MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant, Hermano Joseph, of two counts of indecent assault and battery, G. L. c. 265, § 13H, one count of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), one count of assault and battery, G. L. c. 265, § 13A (a), and one count of threatening to commit a crime, G. L. c. 275, § 2. On appeal, the defendant advances three related claims: (1) evidence of uncharged misconduct allowed the jury to engage in impermissible propensity reasoning; (2) the admission of hearsay statements by codefendants or others violated his constitutional confrontation right under Bruton v. United States, 391 U.S. 123 (1968) (Bruton); and (3) the judges failure to sever his trial sua sponte resulted in a substantial risk of a miscarriage of justice. We affirm.
Background. The defendant is a former staff member at Casa Isla, a detention facility operated by the Department of Youth Services. The Commonwealth charged the defendant and five other staff members with forty-one total crimes that allegedly occurred at Casa Isla between November 2013 and August 2014.
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Some of these charges stemmed from assaults perpetrated against Casa Isla residents known as “orange chicken[s].” An orange chicken assault occurred when, after ordering a resident to lie face down on the floor and remove their pants, a staff member struck the bare buttocks of the resident with an orange-soled sandal.
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Discussion. 1. Evidence of uncharged misconduct. The defendant first contends that it was error to allow testimony relating to other uncharged orange chicken assaults as that testimony constituted improper propensity evidence. He also claims that the judges instructions to the jury compounded the issue because the instructions were “self-contradictory.” We disagree.
“It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404 (b) (2021). Evidence of a prior bad act “may be admissible, however, so long as it is relevant for some other proper purpose and its probative value is not substantially outweighed by the risk of prejudice to the defendant.” Commonwealth v. Andre, 484 Mass. 403, 414 (2020). One such purpose is to show a “common scheme, [or] pattern of operation.” Helfant, supra. “We review a judges evidentiary rulings for an abuse of discretion,” Andre, supra, and we review the defendants claim for prejudicial error because he opposed the Commonwealths motion seeking to admit other act evidence. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
The evidence of orange chicken assaults perpetrated by other defendants was relevant to show a pattern of conduct by staff members at Casa Isla. See Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009). Further, other evidence of uncharged assaults was relevant to explain why the victims themselves participated in orange chicken assaults, and to show the victims’ initial reluctance to disclose such assaults.
The thrust of the defendants argument with respect to the jury instructions is that the judges failure to explain the difference between a common scheme or pattern of conduct and the elements of joint venture or conspiracy caused the jury to engage in propensity reasoning.
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To the contrary, the judge provided limiting instructions regarding evidence of uncharged conduct during the testimony of a number of witnesses. In his final charge to the jury, the judge instructed the jurors that they “should not speculate about the outcome of [other] defendants or other charges,” and that “evidence of other acts or conduct is admitted for a limited purpose, to show perhaps a common scheme or a pattern of conduct or mode of discipline within the program, but not as any evidence of bad character ․ nor as evidence showing any propensity to commit the crime charged.” The jury were frequently instructed to consider evidence presented against each defendant only against that defendant. Any prejudice that the defendant suffered as a result of the evidence of uncharged assaults was tempered by these instructions, which we presume the jury followed. Commonwealth v. Bryant, 482 Mass. 731, 737 (2019).
2. Admission of hearsay statements. The defendant next contends that statements attributed to unidentified staff members or other defendants that related to orange chicken assaults constituted inadmissible hearsay and otherwise violated his right to confrontation under Bruton.
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We disagree.
“Introduction of a nontestifying codefendants extrajudicial statement that is ‘powerfully incriminating’ as to another codefendant violates a defendants right to confront the witnesses against him under the Sixth Amendment to the United States Constitution.” Commonwealth v. Santos, 463 Mass. 273, 292 (2012), quoting Bruton, 391 U.S. at 135-136. The defendants claim fails because the challenged statements attributed to other codefendants were not “powerfully incriminating.” Indeed, they neither mentioned the defendant by name nor implicated him in the commission of orange chicken assaults. See Commonwealth v. Keevan, 400 Mass. 557, 569-570 (1987). See also Commonwealth v. Gallett, 481 Mass. 662, 676 (2019) (“ ‘[P]owerfully incriminating’ statements include not only direct mention of a named codefendant, but also substitutions such as use of the word ‘deleted’ or some other symbol in place of the codefendants name, where the jury will realize that the statement obviously refers to and implicates a specific codefendant”).
To the extent the defendant argues that the challenged statements implicated him in a “common scheme” or “pattern of conduct,” any prejudice he suffered was alleviated by the confluence of two factors. First, the Commonwealth presented direct evidence that the defendant himself participated in the commission of an orange chicken assault. See Commonwealth v. Caillot, 454 Mass. 245, 257 (2009). Second, the judge instructed the jury that they could not consider statements by a particular defendant as evidence against any other defendant. See Keevan, 400 Mass. at 570 (“absent any direct inculpation, an appropriate instruction is sufficient to obviate Bruton concerns”).
3. Severance. Finally, the defendant claims, for the first time on appeal, that the judge was required to sua sponte sever his case in light of issues presented by his other appellate claims. We disagree.
Pursuant to Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979), two or more offenses may be joined if they are “related offenses ․ based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.” “Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice time and energy to serve upon juries, and avoids the necessity of recalling witnesses to successive trials.” Commonwealth v. Moran, 387 Mass. 644, 658 (1982). “The decision whether to sever usually rests within the sound discretion of the trial judge.” Commonwealth v. Dickerson, 17 Mass. App. Ct. 960, 960 (1983).
Here, the charged crimes were sufficiently related to warrant joinder. Each defendant was charged with crimes allegedly committed against certain residents of Casa Isla between November 2013 and August 2014. The crimes were part of a continuing course of abusive conduct by the staff members, and many charges related to the distinctive orange chicken assaults. See Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005) (“[O]ffenses are related if the evidence in its totality shows a common scheme and pattern of operation that tends to prove all the indictments” [quotation and citation omitted]). Even if the defendants case should have been severed based on a lack of relatedness among the charges, he has not shown prejudice “so compelling that it prevented him from obtaining a fair trial.” Commonwealth v. Wilson, 427 Mass. 336, 346 (1998). As described previously, the judge instructed the jury not to consider the charges as propensity evidence and to consider each charge independently. See Commonwealth v. Gray, 465 Mass. 330, 336, cert. denied, 571 U.S. 1014 (2013). Because there was no error in trying the defendants together, there was no substantial risk of a miscarriage of justice.
Judgments affirmed.
FOOTNOTES
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. All six defendants were tried together.
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. For his participation in the orange chicken assaults, the defendant was charged with two counts of assault and battery by means of a dangerous weapon -- count four and count five. The judge entered a finding of not guilty on count five.
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. The Commonwealth did not proceed against the defendants on a theory of joint venture liability.
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. While the defendant provides numerous transcript citations identifying the allegedly improper statements, it does not appear that he properly objected to their admission at trial. We consider whether the admission of the now-challenged statements resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Goodman, 54 Mass. App. Ct. 385, 392 (2002). Even if our review was for prejudicial error, however, the result would remain the same because there was no error.