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16-P-867                                                Appeals Court

                  COMMONWEALTH    vs.   CARLOS SILVA.


                             No. 16-P-867.

           Worcester.       March 2, 2018. - July 20, 2018.

           Present:   Wolohojian, Massing, & Englander, JJ.


Indecent Assault and Battery. Practice, Criminal, Mistrial,
     Trial of indictments together.



     Indictments found and returned in the Superior Court
Department on April 19, 2013, and June 6, 2014.

    The cases were tried before Richard T. Tucker, J.


     Michael L. Tumposky (Andrew Courossi also present) for the
defendant.
     Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.


    ENGLANDER, J.       The defendant was convicted by a Superior

Court jury of separate incidents of indecent assault and battery

on three of his step-granddaughters.      During trial, a fourth

alleged victim, one of the defendant's daughters, took the stand

and gave some testimony that was inculpatory to the defendant,
                                                                     2


but ultimately balked and was relieved from testifying further

on self-incrimination grounds.    The trial judge accordingly

struck all of the daughter's testimony, instructed the jury to

disregard it, and denied the defendant's motion for a mistrial.

The defendant appeals, claiming, among other grounds, that a

mistrial was required because the daughter's testimony was

"ineradicable" from the minds of the jurors.     Because the judge

did not abuse his discretion in denying a mistrial, and because

there was no other reversible error, we affirm.

    1.     Background.   We recite the material facts in the light

most favorable to the Commonwealth.    The defendant was charged,

inter alia, with multiple counts of indecent assault and battery

on a child under the age of fourteen, in violation of G. L.

c. 265, § 13B, as to four separate alleged victims; the

defendant was also charged with one count of rape of one of the

victims.   As discussed below, while there were some factual

differences in the allegations as to each victim, all accused

the defendant of indecent touching beginning when they were

around four years old, and continuing for many years.

    a.     Trial testimony.   The charges as to all four victims

were joined for trial, and the judge denied the defendant's

motion to sever.    The sequence of trial witnesses then proceeded

as follows.
                                                                     3


    i.    Maria.1    The first trial witness was Maria, a victim who

was nineteen years old at the time of trial.     Maria testified to

a number of occasions where the defendant, her step-grandfather,

touched her in way that made her feel "uncomfortable."

    The first incident Maria described occurred in the

defendant's bedroom in his home in Milford when Maria was about

six years old.      She stated that the defendant "lure[d]" her

upstairs by whispering her name, and that the defendant then

touched her vagina over her clothes.

    Maria testified that the touchings continued at the

defendant's home in Bellingham, from when she was seven or eight

years old until she was thirteen years old.     Maria remembered

one particular occurrence when the defendant led her into the

basement, placed her up on a ledge, and rubbed her vagina over

her favorite shorts, which were ruined because the defendant had

motor oil on his hands.

    Finally, Maria testified that when she was a sophomore in

high school, on the morning of Thanksgiving she woke up to the

defendant licking the right side of her ear, inserting his

fingers inside her vagina, and continuously saying, "Give me

your pussy."     When Maria realized what was occurring she became

angry, pushed the defendant off of her, and yelled at the

defendant; the defendant then left the room.

    1   A pseudonym.
                                                                  4


    ii.    Karen2 and the motion for a mistrial.   The next witness

was Karen, the defendant's daughter, an alleged victim who was

eighteen at the time of trial.     After answering some initial

questions posed by the prosecutor, Karen remained silent in

response to questions regarding the defendant's conduct, as

follows:

    Prosecutor: "Has [the defendant] ever touched you in a way
    that made you feel uncomfortable?"

    Karen:    "Well, like . . ."

    Prosecutor: "Has he ever touched you in a sexual way
    that's made you feel uncomfortable?"

    (Pause.)

    . . .

    Prosecutor: "So, let me narrow the time frame. Prior to
    2012, when you were a young child living with your father,
    did he ever touch you in a sexual way that made you feel
    uncomfortable?"

    (Pause.)

    Prosecutor:    "Would you like a glass of water?"

    (Pause.)

    Prosecutor: "Let me withdraw that question, and ask you,
    [Karen], how do you feel about testifying today?"

    Karen: "I don't want to. . . . Because I just . . . don't
    feel comfortable doing this. . . . I don't feel
    comfortable testifying against my own father."

    . . .




