Commonwealth v. Roe

90 Mass.App.Ct. 801

65 N.E.3d 1240

COMMONWEALTH

v.Joshua W. ROE.

No. 15–P–878.

Appeals Court of Massachusetts, Plymouth.

Argued Oct. 13, 2016.

Decided Dec. 28, 2016.

Thomas Dougherty, Boston, for the defendant.

Keith Garland, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, COHEN, & GREEN, JJ.

CYPHER, J.

The defendant, Joshua W. Roe, appeals from his conviction by a Superior Court jury on January 8, 2015, of indecent assault and battery on a child under fourteen in violation of G.L. c. 265, § 13B. The defendant raises four arguments in this appeal: (1) that the inadvertent disclosure of the defendant's alleged prior sexual assault unduly prejudiced the defendant; (2) that the judge abused his discretion by allowing the victim's father to testify about the defendant's possible sexual interests; (3) that the judge erred in denying the defendant's motion to dismiss the grand jury's indictment; and (4) that the judge erred by denying the defendant's motion in limine regarding the delayed disclosure of unexpected testimony by the victim. Due to multiple errors, as discussed infra, including the admission in evidence of an inadmissible prior bad act, the conviction must be reversed.

1. Background. We summarize the facts that the jury could have found, reserving some details for later discussion of the issues raised by the defendant. The defendant was an assistant Boy Scout leader for a troop in Wareham. The victim, a thirteen year old boy, was a member of the defendant's troop. The defendant would sometimes bring the victim to and from scout meetings to help the victim's family, whom he grew to know through a working relationship with the victim's father. In November, 2011, while driving the victim home, the defendant stated that he could stop the vehicle and have his way with the victim. The victim asked whether the defendant was homosexual, and the defendant replied that he was bisexual. In December of that year, the defendant stated to the victim, "you know I could turn you on." Later, in March, 2012, the defendant, his mother, and the victim were returning from a scout meeting. While the defendant's mother was inside a package store, the defendant and the victim were jokingly tussling back and forth. The defendant reached into the back seat, where the victim was sitting, and touched the victim's genitals. The victim testified that the defendant touched him for "long enough to seem like it wasn't an accident" and that it made him feel "really uncomfortable."

In April, 2012, the victim's father and the defendant had a telephone conversation.¹ When the father asked the defendant whether he liked boys, he told the father that he did not "really know" whether he had sexual thoughts about "little boys" and that he had not touched the victim, but had spoken to him several times in an inappropriate fashion. Following the conversation with the defendant, the father asked his son if anything inappropriate had happened with the defendant. The victim told his father about the touching that occurred the previous month.

2. Discussion. We first discuss the issues that warrant reversal followed by the remaining issue that may appear at retrial.²

a. Precluded testimony. The defendant argues that the judge allowed the victim's father to testify about a prior sexual assault charge against the defendant. The defendant appears to misapprehend the record, however, as the judge did not allow the testimony. The judge had granted the defendant's motion in limine and prohibited any mention of alleged inappropriate touching of a different boy, after concluding that the probative value was outweighed by the unfair prejudicial effect of such evidence. Nevertheless, the precluded testimony was disclosed to the jury during the father's direct examination. A curative instruction was not given until the following day, after jury deliberations had begun, when the jurors asked the judge if there were any statements from the father's testimony that they should disregard.

In determining the appropriate standard of review, we consider the alleged errors and the steps the defendant took to preserve them. First, he filed a motion in limine to exclude the bad act testimony, which was granted. Although the judge precluded any reference to other bad acts, the father testified to them. The defendant objected to the father's testimony and the judge sustained the objection, but he did not permit defense counsel to approach the bench. On the other hand, the defense attorney did not ask for a curative instruction, move for a mistrial, or move to strike the inadvertent testimony. In these circumstances, where the defendant moved in limine to exclude the testimony, objected to the testimony at trial, and was not permitted to approach the sidebar to seek a further remedy, we conclude that the defense attorney did enough to preserve the issue.³ Compare Commonwealth v. Reeder, 73 Mass.App.Ct. 750, 752–754, 901 N.E.2d 701 (2009) (court reviewed for prejudicial error where defendant moved before trial to exclude references to his alias, but did not object to references during testimony at trial), but see Commonwealth v. Murphy, 426 Mass. 395, 403, 688 N.E.2d 966 (1998) (court reviewed for substantial risk of miscarriage of justice because defendant did not ask for mistrial after his initial request for sidebar conference following witness's erroneous testimony had been denied). Thus, we review to determine whether the defendant was unfairly prejudiced by the father's testimony.

