Commonwealth v. Dorazio

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11765

COMMONWEALTH vs. HERBERT DORAZIO.

Middlesex. February 3, 2015. - September 2, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Rape. Assault with Intent to Rape. Evidence, Prior misconduct,
Relevancy and materiality. Practice, Criminal, Trial of
indictments together, Mistrial, New trial, Assistance of
counsel, Fair trial, Collateral estoppel, Double jeopardy.
Constitutional Law, Fair trial, Double jeopardy. Due
Process of Law, Fair trial, Collateral estoppel. Fair
Trial. Collateral Estoppel.

Indictments found and returned in the Superior Court
Department on February 12, 2009.

The cases were tried before Thomas P. Billings, J., and a
motion for new trial, filed on April 6, 2012, was heard by him.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Marissa Elkins for the defendant.
Patrick G. Fitzgerald, Assistant District Attorney, for the
Commonwealth.
 2

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

(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.

1
In the interest of privacy, we use the same pseudonyms
adopted by the Appeals Court. Commonwealth v. Dorazio, 85 Mass.
App. Ct. 1127 (2014). See Commonwealth v. Aviles, 461 Mass. 60,
61 n.1 (2011).
2
The jury acquitted the defendant of indecent assault and
battery on a child under the age of fourteen (Jane), G. L.
c. 265, § 13B.
3
The Appeals Court consolidated the defendant's direct
appeal with the appeal from the denial of his motion for a new
trial.
 3

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 (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.
 4

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

4
During Susan's cross-examination, defense counsel
questioned her about using a ladder to view a bird's nest under
the defendant's porch. Susan recalled a bird's nest somewhere
under the defendant's porch, but not using a step ladder to see
it.
5
During the cross-examination of Susan's mother, she
recalled a bird's nest in the deck area of the defendant's porch
in the summer of 1996. Her daughter showed it to her. Susan's
mother, however, denied that the defendant had informed her of
an incident involving Susan where Susan had fallen off a step
ladder that she had climbed to view the nest. Susan's mother
also testified that the defendant did not give her a video
recording of the bird's nest.
 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, "Hold on. Hold this."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

6
These facts served as the basis for indecent assault and
battery charge, on which the defendant was acquitted.
 6

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

7
Before J.D. testified, the judge gave an extensive
limiting instruction concerning the use of the evidence of this
incident, telling the jury that the Commonwealth bore the burden
of proving by a preponderance of the evidence that the incident
had occurred; that the incident formed the basis of a criminal
charge for which the defendant had been acquitted; that the jury
could not consider the evidence as bad act or propensity
evidence or as a substitute for proof that the defendant
committed the crimes charged in this case; and that they could
consider the evidence only on the limited issue whether the
defendant had acted intentionally or by mistake, accident, or
some other innocent purpose and not for any other purpose.
Before the other two witnesses testified, the judge reminded the
jury that this instruction also applied to their testimony.
8
The friend did not testify.
 7

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."

9
The judge gave a limiting instruction at this point, to
the effect that the officer's statements were not evidence and
that the jury were to consider only the defendant's responses.
 8

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 (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

10
During his direct and cross-examination, the defendant
testified about an incident in which he claimed that Susan
climbed a step ladder to see a bird's nest under his deck. She
was unsteady, almost fell off, and the defendant had to grab her
by the leg and the buttocks to lift her down.
 9

Mass. 245, 260-261 (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 (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 (1995) (five-year time span for joined offenses

not overly attenuated). 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.

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
 10

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

(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 relevant, to show a common scheme or course of

conduct, a pattern of operation, absence of accident or mistake,

intent, or motive." Commonwealth v. Barrett, 418 Mass. 788,

793-794 (1994). "When a court is presented with evidence of

uncharged conduct by the defendant toward a child other than the

complainant, the conduct in issue, to be admissible, must be

closely related in time, place, and form of acts to show a

common course of conduct by the defendant . . . so as to be

logically probative." Id. at 794.

"If the judge finds that the evidence in question meets the

above requirements, he or she next must determine whether its

probative value is outweighed by a risk of undue prejudice to

the defendant." Id. "It is implicit in the general rule

regarding the inadmissibility of prior bad acts evidence that
 11

the admission of such evidence carries with it a high risk of

prejudice to the defendant." Id. at 795.

