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Commonwealth v. Elliott

Appeals Court of Massachusetts, Essex

June 17, 2015

Commonwealth
v.
Joseph Elliott

 Argued January 7, 2015

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

Page 521

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.

Present: Kafker, Meade, & Maldonado, JJ.

OPINION

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 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 a 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, 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 telephoned Karen and invited her to come to Salem and clean his mobile home in exchange for pay-

Page 522

ment. 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 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 telephoned 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 telephoned Mary and told her about the shower request and how uncomfortable she felt. Mary told Karen to have the defendant drive her home. 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 ...


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