Com. v. Hanlon, 96-P-1746

CourtAppeals Court of Massachusetts
Citation44 Mass.App.Ct. 810,694 N.E.2d 358
Docket NumberNo. 96-P-1746,96-P-1746
Decision Date21 May 1998

Page 358

694 N.E.2d 358
44 Mass.App.Ct. 810

No. 96-P-1746.
Appeals Court of Massachusetts,
Argued Oct. 21, 1997.
Decided May 21, 1998.

Page 361

[44 Mass.App.Ct. 811] Marshall E. Johnson, Plymouth, for defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and KASS and LENK, JJ.

LENK, Justice.

After a jury trial in the spring of 1994, the defendant was convicted of two counts of forcible rape of a child under the age of sixteen, G.L. c. 265, § 22A, and two counts of assault with intent to rape a child under the age of sixteen, G.L. c. 265, § 24B. 1 A first month-long jury trial in the fall of 1993 had ended with a hung jury and a mistrial. On appeal, the defendant claims that (1) there was insufficient evidence to withstand a motion

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for a required finding of not guilty at either trial; (2) he was placed in double jeopardy by being required to undergo a second trial; (3) the trial judge erred by denying the defendant's motion for a new trial on the basis of a posttrial television interview with two jurors; (4) the trial judge erred in admitting evidence of uncharged sexual assaults against people other than the victim; (5) the trial judge's instructions were insufficient to cure the prejudicial effect of the evidence of uncharged acts; (6) the trial judge erred in admitting in evidence portions of the defendant's testimony from the first trial; and (7) the sentence impermissibly punished the defendant for exercising his right to trial.

[44 Mass.App.Ct. 812] 1. Facts. We recite such facts as the jury would have been warranted in finding and that are helpful to an understanding of the issues on appeal. All of the indictments arise from assaults committed in Massachusetts against a single complainant, whom we shall call Ward Devlin (Devlin). The charged assaults occurred in the defendant's Scituate cottage between 1980 and 1981 when Devlin was under the age of sixteen. At the second trial, in addition to the complainant's testimony and that of his two younger brothers, the Commonwealth was permitted to introduce testimony of two unrelated young men who testified to similar uncharged acts of sexual assault by the defendant. Most of these uncharged assaults took place in the defendant's ski chalet in Vermont. At both trials, the complainant Devlin testified that the defendant had assaulted him in both Scituate and Vermont.

The complainant testified that his family was close to the defendant and deeply involved in their local parish, where the defendant, a Roman Catholic priest, worked from 1975 to 1985, first as an associate pastor and then as a pastor. The complainant was an altar boy from age nine to age fifteen and, along with other boys in the parish, performed maintenance work on the church and the defendant's houses in Scituate and Vermont.

Devlin went to the defendant's Vermont house in the spring or summer of 1980, when he was thirteen, to paint the house and to have the defendant counsel him regarding his troubled relationship with his parents. Devlin testified that the trip to Vermont was the first time the defendant sexually assaulted him. Devlin testified that, on his first night in Vermont, he and the defendant slept in twin beds in the same room, and that the defendant convinced him to sleep naked, as the defendant himself was doing. The defendant later got into Devlin's bed, claiming to be cold, and sexually assaulted him. The defendant did the same the next night. Over the next several years, Devlin sometimes spent nights at the defendant's Scituate cottage and in Vermont, ostensibly to perform maintenance work and to get away from his family, and similar sexual assaults took place.

In 1981, the defendant began bringing Devlin's younger brother, whom we shall call Martin, to Vermont for skiing trips. From 1981 through 1988, the defendant and Martin skied together fifty to sixty times. Martin testified that on their first trip to Vermont, the defendant told him not to sleep in his underwear because it would restrict his circulation. Later that night, the defendant climbed into Martin's bed claiming to be [44 Mass.App.Ct. 813] cold, and touched Martin sexually. Martin testified that the defendant assaulted him sexually on every trip they took.

Devlin's youngest brother, whom we shall call Caleb, went to Vermont with the defendant on one occasion in 1987. Caleb testified that the defendant told him to sleep naked, and that they should share a bed to keep warm. The defendant then sexually assaulted Caleb.