"It is well settled that the prosecution may not introduce evidence that a defendant has previously misbehaved ... for the purpose of showing his bad character or propensity to commit the crime charged." Commonwealth v. Vera, 88 Mass.App.Ct. 313, 319, 36 N.E.3d 1272 (2015), quoting from Commonwealth v. Copney, 468 Mass. 405, 412, 11 N.E.3d 77 (2014). "However, ‘[s]uch conduct ... may be admissible for other purposes, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.’ " Ibid., quoting from Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). See Mass. G. Evid. § 404(b)(2) (2016). Where evidence is relevant for one of those purposes, it should be excluded if its "probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk." Vera, supra, quoting from Commonwealth v. Crayton, 470 Mass. 228, 249 n. 7, 21 N.E.3d 157 (2014).

In the event such evidence is objected to and erroneously admitted, the judge ordinarily may rely on curative instructions "as an adequate means to correct any error and to remedy any prejudice to the defendant." Commonwealth v. Costa, 69 Mass.App.Ct. 823, 827, 872 N.E.2d 750 (2007) (quotation omitted). Curative instructions are considered to be more effective immediately after the prohibited comment is uttered, see Commonwealth v. Rodriquez, 49 Mass.App.Ct. 370, 374, 729 N.E.2d 669 (2000), and "[j]urors are expected to follow instructions to disregard matters withdrawn from their consideration." Commonwealth v. Cameron, 385 Mass. 660, 668, 433 N.E.2d 878 (1982). Generally, provided the instructions are reasonably prompt and the jury do not hear the inadmissible evidence again, the error will be considered cured. See Commonwealth v. Kilburn, 426 Mass. 31, 38, 686 N.E.2d 961 (1997). See also Commonwealth v. Gallagher, 408 Mass. 510, 517–518, 562 N.E.2d 80 (1990) ; Commonwealth v. Mendes, 441 Mass. 459, 470, 806 N.E.2d 393 (2004).

Here, during the father's direct examination, he testified that the defendant had told him on the telephone that he had not touched the victim the way he had touched another boy. Prior to the father's testimony, the judge ruled that there would be no mention of any other inappropriate touching because of its prejudicial effect. Weighing the factors established in Commonwealth v. King,

387 Mass. 464, 471–472, 441 N.E.2d 248 (1982), the judge determined that the touching of the other boy was insufficiently related to the touching of the victim because it was not committed in a similar manner, there was not a close relationship between the victims, and the two acts were not committed close in time. The judge stopped the father's testimony immediately after he mentioned the prior bad act and sustained the defendant's objection, but denied his request to approach the bench. The judge did not strike the testimony or instruct the jury to disregard the bad act evidence, but said, "We're not getting into any comments about any other ... event or any other person, if there was such a thing. We're restricting ourselves."

The following day during the defendant's cross-examination, the judge modified his initial ruling and allowed the Commonwealth to refer to "some misconduct" to give context to the telephone conversation between the father and defendant. The defendant once again objected to the mentioning of prior misconduct.

The failure to strike the reference to the prior touching along with the lack of a prompt curative instruction prejudiced the defendant. The Commonwealth relies on Commonwealth v. Baptista, 86 Mass.App.Ct. 28, 32, 12 N.E.3d 1029 (2014), to argue otherwise; however, the circumstances in that case differ from this case. In Baptista, the denial of a request for mistrial was affirmed because the judge immediately gave a prompt, forceful, curative instruction to combat precluded bad act testimony. See ibid. Additionally, the erroneous reference in Baptista was vague and fleeting, and it did not apprise the jury of the defendant's prior bad act. See ibid.

Here, although the jury were eventually instructed on how they could consider the father's testimony, the instruction did not come until the following day after they had begun deliberations. The remark made by the judge immediately following the erroneous testimony ("We're restricting ourselves") was not directed to the jury and does not rise...