Commonwealth v. Jacobs

• Citation: 750 N.E.2d 1028,52 Mass.App.Ct. 38
• Decision Date: 07 December 2000
• Docket Number: P-556
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. STEVEN D. JACOBS. 99-
• Court: Appeals Court of Massachusetts

750 N.E.2d 1028 (Mass.App.Ct. 2001)

COMMONWEALTH vs. STEVEN D. JACOBS.

99-P-556

Massachusetts Court of Appeals

December 7, 2000.

July 10, 2001.

County: Bristol

Present: Armstrong, C.J., Kaplan, & Greenberg, JJ.

Practice, Criminal, Trial of complaints together

Complaints received and sworn to in the Attleboro Division of the District Court Department on April 11, 1997, and May 21, 1997, respectively.

The cases were heard by Gregory L. Phillips, J.

Edward J. Fallman for the defendant.

Sharon L. Sullivan-Puccini, Assistant District Attorney, for the Commonwealth.

KAPLAN, J.

Steven Jacobs was tried jury waived in District Court and convicted on two complaints charging him with indecent assault and battery upon two adult women, Harmony Mon in one complaint and Kimberly Whitehead in the other.¹ There was error in ordering these alleged offenses to be tried jointly; they were unrelated in the sense of the rule regulating joinder, Mass.R.Crim.P. 9, 378 Mass. 859 (1979). Accordingly, the convictions will be reversed for separate trials.²

The defendant had been a licensed chiropractor since 1988. Mon was his patient during November, 1996, and accused him of impermissible behavior in massaging her buttocks. This was complaint 9734 CR 1441. Upon seeing newspaper reports of the defendant's arraignment on the Mon complaint, Whitehead complained to the police, who lodged complaint 9734 CR 2004. She accused the defendant of misbehavior in touching her breast tissue when she was his patient more than three years earlier, in July, 1993.³

At the call of the trial calendar on December 14, 1998, the Commonwealth presented a motion for joint trial of the complaints. Trying to fit the alleged offenses into the "related" category of (a)(1) of the joinder rule, Mass.R.Crim.P. 9,⁴ the Commonwealth contended the offenses could be viewed as part of a single scheme or plan, a suggestion fortified, according to the Commonwealth, by its supposition that, if the complaints were tried separately, the evidence at one trial would be used at the trial of the other to show a pattern of behavior.⁵ Alternatively, the Commonwealth contended in its motion the offenses might qualify as being based on the "same criminal conduct." Opposing the motion, the defendant argued the offenses were "unrelated" under (a)(4) of the rule,⁶ as indicated by the lapse of three years and four months between the alleged acts, and by the absence of any nexus between the two incidents.⁷

The trial judge allowed the motion without comment and went on without pause to try the complaints together. (Evidence adduced at trial is sketched at point 5, infra.)

This opinion considers the text and framework of the joinder rule. Then it takes up the Commonwealth's contentions above-mentioned. Finally, it considers whether error in allowing joinder could be materially harmful to the defendant.

1. Joinder rule. It is only "related offenses," as set out in (a)(1) of the rule that may be joined for trial, namely, those which are "[first] based on the same criminal conduct or episode or [second] arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." "Conduct" translates, in the more colloquial language of the Reporter's Notes (par. 3) to the rule, as "an act or omission to act," and "episode" as "an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series." The offenses charged herein were not based on the same conduct or episode thus described, rather they were based on distinct acts or omissions or occurrences. The separateness was apparent from the empty time of more than three years that intervened between the chiropractic treatments of the two individuals. The lapse of time also repelled any idea that there was a single course of conduct or a connected series of episodes or parts of a single scheme.

The alleged offenses were "unrelated" and joinder in such cases is not only unauthorized but gravely discountenanced. The Reporter says (par. 5): "Rule 9 takes the position that the goal of judicial economy will rarely be paramount to affording the defendant a trial as free from prejudice as possible; therefore, joinder of unrelated offenses is prohibited except at the instance of the defendant or with his written consent." This consent procedure is provided for at (a)(4) (text at note 6, supra).

2. "Single scheme or plan." Of course we recognize the words of the rule are not immaculately precise, and the same can be said of the explanatory language of the Reporter's Notes. The imprecision lets in room for some residual discretion in the interpretation and application of the rule. See Commonwealth v. Wilson, 427 Mass. 336, 345 (1998). In our view, however, no reasonable exercise of discretion could hoist the present offenses out of the "unrelated" and into the "related" category.

