Commonwealth v. Ward

110 N.E.3d 1219 (Table)

COMMONWEALTH

v.Kenneth WARD.

17-P-440

Appeals Court of Massachusetts.

Entered: August 16, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant, Kenneth Ward, was convicted of five counts of rape of a child and six counts of indecent assault and battery on a child.² On appeal, the defendant claims that the judge improperly denied him several peremptory challenges of prospective jurors, that various statements were introduced in evidence in violation of the first complaint doctrine, and that the prosecutor made impermissible and prejudicial statements in her closing argument. We affirm.

1. Factual background. The offenses arise from the defendant's relationship with two young girls in his girl friend's extended family: Amy³ and Barbara.^{4 ,5} Amy is the defendant's girl friend's niece and Barbara is Amy's younger half-sister.

When she was a child, Amy would visit her father, who lived in a house with a number of family members, including Amy's aunt, the defendant's girl friend (aunt). Amy testified that beginning when she was "a little girl in elementary school," the defendant would sexually abuse her.

The first time this happened, she was five or six years old, and was watching cartoons on a bed at the house shared by her father and aunt. The defendant put a pillow over her eyes, pulled down her pants and underwear, and put his tongue and hands on her vagina. When he did this, she urinated on herself. The incident ended when the defendant heard someone approach and quickly put her clothes back on.

The abuse continued over time, and when Amy was eight or nine, the defendant moved into a separate apartment with Amy's aunt and their infant son. Amy visited her aunt's apartment frequently on the weekends and after school, and the defendant would sexually abuse her every time she stayed at their apartment. The majority of the abuse happened in her cousin's room, where she would sleep when she stayed with them.

After everyone was asleep, the defendant would come into the room and pull Amy's pants down. He would put his tongue on and in her vagina, and touch her vagina and chest with his hands. He also sometimes put her hand on his penis and used it to masturbate himself. He would not speak to her during the assaults, a number of which occurred while Barbara was sleeping in the same room.

As Amy continued to grow older, the offenses continued, but she "gained a little bit of courage" and began to push the defendant away physically. As she became stronger, she noticed that he attempted abuse less and less frequently, and eventually stopped altogether when Amy was in high school. Ultimately, during a period of time in high school after the assaults had ended, Amy first disclosed the abuse to a boy friend, and made him promise not to tell anyone about what she had told him.

Barbara testified that because of her relationship with Amy, she was very close to Amy's aunt while growing up, and stayed at the apartment the aunt shared with the defendant approximately every other week. The defendant began to sexually abuse Barbara when she was six years old, waking her up by touching her chest under her shirt. While she pretended that she was asleep, he pulled down her pants, touched and penetrated her vagina with his fingers, and put her hand on his penis. When he was done, he pulled her pants back up.

After this, the defendant would sexually abuse Barbara each time she stayed at his home, always touching her chest and digitally penetrating her vagina, and sometimes using her hand to touch his penis. When she was eight or nine years old, the defendant also began putting his tongue on and in her vagina. When she was nine, he began to penetrate her vagina with his penis. He did not speak during these assaults, which continued until Barbara was fourteen or fifteen years old.

Barbara first disclosed the abuse to a close friend when she was in high school. Shortly after this, she and Amy disclosed the abuse to each other.

2. Discussion. a. Juror bias. The defendant challenges the judge's refusal to excuse for cause a member of the venire who, through "therapy or 12-step groups," had been acquainted with both perpetrators and victims of sexual violence. The defendant used a peremptory challenge to remove that juror, juror number (no.) 112, and later stated for the record his intent to use peremptory challenges to remove other jurors had his challenges not already been exhausted. Accordingly, the defendant's challenge of juror no. 112 for cause is preserved for review. See Commonwealth v. Clark, 446 Mass. 620, 629 (2006).

When conducting voir dire, a judge is required only to "determine whether jurors [are able to] set aside their own opinions, weigh the evidence (excluding matters not properly before them), and follow the instructions of the judge." Commonwealth v. Leahy, 445 Mass. 481, 495 (2005), quoting from Commonwealth v. Stroyny, 435 Mass. 635, 639 (2002). "A finding that a juror is impartial will not be overturned on appeal unless the defendant makes a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. Emerson, 430 Mass. 378, 384 (1999).

