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15-P-878 Appeals Court
COMMONWEALTH vs. JOSHUA W. ROE.
No. 15-P-878.
Plymouth. October 13, 2016. - December 28, 2016.
Present: Cypher, Cohen, & Green, JJ.
Indecent Assault and Battery. Evidence, Prior misconduct,
Relevancy and materiality, Grand jury proceedings. Grand
Jury. Practice, Criminal, Instructions to jury, Grand jury
proceedings.
Indictment found and returned in the Superior Court
Department on July 20, 2012.
The case was tried before Charles J. Hely, J.
Thomas Dougherty for the defendant.
Keith Garland, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Joshua W. Roe, appeals from his
conviction by a Superior Court jury on January 8, 2015, of
indecent assault and battery on a child under fourteen in
violation of G. L. c. 265, § 13B. The defendant raises four
arguments in this appeal: (1) that the inadvertent disclosure
2
of the defendant's alleged prior sexual assault unduly
prejudiced the defendant; (2) that the judge abused his
discretion by allowing the victim's father to testify about the
defendant's possible sexual interests; (3) that the judge erred
in denying the defendant's motion to dismiss the grand jury's
indictment; and (4) that the judge erred by denying the
defendant's motion in limine regarding the delayed disclosure of
unexpected testimony by the victim. Due to multiple errors, as
discussed infra, including the admission in evidence of an
inadmissible prior bad act, the conviction must be reversed.
1. Background. We summarize the facts that the jury could
have found, reserving some details for later discussion of the
issues raised by the defendant. The defendant was an assistant
Boy Scout leader for a troop in Wareham. The victim, a thirteen
year old boy, was a member of the defendant's troop. The
defendant would sometimes bring the victim to and from scout
meetings to help the victim's family, whom he grew to know
through a working relationship with the victim's father. In
November, 2011, while driving the victim home, the defendant
stated that he could stop the vehicle and have his way with the
victim. The victim asked whether the defendant was homosexual,
and the defendant replied that he was bisexual. In December of
that year, the defendant stated to the victim, "you know I could
turn you on." Later, in March, 2012, the defendant, his mother,
3
and the victim were returning from a scout meeting. While the
defendant's mother was inside a package store, the defendant and
the victim were jokingly tussling back and forth. The defendant
reached into the back seat, where the victim was sitting, and
touched the victim's genitals. The victim testified that the
defendant touched him for "long enough to seem like it wasn't an
accident" and that it made him feel "really uncomfortable."
In April, 2012, the victim's father and the defendant had a
telephone conversation.1 When the father asked the defendant
whether he liked boys, he told the father that he did not
"really know" whether he had sexual thoughts about "little boys"
and that he had not touched the victim, but had spoken to him
several times in an inappropriate fashion. Following the
conversation with the defendant, the father asked his son if
anything inappropriate had happened with the defendant. The
victim told his father about the touching that occurred the
previous month.
1
During direct examination, the defendant testified that he
called the father to ask what type of dog food he should feed
the father's dogs. At sidebar, the Commonwealth alleged that
the defendant initiated the telephone conversation with the
father to discuss sexual assault allegations that were brought
against him by another boy, and therefore, the Commonwealth
should be permitted to place the conversation and resulting
actions in context. The judge allowed the Commonwealth to refer
to some other "misconduct" during cross-examination to give
context to the telephone conversation.
4
2. Discussion. We first discuss the issues that warrant
reversal followed by the remaining issue that may appear at
retrial.2
a. Precluded testimony. The defendant argues that the
judge allowed the victim's father to testify about a prior
sexual assault charge against the defendant. The defendant
appears to misapprehend the record, however, as the judge did
not allow the testimony. The judge had granted the defendant's
motion in limine and prohibited any mention of alleged
inappropriate touching of a different boy, after concluding that
the probative value was outweighed by the unfair prejudicial
effect of such evidence. Nevertheless, the precluded testimony
was disclosed to the jury during the father's direct
examination. A curative instruction was not given until the
following day, after jury deliberations had begun, when the
jurors asked the judge if there were any statements from the
father's testimony that they should disregard.
In determining the appropriate standard of review, we
consider the alleged errors and the steps the defendant took to
preserve them. First, he filed a motion in limine to exclude
the bad act testimony, which was granted. Although the judge
2
We conclude that the alleged delayed disclosure of new
testimony by the victim was not error but that the issue does
not warrant discussion because it will not recur at any
potential retrial.