At the second trial, two other young men testified that the defendant had abused them. Charles Hollis 2 testified that from 1987 through 1989, he went skiing in Vermont with the defendant seven times, and the defendant sexually assaulted him each time. Douglas Zack 3 testified that between 1990 and 1991 he was sexually assaulted by the defendant in Vermont on several occasions. Both young men testified that the defendant

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convinced them to sleep naked, usually claiming that underwear restricted the circulation of blood to the genitals, and would enter their beds claiming to be cold.

Like the Devlin family, the Hollises and the Zacks were closely connected to their parish where the defendant served as a priest. All the victims were altar boys, and their parents taught Sunday school classes or otherwise assisted the church. The defendant was confessor to each boy at the time when he began abusing him.

2. Sufficiency of the evidence at the first trial. Following the mistrial and after the Commonwealth announced its intention to retry the defendant, the defendant moved to dismiss the indictments on the ground that the prosecution's evidence was legally insufficient to warrant his conviction. The judge denied this motion, and the defendant sought relief before a single justice of the Supreme Judicial Court under G.L. c. 211, § 3 (as amended by St.1992, c. 379, § 61). The single justice denied the petition and, on appeal, the court affirmed the denial, concluding that there was sufficient evidence for a rational trier of fact to find the essential elements of the crimes charged beyond a reasonable doubt. Hanlon v. Commonwealth, 419 Mass. 1005, 1006, 644 N.E.2d 1293 (1995). If the defendant believed at the time that the court had overlooked points of law or fact, he could have petitioned for a rehearing under Mass.R.A.P. 27, as amended, 396 Mass. 1218 (1986). Otherwise, there was a final decision on the issue, and [44 Mass.App.Ct. 814] we deem the defendant precluded in such circumstances from again raising the same claim before us. 4

3. Required finding of not guilty at the second trial. At his second trial, the defendant moved for a required finding of not guilty at the conclusion of the Commonwealth's case, at the close of all the evidence, and again after the jury returned a guilty verdict, maintaining each time that the evidence was insufficient to convict him. The trial judge denied all of these motions; on appeal, the defendant claims that it was error to do so.

We review the denial of a motion for a required finding of not guilty to determine "whether the evidence, in its light most favorable to the Commonwealth ... is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). Additionally, the evidence and the permissible inferences drawn from that evidence must be sufficient to "bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." Id. at 677, 393 N.E.2d 370, quoting from Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928).

The defendant contends that the victim's evidence was insufficient for reasonable jurors to convict the defendant because there was also evidence introduced during the Commonwealth's case, on both direct and cross-examination, that the victim had [44 Mass.App.Ct. 815] a history of lying, including lying in statements made under oath, as well as a history of alcohol abuse. Reduced to essentials, the defendant's argument is that the victim's testimony was unreliable and cannot suffice as evidence to convict the defendant. The claim that this witness's testimony is unreliable,

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however, is the equivalent of the assertion that it is not credible, which, it is well-established, is a matter for the jury to decide. Commonwealth v. James, 424 Mass. 770, 785, 678 N.E.2d 1170 (1997). A witness's statements are to be taken as probative evidence. Commonwealth v. Fitzgerald, 376 Mass. 402, 411, 381 N.E.2d 123 (1978). When assessing the sufficiency of the evidence, we "resolve issues of credibility in favor of the Commonwealth." Commonwealth v. James, 424 Mass. at 785, 678 N.E.2d 1170.

Here, the victim testified to every element necessary for each indictment, and the defendant presented no documentary or otherwise physically verifiable evidence to rebut conclusively the victim's testimony. The sole issue was whether the jury believed his testimony. The jury is the proper forum for assessing credibility. Ibid.

The defendant also moved for a required finding of not guilty at the close of all the evidence and after the jury was discharged, claiming that the Commonwealth's case had deteriorated after it had rested. As discussed above, we may look to all the evidence to determine if the defendant has shown that a necessary element of the Commonwealth's case is conclusively unproven. Kater v. Commonwealth, 421 Mass. 17, 20, 653 N.E.2d 576 (1995). The evidence presented at the second trial was testimony concerning Devlin's reputation as a liar, and evidence that he expected to receive a $900,000 settlement as a result of "a case involving a priest" (presumably, the defendant). Neither is...

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