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Commonwealth v. Ramos5/3/2005
There is no bright-line rule concerning the admission of such evidence; rather, its admission is determined on a case-by-case basis. Commonwealth v. Butler, supra at 844. A judge should not admit prior bad acts evidence if it is outweighed by unfair prejudice to the defendant. Commonwealth v. Fordham, 417 Mass. 10, 22 (1994). Ultimately, it is "a determination for the judge to make and one which we do not disturb unless, in our judgment, it is palpably wrong." Ibid.
Contrary to the defendant's arguments, we agree with the judge that the evidence was "appropriate to show a plan or pattern as well as the absence of mistake." Typically, our review would end here, discerning no error. Cf. Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995) (common scheme and pattern of operation, by defendant karate teacher, to induce twelve to seventeen year old male victims' cooperation and submission to his desire for sexual activity). Compare Commonwealth v. Jacobs, 52 Mass. App. Ct. 38 (2001).
What is troubling here is that evidence of plan, prior pattern, etc., was already adequately, if not overwhelmingly, established via the testimony of the eight victims, all of whose cases were appropriately joined for trial. It is thus difficult to discern how the probative value of the five prior bad act witnesses added anything of consequence.
That being said, it is also clear that the judge assiduously instructed the jury, see Commonwealth v. McGeoghean, 412 Mass. 839, 842 (1992), which took those instructions to heart, as evidenced by its split verdict. See Commonwealth v. Walker, 442 Mass. at 202-203. Under these circumstances, the defendant is unable to demonstrate sufficient prejudice to warrant reversal of his convictions.
Sentencing
The defendant claims that his prison sentence was improperly motivated by conduct for which he was not convicted. He alleges that the judge improperly (a) took into account the five noncomplainant witnesses at sentencing; and (b) adopted the Commonwealth's recommendation in its sentencing memorandum, which also improperly referred to the five women.
Read in context, however, it appears clear that the judge appropriately took all proper factors into consideration in sentencing the defendant. The judge did not impose sentence until approximately one month post-verdict, giving the parties and probation an opportunity to prepare sentencing memoranda. At the outset of the hearing, when the Commonwealth offered both oral testimony and the victim impact statements from the five prior bad acts witnesses, the court rejected the offer. The judge stated that the defendant was being punished for the crimes against the complainants, and we can find no evidence to the contrary. Finally, given that the judge could have given far harsher sentences on the thirteen convictions, rather than the many concurrent sentences, it is evident that the defendant was not unfairly sentenced. Compare Commonwealth v. Henriquez, 440 Mass. 1015, 1015-1016 (2003). See also Commonwealth v. Soto, 45 Mass. App. Ct. 109, 115 n.7 (1998) (adoption of prosecutor's recommended sentence not improper unless the judge accepts faulty reasoning behind those recommendations).
Judgments affirmed.
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