Opinion
18-P-436
04-09-2019
COMMONWEALTH v. JORGE SILVA.
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
Following a jury trial in the District Court, the defendant was convicted of indecent assault and battery on a child under fourteen years old, in violation of G. L. c. 265, § 13B. On appeal, he asserts that his conviction must be vacated because (1) the trial judge did not give a specific unanimity instruction sua sponte, (2) the trial judge asked the victim questions during the trial, and (3) the criminal complaint set forth January as the time of the assault and battery whereas the victim's testimony suggests that the defendant's sexual assaults occurred in the summertime. We affirm.
Background. The victim, who was fourteen years old at the time of the trial, testified that she was between eight and nine years old at the time she was sexually assaulted by the defendant. She described two distinct but similar assaults occurring on separate dates. The first occurred when she and the defendant were alone in the defendant's apartment, which was located above her grandparents' apartment and where the defendant's wife babysat the victim and her siblings. The defendant took the victim to his bedroom, ostensibly to show a musical instrument to her. While they were on the bed, the defendant touched her inner thighs and vagina with his "private area." When the defendant's wife returned, the assault ended.
The second assault "was, like, the same thing" and occurred "a few weeks later," when the victim was again alone with the defendant in the apartment. As before, the defendant lured the victim into a bedroom, ostensibly to play instruments. The defendant touched her thigh, hip, and near her vagina. Then, the defendant "did what he did the first time." He removed her shorts and rubbed his "private spot" up and down against her vagina. She told him to stop, but he continued. When his wife returned, the assault ended.
1. Specific unanimity jury instruction. Although the trial judge gave a general unanimity instruction, the defendant maintains that he erred in failing to give a specific unanimity instruction. The Commonwealth concedes that, had the defendant asked for such an instruction, one should have been given. See Commonwealth v. Conefrey, 420 Mass. 508, 510-511, 514 (1995). Here, however, the defendant did not ask for such an instruction. Thus, the question on appeal is whether the failure to give the instruction sua sponte resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Black, 50 Mass. App. Ct. 477, 477-478 (2000).
"A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987).
There was no such risk. The evidence presented at trial was sufficient for the jury to find beyond a reasonable doubt that the indecent assault and battery of a child under the age of fourteen had occurred even though the victim described two assaults occurring a few weeks apart. See, e.g., Commonwealth v. Comtois, 399 Mass. 668, 669-670, 676-677 (1987) (no substantial risk of miscarriage of justice where indictment charged that defendant raped and abused his daughter "on divers[e] dates between September 21, 1982 and October 4, 1983," and daughter testified to four specific instances of sexual assaults occurring over course of eleven months). Moreover, the victim's accounts of the two assaults were substantially similar -- each took place in the defendant's apartment when the victim and defendant were alone, in each he used a musical instrument to lure the victim into a bedroom, each involved him touching the victim's vagina with his "private" area, and each ended when the defendant's wife returned.
Significantly, the decisive issue at the trial was the credibility of the victim; the jury would either believe the incidents occurred or they would not. The defense was that the sexual assaults never happened. The defendant claimed that he never babysat the children, that his wife "would watch the children by herself." Because the defense was not based on the particulars of each instance described by the victim, the risk of lack of unanimity did not exist. See Commonwealth v. Sanchez, 423 Mass. 591, 600 (1996) ("critical issue for the jury was whether to believe [the victim's] testimony . . . [t]he defendant, then, was not entitled to a 'specific unanimity' instruction"). See also Commonwealth v. Kirkpatrick, 423 Mass. 436, 441-442 (1996).
The defendant alternatively frames this argument as a violation of "duplicity" because the complaint charged only one sexual assault and the victim described two such instances. For substantially the same reasons, we disagree. See, e.g., Commonwealth v. Sanchez, 423 Mass. 591, 592-593 (1996) (three indictments charging that defendant at "diverse times" raped child under age of sixteen and victim testified that rape occurred "[a] lot"); Comtois, 399 Mass. at 669 (two indictments for rape despite each victim testifying to multiple acts occurring at different times). See also Commonwealth v. Crowder, 49 Mass. App. Ct. 720, 721-722 (2000) (single indictment for rape is proper despite multiple acts of penetration).
Trial judge's questions. The defendant additionally maintains that his conviction must be vacated because the judge asked questions during the victim's direct examination. We set forth the relevant colloquy in the margin. The defendant did not object to the judge's questions. Accordingly, our review is limited to determining whether the exchange created a substantial risk of a miscarriage of justice. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72-73 (2005).
The relevant exchange occurred as follows:
PROSECUTOR: "A few minutes. And what happened after that?"Then a short time later:
WITNESS: "He sexually assaulted me."
JUDGE: "I did not. Miss, take your time, okay. And speak up nice and loud. And what did you answer? I didn't hear your answer."
WITNESS: "He sexually assaulted me."
JUDGE: "What do you mean by that? What did he do to you?"
WITNESS: "He made me do things."
JUDGE: "I'm sorry?"
WITNESS: "He made me do things."
JUDGE: "What did he make you do?"
WITNESS: "Touch his private parts."
PROSECUTOR: "What did you feel?"
WITNESS: "His area."
PROSECUTOR: "And where did you -- what part of your body did you feel that with?"
WITNESS: "My --"
JUDGE: "I'm not sure I understand."
PROSECUTOR: "Sure. I can rephrase that."
JUDGE: "Well, your first question to her was what? The first part of your question -- not the last question, the question before that. What was that question? Were you feeling anything, but before that --"
PROSECUTOR: "Do you remember feeling anything other than what you've described?"
JUDGE: "What do you mean? Feeling inside or feeling physically?"
PROSECUTOR: "Physically."
JUDGE: "Do you remember feeling anything physically other than what you just described?"
WITNESS: "No. Just --"
"It is well established that a judge in this Commonwealth may question witnesses to clarify and develop evidence and to avert perjury." Id. at 74. There was nothing improper with the judge's request to the victim to repeat an inaudible response. Nor was there any error in the judge's request that the prosecutor clarify whether by her use of the term "feel" she was asking about a physical sensation or an emotional response. While in our view the judge's follow-up questions to the victim on what she meant by the term "sexual assault" are troubling, the judge's questioning is not the type of excessive or biased judicial questioning that has been held to be improper. See, e.g., Commonwealth v. Sneed, 376 Mass. 867, 869 (1978) (biased handling of witness); Commonwealth v. Ragonesi, 22 Mass. App. Ct. 320, 323-325 (1986) (twenty-three transcript pages of judicial questioning). Moreover, the prosecutor elicited the same testimony from the victim. On this record, there is no substantial risk of a miscarriage of justice.
Date of sexual assault. The defendant next asserts that, because the month (January) listed in the complaint was inconsistent with the testimony suggesting that the sexual assaults occurred in the summertime, his motion for a required finding of not guilty should have been allowed. We disagree. "[T]he time of the offense is not an element of the crime of indecent assault and battery on a child under fourteen years [and] need not be precisely alleged." Conefrey, 420 Mass. at 511 n.6. See Commonwealth v. King, 387 Mass. 464, 467 (1982). Nor did the date affect the defense, which was that the assault never happened because the defendant was never alone with the victim. See Kirkpatrick, 423 Mass. at 441-442 (no prejudice where greater precision in dates or times of assaults would not have altered defense).
Judgment affirmed.
By the Court (Maldonado, Singh & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 9, 2019.