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11-P-1277                                                Appeals Court

                  COMMONWEALTH   vs.   JOSEPH ELLIOTT.


                             No. 11-P-1277.

            Essex.       January 7, 2015. - June 17, 2015.

             Present:    Kafker, Meade, & Maldonado, JJ.


Rape.  Indecent Assault and Battery. Practice, Criminal, Trial
     of indictments together, Severance, Argument by prosecutor,
     Defendant's decision not to testify, Instructions to jury,
     Presumptions and burden of proof, New trial, Interpreter.



     Indictments found and returned in the Superior Court
Department on April 30, 2008.

     The cases were tried before Maureen B. Hogan, J., and a
motion for a new trial was heard by her.


     James Vander Salm for the defendant.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


     KAFKER, J.      The defendant, Joseph Elliott, was indicted on

seven charges of rape and indecent assault and battery that

occurred within a one week time span against identical twin
                                                                        2


sisters, Karen and Mary.1,2    After a jury trial, the defendant

was convicted of two counts of rape and two counts of indecent

assault and battery against Karen and acquitted of the remaining

counts.

     The defendant appeals from the judgments and from the trial

judge's order denying his motion for new trial pursuant to

Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).       In

his direct appeal, the defendant contends that the trial judge

abused her discretion in denying his motion for severance, and

that the prosecutor's closing argument violated his

constitutional rights to due process and to remain silent.    The

defendant also claims that the judge abused her discretion in

denying his motion for a new trial.    The issue presented in that

motion was his claimed hearing impairment and whether the judge

provided adequate accommodations to address the defendant's

hearing difficulties.     We affirm.

     1.    Background.   The relevant evidence in this case comes

primarily from the testimony of Karen and Mary.     The sisters

testified that the defendant, a longtime family friend,

     1
         The sisters' names are pseudonyms.
     2
       The defendant was indicted for three counts of rape, in
violation of G. L. c. 265, § 22(b), and two counts of indecent
assault and battery, in violation of G. L. c. 265, § 13H,
against Karen. Regarding Mary, the defendant was indicted for
one count of rape, in violation of G. L. c. 265, § 22(b), and
one count of indecent assault and battery, in violation of G. L.
c. 265, § 13H.
                                                                   3


committed a series of sexual assaults against them in a span of

eight days in 2007, when the sisters were nineteen years old.

We briefly summarize their testimony, and reserve certain facts

for our discussion of the issues raised.

     The defendant first met Karen and Mary at church when the

sisters were children.   Over the years, the defendant became a

longtime friend of the family, and grew particularly close to

the sisters' mother.   The defendant often visited the family's

home.

     On July 31, 2007, the defendant called Karen and invited

her to come to Salem and clean his mobile home in exchange for

payment.   Karen accepted the invitation because she was

unemployed and needed money.   While Karen was cleaning the

mobile home, the defendant told her how beautiful she was and

how much he loved and cared for her.   Though Karen resisted his

advances, the defendant pushed her onto the bed, held her arms

behind her neck, removed her pants, and penetrated her vagina

with his penis.   After the incident, the defendant told Karen to

clean up in the shower, and he then drove her home.    Karen did

not tell her mother what happened that day because she "didn't

want to hurt her," as Karen was concerned her mother would blame

herself.   Karen later told Mary, "Joe raped me."3   Karen told her


     3
       Mary was the first complaint witness for the July 31,
2007, rape and sexual assault of Karen.
                                                                    4


sister not to tell her mother for the reasons discussed above,

and Mary agreed.

       On August 4, 2007, Mary was at home in her room, lying on

her bed, listening to her iPod.    The defendant arrived at the

house with his mother.    While the defendant's mother and the

sisters' mother had a conversation, the defendant went to Mary's

room.    After asking Mary how she was doing, the defendant

proceeded to hug Mary and kiss her on the lips.    Though Mary

backed away and told the defendant to stop, the defendant put

his hands on her breasts and then down her pants.    He then put

his fingers inside her vagina.    After the defendant stopped and

left the house, Mary told Karen what had happened.    Karen told

Mary she was not ready to tell their mother about her own rape.