5
precluded any reference to other bad acts, the father testified
to them. The defendant objected to the father's testimony and
the judge sustained the objection, but he did not permit defense
counsel to approach the bench. On the other hand, the defense
attorney did not ask for a curative instruction, move for a
mistrial, or move to strike the inadvertent testimony. In these
circumstances, where the defendant moved in limine to exclude
the testimony, objected to the testimony at trial, and was not
permitted to approach the sidebar to seek a further remedy, we
conclude that the defense attorney did enough to preserve the
issue.3 Compare Commonwealth v. Reeder, 73 Mass. App. Ct. 750,
752-754 (2009) (court reviewed for prejudicial error where
defendant moved before trial to exclude references to his alias,
but did not object to references during testimony at trial), but
see Commonwealth v. Murphy, 426 Mass. 395, 403 (1998) (court
reviewed for substantial risk of miscarriage of justice because
defendant did not ask for mistrial after his initial request for
sidebar conference following witness's erroneous testimony had
been denied). Thus, we review to determine whether the
defendant was unfairly prejudiced by the father's testimony.
3
We note that the rule of preservation has been changed for
cases tried since the issuance of Commonwealth v. Grady, 474
Mass. 715, 719 (2016) ("Going forward, . . . [w]e will no longer
require a defendant to object to the admission of evidence at
trial where he or she has already sought to preclude the very
same evidence at the motion in limine stage . . ."). See
Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016).
6
"It is well settled that the prosecution may not introduce
evidence that a defendant has previously misbehaved . . . for
the purpose of showing his bad character or propensity to commit
the crime charged." Commonwealth v. Vera, 88 Mass. App. Ct.
313, 319 (2015), quoting from Commonwealth v. Copney, 468 Mass.
405, 412 (2014). "However, '[s]uch conduct . . . may be
admissible for other purposes, such as 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 (1986). See Mass. G. Evid.
§ 404(b)(2) (2016). Where evidence is relevant for one of those
purposes, it should be excluded if its "probative value is
outweighed by the risk of unfair prejudice to the defendant,
even if not substantially outweighed by that risk." Vera,
supra, quoting from Commonwealth v. Crayton, 470 Mass. 228, 249
n.7 (2014).
In the event such evidence is objected to and erroneously
admitted, the judge ordinarily may rely on curative instructions
"as an adequate means to correct any error and to remedy any
prejudice to the defendant." Commonwealth v. Costa, 69 Mass.
App. Ct. 823, 827 (2007) (quotation omitted). Curative
instructions are considered to be more effective immediately
after the prohibited comment is uttered, see Commonwealth v.
Rodriquez, 49 Mass. App. Ct. 370, 374 (2000), and "[j]urors are
7
expected to follow instructions to disregard matters withdrawn
from their consideration." Commonwealth v. Cameron, 385 Mass.
660, 668 (1982). Generally, provided the instructions are
reasonably prompt and the jury do not hear the inadmissible
evidence again, the error will be considered cured. See
Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997). See also
Commonwealth v. Gallagher, 408 Mass. 510, 517–518 (1990);
Commonwealth v. Mendes, 441 Mass. 459, 470 (2004).
Here, during the father's direct examination, he testified
that the defendant had told him on the telephone that he had not
touched the victim the way he had touched another boy. Prior to
the father's testimony, the judge ruled that there would be no
mention of any other inappropriate touching because of its
prejudicial effect. Weighing the factors established in
Commonwealth v. King, 387 Mass. 464, 471–472 (1982), the judge
determined that the touching of the other boy was insufficiently
related to the touching of the victim because it was not
committed in a similar manner, there was not a close
relationship between the victims, and the two acts were not
committed close in time. The judge stopped the father's
testimony immediately after he mentioned the prior bad act and
sustained the defendant's objection, but denied his request to
approach the bench. The judge did not strike the testimony or
instruct the jury to disregard the bad act evidence, but said,
8
"We're not getting into any comments about any other . . . event
or any other person, if there was such a thing. We're
restricting ourselves."
The following day during the defendant's cross-examination,
the judge modified his initial ruling and allowed the
Commonwealth to refer to "some misconduct" to give context to
the telephone conversation between the father and defendant.
The defendant once again objected to the mentioning of prior
misconduct.
The failure to strike the reference to the prior touching
along with the lack of a prompt curative instruction prejudiced
the defendant. The Commonwealth relies on Commonwealth v.
Baptista, 86 Mass. App. Ct. 28, 32 (2014), to argue otherwise;
however, the circumstances in that case differ from this case.
In Baptista, the denial of a request for mistrial was affirmed
because the judge immediately gave a prompt, forceful, curative
instruction to combat precluded bad act testimony. See ibid.
Additionally, the erroneous reference in Baptista was vague and
fleeting, and it did not apprise the jury of the defendant's
prior bad act. See ibid.