    2   A pseudonym.
                                                                   5


    Prosecutor: "Well, let me just ask you that question
    again, then: did [the defendant] ever touch you in a
    sexual way that made you feel uncomfortable?"

    (Pause.)

    Defense counsel:     "Your Honor, may we approach . . . ,
    please?"

    The court:    "Yes."

    There were four separate pauses in this testimony, and the

judge stated that each of them lasted one to one and one-half

minutes.   When the prosecutor resumed questioning, Karen stated

that she did not remember if her father had "touched [her] in a

sexual way."   The prosecutor then sought to refresh Karen's

memory by showing her grand jury testimony to her, after which

Karen stated that her memory was refreshed but also that she

could not remember if her father had sexually abused her as a

child:

    Prosecutor: "After reading that, is your memory refreshed
    as to withhold on [sic] [the defendant] sexually assaulted
    you as a child?"

    Karen:     "Yes."

    Prosecutor: "So, has your father, [the defendant], ever
    sexually abused you as a child?"

    Karen:     "I said 'yes', so -- I don't remember --"

    Prosecutor:     "I didn't hear you; I'm sorry, [Karen]."

    Karen:     "I said 'I said "yes," but I don't remember.'"

    Prosecutor: "Okay; but then I asked you if your memory was
    refreshed, and you said yes."
                                                                    6


     Karen: "I said yes, but I just . . . .     I can't remember,
     but I said yes."

     Karen's testimony was then suspended.    Counsel was

appointed, who informed the court the following day that Karen

would be invoking her privilege under the Fifth Amendment to the

United States Constitution.   The judge conducted a hearing

pursuant to Commonwealth v. Martin, 423 Mass. 496, 504-505

(1996), after which he determined that Karen had properly

invoked her Fifth Amendment right and would not be compelled to

testify.   The result of these actions was that Karen was

excused, her testimony was terminated midstream, and she was

never cross-examined.

     The defendant moved for a mistrial.     Defendant's counsel

argued that the pauses in Karen's testimony were "the most

prejudicial and pregnant pauses [she had] ever seen in the

history of . . . trying cases."   She argued that this prejudice

was heightened because in the Commonwealth's opening statement

the prosecutor had previewed Karen's anticipated testimony.3

Defense counsel also pointed out that she had been unable to

cross-examine Karen, and that she had useful cross-examination

material because Karen had previously recanted to a defense

investigator.   The judge denied the motion for a mistrial.    He


     3 In opening, the prosecutor identified Karen as a victim,
and described her expected testimony of sexual abuse at the
hands of her father.
                                                                    7


agreed that the circumstances were "unfortunate," but believed

that they could not "have been dealt with any other way than

bringing [Karen] up to the stand."

    The judge instead addressed the situation with a curative

instruction, as follows:

    "Yesterday, you saw that [Karen] was on the stand, and she
    is no longer going to testify. You are to make no
    inference against [the defendant] as [sic] the reason for
    [Karen's] absence. You are to disregard [Karen's]
    testimony in its entirety, and disregard any reference to
    [Karen's] allegations entirely. You may not consider any
    reference to [Karen's] prior testimony or her demeanor
    while on the witness stand. You shall strike it from your
    memories as if she never testified and will never testify
    in this trial, and you shall not speculate as to the reason
    for that. The reason was a legal ruling on my part, so you
    shall not speculate any further on that, and you shall not
    consider it at all in your deliberations." (Emphasis
    supplied.)4

        iii.   Naomi and Laura.5   Following Karen's appearance, both

Naomi and Laura testified.     Each of them was a step-grandchild

of the defendant, as was Maria, the first witness.

    Naomi was eighteen years old at the time she testified.

She testified that the defendant began touching her in a way

that made her feel uncomfortable when she was four years old, at

the defendant's house in Milford.      She testified to multiple

instances where the defendant touched her buttocks and vagina


    4  Later, at the close of the Commonwealth's case-in-chief,
the judge granted an assented-to motion for required findings of
not guilty as to the charges related to Karen.

    5   Both names are pseudonyms.
                                                                        8


with his hands over her clothes.       She also testified to a

specific occasion when she was nine years old, in the basement

of the defendant's home in Bellingham, where he zipped down her

jacket, stared at her breasts, and touched her vagina under her

clothes with his hand.

    Laura was fifteen years old at the time of her testimony.

Laura testified that the defendant touched her multiple times in

a way that made her feel uncomfortable, from when she was four

years old until she was eight years old.        She also testified to

two specific incidents that occurred at the home in Bellingham.