Therefore, Mary did not tell their mother about her rape,

either.

       On August 7, 2007, the defendant again called Karen and

asked whether she would like to do some additional paid work for

him, this time at a house in Beverly.   Still in need of money,

Karen agreed to go.   After completing the work, Karen and the

defendant talked about Karen's family and payment for her work.

The defendant asked her to come upstairs and take a shower with

him.    She said no and when he went upstairs, she called Mary and

told her about the shower request and how uncomfortable she

felt.   Mary told Karen to have the defendant drive her home.
                                                                         5


The defendant returned downstairs and sat down next to Karen on

the couch.    While on the couch, the defendant put his arms

around Karen, told her to relax, and told her that he loved her.

At that point, he held Karen down as she tried to fight him off

and then put his hand down her jeans and in her vagina.        He also

put his hand on her breasts.     He next pulled down her jeans, and

while restraining her arms, inserted his tongue into her vagina.

During this altercation, Karen's cellular telephone (cell phone)

rang, and Karen answered.     Mary was calling and indicated that

she had told their mother about the defendant's sexual assaults

against both of them.     After the defendant spoke with their

mother on his own cell phone, he told Karen:

    "You can't do this to me. I loved you. I loved you your
    whole life. I thought you loved me. I tried being there
    for you and your sister. I don't want to go to jail. You
    can't do this to me. You have to lie. Tell them that I
    didn't do anything."

    2.     Discussion.   A.   Joinder.   Rule 9(a)(3) of the

Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979),

provides that "[i]f a defendant is charged with two or more

related offenses, either party may move for joinder of such

charges.     The trial judge shall join the charges for trial

unless he determines that joinder is not in the best interests

of justice."    The defendant alleges that the offenses regarding

Karen and Mary were improperly joined for trial.      "[T]he

decision whether to join offenses for trial is a matter left to
                                                                    6


the sound discretion of the judge," which will not be reversed

absent "'a clear abuse of discretion.'"    Commonwealth v. Pillai,

445 Mass 175, 179-180 (2005), quoting from Commonwealth v.

Walker, 442 Mass. 184, 199 (2004).    We conclude that the denial

of the defendant's motion for severance was proper.

    To prevail on a claim of misjoinder, the defendant must

demonstrate, first, "that the offenses were unrelated," and

second, "that prejudice from joinder was so compelling that it

prevented him from obtaining a fair trial."     Commonwealth v.

Pillai, 445 Mass. at 180, quoting from Commonwealth v. Gaynor,

443 Mass. 245, 260 (2005).    Commonwealth v. Aguiar, 78 Mass.

App. Ct. 193, 199 (2010).    The defendant fails to meet either

burden.

    When determining whether offenses are related for the

purpose of rule 9, a judge may consider a number of factors,

including "factual similarities between the offenses, . . .

whether the offenses were near to each other in time or place,

[and] whether the offenses sprang from the same cause or

motivation."   Commonwealth v. Gray, 465 Mass. 330, 335 (2013).

See Commonwealth v. Pillai, 445 Mass. at 180.    In light of the

facts that the sisters were identical twins, each of the seven

alleged offenses took place roughly within the span of one week,

and the Commonwealth's theory was that the defendant had

exploited his relationship of trust with the mother in order to
                                                                    7


gain access to the sisters, the judge properly concluded that

the offenses were related.   See Commonwealth v. Pillai, supra at

181-182; Commonwealth v. Aguiar, 78 Mass. App. Ct. at 201-202.

    The defendant also failed to demonstrate that he was unduly

prejudiced by the joinder.   The issue of prejudice largely turns

on whether evidence of the other offenses would be admissible in

separate trials on each offense.    See Commonwealth v. Wilson,

427 Mass. 336, 346 (1998); Commonwealth v. Zemtsov, 443 Mass.

36, 45 (2004).   Though "[i]t is settled that evidence of other

criminal conduct is inadmissible to prove the propensity of the

defendant to commit the indicted offense," Commonwealth v.

