Commonwealth v. Oppenheim

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12-P-1673 Appeals Court

COMMONWEALTH vs. DAVID OPPENHEIM.1

No. 12-P-1673.

Hampshire. May 9, 2014. - September 24, 2014.

Present: Cohen, Sikora, & Agnes, JJ.

Evidence, Admissions and confessions, Authentication,
Credibility of witness, Cross-examination. Practice,
Criminal, Admissions and confessions, Instructions to jury,
Reasonable doubt. Jury and Jurors. Witness, Credibility,
Cross-examination.

Indictments found and returned in the Superior Court
Department on July 13, 2010.

The cases were tried before Mary-Lou Rup, J.

David J. Nathanson (Dan A. Horowitz with him) for the
defendant.
Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.

SIKORA, J. A Superior Court jury convicted the defendant,

David Oppenheim, of five counts of rape of a child. See G. L.

1
Justice Sikora participated in the deliberation on this
case and authored the opinion prior to his retirement.
2

c. 265, § 23. He appeals upon multiple grounds, but argues

principally that the trial judge should have instructed the jury

that, before they could consider a confession contained in an

instant message (IM) conversation,2 the Commonwealth needed to

prove beyond a reasonable doubt that the defendant authored the

confession. For the following reasons, we affirm.

Background. 1. Commonwealth's evidence. From the

Commonwealth's main witnesses, the jury heard the following

evidence. We reserve certain details for discussion of the

appellate issues. In 2002, the defendant and his wife founded a

community theater enterprise entitled the Pioneer Arts Center of

Easthampton (PACE or the center). As the center's chief

executive, the defendant directed musical theater and taught

acting classes.

The victim, Ann Ross,3 testified at length. She first

attended PACE activities in the fall of 2004 at the age of

thirteen. She remained actively involved at the center over the

next four years. She first performed volunteer and intern

2
Instant messaging is "a form of computer communication in
which individuals hold an online conversation via the
[I]nternet. . . . [The] message is transmitted instantaneously
. . . allow[ing] both parties . . . to respond immediately."
Commonwealth v. Disler, 451 Mass. 216, 218 n.3 (2008), quoting
from State v. Lott, 152 N.H. 436, 437 (2005).
3
A pseudonym.
3

chores, then took acting lessons, and ultimately assumed

significant roles in musical productions.

In the fall of 2005, when she was fourteen years old, Ross

accepted the defendant's offer of private acting lessons. The

classes usually took place in the defendant's office or the

theater. The defendant told Ross that, to improve her acting

skill, she needed to experience physical sensations beyond the

knowledge of her age group. He rubbed her arms and kissed her

lips, face, and neck. He told her that she was "really

talented," that she was "going to go far[,] and that he was

going to make sure that that happened." He instructed her not

to tell anybody about their lessons because "society doesn't

understand what I'm doing here."

Ross testified that the sexual activity intensified over

the next two years. The defendant touched Ross "everywhere,"

including her vagina; performed oral sex on her; engaged her in

anal and vaginal sex; and directed her to perform oral sex on

him. Ross had no prior experience in these activities. They

occurred usually at the defendant's office or home, or at the

theater.

The Commonwealth's second principal witness was Ryan

DiMartino.4 DiMartino had attended PACE's musical theater

4
At trial, in February, 2012, DiMartino testified that he
had been born and raised as a female, but that after the events
4

training during the summers of 2005, 2006, and 2007, at

fourteen, fifteen, and sixteen years of age. During those years

DiMartino was known as Emily and lived as a female. In the

course of the summers, DiMartino met, and developed an

undisclosed romantic attraction toward, Ross. During those

periods DiMartino observed Ross and the defendant often alone in

close working proximity.

During the school year of 2007-2008, at age sixteen,

DiMartino performed volunteer work at PACE. On Wednesday

afternoons and evenings DiMartino cleaned and prepared the

theater for evening open microphone activities. The defendant

would admit DiMartino to the locked theater. They began online

chats in October. As of the end of 2007 and the beginning of

2008, the conversations between them became personal and then,

according to DiMartino, "more flirtatious and sexual."