"Before prior bad act evidence can be admitted against a

defendant, the Commonwealth must satisfy the judge that 'the

jury [could] reasonably conclude that the act occurred and that

the defendant was the actor.'" Commonwealth v. Rosenthal, 432

Mass. 124, 126 (2000), quoting Huddleston v. United States, 485

U.S. 681, 689 (1988). "The Commonwealth need only show these

facts by a preponderance of the evidence." Commonwealth v.

Rosenthal, supra at 126-127.

The defendant argues that, at trial, his defense counsel

did not raise a defense of accident or lack of intent such that

the evidence would have been relevant to rebut such a defense.

The record does not support this contention. See Commonwealth

v. Kingston, 46 Mass. App. Ct. 444, 449-450 (1990) ("Whether a

defense has been fairly raised is a matter of law for the

court"). Prior to the introduction of the bad act evidence (the

alleged incident involving J.D.), defense counsel questioned

both Susan and her mother about the existence of a bird's nest

under the defendant's deck and Susan's use of a ladder to view

it. See notes 4 and 5, supra. This cross-examination laid a

foundation to question the defendant about these matters when he

testified. See note 10, supra. Then, in his closing argument,

defense counsel stated that Susan was not lying, but was
 12

"confused" about what had transpired between her and the

defendant. What really had happened, according to defense

counsel, was that Susan had fallen off a ladder and the

defendant had touched her buttocks when he grabbed her to catch

her. Although defense counsel did not use the words "accident,"

"mistake," or "lack of intent," this essentially was what he was

arguing. Viewing the record as a whole, we are able to see

beyond the euphemism "confusion" and recognize the development

and existence of a defense of accident or mistake at trial.

Thus, we conclude that the judge acted within his discretion in

admitting the evidence on the question whether the defendant had

acted with intent and on the issue of the absence of accident or

mistake.

The defendant contends the evidence should not have been

admitted because it lacked a close relation in time, place, and

form of acts to be logically probative. We disagree.

As to time, the alleged incident involving J.D. occurred in

June, 1998. The conduct in this case allegedly occurred in the

summer of 1996 (Susan) and between February, 1998, and February,

1999 (Jane). Thus, we conclude that the alleged incidents were

sufficiently close in time.

Turning to place, although the alleged acts against the

complainants in this case occurred at the defendant's home and

the alleged acts involving J.D. took place at a restaurant, both
 13

locations were in Burlington. More significantly, the defendant

allegedly committed the acts that took place at a location and

time when young children were separated from their parents and

in circumstances where he was able to create a distraction

before allegedly touching them.

Concerning the acts themselves, the defendant commenced by

allegedly touching each complainant's underwear. We add that

the complainants were the same gender and near the same age.

These numerous similarities were sufficient to show "a common

course of conduct by the defendant . . . so as to be logically

probative." Barrett, 418 Mass. at 794.

The judge properly could conclude that the relevant and

probative value of the evidence concerning J.D. was very high

and that the potential for undue prejudice could be minimized by

a limiting instruction. Montez, 450 Mass. at 746. The judge's

limiting instructions stated the proper and limited use of the

testimony. See note 7, supra. He repeated this instruction at

the conclusion of trial in his final charge, and the jurors are

presumed to follow the instructions. Commonwealth v. Francis,

432 Mass. 353, 359 (2000). There was no error under existing

evidentiary law. Montez, supra.

The "manner" in which the evidence concerning J.D. came in

does not alter our conclusion. Here, the defendant argues that

undue prejudice resulted because J.D. alluded to the possibility
 14

that there was another alleged victim. The record does not

support this contention. J.D. testified to her personal

observation that in addition to touching her, the defendant put

his hand on her friend's knee, no more. While the responding

officer testified thereafter that he went to the restaurant to

investigate and questioned the defendant about the "possible

explicit touching of . . . young female girls," it was clear

from the context that the touching of J.D. was the only

suggested inappropriate touching that was alleged. Further,

during the officer's testimony, the judge instructed the jury

that they were not to consider the officer's questions "to the

extent that they imply such knowledge of the case." In

addition, the defendant had admitted to "bumping" children at

the restaurant.