Arguing that the present situation exhibits a "single scheme or plan" in the sense of the rule, the Commonwealth cites, as purportedly comparable, three cases where joinder for trial was allowed. These cases are very materially different from the present; in each cited case the incidents joined for trial have a "temporal and schematic nexus," Commonwealth v. Gallison, 383 Mass. 659, 673 (1981), which is notably lacking in the case at bar.

In Commonwealth v. Mamay, 407 Mass. 412, 416-417 (1990), the defendant doctor was charged by nine indictments with gross sexual offenses -- indecent assault and battery and rape -- against six female patients. On motion the Commonwealth was allowed to join for trial six of the nine indictments, involving five victims treated by the defendant within a period of eight months. Alone with the woman in an examination room, the defendant asked her about her sexual practices and committed overt, unwanted sexual acts upon her,⁸ accompanied by explicit lascivious language. The court discounted some slight variations among the incidents and stressed the "similarity in the method by which the defendant committed the various offenses . . ." (emphasis in original). Id. at 417. This practice, repeated numerous times, comprised "a clear pattern of conduct." Ibid.⁹

The defendant in Commonwealth v. Feijoo, 419 Mass. 486, 487, 489-490 (1995), a karate instructor, was indicted for rape and other sexual abuse of nine male students in a continual stream of incidents over a period of five years.¹⁰ The defendant's misbehavior was virtually identical in all instances. He led the boys to believe he was a "Ninja," supreme in karate; held out to each boy the prospect of becoming his protege; pressured the boys to "succeed" by overcoming their deepest fears, breaking through a "condition" and choosing to become gay, and thereby engaging in sexual activity with him. Upholding the joinder order, the court said, "[T]he evidence in its totality shows a common scheme and a pattern of operation that tends to prove all the indictments." Id. at 494-495.

In Commonwealth v. Ferraro, 424 Mass. 87, 88-89 (1997), seven boys between eleven and fifteen years of age were molested in evening hours in a discrete location by a man wearing a hooded sweatshirt and a bandanna or mask. He would knock the boy down and ask for money. In each case a sexual assault followed. The assailant phoned at least five of the boys after the respective attacks, using the boy's name; all but one of the five received telephone calls on or about the first anniversary of the attack. The court, approving the joinder, concluded the offenses, taken together, demonstrated a common scheme and pattern of operation. Id. at 89-90. In addition, the evidence of pattern was so distinctive that it could help on the contested issue of the identity of the perpetrator. Ibid. See Commonwealth v. Gallison, 383 Mass. at 671-673 (abuse and neglect of defendant's second child during time frame of first child's death showed common course of conduct and was probative of defendant's state of mind on manslaughter charge).

By comparison with the foregoing decisions our case is seen to be inappropriate for the "single scheme or plan" category: absent in our case is the required nexus and cohesion of repeated incidents. Indeed, our case is even weaker for joinder than Commonwealth v. Sylvester, 388 Mass. 749, 753-758 (1983). Five indictments charged the defendant with sexual offenses against three boys (fellatio upon them for pay) committed in the privacy of his apartment over a period of eight months. In an instructive decision, the court pointed out that the crimes charged were "independent offenses" ("unrelated" in the sense of the joinder rule), reasoning: "where the defendant simply denied the charges, evidence of the other offenses would not bear on an essential element of [any one] crime"; nor "was there any issue respecting the particular factual circumstances"; no question of identity was presented; none of the three boys "offered direct corroborative evidence of the commission of offenses against the other two." On retrial, the judge was to consider whether undue prejudice might result, requiring severance of the charges. Id. at 756-757.¹¹

3. Cross-admissibility of evidence. In attempted aid of its contention that joinder could be allowed, the Commonwealth suggested that "[t]he evidence at one trial [Whitehead] would be used . . . at the other trial [Mon]," meaning the evidence regarding Whitehead could come in as "bad acts" in the trial of the Mon complaint if that were separately tried -- and the other way round. But if such cross-admission of bad acts could lawfully occur, then -- so the Commonwealth argued -- there would be little difference of substance between two separate trials, on the one hand, and a joint trial, on the other, and so joint trial might as well be permitted.

The Commonwealth's assumption about the cross-admissibility...