officers were instructed to end a "massage" session early and that, in 1999, the police seized a number of signs posted at the establishment and endorsed by the defendant stating that the management was to be notified if sessions were ended early.³ In answer to the argument that evidence along this line would not be relevant and would be unduly inflammatory, the prosecutor said it would establish the defendant's state of mind and his response, in 1999, to the earlier investigation. The prosecutor also contended that the evidence showed a modus operandi by which one of the employees of the Broadway Health Club (not Adrianne) also offered "extras" to paying customers. In response, the judge temporized and said she would conduct a voir dire of the two police witnesses at the appropriate time.

In his opening statement, the prosecutor followed the judge's admonition and made no mention of the so-called prior bad conduct evidence. In midtrial, as part of its case-in-chief, the Commonwealth called Detective Gerald Baptist of the Cambridge vice squad and Detective David Ritchie of the Malden police, who worked undercover with Baptist in 1998. After conducting a voir dire hearing, the judge ruled that their testimony was admissible. The judge specifically stated that the evidence was relevant to "knowledge, state of mind and pattern or method of operation." The judge gave a limiting instruction before each of these witnesses testified. Each officer testified that in January, 1998, he investigated operations at the same location and known at that time as the Broadway Health Club. Baptist also stated that they were investigating the Broadway Health Club and David Mullane and that Baptist instructed Ritchie to pose as a customer and to try to obtain a "special" at the club.

Ritchie obliged, went to the club, and in the same fashion as the officer in 1999, selected a young woman named "Colleen." He described the scenario in detail, and it was faithful in all respects to the 1999 experience except that he escaped the indelicacy of the "special" by pleading poverty. Ritchie did not see the defendant during the course of his visit to 238 Broadway.

After Ritchie's and Baptist's testimony, the defense, we may surmise, could not simply pass over the incident as irrelevant. Katherine Mullane testified that throughout 1999, the defendant did not play any role in any of the business operations at 238 Broadway and that, subsequent to a heart attack, in February, 1999, he resigned as an officer and director of the corporation under which the Broadway Institute of Massage Therapy did business. His son gave similar testimony. Their testimony stood in stark contrast to several of the Commonwealth's witnesses who testified that the search turned up documents (some were admitted in evidence) that showed the defendant may have been actively engaged in the enterprise in 1999. The jury had to decide the issue of control based on the conflicting accounts of police witnesses cast against the testimony of the defendant's close family members.

The 1998 incident, as testified to by Baptist and Ritchie, received special attention in the prosecutor's closing argument. Four and one-half pages of transcript of the prosecutor's closing argument are devoted to a summary of Baptist's and Ritchie's testimony concerning the 1998 investigation. The prosecutor reminded the jury that it was the defendant and the Broadway Health Club that were under investigation at that time and laid emphasis on the instructions that Baptist (who was also involved in the raid in the instant case) gave to Ritchie. In discussing what the prior acts show, the prosecutor stated: "The first thing it shows ... is that there's a pattern of practice to what's going on at 238 Broadway, a pattern of practice." He quoted Ritchie's testimony in which Ritchie told the masseuse, Colleen, that he knew of a place in Kittery, Maine, that offered similar services....