Com. v. Pillai

• Decision Date: 14 September 2005
• Citation: 445 Mass. 175,833 N.E.2d 1160
• Parties: COMMONWEALTH v. Vasudevan PILLAI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1160

833 N.E.2d 1160

445 Mass. 175

COMMONWEALTH v. Vasudevan PILLAI.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued February 8, 2005.

Decided September 14, 2005.

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James A. Reidy, Assistant District Attorney, for the Commonwealth.

Michael R. Schneider, Boston, for the defendant.

Peter Onek, Committee for Public Counsel Services, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

In 2001, a District Court jury convicted the defendant on two complaints charging eight counts of indecent assault and battery on a child under fourteen years. One complaint charged six counts occurring against one child, and a separate complaint charged two counts allegedly occurring months earlier against a different child. On a consolidated appeal from the convictions and the denial of his motion for a new trial, the defendant contended that the trial judge erred by joining the two complaints for trial and by precluding him from introducing certain evidence. He also brought the claims of error he raised in his motion for a new trial. The Appeals Court reversed the judgments and set aside the verdicts. Commonwealth v. Pillai, 61 Mass.App.Ct. 603, 813 N.E.2d 564 (2004). We granted the Commonwealth's application for further appellate review. We affirm in part, reverse in part, and remand the case for resentencing.¹

1. Facts. We summarize the facts in their light most favorable to the Commonwealth, reserving other details for discussion when relevant to the issues raised.

The defendant's daughter, Anne, was friends with the complainants, who were both thirteen years old on the relevant dates.² One day in July or August, 1999, Anne invited Rose to spend the night at her house, which Rose had done before. Rose testified that, while she was sleeping next to Anne in a basement family room, she awoke between 3 and 4 A.M. to find the defendant "hovering" over her with his hands on her breasts squeezing her nipple. The defendant kept trying to lift her shirt, saying "Let me see, let me see," while assuring her that he would not "take [her] virginity." Rose awakened Anne, who quickly fell back to sleep. The defendant remained in the room for more than ten minutes, sitting on a couch watching Rose. Rose eventually fell back to sleep and went home immediately when she awoke in the morning. The only person Rose told about the incident was Anne, who changed the subject when Rose brought it up one week later.

On December 23, 1999, Anne invited another friend, Kathy, to spend the night at her house. Kathy testified that, while Anne was checking her email, the defendant pulled her close to him, with his hand on her waist, then "grabbed" her breast, "pulled" her nipple toward him, and placed his hand on her buttocks. Later, while driving to a restaurant for dinner, the defendant repeatedly reached behind his seat to feel Kathy's legs. Back at the house, when Kathy went to Anne's room to retrieve a pillow, the defendant tried to pull Kathy into a bathroom by "tugging" on her arm. Later, when the girls were walking to the basement family room, the defendant succeeded in pulling Kathy into a bathroom. There, he told her he would not do anything to her unless she wanted him to, stating, "I would never touch you here, here, or here," while in turn touching her upper breast, vaginal area, and buttocks for a few seconds each over her clothes. The defendant kissed Kathy and blocked the doorway, preventing her from leaving the bathroom, where they remained for some ten minutes.

Later that night, after Kathy and Anne had gone to bed the defendant followed a pattern of conduct similar to that which he used during Rose's sleepover. At 2:30 A.M., Kathy woke to find him shaking her feet, asking her to be quiet and to go downstairs with him. Kathy replied, "No. No I want to go to sleep. I'm tired." She also called Anne's name "sort of loudly," but Anne did not wake up. The defendant pulled Kathy's arm and twisted it "like he was trying to pull [it] out of [its] socket." The defendant then "crawled on top of" Kathy and put his arm around her. Over her bedclothes, the defendant touched Kathy's breast area three times and her vaginal area twice, with Kathy pushing his hand away each time. Kathy felt the defendant's penis pressing against her buttocks, and he tried to pull off her pajama bottoms. Kathy held the defendant's probing hand with one hand and covered her body with the other. The defendant remained with the girls for about thirty minutes before leaving the room, after which Kathy fell back to sleep.