Mamay, 407 Mass. 412, 417 (1990), such evidence is permissible

to "show a common scheme, pattern of operation, absence of

accident or mistake, identity, intent, or motive."   Ibid.,

quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).

In the instant case, the common scheme to exploit the mother's

trust and the common sexual attraction to the twins was well

established.   Additionally, the testimony of either victim would

be admissible in the other's trial as a first complaint witness,

and was relevant to the timing of the disclosure of each

sister's rape, given that (1) Mary waited to disclose out of

consideration for Karen, and (2) Mary's eventual disclosure

triggered Karen's own disclosure.    See Commonwealth v. Aguiar,

78 Mass. App. Ct. at 203 (one victim's disclosure resulted from
                                                                      8


having overheard conversations concerning other victim's

disclosure).    See also Commonwealth v. Pillai, 445 Mass. at 178,

183 & n.11 (joinder proper where first victim's disclosure

prompted second victim to disclose).     Moreover, the defendant's

acquittal on three of the charges suggests that he was not

unduly prejudiced by the joinder.    See Commonwealth v. Green, 52

Mass. App. Ct. 98, 103 (2001); Commonwealth v. Aguiar, supra at

204.

       B.   Prosecutor's closing argument.   The defendant next

asserts that the prosecutor used his closing argument to comment

on the defendant's decision not to testify and shifted the

burden of proof to the defendant, thereby infringing on the

defendant's constitutional rights to due process and not to

testify.    The issue was properly preserved.   After reviewing the

prosecutor's remarks "in light of the 'entire argument, as well

as in light of the judge's instruction[s] to the jury and the

evidence at trial,'" Commonwealth v. Johnson, 463 Mass. 95, 111

(2012), quoting from Commonwealth v. Rodriguez, 437 Mass. 554,

565 (2002), we discern no error.

       Under both the Fifth and Fourteenth Amendments to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights, the prosecution is forbidden to comment

on a defendant's decision not to testify at trial or to imply

that the defendant's silence is evidence of guilt.     See Griffin
                                                                    9


v. California, 380 U.S. 609, 611-615 (1965); Commonwealth v.

Hawley, 380 Mass. 70, 88 (1980).   Similarly, a defendant has the

right not just to remain silent, but "to remain passive, and to

insist that the Commonwealth prove its case beyond a reasonable

doubt without explanation or denial by him."   Commonwealth v.

Grant, 418 Mass. 76, 83 (1994), quoting from Commonwealth v.

Madeiros, 255 Mass. 304, 307 (1926).   In the case at bar, the

prosecutor began his closing argument by stating:

    "I thought when he said he wanted to talk, he was going to
    apologize for what he did before. Was [Karen] naive [and]
    foolish? You betcha. But was she lying to cover up a
    consensual sor[did] affair with this guy? Forget about it.
    Where's the evidence that this was a consensual affair?
    Where was it presented in this courtroom? There's nothing,
    nada, zip, zilch, zero evidence that this was consensual.
    Now, the defendant doesn't have to prove anything. The
    defendant doesn't have to put on a case. It's the
    Commonwealth's burden to prove beyond a reasonable doubt
    that the defendant is guilty. And I cherish that burden,
    and I would suggest to you I lived up to that burden in
    this case." (Emphasis added.)

    While it is impermissible for a prosecutor to comment on a

defendant's failure to testify or to make statements that shift

the burden of proof from the Commonwealth to the defendant, "[a]

prosecutor is entitled to emphasize the strong points of the

Commonwealth's case and the weaknesses of the defendant's case,

even though he may, in so doing, prompt some collateral or

passing reflection on the fact that the defendant declined to

testify."   Commonwealth v. Nelson, 468 Mass. 1, 12 (2014),

quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).
                                                                    10


After reviewing the remark in context, we are satisfied that the

prosecutor's closing argument was permissible.   The prosecutor

immediately followed up the challenged remark by confirming that

the defendant had no duty to produce evidence at trial.   This

undercuts any possibility that the jury would interpret his

remark as an improper comment on the defendant's failure to take

the stand or produce further evidence.   See Commonwealth v.

Pena, 455 Mass. 1, 19 (2009).

