Com. v. Sylvester

• Decision Date: 07 June 1982
• Citation: 13 Mass.App.Ct. 360,433 N.E.2d 107
• Parties: COMMONWEALTH v. Elmer SYLVESTER.
• Court: Appeals Court of Massachusetts

Page 107

433 N.E.2d 107

13 Mass.App.Ct. 360

COMMONWEALTH v. Elmer SYLVESTER.

Appeals Court of Massachusetts, Essex.

Argued Feb. 17, 1982.

Decided March 30, 1982.

Further Appellate Review Allowed June 7, 1982.

Ellen A. Howard, Boston (Jane Kenworthy Lewis, Boston, with her), for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, ROSE and KASS, JJ.

KASS, Justice.

Elmer Sylvester was convicted on two indictments of raping a child and three indictments of unnatural and lascivious acts on a child under sixteen years of age. He was found not guilty on two counts of rape and two counts of unnatural and lascivious acts. There are three issues on appeal, the most grave of which is whether harassing and demeaning remarks made by the trial judge within the hearing of the jury caused the trial to be unfair. We turn first to the other two issues.

1. Prejudicial joinder.

The defendant made a timely motion to sever the indictments at trial. Mass.R.Crim.P. 9(d)(2), 378 Mass. 860 (1979). ¹ That motion was denied and the defendant renewed the motion before the trial judge (who was not the same as the motion judge), and it was again denied.

A common thread ran through the criminal episodes: they all took place in the defendant's apartment; the friendship between the boy victims and the defendant had its genesis in a local store called Freddie's Market; the pattern of rewards for the boys was similar; and the sexual acts-fellatio-were similar. Hence, there existed a "series of criminal episodes connected together" which were "related offenses" within the meaning of Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979).

The defendant contends, however, that, although related, the offenses should not have been joined for trial because the crimes charged are so inherently odious that evidence as to one offense would enhance the jury's receptivity to evidence of another. That is, sexual offenses against minors would induce such revulsion among the jury that the repetition of separate charges would prevent the jurors from hearing evidence as to each episode dispassionately.

We are unwilling to construct a revulsion scale with which to weigh the anger and loathing which a particular offense may incite in jurors. Reaction to charges and evidence will, to some degree, be a function of the background, age, sex, and personal life experiences of a particular juror. It may as cogently be argued that if a crime is revolting, very little evidence of it is sufficient to ignite the feelings of a jury, while in the case of less-inflammatory offenses, e.g., larceny by false pretenses, joinder of a series of related offenses can overpower skepticism about evidence of an individual offense because of the cumulative picture which the jury receives.

Severing of related offenses for trial has not been the rule in Massachusetts. Commonwealth v. Slavski, 245 Mass. 405, 412-413, 140 N.E. 465 (1923). See Commonwealth v. Blow, 362 Mass. 196, 200, 285 N.E.2d 400 (1972) (which, however, stands primarily for the principle that offenses must be severed if they are not related); Commonwealth v. Cruz, 373 Mass. 676, 690, 369 N.E.2d 996 (1977); Commonwealth v. Ellis, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 1848, 1854-1857, 427 N.E.2d 1179; Commonwealth v. Egan, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1900, 1907, 428 N.E.2d 342. Cf. Sagansky v. United States, 358 F.2d 195, 199 (1st Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966) (involving related offenses by different defendants). See also Reporter's Notes to Mass.R.Crim.P. 9(d). Rule 9(d) does, of course, contemplate relief from prejudicial joinder in circumstances where justice requires. We are of opinion that those circumstances need to be more than the cumulative weight of similar evidence respecting related offenses. See Commonwealth v. Gallison, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1260, 1273-1274, 425 N.E.2d 276, in which the court observed that severance of charges is not indicated where, as here, a common course of conduct would have caused the evidence of any two incidents of sexual molestation to be admissible in connection with a separate trial of the third.