Here, although the jury were eventually instructed on how
they could consider the father's testimony, the instruction did
not come until the following day after they had begun
deliberations. The remark made by the judge immediately
9
following the erroneous testimony ("We're restricting
ourselves") was not directed to the jury and does not rise to
the level of a curative instruction. The day after the father's
testimony, the judge advised defense counsel that he would
instruct the jury upon defense counsel's request, but defense
counsel did not request a curative instruction. The prejudicial
testimony should have been struck and the curative instruction
should have been given as soon as the father mentioned the
defendant's prior bad act and the defendant objected. See
Rodriquez, 49 Mass. App. Ct. at 374; Costa, 69 Mass. App. Ct. at
827. See also Commonwealth v. Hoffer, 375 Mass. 369, 372
(1978); Commonwealth v. Chubbuck, 384 Mass. 746, 753-754 (1981).
Defense counsel asked to approach the bench immediately after
the inflammatory statement, but was not permitted to do so.
Furthermore, as demonstrated by the jury's question to the
judge about the father's testimony, the testimony was not vague
and it did alert the jury to the defendant's prior bad act.
Evidence of similar acts of misconduct by a defendant carries
with it the danger of misuse by the jury. See Commonwealth v.
Errington, 390 Mass. 875, 881 (1984). The danger in the present
instance was not reduced by any simultaneous instruction.
Therefore, we conclude that the jury's exposure to the precluded
testimony that (although the subject of an objection that was
sustained) was not struck, together with the absence of an
10
immediate and forceful curative instruction, unfairly prejudiced
the defendant.
b. Character evidence. The defendant argues that the
father's first complaint testimony included impermissible
character evidence of the defendant's possible sexual interests,
specifically his sexual attraction to little boys. Prior to
trial, the defendant filed a motion in limine addressing this
statement, which was denied. Because the defendant preserved
the issue on appeal with a timely objection, we review for
prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591
(2005).
"As a general rule, evidence of a person's character is not
admissible to prove that he acted in conformity with that
character on a particular occasion." Commonwealth v. Bonds, 445
Mass. 821, 829 (2006), quoting from Liacos, Brodin, & Avery,
Massachusetts Evidence § 4.4.1, at 130 (7th ed. 1999). However,
otherwise inadmissible character evidence may be admitted for a
proper purpose, such as proving motive or intent. See Helfant,
398 Mass. at 224. See also Commonwealth v. Simpson, 434 Mass.
570, 579 (2001) (defendant's statement showing state of mind
admissible notwithstanding that "in other circumstances [it]
could tend to prove guilt by evidence of bad character"). See
generally Mass. G. Evid. § 404. Whether evidence is relevant is
"entrusted to the trial judge's broad discretion." Simpson,
11
supra. However, relevant evidence may be excluded if its
probative value is substantially outweighed by its unfair
prejudicial effect. See Commonwealth v. Stroyny, 435 Mass. 635,
641 (2002); Bonds, supra at 831; Commonwealth v. Gomes, 475
Mass. 775, 784 (2016). See also Mass. G. Evid. § 403 (2016). A
judge's assessment that the probative value of proffered
evidence is outweighed by some countervailing prejudicial effect
is reviewed for an abuse of discretion. See Commonwealth v.
Otsuki, 411 Mass. 218, 235-236 (1991); Commonwealth v. Rosario,
444 Mass. 550, 557 (2005). "We defer to the judge's exercise of
discretion unless the judge has made 'a clear error of judgment
in weighing' the factors relevant to the decision, . . . such
that the decision falls outside the range of reasonable
alternatives." Commonwealth v. Alleyne, 474 Mass. 771, 779,
quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014) (2016) (citation omitted). The effectiveness of limiting
instructions in minimizing the risk of unfair prejudice should
be considered in balancing prejudice and probative value. See
Commonwealth v. Dunn, 407 Mass. 798, 807 (1990); Mass. G. Evid.
§ 403.
Here, testimony by the father that the defendant said that
he did not "really know" if he had a problem with or ever had
thoughts of doing sexual things with little boys is relevant to
the crime charged. In Commonwealth v. Bradshaw, 86 Mass. App.
12
Ct. 74 (2014), the court affirmed a lower court's decision to
allow in evidence the defendant's statement that he was
attracted to young boys. In Bradshaw, the judge admitted the
statement for a limited purpose. See id. at 77-78. Before the
testimony was given, the judge correctly instructed the jury,
"You may consider [the defendant's statement] solely on the
limited issue of whether or not the defendant had a motive to
commit the crime that was charged in this indictment, and as to
his state of mind and intent." Id. at 78. As in Bradshaw, the
statements made to the father in this case were relevant with
respect to the limited issues of motive, state of mind, and
intent because they explain why the defendant would touch the
victim and what he might have been thinking the night the
assault occurred. However, here, although there may have been a
proper limited purpose for the testimony, the failure to guide
the jury on their use of this evidence was prejudicial error.
The judge did not give a contemporaneous limiting instruction
when the father testified, nor was an instruction given when the
Commonwealth cross-examined the defendant as to the same
conversation.
