Opinion
15-P-216
04-14-2016
COMMONWEALTH v. JOSEPH MAYOTTE.
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
The defendant, Joseph Mayotte, appeals from the judgments on eleven convictions stemming from the rape of his daughter. Joseph argues that the judgments should be reversed for three reasons. First, he contends that the trial judge abused his discretion in denying Joseph's motion to sever. Second, Joseph argues that there was prosecutorial misconduct during cross- examination that constituted reversible prejudicial error. Third, Joseph maintains that there was an impermissible substantive amendment to the indictment for reckless endangerment. We affirm.
The defendant's wife, Linda Mayotte, was charged as a joint venturer with Joseph on several crimes and was tried as a codefendant, but she is not part of this appeal. Because of the shared last name, we will use first names when referring to them individually.
The convictions include the following: three counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B; assault with intent to rape, in violation of G. L. c. 265, § 24; two counts of statutory rape of a child, in violation of G. L. c. 265, § 23; aggravated statutory rape of a child, in violation of G. L. c. 265, § 23A; providing obscene material to a minor, in violation of G. L. c. 272, § 28; incest, in violation of G. L. c. 272, § 17; reckless endangerment of a child, in violation of G. L. c. 265, § 13L; and improper storage of a firearm, in violation of G. L. c. 140, § 131L.
Background. "We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth," reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
Joseph and Linda adopted their children, DM and VM, from Kazakhstan in 2004 and brought them to their home in Whitinsville. When the children moved to the United States, they did not speak English. They are biological brother and sister.
The son, DM, was twelve years old when he was adopted and relocated to the United States.
The daughter, VM, was eight years old when she was adopted and relocated to the United States.
Each child had his or her own bedroom, where each slept in his or her own bed, when they first moved to Whitinsville. However, VM soon began to sleep in Joseph and Linda's bedroom after they told the children that there were ghosts in the house and that Joseph's parents had died in the house. When VM first began to sleep in her parents' bedroom, Linda would sleep on the couch and VM would sleep in the bed with Joseph.
Within a few months of VM's arrival to the United States, while she was in second grade, Joseph began touching her "private areas" at night while she was in bed with him. This began by Joseph touching her over her clothes, then eventually touching her breasts and her vagina as well as putting his fingers inside her vagina. While VM was in third grade, Joseph, on multiple occasions, would wake her trying to put his penis inside of her. On one such occasion, VM had been sleeping on her stomach and she woke up to a sharp pain because Joseph had penetrated her anus with his penis. Joseph would also try to put his penis into VM's mouth.
Once, when VM protested, Joseph told her that Linda was doing the same things to DM. Linda was convicted of rape, and related offenses, against DM and had a child that DM fathered.
The sexual assaults also occurred when VM was not in bed with Joseph. One time, Joseph touched VM's vagina while she was under a blanket with him watching television with Linda. Another time, Joseph touched VM in his truck when she went to work with him.
Joseph also would show VM pornographic materials while she was in the bed next to him. This happened about ten times. If VM seemed upset about the pornographic materials, Joseph would give her candy.
Discussion. 1. Motion to sever. Joseph argues that the judge abused his discretion when he denied Joseph's motion to sever his trial from Linda's. "The decision to sever defendants is vested in the discretion of the trial judge." Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 205 (1998), citing Commonwealth v. Moran, 387 Mass. 644, 658 (1982). "Abuse of discretion occurs when the prejudice to the party asking for severance is so overwhelming that it prevents a fair trial." Ibid.
The judge did not abuse his discretion when he denied Joseph's motion to sever. "When criminal charges against two or more individuals 'arise out of the same criminal conduct,' . . . it is presumed that those individuals will be tried together." Commonwealth v. Smith, 418 Mass. 120, 125 (1994), quoting from Mass.R.Crim.P. 9(b), 378 Mass. 859 (1979). Because Joseph was charged as a joint venturer in the sexual assaults committed upon DM, and Linda was charged as a joint venturer in the sexual assaults committed upon VM, "joinder for trial [was] indicated," i.e., the criminal charges arose out of the same criminal conduct even though the jury ultimately acquitted each defendant of the crimes charged as joint ventures. Commonwealth v. Kindell, 44 Mass. App. Ct. at 206. See Commonwealth v. Smith, 418 Mass. at 125-126. Furthermore, neither of the conditions for mandatory severance was present in the instant case. See Commonwealth v. Kindell, supra at 205. "First, there were no damaging statements by a codefendant who was not available for cross-examination." Ibid. Second, neither codefendant had "adopted mutually antagonistic defenses, i.e., the one did not point his finger against the other." Id. at 205-206. Both defendants denied that the crimes were ever committed and each gave evidence suggesting the innocence of the other.