During a Wednesday afternoon in early February of 2008, at

the locked theater, the defendant kissed and caressed DiMartino.

That conduct became a pattern during private Wednesday afternoon

chores at the theater. The defendant proposed also that they

engage in sexual relations.

at issue he had identified as transgender, transitioned to life
as a man, and in October of 2010 changed his name to "Eli Ryan
DiMartino." For consistency, we shall use his trial-time
identity and, as necessary, employ masculine pronouns.
5

On February 13, the defendant suggested to DiMartino that

he (the defendant) open a new online account with a new online

name to mask his identity against any suspicion of DiMartino's

parents or others about their IM traffic. The defendant and

DiMartino changed the defendant's IM identity to the name

"Allie."

On or about March 9, the defendant and DiMartino discussed,

in person, DiMartino's attraction to Ross. The defendant urged

DiMartino to pursue it. DiMartino asked the defendant whether

any sexual activity "was happening between [Ross and him]." The

defendant responded that they could "talk about it another time"

because he "wasn't sure if he trusted [DiMartino] enough to tell

[him] everything."

Late the following evening of March 10, the defendant

opened an IM conversation with DiMartino about his (the

defendant's) relationship with Ross. In the course of the

extended IM conversation, the defendant related in physical

detail a first seduction of Ross at about age fourteen in the

sound booth of the PACE theater and the accomplishment of both

vaginal and anal penetration of her on that occasion. The IM

related that the defendant had maintained a pattern of sexual

intercourse with Ross through the time of her relationship with

one boyfriend and into the beginning of her relationship with a

successor (college) boyfriend.
6

Subsequently, on a Wednesday afternoon at the PACE theater,

the defendant told DiMartino again that he (the defendant) on

multiple occasions had engaged in vaginal and anal sex with Ross

in the office and in the light booth of the PACE theater

complex.

Carissa Dagenais was the Commonwealth's third principal

witness. From 2004 to late 2006, at ages fifteen to seventeen,

she too performed volunteer work at PACE, and took an acting

class from the defendant. She was familiar with Ross as another

member of the acting class.

During her first year of college (2007-2008), Dagenais

frequently stayed at the defendant's house because she was

"having a hard time at home." In the summer of 2008, she asked

the defendant why she no longer saw Ross at PACE. He answered

that Ross and he had once had a "full-on sexual relationship,"

that she "had started seeing someone else," and that they had

not enjoyed their collaboration in their last musical

production.

In June of 2010, after publication of the charges against

the defendant, he asked Dagenais to appear as a character

witness on his behalf. She at first agreed. In July of 2010,

she decided to report her information about the defendant's

relationship with Ross to the police. In a telephone

conversation with the defendant, she informed him of that
7

intention. He acknowledged the wrongfulness of his actions, but

described the law and his potential punishment as unfair. He

told her that her testimony would ruin his and his family's

lives.

The Commonwealth offered the testimony of two other former

PACE students as pattern-of-conduct evidence. Laura Berkeley5

began an internship in the fall of 2003 at age seventeen. The

defendant offered her private acting lessons and proposed the

technique of accelerated "primitive" experiences for

professional development. The tutorial resulted in sexual

activity (fellatio, cunnilingus, and digital and vaginal

intercourse) in the PACE office area, the green room, and the

sound booth, and at the defendant's home. Her internship

concluded in the spring of 2004.

Marit Bjerkadal participated at PACE during the period of

2003 into early 2005 at ages sixteen, seventeen, and eighteen.

She performed volunteer chores to defray the cost of acting

lessons for her younger sister and herself. She testified that,

in the winter of 2005, the defendant approached her privately,

massaged her shoulders, and proposed payment by sexual favors.

She became frightened and left PACE shortly afterward.