We reject the defendant's suggestion that this bad act

evidence overshadowed the trial. The Commonwealth presented its

case over three days; this bad act evidence consisted of the

brief testimony of three witnesses (covering approximately forty

pages). The incident involving J.D. was no worse than the

conduct alleged at trial. Further, the jury acquitted the

defendant on the indictment alleging indecent assault and

battery of Jane, which demonstrates a careful consideration of

the evidence.
 15

b. Admissibility under constitutional principles. In

addition to arguing that the evidence concerning J.D. was

inadmissible under evidentiary principles, the defendant also

argues that the admission of this evidence violated his

constitutional rights. Specifically, for the first time on

appeal, the defendant argues that it was a violation of his

rights to due process and a fair trial under art. 12 of the

Massachusetts Declaration of Rights to admit the evidence

concerning the alleged incident involving J.D. because he had

been acquitted of that charge (acquittal evidence). He also

contends that art. 12 "demands that the Commonwealth be

collaterally estopped from introducing such evidence." The

defendant's arguments turn not on the fact that there was a

prior "bad act," but rather on the fact that the defendant had

been acquitted of the charge, which he suggests necessarily

means that he did not commit the underlying conduct forming the

basis for the charge.

The defendant's argument has been rejected under the

Federal Constitution. "As a matter of Federal constitutional

law, collateral estoppel does not bar the government in a

criminal prosecution from introducing evidence from a separate

prosecution on unrelated charges in which the defendant was

acquitted." Francis, 432 Mass. at 359 n.5. In Dowling v.

United States, 493 U.S. 342 (1990), the United States Supreme
 16

Court held that because of the different standards of proof, the

introduction of so-called acquittal evidence did not violate the

collateral estoppel component of the double jeopardy clause of

the United States Constitution. Id. at 348-349. The Court also

concluded that its admission did not violate the Federal

Constitution's due process clause. Id. at 352-354. Many courts

have allowed the introduction of relevant evidence of prior

charged incidents even where a defendant has been acquitted of

such offenses. See Commonwealth v. Barboza, 76 Mass. App. Ct.

241, 243 n.6 (2010) (collecting cases). We, however, have not

decided "whether under the Massachusetts Constitution evidence

introduced in a criminal prosecution at which the defendant was

acquitted may later be used against a defendant in an unrelated

criminal prosecution." Krochta v. Commonwealth, 429 Mass. 711,

718 n.14 (1999).

We have observed that "[t]he Commonwealth's Constitution

has no explicit double jeopardy provision." Commonwealth v.

Forte, 423 Mass. 672, 674 (1996). See Kimbroughtillery v.

Commonwealth, 471 Mass. 507, 510 (2015). "Certain double

jeopardy concepts are no doubt embraced within the Massachusetts

Constitution's due process of law provisions, but those

provisions do not . . . provide protection greater than the

explicit protections of the Federal double jeopardy clause."

Forte, supra. In addition, double jeopardy concepts have been
 17

embraced in statutory and common law. Kimbroughtillery, supra.

Because the "same principles and protections" afforded by the

double jeopardy clause are similarly embraced in the doctrine of

collateral estoppel, we have often applied that common-law

doctrine to resolve claims of successive prosecutions for the

same offense. See id. at 510-511. In Commonwealth v. Benson,

389 Mass. 473, 478, cert. denied, 464 U.S. 915 (1983), we set

forth the general principles that we use in applying the

doctrine of collateral estoppel:

"Collateral estoppel is an established rule of criminal
law. See Ashe v. Swenson, 397 U.S. 436 (1970);
Commonwealth v. Lopez, 383 Mass. 497 (1981). Collateral
estoppel 'means simply that when an issue of ultimate fact
has once been determined by a valid and final judgment,
that issue cannot again be litigated between the same
parties in any future lawsuit.' Ashe v. Swenson, supra at
433. See Commonwealth v. Scala, 380 Mass. 500, 503 (1980).
The doctrine of collateral estoppel may work in two ways.
First, it may bar totally a subsequent prosecution if one
of the issues necessarily decided at the first trial is an
essential element of the alleged crime in the second trial.
Second, even if a prosecutor may proceed to a second trial,
the doctrine may bar the introduction of certain facts
determined in the defendant's favor at the first trial.
See United States v. Lee, 622 F.2d 787, 790 (5th Cir.
1980). The doctrine of collateral estoppel will preclude
either the subsequent prosecution or the introduction or
argument of certain facts, only if the jury could not have
based their verdict rationally on an issue other than the
one the defendant seeks to foreclose. Ashe v. Swenson,
supra at 444. Whenever the doctrine of collateral estoppel
is raised by a defendant, the task of the court is to
decide exactly what issues were, or should have been,
determined at the first trial. . . . See Sealfon v. United
States, 332 U.S. 575, 578-579 (1948)" (footnote omitted).
 18

In making this determination, the court must look for the

concurrence of a (1) common factual issue, (2) prior

determination of that issue between the same parties,11 and (3)

determination of that issue in favor of the party raising the

doctrine of collateral estoppel. See Lopez, supra at 499. See

also Kimbroughtillery, supra at 511.