The following day Kathy told her mother about the incident when they were driving away from the defendant's house; she described the other incidents to her mother in "bits and pieces" over the following week. Kathy and her mother reported the incidents to a guidance counsellor at her school. Anne told Rose about the accusations Kathy was making. Rose, who did not know Kathy, approached Kathy and told her that the defendant had also assaulted her during her earlier sleepover. Both girls reported the incidents to the district attorney's office, which issued two complaints of indecent assault and battery on a child under fourteen years against the defendant. See G.L. c. 265, § 13B. One complaint charged two counts with respect to the incident with Rose, and the other charged six counts with respect to the incidents with Kathy. A judge in the District Court allowed the Commonwealth's motion to join the complaints for trial, see Mass. R.Crim. P. 9, 378 Mass. 859 (1979), and denied the defendant's motion to reconsider the joinder.

Following a trial in the District Court, the jury returned guilty verdicts on all eight counts. The judge sentenced the defendant to serve four years in a house of correction, with one additional year suspended for seven years conditioned on the defendant's compliance with terms of probation. She also required the defendant to register as a sex offender pursuant to G.L. c. 6, §§ 178C-178P, and imposed community parole supervision for life pursuant to G.L. c. 265, § 45, and G.L. c. 275, § 18. The defendant filed a timely notice of appeal.

In August, 2002, represented by new counsel, the defendant moved for a new trial asserting several errors, which we discuss below.³ Following an evidentiary hearing, the motion judge, who was also the trial judge, denied the defendant's motion.⁴ The Appeals Court consolidated the defendant's appeal from the denial with his direct appeal and set aside the verdicts, concluding that the judge should have denied the Commonwealth's motion for joinder. Commonwealth v. Pillai, 61 Mass.App.Ct. 603, 813 N.E.2d 564 (2004). We granted the Commonwealth's application for further appellate review.

2. Discussion. On direct appeal the defendant challenges the judge's joinder ruling. He also argues that she improperly precluded him from introducing evidence of the allegedly turbulent home lives of the complaining witnesses, in contravention of the defendant's rights to present a defense, to confront witnesses against him and to due process. On his appeal from the denial of the motion for a new trial he argues ineffective assistance of trial counsel for failing to impeach the complainants, prejudice arising from variances between the bill of particulars provided by the Commonwealth and the evidence at trial, prosecutorial overreaching, prejudice arising from the judge's failure to issue a specific unanimity instruction sua sponte, and insufficiency of evidence to support a guilty verdict on the second count of Rose's complaint. We discuss each claim in turn before addressing the judge's imposition of community supervised parole for life as a component of the sentence.

a. Joinder. The defendant argues that the underlying offenses were not "related offenses" within the meaning of rule 9(a)(1), or alternatively, that "the best interests of justice," rule 9(a)(3), required separate trials. We conclude that the judge did not abuse her discretion by joining the complaints for trial.

The basic principles governing joinder of offenses are well settled in our law. Among those most relevant to the facts in this case are the following. First, the decision whether to join offenses for trial is a matter left to the sound discretion of the judge, see Commonwealth v. Sullivan, 436 Mass. 799, 803, 768 N.E.2d 529 (2002), and will not be reversed unless there has been "a clear abuse of discretion."⁵ Commonwealth v. Walker, 442 Mass. 185, 199, 812 N.E.2d 262 (2004), quoting Commonwealth v. Allison, 434 Mass. 670, 679, 751 N.E.2d 868 (2001).

Second, to prevail on a claim of misjoinder, the defendant "bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial." Commonwealth v. Gaynor, 443 Mass. 245, 260, 820 N.E.2d 233 (2005). For purposes of joinder, offenses are related "if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Mass. R.Crim. P. 9(a)(1). Factors a judge may consider in determining whether offenses are related include factual similarities, see Commonwealth v. Ferraro, 424 Mass. 87, 89-91, 674 N.E.2d 241 (1997), and closeness of time and space, see Commonwealth v. Delaney, 425 Mass. 587, 594, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). Offenses are related if "the evidence in its totality shows a common scheme and pattern of operation that tends to prove" each of the complaints. Commonwealth v. Feijoo, 419 Mass. 486, 494-495, 646 N.E.2d 118 (1995). Where offenses are related, the judge "shall join the charges for trial" ...