5
A pseudonym.
8

2. Defendant's evidence. Through the testimony of the

defendant's wife and multiple PACE attendees, the defense

emphasized that the defendant and his wife had shared the

management of PACE and often worked there from early morning to

late evening. Their presence on site, together or separately,

depended on the variable circumstances of productions, classes,

maintenance, and appointments, and was generally unpredictable.

The level of activity, the presence of volunteers on irregular

schedules, and the accessibility of the theater to as many as

fifteen persons with keys would preclude the degree of privacy

and secrecy needed to carry out the patterns of conduct alleged

by the Commonwealth. The defendant testified. He denied the

accusations of sexual activity by all students.

Analysis. 1. Admissibility of March 10 IM confession.

Before trial both the defendant and the Commonwealth submitted

motions in limine addressing the admissibility of IM

conversations between the defendant and DiMartino, particularly

the March 10 narration of the first instance of the defendant's

sexual intercourse with Ross. The judge conducted an

evidentiary hearing at which DiMartino testified to the same

information later offered at trial concerning the March 10

communication, including commencement of such messages in

October of 2007, and the online name change and preliminary

discussions of February 13 and March 9, respectively.
9

When the prosecutor asked DiMartino what evidence convinced

him that the defendant had authored the March 10 IM, DiMartino

answered that "the tone and language was [what] I was used to

having with [the defendant], the way we would talk in the [PACE]

cafe." DiMartino added that the IM referred to prior in-person

conversations between the two, including discussions about

DiMartino's boyfriend, his mother's anger about his late-night

presence at the defendant's house, and the defendant's sexual

relationship with his wife.6

Defense counsel asked the judge to exclude the IM

conversations in their entirety for lack of proof of their

authenticity, especially because the Commonwealth had not

conducted a forensic examination of DiMartino's computer. The

judge concluded that sufficient evidence "allow[ed] a reasonable

jury to find by a reasonable preponderance of the evidence that

the defendant is the author of the language attributed to him"

in the IM conversations. She allowed the Commonwealth's motion

6
On cross-examination, DiMartino acknowledged that other
people worked in the defendant's office. DiMartino conceded
that no one had examined his computer, that he "suppose[d]"
hacking into a person's instant messenger account "can be done
relatively easily," and that "[i]t's possible" that "even if you
don't hack into someone's account, it's very easy to download
the [IM] communication and just change the words around."
DiMartino admitted also that he did not produce all of his IM
communications with the defendant when he first spoke to the
police.
10

to admit them, and denied the defendant's motion to exclude

them.

At trial, defense counsel objected to the admissibility of

the IM conversations again for lack of authentication. The

judge again rejected the argument:

"I'm satisfied, based on the earlier testimony from
[DiMartino], as well as today's testimony, that there is
sufficient . . . evidence corroborating the fact that this
is a conversation between [DiMartino] and the defendant to
make it admissible. Issues as to whether or not there
could have been someone else who was typing this in and
responding go to the weight and not the admissibility.

"As before, I refer to, I believe, it's the Purdy decision
[Commonwealth v. Purdy, 459 Mass. 442 (2011)], as setting
forth the foundation that needs to be made before this type
of electronic conversation can be admitted."

She informed the parties that she intended to instruct the

jury that, before they could consider an IM conversation between

the defendant and DiMartino, they must be satisfied by a

preponderance of the evidence that "it was the defendant who

[was] on the other side of this conversation." That formulation

followed the language of Commonwealth v. Purdy, 459 Mass. at

447. Accord Mass. G. Evid. § 901(b)(11) (2014). She rejected

defense counsel's position that "since it's a statement of the

defendant, [the jury] should have to be persuaded beyond a

reasonable doubt that it's the defendant." Before the offer in

evidence of DiMartino's description of the March 10 IM

confession, she instructed the jury to find, by a preponderance
11

of the evidence, the defendant to be the author of the IM

confession before they considered its contents.7 DiMartino read

aloud portions of both the February 13 (name change) and March

10 (first encounter) IMs; the Commonwealth introduced the text

of both in evidence.

