Heard: March 2, 2018.
found and returned in the Superior Court Department on April
19, 2013, and June 6, 2014.
cases were tried before Richard T. Tucker, J.
Michael L. Tumposky (Andrew Courossi also present) for the
Nathaniel R. Beaudoin, Assistant District Attorney, for the
Present: Wolohojian, Massing, & Englander, JJ.
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.
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
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.
Maria. 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
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.
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.
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.
Karen  and the motion for a mistrial.
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?"
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 ...