Commonwealth v. Pillai, No. 03-P-326 (MA 8/16/2004)

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 61 Mass. App. Ct. 603
• Docket Number: No. 03-P-326.,03-P-326.
• Parties: COMMONWEALTH vs. VASUDEVAN PILLAI.
• Decision Date: 16 August 2004

Page 1

COMMONWEALTH
vs.
VASUDEVAN PILLAI. No. 03-P-326. Supreme Court of Massachusetts. Norfolk. December 8, 2003. August 16, 2004.

Child Abuse. Indecent Assault and Battery.

Practice, Criminal, Trial of indictments together, Severance. Evidence, Prior misconduct, Other offense.

Complaints received and sworn to in the Dedham Division of the District Court Court Department on April 13, 2000, and July 18, 2000.

A pretrial motion for joinder was heard by Lynda M. Connolly, J., and the cases were tried before her.

Michael R. Schneider for the defendant.

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

Present: Armstrong, C.J., Beck, & Cypher, JJ.

ARMSTRONG, C.J.

The defendant was convicted of eight counts of indecent assault and battery on a child under fourteen; six involving a group of incidents occurring on a single day against one child, and the other two involving a separate incident allegedly occurring four or five months earlier with a different child. With some hesitation, borne principally of the infrequency of instances in our decisional law where convictions have been reversed for improper joinder, we have come to the conclusion that the judge erred in this case by allowing the Commonwealth's motion for joinder of the charges involving the different victims.

The general rule is that "related cases" should be joined for trial unless joinder is not in the best interests of justice. The Rules of Criminal Procedure define "related offenses" as those "based on the same criminal conduct or episode or [which] 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), 378 Mass. 859 (1979). See discussion in Commonwealth v. Sullivan, 436 Mass. 799, 802-805 (2002). "[T]he propriety of join[der] . . . turns, in large measure, on whether evidence of the other . . . offenses would have been admissible at a separate trial on each indictment." Commonwealth v. Mamay, 407 Mass. 412, 417 (1990), citing Commonwealth v. Gallison, 383 Mass. 659, 672 (1981). Such evidence is inadmissible to prove the propensity of the defendant to commit crimes of a type, ibid.; but it can be used to "show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).

Prior reported decisions sanctioning joinder for trial of abuse charges involving different victims (or, alternatively, use of evidence of abuse against a different victim) have hewed to those guidelines. See, e.g., Commonwealth v. Gallison, supra at 671-673 (parents of two young children abused both repeatedly over the same time period); Commonwealth v. King, 387 Mass. 464, 469-473 (1982) (deviant sexual abuse of young siblings during same time period); Commonwealth v. Pope, 392 Mass. 493, 502-503 (1984) (defendant assaulted four women attending convention during one four-hour period); Commonwealth v. Helfant, supra at 226-228 (evidence admissible of physician's prior use of Valium injections to weaken female patients' resistance to abuse); Commonwealth v. Mamay, supra at 416-417 (defendant, a gynecologist, employing unorthodox examination positions, fondled patients on the examination table); Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995) (karate instructor teaching adolescent boys that part of becoming a Ninja warrior involves ritual of participation in intimate relations with instructor). Apart from the cases involving an unusual or distinctive modus operandi (like Helfant, Mamay and Feijoo), the cases in which joinder was approved often emphasize proximity in time as a critical element. Thus, in Gallison, the court reasoned that the abuse of the younger brother of the victim named in the indictment a nine year old female was admissible because it was similar in pattern and occurred over the same time period, thus "form[ing] a temporal and schematic nexus with the treatment of [the sister]." Commonwealth v. Gallison, supra at 673. The King decision, recognizing that it would be the first case in which that court permitted "evidence of a defendant's sexual conduct with a child not named in the indictment [to be admitted] in an action charging a sexual offense against the named child" (Commonwealth v. King, supra at 471), emphasized that the evidence fit the "temporal and schematic nexus" formulation of Gallison; that is to say, "both children lived in the same house with the defendant, the sexual acts took place during the same time period, the victims were of similar age (both under ten), and the form of the sexual conduct (oral sex and use of the dog) was similar. These factors make this evidence distinguishable from the unconnected acts we excluded in [Commonwealth v.] Welcome, [348 Mass. 68, 70 (1964)]."¹ Id. at 472. The King decision reiterated that "evidence of a separate sexual act with another person is inadmissible if it is unconnected in time,...