At the conclusion of all the evidence, defense counsel

repeated the request for an instruction requiring the jury to be

satisfied beyond a reasonable doubt of the defendant's

authorship of the IMs.8 The judge denied the request. She

7
"Please understand that before you can consider these
conversations at all, you must first be persuaded that the
person on the other side of this conversation is, in fact, the
defendant. The prosecution has to prove that to what's called a
preponderance of the evidence, which means that the evidence
must convince you that it's more likely true than not that the
person on the other end of this conversation, the person who is
authoring the other side of the conversation was, in fact, the
defendant. If you're not convinced that the person on the other
end of the conversation -- if you're not convinced that it's
more likely true than not that the other person on the
conversation was, in fact, the defendant, then you may not
consider this conversation at all against the defendant. So you
have to make that preliminary decision as to whether or not the
evidence proves it's more likely true than not that the
defendant is the person at the other [end] of this conversation
before you may consider any of this conversation at all against
the defendant. And in making that decision, you may consider
all of the circumstances about which you will hear evidence
regarding the time of the conversation and other information as
well."
8
"You have heard testimony that certain electronic messages
were sent by the defendant. Before you may even consider these
messages as evidence, you must be satisfied beyond a reasonable
doubt that the defendant actually created and transmitted these
messages. If you do not find that these messages were created
12

instructed the jury that they could consider an IM conversation

if "convince[d]" that the defendant "was the author of those

portions of the conversation . . . attributed to him . . . . If

the evidence does not persuade you that [the defendant] was the

author of those statements, you must disregard the instant

message conversation in your deliberations."

On appeal the defendant pursues the contention that the IM

confession of March 10 requires a finding of authorship beyond a

reasonable doubt (1) because confessions carry potent probative

force, and (2) because online communications carry a

susceptibility to impersonation or fabrication, especially in

the absence of forensic confirmation. For several reasons we

decline to extend the standard of proof beyond a reasonable

doubt to the admissibility of online admissions and to the

jury's acceptance of their authorship.

a. Preliminary facts. It is axiomatic that the

prosecution must establish each prima facie element of a crime

by proof beyond a reasonable doubt. However, the "prevailing

general rule" in the Commonwealth is that the preponderance of

the evidence standard applies to resolve "preliminary facts

bearing on conditional or logical relevance." Commonwealth v.

Bright, 463 Mass. 421, 428, 432 (2012). See Commonwealth v.

by the defendant, you should disregard the messages and any
testimony about them."
13

Rosenthal, 432 Mass. 124, 127 n.4 (2000) ("Although the

Commonwealth must, of course, prove all essential elements of

the crime beyond a reasonable doubt . . ., preliminary questions

of fact need only be proved by a preponderance of the

evidence"); Commonwealth v. Toon, 55 Mass. App. Ct. 642, 655

n.18 (2002) ("The Commonwealth need not prove each subsidiary

fact beyond a reasonable doubt before an inference is permitted

as to an essential element of the offense. . . . Only the

elements of the offense need be proven beyond a reasonable

doubt"). See also United States v. Holmquist, 36 F.3d 154, 168

(1st Cir. 1994) (rejecting argument that proponent must

establish authentication beyond a reasonable doubt). Although

we recognize that the "stronger the link between preliminary and

ultimate factfinding, the greater the danger that error in the

former will distort the reliability of the latter," Saltzburg,

Standards of Proof and Preliminary Questions of Fact, 27 Stan.

L. Rev. 271, 283 (1975), we are not persuaded to require proof

beyond a reasonable doubt of the preliminary fact of authorship

of electronically transmitted confessions. Several

considerations lead to that conclusion.

First, as a matter of authority, the Supreme Judicial Court

has concluded that, before admitting an electronic communication

in evidence, a judge must determine whether sufficient evidence

exists "for a reasonable jury to find by a preponderance of the
14

evidence that the defendant authored" the communication.

Commonwealth v. Purdy, 459 Mass. at 447. See Mass. G. Evid.

