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Commonwealth v. Rios

Appeals Court of Massachusetts, Middlesex

November 12, 2019


          Heard: November 14, 2018.

          Indictments found and returned in the Superior Court Department on February 7, 2012. The cases were tried before Heidi E. Brieger, J.

          Michael P. Gerace for the defendant.

          Emily Kathleen Walsh, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Blake, & Neyman, JJ.

          AGNES, J.

         A Superior Court jury found the defendant, Edgardo Rios, guilty on two indictments charging rape of a child by force, G. L. c. 265, § 22A, two indictments charging aggravated rape of a child, G. L. c. 265, § 23A, one indictment charging indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, and assault with intent to rape a child, G. L. c. 265, § 24B, as a lesser included offense of aggravated rape of a child (indictment one), [1] The defendant raises numerous claims of error. We vacate the judgment on indictment one, and affirm the judgments on the remaining indictments.

         Background. We summarize the evidence presented at trial, reserving certain details for the discussion of specific issues. The victim was eleven years old at the time of trial in 2014 and between eight and nine years old at the time described in the indictments. The defendant and the victim's mother met through church in 2005, and later reconnected in 2010 or 2011. Upon reconnecting, the defendant began assisting the mother by driving her places -- including to appointments, stores, and church -- as the mother did not have a car. The mother would assist the defendant by translating things into English. Through this relationship the defendant and the mother became friends, and the defendant came to know the victim and the victim's two siblings. The defendant would sometimes be invited to the mother's house and other times would just arrive unannounced.

         The victim made her first complaint of abuse on January 7, 2012. On that date, the mother hosted a birthday party for her godson at her house. That morning, she called the defendant for a ride to get a cake and other items for the party. He agreed to do so and spent most of the day with the mother and the victim. During the party, Jacqueline Flores, a friend of the mother who had never met the defendant, observed the defendant sitting alone with the victim in the living room. She saw the defendant touch the victim "[i]n her private part" or vaginal area while the victim was playing with the defendant's laptop. When the defendant left the party, Flores, who testified as the first complaint witness, questioned the victim about what had occurred, and the victim admitted that she had been touched in her private part.

         At trial, the victim testified to several incidents of abuse. According to the victim's testimony, some of these incidents occurred only once and others recurred. The victim testified to one incident that occurred at her mother's house while playing on the defendant's laptop where the defendant touched her private part on top of her clothes. While this testimony was similar to the conduct observed by Flores on January 7, 2012, the victim testified that this occurred on a different occasion.

         The victim also testified to abuse occurring in the defendant's van. She testified that on one occasion when the defendant was giving her a ride to school, he touched her front private part and inserted his index finger in her butt. She also testified to a separate occasion in the defendant's van where the defendant rubbed his hand on her front private part when taking the victim to see the Lowell Christmas tree.

         The victim further testified that on more than one occasion at the defendant's house on his bed he inserted his tongue in her butt. Finally, the victim testified that on one occasion at the defendant's house the victim returned from the bathroom to find the defendant with his pants down and "balls" exposed. On this occasion, the victim testified that the defendant tried to get near her by trying to go to her front private part while her pants were down but was unable to do so because she kicked out in his direction.


         On appeal, the defendant argues that (1) the trial judge improperly refused to excuse a juror for cause; (2) two of the convictions are duplicative of convictions on greater offenses and should be vacated; (3) the trial judge erroneously instructed the jury concerning (a) collective memory and (b) specific unanimity, and (c) improperly declined to instruct the jury on lesser included offenses. The defendant also contends that (4) the prosecutor made improper statements in closing argument.

         1. Jury empanelment.

         The defendant contends that the judge erred by not striking a juror for cause. The judge first arranged for the prospective jurors to answer questions in writing and under oath that were contained in a written "worksheet." These questions included those that must be asked in every case, see Mass. R. Crim. P. 20 (b), 378 Mass. 889 (1979), [2] as well as other questions that were suggested by the parties based on the nature of the offenses charged -- sexual offenses against a child.

         The judge then commenced an individual voir dire of each prospective juror in open court and in the presence of the defendant, but out of the hearing of other prospective jurors. See Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994) (acting under general superintendence powers, Supreme Judicial Court ordered that in cases involving sexual offenses against minors, judge must upon request question each potential juror individually about whether potential juror was victim of childhood sexual offense). The judge on her own excused the first potential juror, who taught at a school that recruited "highly court involved youth" and who was associated with a group that "gives emotional support to people who have been accused." The juror stated that it would be "very hard" for her to be fair and impartial. When questioned further by the judge, the prospective juror said she "would try" to be fair and impartial, "would try" to decide the case based only on the law and the evidence, and agreed with the judge's assessment that she could not give those questions a "yes" or "no" answer. The judge appropriately exercised her discretion and excused this juror for cause.[3]

         The second juror to be individually questioned reported that she was the victim of a violent crime as a result of having been kidnapped in Brazil. "I don't know how -- you know, I'll try to be impartial. I don't know how much that would affect throughout the process." She also said, "[B]eing a mother of young kids, I think that plays a role in terms of, you know, the case." The judge reviewed with this juror each of the questions on her confidential juror questionnaire in which she expressed a reservation about whether she could be fair and impartial.[4] When asked by the judge if she could put her personal experiences aside, listen to the evidence fairly and impartially, and render a verdict, she responded, "I'll do it to the best of my ability." The judge inquired further, learning that the juror's husband was with her when she was kidnapped, and again asked the potential juror if she could be fair and impartial, whereupon she stated, "I'll do the best of my ability." And, following a further inquiry by the judge about her ability to put aside her personal experiences and to be fair and impartial, the prospective juror stated, "I'll do it to the best of my ability."

         The defendant challenged this juror for cause, arguing that prior to the voir dire the prospective juror stated in several places in her juror questionnaire that she could not be fair and impartial. The judge rejected the defendant's challenge, noted his objection, and found that this prospective juror could be fair and impartial. The defendant then used a peremptory challenge to remove this prospective juror from consideration, and the judge excused her.

         Although the juror in question was not among the deliberating jurors, the judge's finding that the juror was indifferent and thus eligible to sit on the jury required the defendant to use his final peremptory challenge. The defendant contends that he was prejudiced by being forced to accept another juror (second juror) who was called to sidebar for a voir dire after the juror in question; the defendant unsuccessfully challenged the second juror for cause, and he otherwise would have removed the second juror by using a peremptory challenge.[5] See Commonwealthv.McCoy, 456 Mass. 838, 842 (2010) ("prejudice generally is shown by the use of a peremptory challenge to remove the juror who allegedly should have been excused for cause together with evidence ...

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