Furthermore, there was no limiting instruction in the final
jury charge. See Commonwealth v. McCowen, 458 Mass. 461, 478–
479 (2010) (no abuse of discretion in admitting bad act evidence
subject to limiting instruction given immediately after evidence
13
was admitted, as well as instruction in final charge). See also
Gomes, 475 Mass. at 785 (question whether evidence was more
prejudicial than probative was close, but there was no error in
light of judge's limiting instruction, that jury were not to
consider evidence for purpose of bad character, given when
evidence was admitted and repeated in his final jury charge).
Although there is no requirement that the judge give limiting
instructions sua sponte, see Commonwealth v. Sullivan, 436 Mass.
799, 809 (2002), "[p]rompt cautionary instructions to the jury
are critical to protecting a defendant against prejudice where
[character] evidence is admitted." Brodin and Avery,
Massachusetts Evidence § 4.4.6, at 155 (8th ed. 2007). The jury
received no guidance regarding how they should consider the
potentially prejudicial testimony. See generally Commonwealth
v. Anestal, 463 Mass. 655, 673 (2012).
Finally, we cannot discern from the record the extent to
which the judge considered whether the evidence would unduly
prejudice the defendant. Without a limiting instruction, and in
light of the admission of the precluded testimony, we conclude
that the character evidence was prejudicial.
c. Grand jury indictment. The defendant argues that the
judge erred in denying the defendant's motion to dismiss the
grand jury's indictment. He contends there was insufficient
evidence to establish probable cause to indict the defendant and
14
the integrity of the grand jury proceeding was impaired by the
Commonwealth's failure to disclose exculpatory evidence and
references connecting the defendant's Boy Scout troop to the
Catholic Church.
i. Insufficient evidence. In general, a "court will not
inquire into the competency or sufficiency of the evidence
before the grand jury." Commonwealth v. McCarthy, 385 Mass.
160, 161-162, (1982), quoting from Commonwealth v. Robinson, 373
Mass. 591, 592 (1977). A court may, however, consider whether
the grand jury received sufficient evidence to establish
probable cause to arrest. See McCarthy, supra at 163. To
survive a motion to dismiss, the grand jury must simply be
presented with evidence supporting a finding of probable cause
as to each of the elements of the charged crime. See
Commonwealth v. Walczak, 463 Mass. 808, 817 (2012).
The grand jury indicted the defendant on a charge of
indecent assault and battery on a child less than fourteen years
of age. To survive a motion to dismiss, the Commonwealth was
required to present the grand jury with evidence showing
probable cause for each of the three elements of the offense,
that (1) the alleged victim was not yet fourteen years of age at
the time of the alleged offense; (2) the defendant committed an
assault and battery on that child; and (3) the assault and
battery was "indecent" as that word is commonly understood,
15
measured by common understanding and practices. G. L. c. 265,
§ 13B. Here, police Officer William Desilva testified at the
grand jury hearing that the victim was born in July of 1998,
which established that the victim was under fourteen years old
at the time of the crime. Desilva also testified to the
inappropriate remarks the defendant made to the victim and that
the defendant grabbed the victim's thigh and started moving his
hands towards the victim's groin area.4 The trial judge did not
err in concluding that the Commonwealth presented enough
evidence to show probable cause that the defendant committed the
charged crime.
ii. Integrity of the proceeding. A court may also
consider whether the integrity of the grand jury proceeding was
impaired. See Commonwealth v. O'Dell, 392 Mass. 445, 446-447
(1984). "A motion to dismiss on this ground may be allowed only
on a showing that (1) false or deceptive evidence was offered
knowingly or with 'reckless disregard of the truth' of that
evidence; (2) the false evidence 'probably influenced' the grand
jury's decision to indict; and (3) the evidence was presented
4
The victim initially told his father and the police that
the defendant grabbed his inner thigh, but later told the
prosecutor that the defendant touched his penis. Evidence that
the defendant grabbed his inner thigh was sufficient for the
grand jury to find probable cause that the defendant committed
the indecent assault. See Commonwealth v. Rosa, 62 Mass. App.
Ct. 622, 628 (2004). However, the defendant was convicted
beyond a reasonable doubt on the evidence that he touched the
victim's penis.
16
with the intention of obtaining an indictment." Commonwealth
v. Hunt, 84 Mass. App. Ct. 643, 651 (2013) (citations omitted).
The defendant has not directed us to any evidence to
support his position that the Commonwealth knowingly provided
deceptive evidence with the intention of aligning the defendant
with the clergy sex abuse scandal. In addition, the defendant
failed to support his argument that the Commonwealth knowingly
failed to disclose potentially exculpatory evidence that the
defendant and victim were jokingly tussling before the illegal
touching took place. There was no error. However, for the
reasons stated supra, we reverse the judgment and set aside the
verdict.
So ordered.