One of those occurred in the defendant's bedroom.        Laura

testified that she found the defendant lying on his back in bed

in just his underwear.    The defendant asked her to give him a

hug, and when she did the defendant put his hands on her

buttocks and "made [her] move up and down on him."

    b.   Verdicts.   The jury found the defendant guilty, inter

alia, of multiple counts of indecent assault and battery on a

child, with respect to each of Maria, Naomi, and Laura.          The

jury also found the defendant guilty of rape with regards to

Maria.   The defendant appeals.

    2.   Discussion.     a.    Motion for a mistrial/Karen's

testimony.   The defendant first argues that Karen's testimony

and the events surrounding it were so prejudicial that a

mistrial was required.        Picking up on language from one of our
                                                                   9


cases, the defendant argues that despite the judge's instruction

to disregard Karen's testimony in its entirety, here the

prejudice was "ineradicable."   See Commonwealth v. Thad T., 59

Mass. App. Ct. 497, 508 (2003) ("Only a compelling showing of

ineradicable prejudice would cause us to conclude that the

judge's instructions to disregard [the witness's] testimony were

inadequate").

    We review the denial of a motion for a mistrial for abuse

of discretion.   See Commonwealth v. Santana, 477 Mass. 610, 625

(2017), citing Commonwealth v. Gallagher, 408 Mass. 510, 517

(1990).   The test is not whether we would have made a different

decision, but whether the judge "made 'a clear error of judgment

in weighing' the [relevant] factors" such that his decision

"falls outside the range of reasonable alternatives."

Commonwealth v. Bryan, 476 Mass. 351, 357 (2017), quoting from

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).   Further,

"[w]hen a jury have been exposed to inadmissible evidence, the

judge may rely on a curative instruction to correct any error

and to remedy any prejudice."   Commonwealth v. Durand, 475 Mass.

657, 668 (2016) (quotation omitted).

    We discern no abuse of discretion in the denial of the

motion for a mistrial.   Without doubt, Karen's testimony, and

the events surrounding it, needed to be addressed by the judge.

The lengthy pauses by Karen, the prosecution's effort to refresh
                                                                     10


her recollection with grand jury testimony, and the fact that

Karen left the stand without being cross-examined certainly held

the potential for unfair prejudice.     The jury could well have

inferred from Karen's abbreviated testimony that she had

previously testified that her father had abused her, but that

she no longer was willing to testify against him.    This

possibility of prejudice was exacerbated because the jury had

heard, in the prosecutor's opening, about some of Karen's

expected testimony.

    Here, however, the trial judge acted forcefully to avert

this potential prejudice.   The judge struck Karen's testimony in

its entirety, and instructed the jury to "strike it from your

memories as if she never testified."     The instruction was clear

and direct.    In law, Karen's testimony did not exist for

purposes of the defendant's trial.     "As long as the judge's

instructions are prompt and the jury do not again hear the

inadmissible evidence . . . a mistrial is unnecessary."      Durand,

supra, quoting from Commonwealth v. Garrey, 436 Mass. 422, 435

(2002).

    The defendant argues, however, that the jury could not put

the testimony out of their minds despite the judge's

instruction.   But the fundamental difficulty with the

defendant's contention is that it requires this court to

conclude that the jury did not follow the judge's very specific
                                                                      11


instruction to disregard all of Karen's testimony.     Such a

conclusion would be at odds with both our case law and our basic

assumptions about how jurors perform their function.    Jurors are

presumed to follow the law as instructed.    See Commonwealth v.

Williams, 450 Mass. 645, 651 (2008) ("Jurors are presumed to

follow a judge's instructions, including instructions to

disregard certain testimony").    Indeed, our jury system is in

many ways built on this assumption -- on the structure that the

judge provides the law, and that the jurors then follow that

law.   See Commonwealth v. Leno, 374 Mass. 716, 719 (1978).

"[We] shall not assume that jurors will slight strong and

precise instructions of the trial judge to disregard the matters

which have been withdrawn from their consideration."       Thad T.,

59 Mass. App. Ct. at 508, quoting from Commonwealth v. Gordon,

356 Mass. 598, 604 (1970).

       Indeed, the defendant has not pointed to a single

Massachusetts case, and we have found none, where an appellate

court has concluded that a mistrial was required because the

jury would not be able to disregard evidence they were

instructed to disregard in its entirety.    The principal case

relied upon by the defendant, Commonwealth v. Funches, 379 Mass.

