Commonwealth v. Dorazio
| Citation | 472 Mass. 535,37 N.E.3d 566 |
| Decision Date | 02 September 2015 |
| Docket Number | SJC–11765. |
| Parties | COMMONWEALTH v. Herbert DORAZIO. |
| Court | United States State Supreme Judicial Court of Massachusetts |
Marissa Elkins, Amherst, for the defendant.
Patrick G. Fitzgerald, Assistant District Attorney, for the Commonwealth.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
HINES
, J.
In July, 2010, a jury in the Superior Court found the defendant, Herbert Dorazio, guilty of rape of a child, Susan, by force, and of assault with intent to rape a second child, Jane.1 , 2 The defendant appealed. In a memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the convictions. Commonwealth v. Dorazio, 85 Mass.App.Ct. 1127, 10 N.E.3d 671 (2014)
. We granted the defendant's application for further appellate review.
Represented by new counsel on appeal, the defendant argues that his convictions should be reversed because the judge erroneously (1) denied his motion for relief from prejudicial joinder; (2) admitted certain evidence of prior bad acts and other propensity evidence; (3) denied his motion for a mistrial; and (4) denied his motion for a new trial based on ineffective assistance of trial counsel.3 For the reasons that follow, we reverse his convictions.
Facts. We recite the facts that the jury could have found, reserving the development of other facts to the discussion of specific issues raised. Commonwealth v. McCoy, 456 Mass. 838, 839, 926 N.E.2d 1143 (2010)
. The incidents giving rise to the charges took place at the defendant's home. Susan and Jane, the complainants, were neighbors of the defendant. Their families were part of a close-knit residential neighborhood, in which there were many families with young children who would frequently socialize together. While initially the defendant engaged with the adults during these occasions, he later gravitated toward spending time with the children.
During the summer after Susan completed kindergarten, in 1996, she was playing with several children in the defendant's basement. The defendant asked her to go outside with him to look at something in the back yard. They went through a door in the basement that opened up under a deck. The other children stayed inside. The defendant knelt down on his left knee, touched Susan on her back, and asked her to sit on his right knee. Susan
complied. The defendant put his hand on Susan's inner thigh, then slid his fingers under her shorts and under her underwear. He inserted one of his fingers into her vagina and moved it “in circular motions.” This went on for a “few minutes,” until the defendant heard something and they went back inside the house.
Approximately one to two weeks later, “[i]t happened again.” Susan was playing at the defendant's house with other children and the defendant asked her to go outside with him. Under the deck, he knelt on one knee and had her sit on the other. The defendant put his hand inside her underwear and inserted a finger into her vagina, moving it “[a]round and in and out” for a “few minutes.”4
Sometime around 2000 or 2001, the defendant separated from his wife and moved out of the neighborhood. He did not, thereafter, attend any neighborhood gatherings.
In June, 2008, after seeing the defendant at a gasoline station, Susan went home “hysterical” and told her mother (the first complaint witness for Susan) that the defendant had “hurt her” and in response to her mother's questions “looked at her lap.”5
Concerning the other complainant, during the late spring or early summer of 1998, when she was six years of age, Jane testified to playing Wiffle ball with some children in the defendant's back yard; the defendant was pitching. The ball went into some nearby woods. The defendant asked Jane to go inside his house to get another ball. Jane followed the defendant to the laundry room in the basement. The defendant told Jane that the Wiffle balls were on a shelf above the washing machine that he could not reach. He told her that she would have to reach for the ball and lifted her on top of the washing machine. As Jane stood on top of the machine, the defendant touched the inside of her knee with one hand. The defendant then moved his hand under Jane's underwear and touched her vagina, moving his fingers around “[v]ertically” for about ten seconds. Frozen, Jane heard something jingle and the
defendant took her right hand, put his penis in it, and told her, 6 In seventh grade, Jane first told a friend (her first complaint witness) about the incident.
Over the defendant's objection, the judge admitted evidence from three witnesses concerning an incident that took place on June 13, 1998, at a restaurant in Burlington involving the defendant and a young girl, J.D., who was six years of age.7 J.D. testified that, on that date, she was at the restaurant with friends and family celebrating her birthday. She and a friend8 were in a play tube along with other children. Also present was an adult male and his toddler son. The girls tried to avoid the man, but he cornered them in a dead end and began chatting with them. J.D. gave a description of the man, but was unable to identify him in the court room.
