Commonwealth v. BaptistaCommonwealth v. Baptista
There was no merit to a criminal defendant‘s claim that a Superior Court judge‘s exercise of his authority under
At a criminal trial, the judge did not abuse his discretion in denying the defendant‘s motion for a mistrial following a witness‘s reference to prior misconduct of the defendant, which had been excluded from the case, where the reference was fleeting and vague and did not apprise the jury of the defendant‘s prior bad acts, and where the judge‘s responsive instruction to the jury was immediate and strong. [32-33]
INDICTMENTS found and returned in the Superior Court Department on February 14, 2007.
The cases were tried before Richard T. Moses, J., and a proceeding to revise sentence was had by him.
Alan D. Campbell for the defendant.
Yul-mi Cho, Assistant District Attorney, for the Commonwealth.
SIKORA, J. In March of 2012, a Superior Court jury convicted the defendant, John Baptista, of rape of a child by force and indecent assault and battery on a child under the age of fourteen years. See
1. Facts.
The jury heard the following evidence. In New Bedford, from approximately 1994 and into 1997, the victim, Michael,1 lived with his mother, two older sisters, and the defendant. The defendant cared for Michael when his mother was at work. Michael, who was twenty-two years old at the time of trial, testified that on multiple occasions the defendant entered his bedroom, touched his penis and buttocks, and manually penetrated his rectum. He recounted that the defendant had threatened to “chop [him] into little pieces” if he disclosed the abuse.2
2. Sentencing.
At the time of sentencing, the defendant was serving a term of fifteen to twenty-five years in State prison for a conviction in 1999 of rape by force of one of Michael‘s sisters. On March 15, 2012, at the conclusion of a subsequent offender bench trial, the judge sentenced the defendant to seven to ten years in State prison on the conviction of rape of a child by force, subsequent offense; and five to seven years on the conviction of indecent assault and battery on a person under the age of fourteen years, subsequent offense. The judge imposed those sentences to be served concurrently with each other and with the sentence in progress on the rape by force of Michael‘s sister.
Two weeks later, after the defendant had filed his notice of appeal, the judge, pursuant to
Discussion.
1. Sentence increase under Mass.R.Crim.P. 29(a) .
The defendant contends that the trial judge‘s exercise of authority under rule 29(a) to increase a sentence after submission of a defendant‘s notice of appeal exerts an impermissible chilling effect on the right to appeal. With exclusive reliance on North Carolina v. Pearce, 395 U.S. 711, 723-726 (1969), he proposes that the timing of such a spontaneous revision creates a presumption of vindictiveness.
The defendant‘s reliance on Pearce as authority for a presump-tion
This case obviously differs from the categorical circumstances of the Pearce prosecutions. We do not have a successful appeal, a retrial, and a new conviction, as the suspected origin and motivation creating a more severe sentence. A defendant receiving an upwardly revised sentence outside the Pearce circumstances still may pursue an argument of vindictiveness on the part of the judge. See Alabama v. Smith, 490 U.S. 794, 799-800 (1989) (Pearce presumption extends to circumstances of “reasonable likelihood” of vindictiveness). See also Wasman v. United States, 468 U.S. 559, 569 (1984) (where prophylactic rule of Pearce does not apply, defendant still may obtain relief if he can show “actual vindictiveness“); Mann v. Commonwealth, 359 Mass. 661, 665 (1971) (“Irrespective of the holdings in the Pearce case, allegation and proof of vindictiveness on the part of a judge may be a violation of due process in any case“). The defendant here does not develop the details of such an argument.
If we were to infer a contention of likely or actual vindictiveness, the record would not furnish any basis for it. Under rule 29, a judge “must give adequate notice and an opportunity to be heard to the criminal defendant. He should also state clearly on the record why it appears that ‘justice may not have been done’ by the terms of the original sentence.” Aldoupolis v. Commonwealth, supra at 276. Where, as here, the judge increases a sentence, “findings and a statement of supporting reasons are important to demonstrate that improper considerations did not motivate the judge‘s action.” Ibid., quoting from Commonwealth v. Sitko, 372 Mass. 305, 314 (1977). The judge here complied
2. Witness‘s reference to prior offense.
Before trial, the judge excluded from evidence any reference to the case of Michael‘s sister. In the course of her direct examination as a witness for the Commonwealth, Michael‘s social worker remarked that he once had told her of “other events that took place regarding [the defendant] and his sister and . . . .” An immediate objection cut off her testimony. The judge sustained the objection and gave a prompt and forceful curative instruction.6 The defendant argues that the judge wrongly denied his subsequent motion for a mistrial.
The standard of review of such a denial is abuse of discretion. See Commonwealth v. Lao, 460 Mass. 12, 19 (2011). In the circumstances, no abuse is visible. The reference was fleeting and vague; it did not apprise the jury of the defendant‘s prior bad acts. See Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980); Commonwealth v. Cunneen, 389 Mass. 216, 223-224 (1983); Commonwealth v. Valentin, 420 Mass. 263, 272 (1995). The responsive instruction was immediate and strong. See Commonwealth v. Gibson, 357 Mass. 45, 49 (1970); Commonwealth v. Kilburn, 426 Mass. 31, 37-38 (1997); Commonwealth v. Bolling, 462 Mass. 440, 455 (2012). Except for extraordinary circumstances absent here, we presume that the jury will obey such instructions. See Commonwealth v. Cameron, 385 Mass. 660, 668 (1982); Commonwealth v. Mendes, 441 Mass. 459, 470 (2004); Commonwealth v. Thad T., 59 Mass. App. Ct. 497, 508 (2003).
Judgments affirmed.