In several instances courts in other jurisdictions have articulated a theory of exceptional prejudice from the joinder of separate sexual offenses. To a palpable degree, the offenses in those cases had less in common than the offenses with which the defendant in the instant case was charged. Thus in Coleman v. Superior Court, 116 Cal.App.3d 129, 138-139, 172 Cal.Rptr. 86, cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981), the court held improper joinder of a rape-murder offense with two separate charges of sexual offenses against young girls. The California court's view was that the evidence of the sexual offenses against young children was especially likely to inflame the jury, making it difficult to decide the murder charge on its evidence alone. Similar reasoning led the New York Court of Appeals to reverse, as an abuse of discretion, the joinder of indictments for promoting prostitution, endangering the welfare of a minor and a sodomy offense with an indictment charging eleven counts of sodomy with eight high school boys. People v. Shapiro, 50 N.Y.2d 747, 754-757, 431 N.Y.S.2d 422, 409 N.E.2d 897 (1980). Again, the court feared that the prejudice evoked by the combined prosecution of these various sex crimes would make it difficult for a jury to deliberate dispassionately on each separate offense.

Perhaps closer on their facts to the instant case are State v. Washington, 386 So.2d 1368 (La.1980), and People v. Jackson, 77 App.Div.2d 630, 430 N.Y.S.2d 126 (N.Y.1980). In the Washington case, four sexual offenses against four young girls were tried together. The court noted, at 1372, that the method of assault varied with each crime, that the methods of enticement varied and, finally, that the four attacks occurred in four different places at four different times. On those facts the court expressed concern, at 1373, over the risk of the jury's cumulating evidence which would arouse their hostility, and thus held that the trial court abused its discretion in denying the motion for severance. In the Jackson case, the court, 77 App.Div.2d at 632, 430 N.Y.S.2d 126, considered joinder of sodomy indictments against minors to be an abuse By contrast, the incidents of molestation in the case at bar, as we have observed, shared a common locale, method and reward. To the degree the foreign cases discussed can be read for the proposition that the joinder of sexual offenses carries with it special prejudice we decline, for the reasons previously stated in this opinion, to follow them.

of discretion because the potential for prejudice "on charges of this type" outweighed "the convenience to the People" and because it rejected the prosecution's contention of a common plan or scheme. The court did not elucidate the manner in which the instances of sodomy were distinct.

2. Prejudicial opening by the prosecutor.

It would have been better if the assistant district attorney who prosecuted the case had not in his opening: (a) described himself as "representing you, the people of the Commonwealth of Massachusetts" while referring to defense counsel as "representing the defendant;" (b) described his opening "like a friend telling you what a book is about before you have had the opportunity to read it"; and (c) saying, "(w)e will prove beyond a reasonable doubt that Chief (the defendant's nickname) took boys to his apartment, including these three, who will testify today ... (and that h)e met other boys through word of mouth, boys that had gone up there before." (Emphasis supplied.)

Comment (b), taken by itself, was an innocent and unexceptionable attempt by the prosecutor to establish rapport with the jury. Only taken in combination with comment (a) could it be viewed as an effort to claim a special community of interest with the jury. We assume, however, that the jurors knew that lawyers are advocates and that the prosecutor spoke as an adversary. The judge made those roles clear on more than one occasion.

The innuendo in comment (c) that the three indictments represented only the tip of the iceberg was more reprehensible because the prosecutor knew perfectly well that evidence of other crimes of which the defendant had not been charged, let alone convicted, was not admissible, Commonwealth v. Parker, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1739, 1740, 426 N.E.2d 1179, absent circumstances not here present. Compare Commonwealth v. Chalifoux, 362 Mass. 811, 815-816, 291 N.E.2d 635 (1973); Liacos, Handbook of Massachusetts Evidence 421-423 (5th ed. 1981). Nonetheless, the remarks, appearing essentially as modifiers to the points the prosecutor was trying to make, were relatively subtle and we agree with the judge that, in the context of an opening, they did not represent an occasion for declaring a mistrial. Had suggestive references to other crimes been made in the course of closing argument the transgression would have been more serious.

3. Harassing and demeaning comments made by the judge in the presence of the jury.

By conservative count, there were twenty-four occasions upon which the trial judge made remarks which were sarcastic, intemperate, harassing, snide or demeaning. As the entire trial lasted but three days and produced only 310 pages of transcript to the point at which the case went to the jury, those interjections constituted more than isolated phenomena. The defense has marshalled the judge's comments for our consideration. So massed they depict a reign of terror. It was not as bad as all that. During the entire proceeding there were considerable periods of civility between episodes of abrasiveness. We have appended to this opinion a summary of the judge's remarks. (That summary, of course, results again in...