When his son started crawling in the opposite direction, the man placed his hand on J.D.'s knee and his other hand on her friend's knee. His hand went up and under her dress and inside the front of her underwear, where it stayed for a minute or two before there was an interruption of some kind and the man and the girls headed in opposite directions. J.D. later saw the man when she was with her father.
J.D.'s father testified that, at the party, another parent had approached him, after which he summoned J.D. from the tube structure and asked her if someone had touched her, then asked her to point out who had done so. She identified a man the father had seen earlier in the tubes, and whom he identified in the court room as the defendant. J.D.'s father told the manager that his daughter had been assaulted and requested that he telephone the police.
Burlington police Officer Charles T. Ferguson responded and was directed to a man he identified at trial as the defendant. After the defendant identified himself, the officer administered the Miranda warnings to the defendant and told him that he wished to speak with him about some “allegations” concerning some improper touching of girls.9 Asked whether he had had any contact with any children not his own, the defendant replied that “he may have had an accidental bumping of children up while he was in there playing with his children, but as far as knowingly touching them, he said absolutely not.”
The defendant testified. He denied placing Susan on his knee or sexually assaulting her, and denied spending time with Jane in his basement and placing her on top of the washing machine and touching her as she testified. The defendant recalled taking his toddler son, in 1998, to a restaurant where they met two girls in a tube play structure. He testified that they remarked on his “cute baby,” who then crawled all over them. The defendant had to change position, but was able to pull his son away from the girls. The defendant and his son crawled away and the girls “scooted by” and “bumped” him as they passed. The defendant was arrested later that day, was tried, and was acquitted.10
Discussion. 1. Joinder. Contrary to the defendant's contention, there was no abuse of discretion in the denial of his motion for relief from prejudicial joinder. Commonwealth v. Walker, 442 Mass. 185, 199, 812 N.E.2d 262 (2004)
. The facts of this case demonstrate that, although each offense involved different complainants, they were similar insofar as age and gender, and both were neighborhood children who knew the defendant and to whom the defendant had access. Commonwealth v. Gaynor, 443 Mass. 245, 260–261, 820 N.E.2d 233 (2005). In addition, the manner and circumstances in which each had been isolated from the other children, distracted, and touched demonstrated that the offenses were related for joinder purposes because they involved a common pattern of conduct. Commonwealth v. Pillai, 445 Mass. 175, 181–182, 833 N.E.2d 1160 (2005). The temporal proximity between the offenses, two years, was not too remote, and both
offenses took place at the defendant's home. Gaynor, supra; Commonwealth v. Feijoo, 419 Mass. 486, 489, 646 N.E.2d 118 (1995) (). Last, the defendant failed to show prejudice of a nature that is so compelling that he was denied a fair trial. Gaynor, supra at 263, 820 N.E.2d 233.
2. Admission of evidence relating to prior acquittal (the alleged incident involving J.D.). The judge delayed ruling on the Commonwealth's motion in limine to admit evidence of the alleged incident involving J.D. until the fourth day of trial, at which time he allowed the motion over defense counsel's objection. The defendant argues that the erroneous admission of this evidence prejudiced him and deprived him of his right to a fair trial and due process under the State and Federal Constitutions. We address first the defendant's contention that the evidence lacked relevance as rebuttal to the defense of accident or lack of intent and that, on that basis, it was inadmissible under general evidentiary principles. Because we discern no error in the admission of the evidence on relevancy grounds, we go on to resolve the issue on the constitutional grounds raised for the first time in this appeal.
a. Admissibility under evidentiary principles. The defendant objected at trial to the admission of the evidence on relevancy grounds. Therefore, we review this claim for prejudicial error. Commonwealth v. Montez, 450 Mass. 736, 744, 881 N.E.2d 753 (2008)
. “Generally, evidence of a defendant's prior misconduct may not be admitted to show bad character or propensity to commit the crime charged.” Id. “However, such evidence may be admissible, if...
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