    In addition, the judge gave "clear, strong, and correct

instructions," Commonwealth v. Nelson, 468 Mass. at 13 (other

citation omitted), regarding both the Commonwealth's burden and

the defendant's right not to testify or present evidence.     The

judge's thorough instructions adequately cured any potential

prejudice posed by the prosecutor's remarks.   See Commonwealth

v. Pena, 455 Mass. at 20; Commonwealth v. Tu Trinh, 458 Mass.

776, 788 (2011); Commonwealth v. Nelson, 468 Mass. at 13.

Compare United States v. Skandier, 758 F.2d 43, 45 (1st Cir.

1985) (judge's instructions cured only one of "double barreled"

dangers posed by prosecutor's remark).

    C.   Motion for new trial.   The defendant argues that he is

entitled to a new trial because the trial judge failed to ensure

that his hearing difficulties were adequately accommodated,

thereby violating his State and Federal constitutional rights

and his rights under G. L. c. 221, § 92A.   For the reasons
                                                                  11


stated below, we conclude that the denial of the defendant's

motion for a new trial was proper.

    Pursuant to Mass.R.Crim.P. 30(b), a trial judge "may grant

a new trial at any time if it appears that justice may not have

been done."   In the instant case, at the request of both

parties, the motion was decided by the trial judge based on the

trial record and the affidavits provided, without an evidentiary

hearing.   We defer to the judge's factual findings, Commonwealth

v. Scott, 467 Mass. 336, 344 (2014), and evaluate the judge's

denial of the defendant's motion for a new trial "only to

determine whether there has been a significant error of law or

other abuse of discretion." Commonwealth v. Acevedo, 446 Mass.

435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass.

303, 307 (1986) (deferential review where motion judge, who was

also trial judge, held nonevidentiary hearing on motion for new

trial).

    i.     Rights of deaf and hearing-impaired persons.   In

accordance with Massachusetts statutory requirements and the

principles of due process, deaf and hearing-impaired persons are

entitled to court-provided accommodations to address their

hearing loss.   As acknowledged by the trial judge and the

Commonwealth in its brief, a defendant's hearing abilities also

implicate his constitutional rights to be present at trial, to

consult with his lawyer, to confront witnesses against him, and
                                                                   12


to testify.   Cf. United States v. Carrion, 488 F.2d 12, 14 (1st

Cir. 1973), cert. denied, 416 U.S. 907 (1974).   In addition to

constitutional considerations, statutory protections for deaf

and hearing-impaired defendants, at least in regard to sign-

language interpreters, are set forth in G. L. c. 221, § 92A.

Section 92A, as amended by St. 1983, c. 585, § 9, provides that

"[i]n any proceeding in any court in which a deaf or hearing-

impaired person is a party or a witness, . . . such court . . .

shall appoint a qualified interpreter to interpret the

proceedings."   Though the phrase "hearing-impaired" is not

defined by either statute or case law, G. L. c. 6, § 191,

inserted by St. 1985, c. 716, § 2, defines the comparable term

"hard of hearing" as "a condition of or person with some absence

of auditory sensitivity with residual hearing which may be

sufficient to process linguistic information through audition

with or without amplification under favorable listening

conditions, or a condition of or person with other auditory

handicapping conditions."   See Commonwealth v. Smith, 431 Mass.

417, 420 (2000) (when interpreting undefined statutory terms, it

is permissible to reference language from other statutes).

    During jury empanelment, defense counsel requested

equipment to assist with the defendant's hearing difficulties:

    Defense counsel: "Can I just bring up one other matter I
    forgot? He has some hearing difficulties. He's not deaf
    or anything like that. But when he testifies, I worry
                                                                   13


    about him hearing questions. Could I request -- I know
    there are usually standard hearing apparatus. I never made
    the request in advance.
    Prosecutor: "(inaudible)."
    Defense counsel: "I'll check. I don't need it now. But
    just once it gets going."
    The court: "Okay."

