Com. v. Ramos

826 N.E.2d 245

63 Mass. App. Ct. 379

COMMONWEALTH v. Marcos U. RAMOS.

No. 03-P-1581.

Appeals Court of Massachusetts, Suffolk.

Argued February 14, 2005.

Decided May 3, 2005.

Ruth Greenberg, Swampscott, for the defendant.

Amanda Lovell, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, GRASSO, & KANTROWITZ, JJ.

KANTROWITZ, J.

Dr. Marcos Ramos was charged with nineteen counts of indecent assault and battery, G.L. c. 265, § 13(h), on eight different female patients. He was convicted of thirteen.¹

On appeal, he argues that (1) prior bad act testimony of five noncomplainant witnesses was improperly admitted; (2) his prison sentence improperly took into account crimes for which he was not charged; and (3) the judge erroneously instructed the jury concerning consent to a physical examination by a physician. Although we are concerned with the admission of the evidence, we affirm.

Facts. Ramos practiced as a doctor specializing in rehabilitation medicine and musculo-skeletal injuries. Part of his practice involved independent medical examinations (IMEs) of those who had suffered work or accident related physical injuries, and were seeking recovery through workers compensation, insurance, or personal injury claims. Those he examined were typically ordered to see him by an employer or insurer to justify compensation already paid, compensation to be paid, or were referred by their attorneys as part of potential or ongoing litigation. Through the 1990s, Ramos examined a number of female patients in relation to these claims, and his conduct during those examinations formed the basis for which he was ultimately charged.

At trial, the Commonwealth offered all eight victims as witnesses, and all testified to similar experiences in his office. Each victim testified that she was told to undress prior to the examination and cover herself with a paper johnnie. Although they reported various injuries to their wrists, arms, shoulders, necks, backs, and legs, Ramos focused much of his attention on unaffected areas. All of the victims stated that Ramos fondled and groped their breasts, without gloves, in a manner unlike any other prior breast examination. Some described other inappropriate touching of other parts of their bodies, including their vaginas, buttocks, and inner thighs. Every victim, except for one, testified that they were alone in the room during the examinations.²

Prior bad acts. The Commonwealth, over objection, presented the testimony of five noncomplainant witnesses, who described similar experiences with Ramos,³ for the purpose of showing that Ramos molested his patients in accordance with a common scheme or plan, and to show, through the sheer number of victims, that the indecent touching was not an accident or mistake. Two of the noncomplainants testified that Ramos refused to let their husbands accompany them during the examination.

"It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.... Such evidence can be highly prejudicial to the defendant, and therefore must be excluded unless it comes within one of the permitted uses, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). (Citations omitted.) See Commonwealth v. Walker, 442 Mass. 185, 202, 812 N.E.2d 262 (2004); Commonwealth v. Butler, 62 Mass.App.Ct. 836, 843, 821 N.E.2d 501 (2005); Proposed Mass. R. Evid. 404.

There is no bright-line rule concerning the admission of such evidence; rather, its admission is determined on a case-by-case basis. Commonwealth v. Butler, supra at 844, 821 N.E.2d 501. A judge should not admit prior bad acts evidence if it is outweighed by unfair prejudice to the defendant. Commonwealth v. Fordham, 417 Mass. 10, 22, 627 N.E.2d 901 (1994). Ultimately, it is "a determination for the judge to make and one which we do not disturb unless, in our judgment, it is palpably wrong." Ibid.

Contrary to the defendant's arguments, we agree with the judge that the evidence was "appropriate to show a plan or pattern as well as the absence of mistake." Typically, our review would end here, discerning no error. Cf. Commonwealth v. Feijoo, 419 Mass. 486, 494-495, 646 N.E.2d 118 (1995) (common scheme and pattern of operation, by defendant karate teacher, to induce twelve to seventeen year old male victims' cooperation and submission to his desire for sexual activity). Compare Commonwealth v. Jacobs, 52 Mass.App.Ct. 38, 750 N.E.2d 1028 (2001).

What is troubling here is that evidence of plan, prior pattern, etc., was already adequately, if not overwhelmingly, established via the testimony of the eight victims, all of whose cases were appropriately joined for trial. It is thus difficult to discern how the probative value of the five prior bad act witnesses added anything of consequence.

That being said, it is also clear that the judge assiduously instructed the jury,⁴ see Commonwealth v. McGeoghean, 412 Mass. 839, 842, 593 N.E.2d 229 (1992), which took those instructions to heart, as evidenced by its split verdict.⁵ See Commonwealth v. Walker, 442 Mass. at 202-203, 812 N.E.2d 262. Under these circumstances, the defendant is unable to demonstrate sufficient prejudice to warrant reversal of his convictions.

Sentencing. The defendant claims that his prison sentence⁶ was improperly motivated by conduct for which he was not convicted. He alleges that the judge improperly (a) took into account the five noncomplainant witnesses at sentencing⁷; and (b) adopted the Commonwealth's recommendation in its sentencing memorandum, which also improperly referred to the five women.

Read in context, however, it appears clear that the judge appropriately took all proper factors into consideration in sentencing the defendant. The judge did not impose sentence until...