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Commonwealth v. Silva

Appeals Court of Massachusetts, Worcester

July 20, 2018

COMMONWEALTH
v.
CARLOS SILVA.

          Heard: March 2, 2018.

         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.

          Present: Wolohojian, Massing, & Englander, JJ.

          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, 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.

          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.

         ii. Karen [2] 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 ...

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