63 Mass. App. Ct. 608 | Mass. App. Ct. | 2005
In Commonwealth v. Clayton, 52 Mass. App. Ct. 198 (2001) (Clayton I), we reversed the defendant’s conviction on a single indictment of statutory rape that charged him with having “sexual intercourse or unnatural sexual intercourse” with a child at divers times from 1979 to 1987. Id. at 199. We reversed because we concluded that limitation of the defendant’s
On retrial, the jury could not reach a unanimous verdict and the judge declared a mistrial. At the defendant’s third trial, a jury again found him guilty.
On appeal, the defendant again argues that his right to due process of law was violated because the petit jury were permitted to return a verdict on evidence of acts of natural sexual intercourse when the indicting grand jury heard evidence only of acts of unnatural sexual intercourse.
1. The indictment, amended bill of particulars, and proof at trial. The defendant rightly does not contend that he lacked notice of the acts on which the Commonwealth would rely to prove the crime charged; the indictment and amended bill of particulars provided the defendant ample notice of the nature and character of the proof to be offered at trial. See Commonwealth v. Crawford, 429 Mass. 60, 69 (1999) (purpose of bill of particulars is to give defendant reasonable knowledge of nature and character of crime charged, and effect, when filed, is to restrict scope of indictment and proof). Nor does he challenge the sufficiency of the evidence of natural sexual intercourse or the jury’s general verdict. Although the Com
The defendant maintains, as he did in Clayton I, that a petit jury may not convict a defendant of statutory rape on evidence of natural sexual intercourse, unless the indicting grand jury also heard evidence of acts of natural sexual intercourse. He candidly acknowledges that this argument revisits an issue we considered and rejected in Clayton I. However, he maintains that principles of issue preclusion
Our decision in Clayton I does not work a direct estoppel because of the absence of a final judgment of conviction. See Commonwealth v. Williams, 431 Mass. 71, 74 n.4 (2000); Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (precluding defendant from relitigating issue previously decided on
Preliminarily, we observe that our determination in Clayton I, 52 Mass. App. Ct. at 204-207, that the defendant’s conviction on proof of acts of natural sexual intercourse would not violate due process of law, was neither dictum nor “volunteered comment.” Contrast Bynum v. Commonwealth, 429 Mass. at 707-708. Indeed, in the logical hierarchy of issue consideration, we only reached the defendant’s second appellate issue, the restriction on cross-examination, because we first concluded that his due process argument failed.
In this appeal, the defendant makes no new factual or legal argument. He offers only that Clayton I was wrongly decided and that the judge on retrial erred in denying his motion to strike the amended bill of particulars. Our decision, however, is not contrary to Commonwealth v. Barbosa, 421 Mass. at 551, or Stirone v. United States, 361 U.S. 212 (1960).
The flaw in the defendant’s logic is his confusion of the role of the grand jury in indicting and that of the petit jury in deciding whether the Commonwealth has proved that the defendant committed the crime in the indictment. To comply with art. 12 due process requirements, the Commonwealth need not present to the grand jury evidence of each theory under which the defendant may be found guilty at trial of the crime for which he is indicted. We have never required that there be an exact match between the evidence presented at trial and that presented to the grand jury. See Commonwealth v. Daughtry, 417 Mass. 136, 142 n.4 (1994). It suffices that at trial the Commonwealth presented sufficient evidence to establish statutory rape under each theory of prohibited intercourse. Contrast Commonwealth v. Plunkett, 422 Mass. 634, 635 (1996); Commonwealth v. Eldridge, 28 Mass. App. Ct. 936, 937-938 (1990). See Commonwealth v. Fuller, 421 Mass. 400, 412 (1995) (where crime can be committed in any one of several ways, defendant may be convicted if it is proved he committed crime in any one of those ways).
In sum, our decision in Clayton 1 is the law of the case, “binding absolutely upon every tribunal. . . except one clothed with power to overrule it and finally declare the law to be
2. Prior bad acts. The defendant next contends that the trial judge erred in admitting evidence of prior bad acts over objection. At issue is testimony from the victim and from the defendant’s son that when the victim was twelve or thirteen years old, and the son was three years older, the defendant arranged for the two children to get into his bed in order to engage sex. The defendant positioned them head to toe to perform oral sex, but they “didn’t do anything.” The defendant, who had remained in the doorway of the bedroom masturbating, then screamed at the children for not having sex, got dressed, and left the room.
The judge did not abuse his discretion in concluding that this evidence was relevant and that its probative value outweighed its prejudicial impact. See Commonwealth v. Delong, 60 Mass. App. Ct. 528, 534 (2004). The evidence demonstrated the defendant’s willingness to use the victim for his own voyeuristic sexual gratification and his expressed anger when his plan went awry. The evidence complained of was not remote in time, but occurred during the period of abuse charged. It was highly probative of a pattern of sexualized conduct with the victim and demonstrative of the defendant’s desire for her and control over her in sexual matters. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998) (event useful to show pattern of conduct, which may explain defendant’s intent, corroborate victim’s testimony, or counter defendant’s denial). The trial judge gave careful contemporaneous and posttrial limiting instructions that such evidence could be used solely to show “a pattern of conduct or a scheme” and not as proof that the defendant committed the crime charged. There was no error or
Judgment affirmed.
For a detailed explanation of the evidence adduced in the Commonwealth’s presentment to the grand jury and the subsequent amendment of the bill of particulars to include acts of natural as well as unnatural sexual intercourse, see Clayton I, 52 Mass. App. Ct. at 204-205.
The defendant also frames his due process argument in reference to the trial judge’s denial of his motion to strike the Commonwealth’s bill of particulars that described natural sexual intercourse as within the scope of the indictment.
The matter is, more precisely, one of direct estoppel because the issue actually litigated and decided arises from the same indictment. Commonwealth v. Rodriguez, 443 Mass. 707, 709 (2005). Collateral estoppel (or issue preclusion) usually involves a common issue arising in a subsequent action of a different claim between the parties. See Commonwealth v. Williams, 431 Mass. 71, 74 n.4 (2000).
In Clayton I, the defendant argued specifically that his conviction must be reversed because he may have been convicted of a crime not charged by the grand jury (which only heard acts of particular kinds of unnatural sexual intercourse). Here, he recasts the same issue three different ways: (1) Clayton I was incorrectly decided; (2) on retrial, the judge erred in not striking the amended bill of particulars that detailed acts of natural sexual intercourse; and (3) due process is violated because he may have been convicted of statutory rape on a factual theory (natural sexual intercourse) that was not presented to the grand jury.
Conspicuously absent from Clayton I is the familiar language that signifies we are passing on an issue that need not be decided in light of our holding on a different issue. See, e.g., Commonwealth v. Rodriguez, 58 Mass. App. Ct. 610, 619 (2003).
Indeed, the defendant’s sole claim is rightly under the Massachusetts Declaration of Rights, as “[t]he right to a grand jury, secured by the Fifth Amendment to the United States Constitution, is not binding on the States through the due process clause of the Fourteenth Amendment. See Hurtado v. California, 110 U.S. 516, 534-535 (1884).” Commonwealth v. McCravy, 430 Mass. 758, 761 n.5 (2000).
We recognize that what the defendant ultimately seeks is discretionary appellate review of the grand jury issue before the Supreme Judicial Court.