Commonwealth v. Elliott

• Decision Date: 17 June 2015
• Docket Number: No. 11–P–1277.,11–P–1277.
• Parties: COMMONWEALTH v. Joseph ELLIOTT.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 520

32 N.E.3d 345

COMMONWEALTH

v.Joseph ELLIOTT.

No. 11–P–1277.

Appeals Court of Massachusetts, Essex.

Argued Jan. 7, 2015.

Decided June 17, 2015.

James Vander Salm, Worcester, for the defendant.

David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, MEADE, & MALDONADO, JJ.

Opinion

KAFKER

, J.

The defendant, Joseph Elliott, was indicted on seven charges of rape and indecent assault and battery that occurred within a one-week time span against identical twin sisters, Karen and Mary.^{1 , 2} After a jury trial, the defendant was convicted of two counts of rape and two counts of indecent assault and battery against Karen and acquitted of the remaining counts.

The defendant appeals from the judgments and from the trial judge's order denying his motion for a new trial pursuant to Mass.R.Crim.P. 30(b)

, as appearing in 435 Mass. 1501 (2001). In his direct appeal, the defendant contends that the trial judge abused her discretion in denying his motion for severance, and that the prosecutor's closing argument violated his constitutional rights to due process and to remain silent. The defendant also claims that the judge abused her discretion in denying his motion for a new trial. The issue presented in that motion was his claimed hearing impairment and whether the judge provided adequate accommodations to address the defendant's hearing difficulties. We affirm.

1. Background. The relevant evidence in this case comes primarily from the testimony of Karen and Mary. The sisters testified that the defendant, a longtime family friend, committed a series of sexual assaults against them in a span of eight days in 2007, when the sisters were nineteen years old. We briefly summarize their testimony, and reserve certain facts for our discussion of the issues raised.

The defendant first met Karen and Mary at church when the sisters were children. Over the years, the defendant became a longtime friend of the family, and grew particularly close to the sisters' mother. The defendant often visited the family's home.

On July 31, 2007, the defendant telephoned Karen and invited her to come to Salem and clean his mobile home in exchange for payment.

Karen accepted the invitation because she was unemployed and needed money. While Karen was cleaning the mobile home, the defendant told her how beautiful she was and how much he loved and cared for her. Though Karen resisted his advances, the defendant pushed her onto the bed, held her arms behind her neck, removed her pants, and penetrated her vagina with his penis. After the incident, the defendant told Karen to clean up in the shower, and he then drove her home. Karen did not tell her mother what happened that day because she “didn't want to hurt her,” as Karen was concerned her mother would blame herself. Karen later told Mary, “Joe raped me.”³ Karen told her sister not to tell her mother for the reasons discussed above, and Mary agreed.

On August 4, 2007, Mary was at home in her room, lying on her bed, listening to her iPod. The defendant arrived at the house with his mother. While the defendant's mother and the sisters' mother had a conversation, the defendant went to Mary's room. After asking Mary how she was doing, the defendant proceeded to hug Mary and kiss her on the lips. Though Mary backed away and told the defendant to stop, the defendant put his hands on her breasts and then down her pants. He then put his fingers inside her vagina. After the defendant stopped and left the house, Mary told Karen what had happened. Karen told Mary she was not ready to tell their mother about her own rape. Therefore, Mary did not tell their mother about her rape, either.

On August 7, 2007, the defendant again telephoned Karen and asked whether she would like to do some additional paid work for him, this time at a house in Beverly. Still in need of money, Karen agreed to go. After completing the work, Karen and the defendant talked about Karen's family and payment for her work. The defendant asked her to come upstairs and take a shower with him. She said no, and when he went upstairs, she telephoned Mary and told her about the shower request and how uncomfortable she felt. Mary told Karen to have the defendant drive her home. The defendant returned downstairs and sat down next to Karen on the couch. While on the couch, the defendant put his arms around Karen, told her to relax, and told her that he loved her. At that point, he held Karen down as she tried to fight him off and then put his hand down her jeans and in her vagina. He also put his hand on her breasts. He next

pulled down her jeans, and while restraining her arms, inserted his tongue into her vagina. During this altercation, Karen's cellular telephone (cell phone) rang, and Karen answered. Mary was calling and indicated that she had told their mother about the defendant's sexual assaults against both of them. After the defendant spoke with their mother on his own cell phone, he told Karen:

“You can't do this to me. I loved you. I loved you your whole life. I thought you loved me. I tried being there for you and your sister. I don't want to go to jail. You can't do this to me. You have to lie. Tell them that I didn't do anything.”