283, 292 (1979), provides him no help.    Funches is relevant in

that it involved a situation where, as here, a witness began

testifying and provided inculpatory testimony, but then was not
                                                                    12


able to be cross-examined as to that testimony (as the witness

refused to answer).    Id. at 287-288.   Unlike in this case,

however, in Funches the witness's inculpatory testimony was not

struck, and the jury were never instructed to disregard it.        See

id. at 287.   The testimony in Funches thus was before the jury,

and infected their verdict.    Id. at 291-294.   Funches is

inapposite where, as here, the testimony was struck in its

entirety during trial.

    The defendant also points to the decision in Bruton v.

United States, 391 U.S. 123, 135-137 (1968), where the United

States Supreme Court concluded that a jury would be unable to

follow a judge's instructions as to the use of evidence in a

criminal trial.   While the analogy has some force, we think

Bruton and its line of cases are distinguishable.     Bruton

addressed circumstances where criminal codefendants were tried

together, and where the prosecution introduced an out-of-court

statement of one of the codefendants that directly inculpated

the other.    Id. at 124.   Prior to Bruton, this evidence would

often be admitted, with judges instructing the jury that the

out-of-court statement was admissible only against the

codefendant who made the statement, while it must be disregarded

as to the other defendants.    Id. at 126.   Bruton held that the

admission of a codefendant's out-of-court statement in a joint

trial, where that statement directly implicated his codefendant,
                                                                    13


violated the confrontation clause of the United States

Constitution; part of Bruton's rationale was that the limiting

instruction given to the jury was not sufficient to cure the

confrontation clause issue, because the parsing required of the

jury was asking too much of them.   Id. at 126, 128-129.   It was

in that context -- where the jury were instructed to consider

the evidence against some defendants but not others -- that

Judge Learned Hand wrote that he doubted the jury could engage

in the "mental gymnastic" required by such an instruction.     Id.

at 132 n.8, quoting from Nash v. United States, 54 F.2d 1006,

1007 (2d Cir. 1932).6

     Here, unlike in the Bruton cases, the judge struck the

testimony and the jury were instructed to disregard it in its

entirety.   It was simply not evidence.   The judge was of course

able to assess the jury when they heard Karen's testimony, and

when he gave his corresponding instruction to disregard that




     6 There are a few cases in other jurisdictions where the
striking of testimony was held inadequate, and thus a mistrial
was required. Toolate v. Borg, 828 F.2d 571, 572-575 (9th Cir.
1987), is one such decision, but in Toolate it was a codefendant
who initially took the stand, implicated both the defendant and
himself, and then refused cross-examination. Toolate thus is
distinguishable from this case. Id. at 572. See also United
States v. Ritz, 548 F.2d 510, 520-521 (5th Cir. 1977) (reversal
required where witness who was husband of one codefendant and
father of two others was compelled to invoke Fifth Amendment
privilege in front of jury).
                                                                  14


testimony.   The decision to deny the motion for a mistrial was

not outside the range of reasonable outcomes on the facts here.7

     2.   Motion to sever.   The defendant next argues that the

judge erred by not granting the defendant's pretrial motion to

sever the charges into four separate trials, one for each

victim.   The charges were joined as "related" under

Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979).     Offenses are

"related" if they are "based on the same criminal conduct or

episode or arise out of a course of criminal conduct or series

of criminal episodes connected together or constituting parts of

a single scheme or plan."    Rule 9(a)(1).   The purpose of the

rule is to promote judicial economy and efficiency, and to avoid

multiple similar trials and their concomitant burdens on

witnesses and the courts.    See Commonwealth v. Hoppin, 387 Mass.

25, 32 (1982); Commonwealth v. Hernandez, 473 Mass. 379, 394

(2015).   Related offenses accordingly "shall" be joined for

     7 The defendant argues that a mistrial was also required due
to a question the prosecutor asked on cross-examination of
Karen's sister (another of the defendant's daughters): "And you
know what [your mother] is charged with?", to which the sister
answered, "Yes." The question should not have been asked.
Indeed, it is difficult to understand how the prosecutor thought
it was proper to bring up pending, unproven, and unspecified
charges against the defendant's wife. The testimony does not
change our view, however, that a mistrial was not required. The
judge sustained an objection made immediately after the answer
was given, and no further questions were asked on the subject.
The testimony itself told the jury very little, even in context.
It was within the judge's discretion not to order a mistrial
based upon the testimony, either taken alone or in combination
with Karen's testimony.
                                                                   15


trial unless the judge "determines that joinder is not in the

best interests of justice."   Rule 9(a)(3).

