32 Mass. App. Ct. 935 | Mass. App. Ct. | 1992
Based almost entirely on the complainant’s testimony, the defendant was convicted on two indictments for rape of a child (G. L. c. 265, § 23) after a jury trial in the Superior Court. The defendant was sentenced to life
1. Evidence of similar misconduct. Although the Commonwealth elected to try the defendant on two alleged occurrences in 1982 and 1984,
During the presentation of this evidence, offered by the Commonwealth as indicative of a plan or scheme which placed the principal charges in context, the judge appropriately instructed the jury as to its limited probative value, and employed the cautionary language suggested in the leading cases. Commonwealth v. Chalifoux, 362 Mass. 811, 815-816 (1973). (“[Ejvidence of other criminal or wrongful behavior may not be admitted to prove the character or propensity of the accused. . . .”) Commonwealth v. Gallison, 383 Mass. 659, 672 (1981) (“[Ejvidence of other criminal behavior may not be admitted to prove the propensity of the accused to commit the indicted offense. . .”). He repeated, in his final instructions to the jury, that such evidence was competent where it has a tendency to show “a plan or a common scheme or a state of mind.” See Commonwealth v. Campbell, 371 Mass. 40, 43 (1976), and cases cited; Commonwealth v. King, 387 Mass. 464, 472 (1982), and Commonwealth v. Yelle, 19 Mass. App. Ct. 465, 471-472 (1985).
2. Admission of investigation testimony. The Commonwealth called the investigating police officer as a final witness. Earlier, as the result of a defense motion in limine, the judge excluded the.officer’s fresh complaint testimony. There may well have been other articulable reasons for the Commonwealth to have called him, but they appear unrelated to the prosecutor’s main purpose. Immediately after identifying himself, the officer testified that he was conducting an investigation of the defendant in March of 1986 and, pursuant to that investigation, he placed a telephone call to the complainant’s residence. While this testimony was inadmissible, defense counsel failed to object. Although the defendant subsequently moved for a mistrial, the question is still whether the testimony created a substantial risk of a miscarriage of justice. Commonwealth v. McGahee, 393 Mass. 743, 749 (1985). The officer’s testimony was brief. The fact of the ongoing investigation was mentioned once.
Furthermore, the judge immediately repaired any damage and forcefully instructed the jury that he was “going to strike the testimony . . . with respect to anything that led [the officer to inquire] of this defendant. . . . I want you to put it completely out of your mind.” The curative instruction could not have been clearer and constituted a prompt repair for whatever prejudice resulted from the officer’s testimony. See Commonwealth v. Andrews, 403 Mass. 441, 449-450 (1988) (judge’s “immediate and forceful curative instruction” to the jury and his striking the witness’s remarks
Judgments affirmed.
The grand jury returned two indictments against the defendant on May 19, 1987. The first, as elaborated by the Commonwealth’s response to the order allowing the defendant’s motion for. a bill of particulars, alleged an offense which occurred between the first and last days of November, 1982, in the kitchen of the defendant’s home. The second, also detailed in response to the order granting the motion for a bill of particulars, alleged an offense which occurred on or about September 16, 1984, in the defendant’s camper which was parked in the back yard of his residence.
The defendant objected to this testimony prior to the imp'anelment of the jury and the judge conducted an extensive voir dire prior to allowing the introduction of the testimony at trial.