Here, during individual voir dire, the trial judge gave juror no. 112 a short summary of the case, indicating that it involved allegations of repeated incidents of sexual abuse of children. The judge then asked if there was anything about the allegations that would affect the juror's ability to afford the defendant a fair trial, and the juror answered, "I don't think so." When asked whether he or anybody he knew was a victim of sexual assault, the juror stated that he had participated as a member of therapeutic groups that included adults who had been sexually assaulted as children. When the judge asked if, in light of those connections, he could render a fair, just, and impartial verdict based on the evidence, the juror responded, "I think it would certainly make me alive to the realities of the consequences for someone who is a victim." The judge then refocused the juror on the original question, asking if he thought he "could do it," and the juror responded in the affirmative. Later in the voir dire, the juror indicated that he had also been acquainted with people "through those same circles" who had perpetrated sexual assaults. When asked if, given this, he would be able to render a fair, just, and impartial verdict in the case, he responded, "Yes. My sense is that it would be a wash. Yes."

"As a general principle, it is an abuse of discretion to empanel a juror who will not state unequivocally that he or she will be impartial." Commonwealth v. Colton, 477 Mass. 1, 17 (2017), citing Commonwealth v. Long, 419 Mass. 798, 804 (1995). Nonetheless, "[a] potential juror's use of seemingly equivocal language, such as the word ‘probably,’ is not determinative of the juror's ability to be impartial" (emphasis added). Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 274 (2002), citing Commonwealth v. Wilborne, 382 Mass. 241, 254 (1981) (permissible to empanel juror who "did not think" her friend's experience as a rape victim would affect her ability to be impartial); Commonwealth v. Ascolillo, 405 Mass. 456, 459-460 (1989) (permissible to empanel juror whose final answer was "[n]o, I don't think so," as to whether certain experiences would make him partial).

Here, juror no. 112 repeatedly stated that despite knowing individuals who had had experiences with sexual assault, he could nonetheless be impartial in evaluating the case. The juror's responses could reasonably be interpreted as unequivocal, and the judge implicitly found them so. The "trial judge was in the best position to evaluate [the juror's] credibility," and based on his observations of the juror's demeanor during questioning, he "was entitled to accept [the juror's] representation of impartiality." Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 566 (2010). There was no error.

b. Peremptory challenges. The defendant argues that the judge erroneously denied his request for two additional peremptory challenges when, after he had exhausted his sixteen initial challenges, two seated jurors were excused for hardship. He contends that had he known that the jury had three seats left to fill (rather than a single seat), he would have chosen to use his challenges differently. The defendant cites no authority, nor is this panel aware of any authority, in support of the proposition that a judge who unexpectedly excuses a sitting juror during empanelment is mandated to offer additional peremptory challenges to the parties.⁶ The defendant received and exercised the sixteen peremptory challenges to which he was entitled, pursuant to Mass.R.Crim.P. 20, 378 Mass. 889 (1979). "[T]here is no support in this record that additional challenges were required in order to obtain an impartial jury." Leahy, 445 Mass. at 499, quoting from Commonwealth v. Lattimore, 396 Mass. 446, 450 (1985).

c. First complaint. The defendant claims that evidence presented by the Commonwealth at trial gave rise to multiple violations of the first complaint doctrine, and created reversible error. Specifically, the defendant challenges testimony regarding a conversation between Amy and Barbara about the defendant's abuse, and testimony regarding the content of Barbara's sexual abuse intervention network (SAIN) interview. We review for abuse of discretion. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 583 (2013).

i. Conversation between Amy and Barbara On direct examination, the prosecutor elicited from Amy only that she had decided to talk with Barbara at some point about "what had happened," and that she did so in August of 2010. Of the short series of questions eliciting this information, the defendant objected only to the question "do you remember when that was?"

On cross-examination of Amy, defense counsel revisited this conversation repeatedly. He asked whether Barbara had indicated during...