37 N.E.3d 566
Mass.2015Background
- Defendant Herbert Dorazio was convicted in 2010 of rape of a child (Susan) and assault with intent to rape a different child (Jane); acquitted on an indecent assault count relating to Jane.
- The alleged offenses involving Susan (summer 1996) and Jane (1998) occurred when each was a young neighborhood child and involved isolation and digital/hand contact in the defendant’s home.
- The Commonwealth sought and the trial judge admitted evidence of a separate, earlier charged incident (June 13, 1998) involving a third child, J.D., for which Dorazio had previously been tried and acquitted.
- Admission was allowed as prior-bad-acts evidence to rebut the defense theory that Susan’s contact was accidental, subject to a limiting instruction and a preponderance-of-the-evidence finding for the J.D. incident.
- On appeal to the SJC, Dorazio challenged joinder denial, the admission of the acquittal evidence (including a collateral-estoppel/due process argument under art. 12), denial of mistrial, and denial of a new trial for ineffective assistance; the SJC reversed and remanded for a new trial solely because admission of the acquittal evidence violated the Massachusetts Constitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prejudicial joinder of counts | Joinder appropriate because offenses were similar in victim, locale, access, and pattern | Joinder was prejudicial and required severance | Denial of relief was not an abuse of discretion; joinder permissible |
| Admission of prior bad-act evidence (J.D. incident) under evidentiary law | Evidence relevant to intent/absence of accident; met time/place/form nexus; limiting instruction minimized prejudice | Evidence unduly prejudicial and not closely related; should be excluded | Admissible under Massachusetts evidentiary rules; judge properly found probative value and gave limiting instructions |
| Use of acquittal evidence (collateral estoppel / art. 12 due process) | Commonwealth: federal law allows admission of acquittal evidence; no collateral estoppel bar | Dorazio: prior acquittal means issue decided in his favor; admission violates art. 12 and collateral estoppel | Under Massachusetts Constitution (art. 12) admission of acquittal evidence in subsequent criminal prosecutions for similar sexual offenses is barred; admission here created substantial risk of miscarriage of justice; convictions reversed |
| Necessity of new trial on other grounds (mistrial, ineffective assistance) | Commonwealth: errors were not prejudicial; prior rulings correct | Dorazio: trial errors and counsel performance warrants new trial | Because reversal required on the acquittal-evidence ground, SJC did not reach remaining claims and found no need to order new trial on those bases; Appeals Court conclusions on them were acceptable |
Key Cases Cited
- Commonwealth v. Montez, 450 Mass. 736 (discussing review of evidentiary objections and admission of prior-bad-acts evidence)
- Commonwealth v. Barrett, 418 Mass. 788 (prior uncharged conduct admissible to show common scheme, absence of accident, intent)
- Commonwealth v. Rosenthal, 432 Mass. 124 (Commonwealth must prove prior act occurred and defendant was actor by preponderance)
- Benson v. Commonwealth, 389 Mass. 473 (explaining collateral estoppel principles in criminal context)
- Ashe v. Swenson, 397 U.S. 436 (collateral estoppel and the limits of general acquittal verdicts)
- Dowling v. United States, 493 U.S. 342 (federal rule allowing admission of acquittal evidence; contrasted by SJC)
- Commonwealth v. Gaynor, 443 Mass. 245 (joinder and related-offense analysis)