Commonwealth v. Harding

99 Mass.App.Ct. 1132

170 N.E.3d 720 (Table)

COMMONWEALTH

v.Shane E. HARDING.

19-P-1786

Appeals Court of Massachusetts.

Entered: July 2, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On September 30, 2014, the defendant set out on an increasingly desperate string of criminal acts spanning New York and Massachusetts. By the time of his apprehension the next day he had committed a botched robbery in New York, kidnapped and raped his brother's girlfriend in Massachusetts, returned to New York, planned additional crimes, and coerced a lifelong friend into assisting an attempted escape to Canada. For the segment of his spree that occurred in Massachusetts, a Superior Court jury convicted the defendant of three counts of rape and a single count of kidnapping. See G. L. c. 265, §§ 22 (b ), 26. On appeal, he contends that the trial judge erred in admitting evidence of certain prior and subsequent bad acts. We affirm the convictions.

The Commonwealth may not introduce evidence of a defendant's prior or subsequent bad act to prove bad character or a propensity to commit the crimes charged. See Commonwealth v. Peno, 485 Mass. 378, 385 (2020). Such evidence may, however, be introduced for certain permissible purposes, provided that its probative value is not outweighed by the risk of unfair prejudice to the defendant. See id. For example, bad acts evidence may be admissible to show motive, intent, or state of mind. See id.; Commonwealth v. Keown, 478 Mass. 232, 243 (2017), cert. denied 138 S. Ct. 1038 (2018). Likewise admissible is evidence of bad acts that are "inextricably intertwined with the description of events ... of the [crime]." Commonwealth v. Bryant, 482 Mass. 731, 734 (2019), quoting Commonwealth v. Marrero, 427 Mass. 65, 67 (1998). We review a judge's decision to admit bad acts evidence for abuse of discretion, and such a decision will stand unless "a clear error of judgment" causes it to be "outside the range of reasonable alternatives." Peno, supra at 386, quoting Commonwealth v. Facella, 478 Mass. 393, 407 (2017).

The defendant argues that the jury should not have heard evidence of his bad acts both preceding and following the kidnapping and rape of the victim, but the argument does not recognize that all of the defendant's acts that day were one "inextricably intertwined" course of conduct.² His failed armed robbery in New York caused him to seek a ride from the victim. His desperation to avoid the police caused him to force her to drive to Massachusetts, where he raped her, believing he was about to die. She escaped only by convincing him that her absence would be noticed, and that he should ask his friend and roommate for help. That friend, forced to drive the defendant around New York while he plotted additional crimes in furtherance of a planned escape to Canada, ultimately gained his freedom and gave police the information that led to the defendant's arrest. Each of these events informs the others, and all happened in less than twenty-four hours. Not only is the Commonwealth "entitled to present as full a picture as possible of the events surrounding the incident itself," but evidence of these interlinked acts was essential to the jury's comprehension of the charged crimes; without the challenged evidence they would be left with "an essentially inexplicable act of violence."³ Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982).

Moreover, the probative value of this evidence must be weighed against the risk of unfair prejudice. See Peno, 485 Mass. at 386. Had the defendant's desperate flight occurred wholly in Massachusetts, it is all but certain that he would have faced further Massachusetts criminal charges based on his complained-of bad acts.⁴ Those related charges could be appropriately tried together with the existing four, and at that trial all of the challenged evidence would be admissible. See Mass. R. Crim. P. (9) (a), 378 Mass. 859 (1979) (joinder presumptively appropriate for related offenses that "arise out of a course of criminal conduct or series of criminal episodes connected together"); Commonwealth v. Hernandez, 473 Mass. 379, 394 (2015) (joinder supported by fact that evidence of two crimes would be mutually admissible if tried separately because bad acts showed motive and were "inextricably intertwined"). Given that, any prejudice from admission of the bad acts evidence here can hardly be called unfair; the defendant cannot expect to avoid evidence of bad acts that were uncharged solely by reason...