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.
Kathleen Walsh, Assistant District Attorney, for the
Present: Agnes, Blake, & Neyman, JJ.
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),  The defendant raises numerous claims
of error. We vacate the judgment on indictment one, and
affirm the judgments on the remaining indictments.
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.
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.
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.
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.
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.
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.
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),
as well as other questions that were suggested by the parties
based on the nature of the offenses charged -- sexual
offenses against a child.
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.
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. 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."
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.
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. 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 ...