§ 901(b)(11) & Note (2014). Care & Protection of Laura, 414

Mass. 788, 792 (1993) ("Thus, in criminal cases, the heightened

burden of proof is not applied to subsidiary facts, but rather

only to the elements of the crime charged"). We agree with the

trial judge's conclusion that Purdy strongly indicates that the

preponderance of the evidence standard governed the jury's

determination whether the defendant authored the IM confession.

As argued by the Commonwealth in its brief, "It makes no sense

for a judge to ask herself whether a jury could find by a

preponderance of the evidence that the defendant sent the IMs

only later to instruct the jurors that they must [make this

finding] beyond a reasonable doubt." See Commonwealth v.

Bright, supra (rejecting proposed rule that "would result in the

judge and jury each applying a different standard in determining

whether to admit the out-of-court statements of coventurers").

Furthermore, the preponderance of evidence standard applies

to the admissibility and jury's consideration of facts even

highly probative of guilt. The United States Supreme Court has

held that a "guilty verdict is not rendered less reliable or

less consonant with [the standard of proof beyond a reasonable

doubt] simply because the admissibility of a confession is

determined by a less stringent standard." Lego v. Twomey, 404
15

U.S. 477, 487 (1972). See Bourjaily v. United States, 483 U.S.

171, 175 (1987) (admissibility of evidence may hinge on

preliminary factual questions resolved by proof by reasonable

preponderance). See also Commonwealth v. Azar, 32 Mass. App.

Ct. 290, 292, 298-302 (1992), S.C., 435 Mass. 675 (2002), in

which the jury convicted the defendant of murder in the second

degree upon evidence that included his prior bad acts of

battering the victim. On direct appeal, Azar argued that the

trial judge wrongly failed "to instruct the jury that prior bad

acts of the defendant . . . had to be proved beyond a reasonable

doubt." Id. at 309. Despite the inculpatory force of prior bad

acts, we rejected the proposed necessity of their proof beyond a

reasonable doubt. Ibid.9

b. Confirming circumstances. In Commonwealth v. Purdy,

supra at 449, the court approved of a reasonable preponderance

standard of admissibility of electronic communications because

9
The defendant cites Commonwealth v. Tucker, 189 Mass. 457
(1905), in support of a requirement that a jury find authorship
of an inculpatory communication beyond a reasonable doubt. In
that instance the Commonwealth introduced handwritten sales
slips to show that the defendant had authored a separate
document. Id. at 470. The judge instructed the jury that
"unless the Commonwealth shows by . . . proof beyond a
reasonable doubt, that the writing upon these slips was actually
made by the defendant, . . . the jury should wholly disregard
them and all the great body of evidence which they have heard
about them." Id. at 473. The Supreme Judicial Court disposed
of the appeal on other grounds; it did not reason or hold that
the Commonwealth must prove authorship beyond a reasonable
doubt. Id. at 475.
16

"confirming circumstances" beyond the sender's self-

identification tended to corroborate the authenticity of the

message from the apparent author. DiMartino provided such

circumstances for the March 10 IM. They included the familiar

tone of the exchange, the sender's references to prior

discussions with DiMartino about DiMartino's boyfriend's height,

DiMartino's mother's anger, the height and personal habits of

the sender's wife, the sender's recent decision to shave his

beard, the location of DiMartino's bedroom window at home, the

sender's approaching appointment with a client in South

Deerfield, and mention of the sender's son. DiMartino knew of

these elements and could have manufactured their appearance in

the prolonged IM conversation over its intermittent span of

almost four hours. However, that effort would have been

elaborate and generally inexplicable.

c. Humane practice analogy. We have weighed the analogy

proposed by the defendant to the Massachusetts humane practice

rule. That instruction directs a jury to disregard

incriminating statements attributed to a defendant unless the

Commonwealth proves beyond a reasonable doubt that the defendant

made the statements voluntarily. See Commonwealth v. Tavares,

385 Mass. 140, 149-150, cert. denied, 457 U.S. 1137 (1982);

Commonwealth v. Watkins, 425 Mass. 830, 834-835 (1997). The

defendant correctly notes that the "usual terms" of the
17

instruction forbid jurors to consider incriminating statements

unless persuaded "beyond a reasonable doubt, after considering

all the evidence, that the defendant had made the statements and

that they were voluntary as a 'product of his own free will and

his rational intellect'" (emphasis supplied). Commonwealth v.