This brief exchange was the full extent of any discussion during

trial relating to the defendant's hearing problems.   As the

judge explained in her memorandum of decision and order on

defendant's motion for new trial, "The court did not deny his

request [for a hearing apparatus] but allowed it.   Defense

counsel was referred to the clerk and court officers to obtain

such equipment."   The trial judge's allowance of that request

was proper.   Had she denied the request, such denial, at least

without further proceedings to confirm the defendant's hearing

abilities, would have been improper.

    In his motion for a new trial, the defendant alleged that

after his trial counsel was referred to the court officers to

obtain hearing assistance equipment, he was told that the

equipment was not available.   The judge expressly rejected this

contention, which was contradicted by the court officers, whose

affidavits she credited.   See Commonwealth v. Buckman, 461 Mass.

24, 43 (2011) ("A judge is not required to credit assertions in

affidavits submitted in support of a motion for a new trial, but

may evaluate such affidavits in light of factors pertinent to

credibility, including bias, self-interest, and delay");
                                                                    14


Commonwealth v. Wen Chao Ye, 52 Mass. App. Ct. 850, 860 (2001)

("The credibility, weight, and impact of the affidavits in

support of the motion were matters left to the discretion of the

trial judge" deciding the new trial motion).    The court

officers' affidavits stated that the defendant never requested

such equipment and if such equipment had been requested, it

would have been provided because the equipment was available.

The judge further explained that the defendant was represented

by experienced counsel, who would have objected to the failure

to provide the necessary equipment had it been denied by the

court officers after the judge allowed counsel's request.

         The defendant further asserts that he was not able to hear

the sisters' testimony at trial, and was thus unable to

effectively assist his counsel in confronting those witnesses,

in violation of his rights under Sixth and Fourteenth Amendments

to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights.     Again, the judge's

findings of fact reject this contention.     The judge found that

though the defendant does suffer from some hearing loss,4 this



     4
       In connection with his motion for new trial, the defendant
submitted the results of several hearing tests for the trial
judge's consideration. Based on tests conducted prior to the
date of trial, the judge found that the defendant suffered from
"mild 30 db hearing loss in his right ear." The judge
discredited later tests conducted after the defendant filed his
motion for new trial due to the subjective nature of such tests,
                                                                    15


did not prevent him from hearing testimony and effectively

communicating at trial.   The judge emphasized that the courtroom

was equipped with microphones that amplified the testimony and

both attorneys had loud voices and spoke loudly.     She also

observed the defendant over the course of five days of trial,

during which he did not show any indication that he had any

difficulty hearing witness testimony, the questions of the

lawyers, or the judge.    The judge observed that the defendant

consulted with his lawyer and managed to communicate effectively

with the judge both during a colloquy regarding his decision not

to testify and during sentencing.   These findings of fact are

supported by the trial record, and the judge's credibility

findings are final.   See Commonwealth v. Buckman, 461 Mass. at

43; Commonwealth v. Scott, 467 Mass. at 344.     Finally, the

defendant claimed that his decision not to testify was

influenced by his fear that he would be unable to hear the

questions put to him on cross-examination.     The judge likewise

rejected this contention, finding it not credible.     She relied

in part on an affidavit of the assistant district attorney who

asked defense counsel whether the defendant would be testifying

and was told by defense counsel, "No, not after he saw what you

did to his sister" during cross-examination.



and the defendant's motivation to exaggerate his claim of
hearing loss after trial.
                                                                  16


    ii.   Further judicial intervention.    The defendant suggests

that the judge nonetheless violated his constitutional and

statutory rights by not doing more on her own during trial,

without any request from counsel.    We disagree.   The judge's

findings of fact are dispositive.    The defendant never requested

the communication access real-time translation (CART) equipment

from the court officers, and had he done so, the CART equipment

would have been provided.   To obtain further action by the

judge, defense counsel must bring the defendant's hearing

difficulties to the judge's attention or the circumstances at

trial must make it clear that additional judicial intervention

is necessary.   See Crivello v. All-Pak Mach. Sys., 446 Mass.