    Our review of a judge's decision on a motion to sever is

for a "clear abuse of discretion."   Commonwealth v. Pillai, 445

Mass. 175, 180 (2005) (citation omitted).     "[T]o prevail on a

claim of misjoinder, the defendant 'bears the burden of

demonstrating that the offenses were unrelated, and that

prejudice from the joinder was so compelling that it prevented

him from obtaining a fair trial.'"   Id., quoting from

Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).

    There was no clear abuse of discretion here.     In

considering the question, we are guided by several prior

decisions of this court and the Supreme Judicial Court that have

allowed the joinder of charges involving multiple victims of

sexual offenses, against a single defendant.    See, e.g., Gaynor,

supra at 259-263; Pillai, supra at 179-184; Commonwealth v.

Souza, 39 Mass. App. Ct. 103, 110-112 (1995); Commonwealth v.

Torres, 86 Mass. App. Ct. 272, 275-276 (2014).     These cases

collectively identify the factors to consider in deciding

whether joinder is appropriate:   whether the victims were of

similar age and gender, or shared other characteristics; the

proximity in time of the assaults; and whether there were

similarities in the details of the crimes -- for example, in
                                                                   16


terms of location, the manner in which the defendant gained

access, or the acts themselves.

       The facts here fall comfortably within those cases that

have allowed joinders to stand.    Here, each of the victims was

one of the defendant's stepchildren or daughters, and the abuse

of each occurred within the defendant's home.   Each of the

victims was first assaulted at around the same age -- between

four and six years old -- and for each victim the assaults were

repeated over years.    And there were similarities, as well, in

the defendant's behavior both leading up to and during the

incidents; for example, the defendant often would find means to

isolate the child victims in a room in his home (such as the

basement) before beginning the assault.    Similar facts are

echoed in the cases that have previously upheld joinders of

charges involving multiple victims of sexual assault.    See

Souza, 39 Mass. App. Ct. at 111-112; Torres, 86 Mass. App. Ct.

at 276.

       In determining the propriety of joinder, one important

consideration is whether, if the cases were severed into trials

of individual victims, the testimony of the other victims of

assault nevertheless would have been admitted in each trial

regarding an individual victim.    See Souza, 39 Mass. App. Ct. at

111.   The question is material, because if the assaults on the

other victims would not have been admitted in the trials of an
                                                                  17


individual victim, the Commonwealth should not benefit from

joinder by thereby gaining the admission of otherwise

inadmissible evidence.

     We believe the testimony of each of the victims likely

would have been admissible at any individual trial.    Evidence of

prior bad acts may not be used to show bad character or the

general propensity to commit crime, but it may be admissible to

prove opportunity, intent, preparation, plan, knowledge, pattern

of operation, or common scheme or course of conduct, as long as

the probative value of the evidence is not outweighed by the

risk of unfair prejudice.   See Commonwealth v. Mazariego, 474

Mass. 42, 56 (2016); Mass. G. Evid. § 404(b) (2018).     Here,

there was sufficient identity of location, time periods,

relationships to the defendant, and similarities in the acts

charged such that the other assault evidence likely would have

been admissible to show a common pattern or course of conduct.

See Commonwealth v. King, 387 Mass. 464, 471-472 (1982)

(evidence of prior acts of sexual abuse, forming "temporal and

schematic nexus," properly admitted [citation omitted]).

     In short, the judge did not abuse his discretion in

refusing to sever these cases for trial, and we discern no

reversible error in the conduct of the trial, either.8


     8 The defendant also contends that the prosecutor, in
closing, improperly cited to certain testimony from the
                                                                 18


                                   Judgments affirmed.




defendant's son as evidence of the defendant's bad character.
There was no objection to the prosecutor's statement at trial,
however, and we find no substantial risk of a miscarriage of
justice in this case. See Commonwealth v. Brown, 479 Mass. 600,
609-610 (2018).

     To the extent we have not explicitly discussed them, we
have carefully considered the defendant's remaining arguments,
and we find them to be without merit.