Almonte, 444 Mass. 511, 522 (2005). See Commonwealth v.

Watkins, supra at 835.10

However, the humane practice rule "responds to two specific

concerns" not present here. Commonwealth v. Bright, 463 Mass.

at 433. One is the inducement of an admission or confession "by

trained interrogators wielding the authority of the State."

Ibid. The rule stands guard against the powerful evidentiary

effect of any guile, pressure, or coercion employed by

governmental interrogation. The second is the constitutional

policy of art. 12 of the Massachusetts Declaration of Rights

prohibiting the compulsion of an accused to "furnish evidence

against himself." Commonwealth v. Hoyt, 461 Mass. 143, 152 n.11

(2011), quoting from art. 12 of the Massachusetts Declaration of

Rights.. In this case, the IMs at issue passed between two

private individuals engaged in voluntary communication. Both

the letter and the purpose of the humane practice rule appear

inapplicable. We see no inclination of the court in the Purdy

10
For an excellent synopsis of the rule, see Brodin &
Avery, Massachusetts Evidence § 12.1, at 644-647 (8th ed. 2007).
18

or the Bright decisions to extend an elevated standard of proof

for admissibility and ultimate fact finding to general

electronic messaging between private communicants in voluntary

circumstances.

Finally, we conclude that the judge correctly conveyed the

standard of reasonable preponderance to the jury in her final

charge. During DiMartino's testimony, she properly instructed

the jury that "the evidence must convince you that it's more

likely true than not" that the defendant authored the IMs

attributed to him. Although the final charge instructed the

jury to be "convince[d]" or "persuade[d]" by the evidence, we

are satisfied that, after receipt of the contemporaneous and

final instructions, the jury understood the duty to find it

"more likely true than not" that the defendant authored the IM

confession before they could consider it. See, e.g.,

Commonwealth v. Cryer, 426 Mass. 562, 572 (1998) ("In

determining the propriety of a jury instruction, we must

consider the instruction in the context in which it was

delivered, in order to determine its probable effect on the

jury's understanding of their function"). In particular, the

use of the word "convince[d]," if anything, connotes a

requirement greater than a mere reasonable preponderance.

In sum, in response to an objection to the authenticity or

authorship of a self-inculpatory electronic message, the judge
19

will determine its admissibility and the jury its credibility by

a reasonable preponderance of the evidence. Counsel will be

able to contest both issues by argument regarding the presence

or the absence of confirming circumstances.

2. Witness character evidence. The defendant argues that

the prosecutor improperly elicited testimony of the "good

character and good works" of multiple prosecution witnesses,

including Ross, DiMartino, Dagenais, Berkeley, and Bjerkadal;

and that in closing comments the prosecutor improperly exploited

that testimony "to bolster the credibility" of those witnesses.

The prosecutor did call for testimony of those witnesses'

educational achievements, professional aspirations, and

extracurricular activities. In particular she established that

each of them had gone forward to serious college programs in the

arts or other disciplines.

As a general rule, "evidence of a person's character is not

admissible to prove that he acted in conformity with that

character on a particular occasion." Commonwealth v. Bonds, 445

Mass. 821, 829 (2006), quoting from Liacos, Brodin, & Avery,

Massachusetts Evidence § 4.4.1, at 130 (7th ed. 1999). See

Mass. G. Evid. § 404(b) & Note (2014). In this instance the

defendant did not object to the introduction of the credentials

of the enumerated prosecution witnesses. Consequently we

inspect the issue for the presence of error and a resulting
20

substantial risk of a miscarriage of justice; we assess the

evidence as a whole, and consider (i) the strength of the

Commonwealth's case, (ii) the precise nature of the claimed

error, (iii) the significance of the error, and (iv) the

possibility that the omission of objection resulted from a

reasonable tactical decision. Commonwealth v. Azar, 435 Mass.

at 687. Under those criteria, relief is rare. See, e.g.,

Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).