729, 733-734 (2006) (defendants did not request interpreter and

circumstances at trial did not indicate that defendants required

interpreter); United States v. Carrion, 488 F.2d at 15 (judicial

intervention required when court put on notice that defendant

may be experiencing "significant language difficulty"); United

States v. Barrios, 457 F.2d 680, 682 (9th Cir. 1972) (lack of

judicial intervention not abuse of discretion if need for

interpreter not apparent and services not requested).    Under

either scenario, the judge must be put on notice.    Such was not

the case at the defendant's trial.

    The defendant has not shown that the judge had any reason

to suspect that he was unable to hear witnesses or participate
                                                                    17


in his defense.   Nothing during trial alerted the judge to any

hearing problems the defendant might be experiencing.     Defense

counsel, who was in the best position to know about his client's

hearing difficulties at trial, raised no objections.    Thus, we

are not persuaded by the defendant's argument that the judged

erred by not doing more.

     The defendant makes much of the language in G. L. c. 221,

§ 92A, which provides in pertinent part that the rights provided

by the statute for interpreters for deaf and hearing-impaired

persons may not be waived unless the waiver is knowingly,

voluntarily, and intelligently made in writing, by the deaf or

hearing-impaired person themselves.5   At the outset we note that

the express rights provided by § 92A refer to qualified

interpreters,6 not the CART services which the defendant on

appeal claims he was entitled to, and the defendant here does


     5
       The statute states that the judge "shall appoint a
qualified interpreter to interpret the proceedings, unless such
deaf or hearing-impaired person knowingly, voluntarily, and
intelligently waives, in writing the appointment of such
interpreter. Such waiver is subject to the written approval of
counsel where such deaf or hearing-impaired person is being
represented by counsel. In no event shall the failure of the
deaf or hearing-impaired person to request an interpreter be
deemed a waiver of such appointment."
     6
       The statute defines "[q]ualified interpreter" as "a person
[who is] skilled in sign language or oral interpretation and
transliteration, has the ability to communicate accurately with
a deaf or hearing-impaired person and is able to translate
information to and from such hearing-impaired person." G. L.
c. 221, § 92A.
                                                                 18


not know sign language and did not seek sign language

assistance.   Regardless of whether § 92A is limited to sign

language interpreters,7 the judge did not treat the claim as

waived.   Rather, she concluded that (1) she initially granted

the defendant's request for CART assistance in the event he

needed it, (2) the defendant chose not to request the CART

equipment as he was able to hear the testimony and participate

in his defense and chose not to testify for other reasons, and

     7
       Limiting § 92A to sign language interpreters would appear
to defeat the "over-all objective" of G. L. c. 221, § 92A, see
Sellers's Case, 452 Mass. 804, 810 (2008), namely, to ensure
that deaf and hearing-impaired persons can understand and fully
participate in the legal proceedings in which they are involved.
The original version of the statute, St. 1971, c. 459, granted
deaf persons a right to a "qualified interpreter," but did not
define that term. The term was first defined in an amendment to
the statute in 1983, see St. 1983, c. 585, § 9, before modern
technology-based interpretation services were available.

     Moreover, the Massachusetts Commission for the Deaf and
Hard of Hearing (MCDHH), which works directly with the
Administrative Office of the Trial Courts to address
communication access needs within Massachusetts courts, already
provides CART and other noninterpreter services for deaf and
hard-of-hearing persons. Similar to G. L. c. 221, § 92A, the
statute that governs the function of the MCDHH, G. L. c. 6,
§ 194, inserted by St. 1985, c. 716, § 2, states that the MCDHH
will provide services to the deaf and hard-of-hearing community,
including "interpreter services." This phrase has been broadly
construed by the MCDHH to mean "any assistive communication
service that enables a deaf or hard of hearing individual to
participate in communication at a level comparable to that of a
hearing person."

     Given the changing landscape of services available to deaf
and hard-of-hearing persons, as well as the already available
administrative support within our courts for services other than
interpreters, we see no reason to limit the scope of services
available under § 92A.
                                                                 19


(3) his hearing difficulties were exaggerated in connection with

the motion for new trial.

    3.   Conclusion.   For the reasons stated above, we affirm

the convictions and the order denying the defendant's motion for

a new trial.

                                   So ordered.