Rule 9(b) provides: "[t]wo or more defendants may be joined in the same indictment or complaint if the charges against them arise out of the same criminal conduct or episode or out of a course of criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise." Rule 9(d) provides for relief from prejudicial joinder: "[i]f it appears that a joinder of offenses or of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts, grant a severance of defendants, or provide whatever other relief justice may require." Mass.R.Crim.P. 9(d), 378 Mass. 859 (1979). In addition, the rule also provides that a "motion of the defendant for relief from prejudicial joinder shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known." Ibid.
Additionally, the jury were instructed that they must consider each charge independently and consider the charges against each defendant separately, which limited the risk of unfair prejudice to each defendant., See Commonwealth v. Helfant, 398 Mass. 214, 228 (1986) (where "[t]he judge's instructions were clear, . . . we must presume the jury followed them"). The decision not to try the defendants individually did not overwhelmingly prejudice Joseph to the point where he did not receive a fair trial. See Commonwealth v. Kindell, 44 Mass. App. Ct. at 205. See also Commonwealth v. Spray, 467 Mass. 456, 469 (2014), quoting from Commonwealth v. Gallison, 383 Mass. 659, 672 (1981) ("'Prejudice requiring severance does not arise from the mere fact that the defendant's chances for acquittal . . . might have been better' had the offenses been tried separately"). This is evidenced by the fact that the jury ultimately acquitted him of fourteen of the charges.
The judge instructed:
"Multiple charges. There are 25 indictments against each defendant. Each indictment is an accusation of a different crime. You must consider each indictment separately, and return a separate verdict of guilty or not guilty on each indictment.
"Multiple defendants. There is more than one defendant on trial in this case. Each defendant is entitled to have you determine his or her guilt separately and individually. The fact that the defendants are on trial together is not evidence that there is any connection between them, and is not any evidence of their guilt. The Commonwealth has the burden of proving beyond a reasonable doubt the guilt of each defendant separately.
"When you consider the evidence, it is your duty to examine it carefully as to the charge or charges against each defendant separately, as if he or she were on trial alone. You may consider only the evidence that applies to that defendant, and you are not to consider any evidence that I have told you was admitted into evidence only against the other defendant.
"Each defendant is entitled to have his or her case be determined solely from the evidence about his or her own acts and statements.
"During this trial I told you that some of the evidence was limited to one defendant. Let me emphasize that you may consider such evidence only in your deliberations about that defendant concerning whom it was admitted into evidence. You must not consider it in any way in your deliberations concerning the other defendant."
The verdict slips also clearly indicated what criminal conduct was being charged against each defendant.
2. Prosecutorial misconduct. Joseph argues that the prosecutor's questions on cross-examination were improper because she implied Joseph had tailored his testimony, which caused reversible prejudicial error. See Commonwealth v. Gaudette, 441 Mass. 762, 766-767 (2004). A defendant has a right to prepare for trial, which may include review of materials provided by the Commonwealth as required by Mass.R.Crim.P. 14(a)(1), as appearing in 442 Mass. 1518 (2004). Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 542 (2006), S.C., 449 Mass. 1035 (2007). A defendant also has the right to advice of counsel. See Commonwealth v. Person, 400 Mass. 136, 139 (1987).
The prosecutor's cross-examination of Joseph, which highlighted the discrepancies between his pretrial statements and the evidence at trial, was proper. "[A] prosecutor may, if there is a basis in the evidence introduced at trial, attack the credibility of the defendant on the ground that his testimony has been shaped or changed in response to listening to the testimony of other witnesses." Commonwealth v. Gaudette, 441 Mass. at 767. Here, Joseph made statements at trial that differed from those he made pretrial. In the instant case, "[t]he prosecutor was not trampling on the constitutional right to remain silent; [s]he was performing h[er] proper function of alerting the jury to possible flaws in the defendant's testimony." Commonwealth v. Sherick, 401 Mass. 302, 305 (1987). See Commonwealth v. Rivera, 425 Mass. 633, 639 (1997) ("A defendant who takes the witness stand . . . is subject to the ordinary rigors of proper cross-examination, including questioning about prior inconsistent statements voluntarily made").
