Opinion
19-P-698
05-29-2020
COMMONWEALTH v. CHRISTOPHER LINDSAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of eight counts of forcible rape of a child, G. L. c. 265, § 22A, and three counts of indecent assault and battery on a person under the age of fourteen, G. L. c. 265, § 13B. The indecent assault and battery convictions and three of the rape convictions were based on conduct that occurred in Middlesex County; the remaining five rape convictions were based on conduct that occurred in Essex County. On appeal, the defendant first argues that the trial judge abused her discretion when she permitted the Commonwealth to impeach him with his prior convictions of larceny and breaking and entering. Second, he argues that two of the three indecent assault and battery convictions should be dismissed as duplicative. We affirm.
1. Impeachment by prior convictions. The defendant moved in limine to exclude evidence of his prior convictions of witness intimidation, larceny, and breaking and entering. The judge allowed the motion with respect to the intimidation conviction, but denied it with respect to the larceny and breaking and entering convictions. The defendant now argues that the judge abused her discretion in allowing the defendant to be impeached with his larceny and breaking and entering convictions if he chose to testify.
The defendant did not choose to testify, but he is nonetheless permitted to challenge the judge's ruling. See Commonwealth v. Little, 453 Mass. 766, 773 (2009).
Prior convictions, if they satisfy the statutory requirements, G. L. c. 233, § 21, may be used to impeach a defendant in the discretion of a judge "who weighs the danger of unfair prejudice that might result from the admission of such evidence against its probative value for impeachment purposes." Commonwealth v. Brown, 451 Mass. 200, 203 (2008). We review to determine whether the judge abused her discretion. See Commonwealth v. Little, 453 Mass. 766, 772 (2009). In making that assessment, we consider various factors, including whether the required balancing test was conducted, and whether the prior convictions bear "substantial similarity" to the crimes for which the defendant is on trial. Id. at 773. It is "difficult, if not impossible," to show an abuse of discretion where the earlier and current crimes are not substantially similar. Brown, supra, quoting Commonwealth v. Drumgold, 423 Mass. 230, 250 (1996).
Abuse of discretion occurs where the judge makes a clear error of judgment in weighing factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the judge carefully employed the correct legal standard. Among other things, she probed the factor of similarity, asking whether there were "allegations in this case involving any conduct that might be characterized as intimidation." After hearing that there were, she concluded that, although the defendant was not charged with intimidation in this case, "there is a similar character to the intimidation charge and some of the alleged conduct in this case, and [she] [fou]nd that with respect to the intimidation charge, the probative value of that charge is outweighed by the potential prejudice." As to the larceny and breaking and entering convictions, the defendant acknowledged below -- and does not argue otherwise here on appeal -- that those crimes are not similar to the sexual abuse charges for which he was being tried. He also correctly acknowledges that the charges fall within the scope of G. L. c. 233, § 21. In short, he has not shown that the judge abused her discretion in ruling that she would permit those convictions to be used to impeach him should the defendant choose to testify.
The defendant proposes that we adopt a new evidentiary rule that would limit the use of prior convictions only to those crimes with a demonstrable element of falsity. The Supreme Judicial Court has rejected this rule, see Commonwealth v. Carter, 429 Mass. 266, 269 (1999), and we have "no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
2. Duplicative convictions. The defendant argues that two of his indecent assault and battery convictions are duplicative of his rape of a child by force convictions. As he raises this issue for the first time on appeal, we review to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 533 (2012).
"Indecent assault and battery [of a child] is a lesser included offense of rape of a child by force." Commonwealth v. Donlan, 436 Mass. 329, 335 (2002). Where one crime is a lesser included offense of the other, multiple convictions must rest on separate and distinct acts. Commonwealth v. Aldrich (No. 1), 88 Mass. App. Ct. 113, 116 (2015). Where, as here, the judge did not instruct the jury that the convictions must rest on separate and distinct acts, the relevant inquiry is "whether there is any significant possibility" that the jury based the greater and lesser included offense convictions on the same act. Commonwealth v. Kelly, 470 Mass. 682, 701 (2015). A prosecutor's statements clarifying which acts correspond to which charges reduce this possibility, mitigating the risk of a miscarriage of justice. See Commonwealth v. Mamay, 407 Mass. 412, 418 (1990).
In Mamay, a defendant was convicted of rape and indecent assault and battery for an incident where he put his tongue in his victim's mouth and his penis in her anus and vagina. 407 Mass. 418. On appeal, the Supreme Judicial Court held that there was no significant risk that the convictions rested on a single act given the prosecutor's emphasis that the rape and indecent assault charges constituted more than one act, and the evidence that the defendant assaulted different orifices. Id. at 418-419.
Here, as in Mamay, the prosecutor explained in closing argument which acts corresponded to each charge. In addition, although not a substitute for an instruction on separate and distinct acts, see Kelly, 470 Mass. at 701-702, the judge instructed the jury that each charge should be considered separately. Furthermore, the case was charged, tried, and argued as a series of repeated assaults over time. The victim's testimony (which was credited by the jury) was that the defendant assaulted her regularly while she lived with him in Middlesex County, and that on each of those numerous occasions the defendant put his tongue and penis above and inside her vaginal lips. The defense was not that only a single assault occurred, but rather that no assaults occurred at all. In these circumstances, there is no significant possibility that the jury convicted the defendant of only a single one of the repeated assaults to which the victim testified, or that the convictions rested on a single act.
Judgments affirmed.
By the Court (Wolohojian, Maldonado, & Ditkoff JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 29, 2020.