2. Discussion. A. Joinder. Rule 9(a)(3) of the Massachusetts Rules of Criminal Procedure

, 378 Mass. 859 (1979), provides that “[i]f a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.” The defendant alleges that the offenses regarding Karen and Mary were improperly joined for trial. “[T]he decision whether to join offenses for trial is a matter left to the sound discretion of the judge,” which will not be reversed absent “ ‘a clear abuse of discretion.’ ” Commonwealth v. Pillai, 445 Mass. 175, 179–180, 833 N.E.2d 1160 (2005), quoting from Commonwealth v. Walker, 442 Mass. 185, 199, 812 N.E.2d 262 (2004). We conclude that the denial of the defendant's motion for severance was proper.

To prevail on a claim of misjoinder, the defendant must demonstrate, first, “that the offenses were unrelated,” and second, “that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.” Commonwealth v. Pillai, 445 Mass. at 180, 833 N.E.2d 1160

, quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260, 820 N.E.2d 233 (2005). Commonwealth v. Aguiar, 78 Mass.App.Ct. 193, 199, 936 N.E.2d 16 (2010). The defendant fails to meet either burden.

When determining whether offenses are related for the purpose of rule 9

, a judge may consider a number of factors, including “factual similarities between the offenses, ... whether the offenses were near to each other in time or place, [and] whether the offenses sprang from the same cause or motivation.” Commonwealth v. Gray, 465 Mass. 330, 335, 990 N.E.2d 528 (2013). See Commonwealth v. Pillai, 445 Mass. at 180, 833 N.E.2d 1160. In light of the facts that the sisters were identical twins, each of the seven alleged offenses took place roughly within the span of one week, and the Commonwealth's theory was that the defendant had exploited his relationship of trust with the mother in order to gain access to the sisters,

the judge properly concluded that the offenses were related. See Commonwealth v. Pillai, supra at 181–182, 833 N.E.2d 1160

; Commonwealth v. Aguiar, 78 Mass.App.Ct. at 201–202, 936 N.E.2d 16.

The defendant also failed to demonstrate that he was unduly prejudiced by the joinder. The issue of prejudice largely turns on whether evidence of the other offenses would be admissible in separate trials on each offense. See Commonwealth v. Wilson, 427 Mass. 336, 346, 693 N.E.2d 158 (1998)

; Commonwealth v. Zemtsov, 443 Mass. 36, 45, 818 N.E.2d 1057 (2004). Though “[i]t is settled that evidence of other criminal conduct is inadmissible to prove the propensity of the defendant to commit the indicted offense,” Commonwealth v. Mamay, 407 Mass. 412, 417, 553 N.E.2d 945 (1990), such evidence is permissible to “show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Ibid., quoting from Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). In the instant case, the common scheme to exploit the mother's trust and the common sexual attraction to the twins was well established. Additionally, the testimony of either victim would be admissible in the other's trial as a first complaint witness, and was relevant to the timing of the disclosure of each sister's rape, given that (1) Mary waited to disclose out of consideration for Karen, and (2) Mary's eventual disclosure triggered Karen's own disclosure. See Commonwealth v. Aguiar, 78 Mass.App.Ct. at 203, 936 N.E.2d 16 (one victim's disclosure resulted from having overheard conversations concerning other victim's disclosure). See also Commonwealth v. Pillai, 445 Mass. at 178, 183 & n. 11, 833 N.E.2d 1160

(joinder proper where first victim's disclosure prompted second victim to disclose). Moreover, the defendant's acquittal on three of the charges suggests that he was not unduly prejudiced by the joinder. See Commonwealth v. Green, 52 Mass.App.Ct. 98, 103, 750 N.E.2d 1041 (2001) ; Commonwealth v. Aguiar, supra at 204, 936 N.E.2d 16.

B. Prosecutor's closing argument. The defendant next asserts that the prosecutor used his closing argument to comment on the defendant's decision not to testify and shifted the burden of proof to the defendant, thereby infringing on the defendant's constitutional rights to due process and not to testify. The issue was properly preserved. After reviewing the prosecutor's remarks “in light of the ‘entire argument, as well as in light of the judge's instruction [s] to the jury and the evidence at trial,’ ” Commonwealth v. Johnson, 463 Mass. 95, 111, 972 N.E.2d 460 (2012)

, quoting from Commonwealth v. Rodriguez, 437 Mass....