It has been observed that a general verdict of "not guilty"

that usually is rendered in a criminal case means that it is a

"rare case where it [is] possible to determine with certainty

what the jury in the earlier prosecution has decided." United

States v. Cioffi, 487 F.2d 492, 498 (2d Cir. 1973), cert.

denied, 416 U.S. 995 (1974). "A finding of not guilty at a

criminal trial can result from any number of factors having

nothing to do with the defendant's actual guilt." Benson, 389

Mass. at 481, quoting Commonwealth v. Cerveny, 387 Mass. 280,

285 (1982).12 "It is sometimes possible to determine that the

11
The prior adjudication must have applied to the
Commonwealth and to the defendant now invoking the doctrine.
Commonwealth v. Stephens, 451 Mass. 370, 379-380 (2008). See
Commonwealth v. Benson, 389 Mass. 473, 478 n.6, cert. denied,
464 U.S. 915 (1983) ("doctrine of collateral estoppel only
applies in a criminal case where there is mutuality of the
parties").
12
"A not guilty verdict may result from an exclusionary
rule of evidence, inadequate investigation or proof, the
composition of the jury, or the defendant's own insanity.
Moreover, the jury may assume the power to acquit out of
compassion or prejudice, and the prosecution is then powerless
 19

jury's verdict necessarily implies one or more particular

findings of fact, but such a determination requires a showing of

the evidence adduced at the trial and the instructions under

which the jury arrived at its verdict." Commonwealth v.

DeCillis, 41 Mass. App. Ct. 312, 315-316 (1996), citing Sealfon,

332 U.S. at 579.

Here, the defendant is not seeking to foreclose a second

prosecution of charges based on the alleged incident with J.D.

Rather, the defendant seeks to use the doctrine of collateral

estoppel in order to "bar the introduction of certain facts

determined in the defendant's favor at the first trial"

involving J.D., for which he was acquitted, at the trial

involving the complainants Susan and Jane. See Benson, 389

Mass. at 478. Application of the doctrine of collateral

estoppel as enunciated above, however, demonstrates that its

essential components technically have not been met. First, the

acquittal evidence was admitted pursuant to a lower standard of

proof than that required for a conviction, and second, the

defendant has not satisfied his burden of showing that the jury

in the trial involving J.D. "necessarily decided" that he did

not engage in unlawful sexual conduct with J.D.

to seek a judgment notwithstanding the verdict or a new trial on
the ground that the verdict is against the weight of the
evidence." Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982).
 20

These determinations, however, do not resolve the issue.

Not all State courts follow the Supreme Court's holding in

Dowling, supra. See State v. Perkins, 349 So. 2d 161, 163-164

(Fla. 1977); State v. Mundon, 129 Haw. 1, 4 (2012); State v.

Wakefield, 278 N.W.2d 307, 309 (Minn. 1979); Kerbyson v. State,

McMichael v. State, 98 Nev. 1, 3-4 (1982); State v. Scott, 331

N.C. 39, 42 (1992); State v. Holman, 611 S.W.2d 411, 413 (Tenn.

1981); 711 S.W.2d 289, 290 (Tx. Ct. App. 1986). As noted by

Justice Brennan in his dissenting opinion in Dowling, there are

a number of inherent problems in admitting evidence of a crime

for which a defendant was acquitted despite its relevance on

issues other than propensity in a subsequent trial:

"First, '[o]ne of the dangers inherent in the
admission of extrinsic offense evidence is that the jury
may convict the defendant not for the offense charged but
for the extrinsic offense. This danger is particularly
great where . . . the extrinsic activity was not the
subject of a conviction; the jury may feel the defendant
should be punished for that activity even if he is not
guilty of the offense charged.' . . . Alternatively, there
is the danger that the evidence 'may lead [the jury] to
conclude that, having committed a crime of the type
charged, [the defendant] is likely to repeat it.' . . .
Thus, the fact that the defendant is forced to relitigate
his participation in a prior criminal offense under a low
standard of proof combined with the inherently prejudicial
nature of such evidence increases the risk that the jury
erroneously will convict the defendant of the presently
charged offense." (Citations omitted.)

