Commonwealth v. McDonagh

480 Mass. 131

102 N.E.3d 369

COMMONWEALTH

v.William MCDONAGH.

SJC-12363

Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 5, 2018.

Decided July 26, 2018.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

John P. Zanini, Assistant District Attorney (Claudia Arno & Sarah McEvoy, Assistant District Attorneys, also present) for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LOWY, J.

In 2014, William McDonagh was convicted on two indictments charging aggravated statutory rape, in violation of G. L. c. 265, § 23A, and three indictments charging indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B, arising out of instances of sexual abuse the defendant committed against his minor son.

At issue in this appeal is whether the prosecutor, with permission from the trial judge, made improper remarks in her closing argument. The comment at issue concerned the purposes for which the jury could consider other bad act evidence that had been properly admitted through a stipulation of the parties—specifically, that the defendant had been arrested for, and admitted to, possession of child pornography. Despite this evidence having been admitted for certain limited purposes, including to corroborate the son's testimony that the defendant showed him child pornography while committing the acts of abuse at issue, the judge allowed the Commonwealth to argue to the jury that they could consider the evidence to demonstrate the defendant's "state of mind," that he was sexually attracted to children. The defendant argues that this evidence did not show his state of mind and that, instead, the prosecutor's closing argument invited the jury to infer that he was sexually attracted to children and therefore more likely to have committed the crimes charged. Given that the defendant's state of mind was not at issue because he denied that the abuse occurred, the judge erred in allowing the prosecutor to make that argument in closing. See Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27, 21 N.E.3d 157 (2014). However, in light of the prosecutor's entire closing argument, the evidence presented at trial, and the judge's limiting instructions, the defendant was not prejudiced. Accordingly, we affirm the defendant's convictions.

1. Background. In September, 2014, the defendant was charged with the five offenses discussed above, as well as on two indictments of dissemination of obscene matter, in violation of G. L. c. 272, § 29. Six of the seven charges stemmed from the defendant's abuse of his minor son, Colin.¹ The defendant's other minor son, Nathan, was the putative victim of one of the dissemination charges.

The jury heard the following evidence at trial. The defendant and his three children moved to Massachusetts in 2006. When the defendant and his children arrived in Massachusetts, they lived with the defendant's brother in the Hyde Park section of Boston. In 2009, the defendant and his children moved to Cambridge, then relocated to the Dorchester section of Boston, and eventually settled in Hull.

Colin testified that the defendant began sexually abusing him when the family moved to Cambridge in 2009. The charged instances of sexual abuse occurred between 2009 and 2010, while the defendant and his children were living in Dorchester. Colin testified that on multiple occasions the defendant touched his buttocks and penis with his hand and forced him to engage in oral sex. The defendant, while sexually abusing Colin, showed him photographs of naked children and adults on nude beaches, as well as video recordings of adults and children engaging in sexual activity. Samples of photographs of nude beaches that were found on the defendant's computer were admitted in evidence. Colin explained that these images and video recordings depicted people "having sex," which he described as "porn." The defendant threatened to knock Colin's teeth out if he told anyone about the abuse.

Other evidence of the defendant's uncharged conduct toward his children was also admitted at trial. This evidence indicated that the defendant had sexually assaulted Colin in two other counties; showed Colin and Nathan adult and child pornography; and showed Colin, Nathan, and their sister photographs of people on nude beaches, telling the children that he would take them to a nude beach someday.

In October, 2010, the defendant was arrested for possession of child pornography; he eventually pleaded guilty and was incarcerated. As discussed in greater detail infra, this evidence was introduced through a stipulation of the parties and admitted in evidence by the judge for certain limited purposes. In September, 2012, while the defendant was incarcerated and the defendant's children were living with his brother, a forensic interviewer for the Suffolk County district attorney's office interviewed Colin. During that interview, Colin recounted how the defendant abused him.^{2 ,3} This was the first time Colin reported that the defendant had sexually abused him.⁴

The jury returned guilty verdicts on all charges except for the second indictment charging dissemination of obscene matter, which was based on the defendant showing nude beach photographs to Nathan. The defendant appealed to the Appeals Court, which, in an unpublished memorandum and order pursuant to its rule 1:28, affirmed the convictions of aggravated statutory rape and indecent assault and battery on a child under fourteen. See Commonwealth v. McDonagh, 91 Mass. App. Ct. 1109, 81 N.E.3d 823 (2017).⁵ This court granted the defendant's application for further appellate review.

2. Discussion. It is undisputed that the defendant's arrest for, and admission to, possession of child pornography were properly admitted in evidence. However, the defendant contends that the judge erroneously allowed the Commonwealth to comment in its closing argument that the jury could consider the evidence for purposes of demonstrating the defendant's "state of mind," that he was sexually attracted to children. The defendant claims that this was an improper propensity argument because it invited the jury to infer that he was sexually attracted to children and, therefore, more likely to have committed the charged crimes. The Commonwealth asserts that the argument was proper and that, even if it was not, the defendant failed to preserve the claim for appellate review. Accordingly, we begin by addressing the threshold issue: whether the defendant's objection to the Commonwealth's closing argument was sufficiently precise to preserve the claimed error. a. The objection. Whether and how certain other bad act evidence would be admitted in evidence was a prominent and recurring issue throughout the defendant's trial—particularly, the defendant's 2010 arrest for, admission to, and conviction of possession of child pornography. Prior to trial, the Commonwealth moved in limine to admit this evidence. The defendant had initially moved to exclude it, arguing that the evidence "would be highly prejudicial" and "show only his propensity to commit the crime[s] charged." Eventually, the defendant conceded that the evidence was relevant to corroborate Colin's testimony that the defendant had shown him child pornography during the charged incidents of sexual assault. This evidence was also admissible to show the defendant's efforts to "groom" Colin.⁶ From the defendant's perspective, evidence of the date of his arrest provided an important timeline of events and explained the defendant's absence from the home while he was incarcerated. The parties discussed introducing the evidence through a stipulation to the jury but did not reach an agreement prior to trial. The judge took the issue under advisement.

The parties entered into a stipulation concerning the defendant's arrest for and admission to possession of child pornography on the final day of trial. The following stipulation was submitted to the jury:

"On October 25, 2010, William McDonagh was arrested for possession of child pornography in Hull, Massachusetts. His home was searched that day and his computers, digital camera, and other digital evidence were seized. The defendant admitted to possessing child pornography. He denied ever having any sexual contact with his child or any child."

Soon after the stipulation was presented to the court, the Commonwealth requested that the judge instruct the jury that they could consider the defendant's arrest for possession of child pornography to demonstrate his "state of mind," that he was sexually attracted to children. Defense counsel objected, arguing that such an instruction would invite the jury to consider the other act evidence for impermissible propensity purposes and that the defendant had a "criminal character for sexual thoughts." The defendant also noted that a state of mind instruction would contradict the judge's other instructions to the jury that they not consider the evidence to show the defendant has a propensity to commit this type of crime. Clearly recognizing the need for specific instructions concerning the purposes for which the jury could consider the other act evidence, the judge requested that the parties identify the precise language for her instruction to the jury: "What I need you to focus on is what these words should say based on your view of what the permissible use of this evidence is." The judge then ruled that she would not instruct the jury on "state of mind" as it related to the defendant's arrest for child pornography.

The Commonwealth then requested that it be permitted to argue in closing that the jury could consider the defendant's admission to possessing child pornography for purposes of demonstrating his "state of mind," that he was sexually attracted to children. Differentiating between the defendant's arrest for possession of child pornography and his admission to possessing child pornography, the judge concluded...