3. Reckless endangerment. Joseph argues that we should reverse the judgment on the charge of reckless endangerment of a child because the judge instructed the jury, without objection from defense counsel, on both theories of reckless endangerment when the indictment failed to allege the theory based on sexual abuse. We disagree. Generally, "[a]n indictment is not inadequate if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusations against him." Commonwealth v. Allison, 434 Mass. 670, 677-678 (2001). Here, Joseph was aware of the nature of the charges against him. He was separately charged with twenty-one crimes of a sexual nature against his children and not a single crime was based on physical abuse.
Furthermore, Joseph would have received the grand jury minutes as part of the mandatory discovery required by Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004), which would have made him aware of the evidence presented to the grand jury. Joseph did not move for a bill of particulars or to dismiss the indictment, see Commonwealth v. Canty, 466 Mass. 535, 548 (2013), which is "of some significance" because it shows that neither Joseph nor his counsel "thought themselves uninformed or confused by the indictment," Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 460, S.C., 430 Mass. 517 (1999).
First, "[i]t is not necessary for the Commonwealth to set forth in the . . . indictment every element of the crime . . . . Rather, it is acceptable for the indictment to contain 'an appropriate legal term descriptive' of the criminal act." Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 296 (2012) (citations omitted). Second, the "indictment need not contain reference to the particular . . . theory of culpability with which the defendant is being charged." Id. at 298. Cf. Commonwealth v. DePace, 442 Mass. 739, 743 (2004), cert. denied, 544 U.S. 980 (2005) ("The statutory form of an indictment alleging murder that is not self-limiting to murder in the second degree encompasses all theories of murder in the first degree and is sufficient to charge murder by whatever means it may have been committed").
Finally, "[i]ndictments and complaints are subject to amendment as to form, if without prejudice to the defendant, but not as to substance. See Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979)." Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691 (2000). "The test to be applied to determine whether an amendment is one of form or of substance is whether a judgment of conviction or acquittal on the indictment or complaint as originally drawn would be a bar to a new indictment or complaint in the form in which it stands after the amendment. Commonwealth v. Snow, 269 Mass. 598, 609-610 (1930). Commonwealth v. Binkiewicz, 342 Mass. 740, 748 (1961)." Commonwealth v. Baker, 10 Mass. App. Ct. 852, 852 (1980). "[I]t is acceptable for the indictment to contain 'an appropriate legal term descriptive' of the criminal act. Commonwealth v. Green, 399 Mass. 565, 566 (1987), quoting from Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979)." Commonwealth v. Sullivan, 82 Mass. App. Ct. at 296.
Here, the indictment contained an appropriate legal term descriptive of the criminal act. There are two separate ways to violate the reckless endangerment statute: either by wanton or reckless conduct creating a substantial risk to a child, or by wantonly and recklessly failing to take reasonable steps to alleviate such a risk. Criminal Model Jury Instructions for Use in the District Court 6.540 (2011). Although the indictment stated serious bodily injury, the amendment, adding sexual abuse, was one of form not of substance because it was still wanton or reckless conduct creating (or failing to alleviate) a substantial risk to a child. Contrast Commonwealth v. Bynoe, 49 Mass. App. Ct. at 691-692 (trial judge erroneously amended complaint by giving jury instruction on new charge not raised in complaint); Commonwealth v. Williams, 73 Mass. App. Ct. 833, 836-838 (2009) (amendment of substance when judge amended complaint after trial to include new form of vehicular homicide with additional elements and more severe maximum sentence). Furthermore, the statute was named in the caption of the indictment and it "'illuminate[d]' the meaning of the body of the indictment." Commonwealth v. Sullivan, 82 Mass. App. Ct. at 297 (citation omitted).
It is clear that the indictment brought was sufficiently clear to "show a violation of law and to permit the defendant to know the nature of the accusations against him." Commonwealth v. Allison, 434 Mass. at 677-678.
Judgments affirmed.
By the Court (Trainor, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 14, 2016.