Dowling, 493 U.S. at 361-362 (Brennan, J., dissenting).

"Moreover, because of the significance a jury may place on

evidence of a prior criminal offense, presenting a defense
 21

against that offense may be as burdensome as defending against

the presently charged offense." Id. at 362 (Brennan, J.,

dissenting). "[Because] the lower standard of proof makes it

easier for the jury to conclude that the defendant committed the

prior offense, the defendant is essentially forced to present

affirmative evidence to rebut the contention that he committed

that offense." Id. (Brennan, J., dissenting).

Justice Brennan also observed that the use of acquittal

evidence offends the established interests of preserving the

finality of judgments and protecting individuals from

governmental overreaching. Id. at 355 (Brennan, J.,

dissenting). Because of the nature of a "not guilty" verdict,

it is difficult, at best, for a defendant to prove what issues

were "actually decided" in the earlier proceeding at which he

was acquitted. Id. at 357-358 (Brennan, J., dissenting). The

result is inconsistent with the Supreme Court's "admonition in

Ashe that an excessively technical approach to collateral

estoppel 'would, of course, simply amount to a rejection of the

rule of collateral estoppel in criminal proceedings, at least in

every case where the first judgment was based upon a general

verdict of acquittal.' [Ashe, 397 U.S. at 444]. Indeed,

forcing defendants to choose between forgoing the protections of

the Double Jeopardy Clause and abandoning the defense of a

general denial raises grave due process concerns." Dowling,
 22

supra at 358 (Brennan, J., dissenting). Justice Brennan also

found fault with the fact that the majority applied its

reasoning to a successive criminal prosecution (and not a civil

remedial proceeding as done in past cases) "in which the

Government [sought] to punish the defendant and [based] that

punishment at least in part on a criminal act for which the

defendant [was] acquitted." Id. at 360 (Brennan, J.,

dissenting).

We find the thoughtful and extensive considerations

enunciated in the dissenting opinion in Dowling to be

instructive, and we conclude that the collateral estoppel

protections necessarily embraced by art. 12 warrant the

exclusion of the acquittal evidence in the circumstances of this

case, a subsequent criminal proceeding involving alleged

unlawful sexual conduct with minors.13 See Arizona v. Evans, 514

U.S. 1, 8 (1995) (State courts "are absolutely free to interpret

[S]tate constitutional provisions to accord greater protection

to individual rights than do similar provisions of the United

States Constitution"). We agree with Justice Brennan that the

majority in Dowling does precisely what the Supreme Court in

13
Our holding is limited to prior bad act evidence for
which a defendant was acquitted. Our holding does not apply to
the admission of prior bad act evidence where no criminal
charges were commenced, where the criminal charges are pending,
or where the criminal charges were dismissed before trial.
 23

Ashe admonished, employing a hypertechnical application of the

collateral estoppel doctrine. We add that such an approach

offends the principles of the presumption of innocence, the

significance of being treated "legally innocent" that results

when the prosecution fails to prove a defendant guilty beyond a

reasonable doubt, and notions of fairness and finality.

Where the acquittal evidence was improperly admitted, we

must now determine whether its admission created a substantial

risk of a miscarriage of justice. See Commonwealth v. Jackson,

419 Mass. 716, 719 (1995) (when issue appealed is not properly

preserved below, we reverse if error created substantial risk of

miscarriage of justice). We conclude that it did. Although

Susan and Jane may have presented as strong witnesses, their

testimony acquired such force in part from the admission of the

acquittal evidence. As a result, the defendant was put to the

task of defending against not only the allegations involving

Susan and Jane, but also those involving J.D. The trial

involving the complainant J.D. had taken place approximately

twelve years before the trial involving Susan and Jane, too

remote in time not to result in prejudice to the defendant in

having to defend again against those charges (because the

defendant was acquitted, no record of testimony even exists).

The judge's limiting instruction could not remedy such a defect,

particularly where the prosecutor in this case only had to prove
 24

that that the defendant committed the acts involving J.D. by a

preponderance of the evidence. We are constrained to reverse

the defendant's convictions.14

Conclusion. For the reasons stated herein, the defendant's

convictions are reversed and the cases are remanded for a new

trial.

So ordered.

14
Our conclusion obviates the need to address the remaining
issues argued by the defendant. That said, we agree with the
resolution of those issues by the Appeals Court and see no basis
to reverse the defendant's convictions or order a new trial on
those grounds.