Here, if we assume without deciding that some excessive

credentialing reached the jury, it would not approach the level

of the requisite substantial risk. First, the strength of the

Commonwealth's case was considerable. Five percipient witnesses

testified to a pattern of conduct. The jury assessed each

witness's credibility and the credibility of the defendant, all

under direct and cross-examination. The jury received evidence

of an electronic confession and testimony of four other oral

admissions from DiMartino and Dagenais. The significance of

incremental biographical data was not appreciable amid the total

evidence.

Second, defense counsel made tactical use of DiMartino's

crowded curricular and extracurricular agenda during involvement

with PACE. Defense counsel cross-examined him vigorously to

propose that these augmented activities and certain personal and
21

family matters kept DiMartino occupied, stressed, and removed

from events at the center.

The prosecutor's references to the subsequent

accomplishments of the witnesses in closing argument did not

constitute error, and certainly not error creating a substantial

risk. The rule is that a "prosecutor may make a fair response

to an attack on the credibility of a government witness."

Commonwealth v. Chavis, 415 Mass. 703, 713 (1993), citing

Commonwealth v. Simmons, 20 Mass. App. Ct. 366, 371 (1985). See

Commonwealth v. Smith, 404 Mass. 1, 7 (1989). In his

immediately preceding summation, defense counsel had

characterized the prosecution's main witnesses as untrustworthy

"actresses."11 The prosecutor was entitled to cite their

achievements as a responsive indication of their reliability.

3. Cross-examination of DiMartino. Because the prosecutor

elicited favorable background information from DiMartino, the

judge permitted defense counsel "some leeway" for impeachment of

11
He argued:

"Let's never lose sight of the fact, ladies and
gentlemen, that all of these people that testified in this
case, they're all little actresses, they're all into the
drama. And, when you have a place like PACE that accepts
everyone, that's open to everyone, you're going to draw
people with baggage. You're going to draw people like Ryan
DiMartino and Carissa Dagenais. People who I suggest to
you are unstable people. We don't screen people when they
come to PACE. They accepted pretty much everyone. You're
going to attract people like Laura [Berkeley]."
22

his character. Defense counsel proposed a range of subjects.

The judge allowed all but two: DiMartino's involvement in self-

mutilation (cutting) and bondage. The judge did not consider

self-mutilation to be relevant, and feared that testimony about

bondage would "inflame the jury." Defense counsel objected to

the restriction; we therefore review the issue for prejudicial

error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

"The established rule is that an appellate court will not

overrule a trial judge's determination as to the proper scope of

cross-examination unless the defendant shows a clear abuse of

discretion and prejudice." Commonwealth v. Crouse, 447 Mass.

558, 572 (2006). See Mass. G. Evid. § 611(b)(1) & Note (2014).

Here the judge permitted defense counsel to question DiMartino

about multiple sensitive topics, including struggles with gender

identity and change, the deaths of family members, depression

and medication, and multiple sexual preferences and practices.

The judge reasonably could draw a line short of questions

regarding self-mutilation and bondage upon the ground that

prejudicial impact then overrode probative value. That

limitation did not abuse discretion or create any error. Any

putative error would have had little or no effect on the
23

verdicts. See Commonwealth v. Flebotte, supra; Commonwealth v.

Graham, 431 Mass. 282, 288 (2000).12

4. Empanelment of students. General Laws c. 234A, § 3,

inserted by St. 1982, c. 298, § 1, provides that "[n]o person

shall be exempted or excluded from serving as a grand or trial

juror because of . . . occupation." In Commonwealth v. Brown,

449 Mass. 747, 772 (2007), the court interpreted the statute to

mean that "[s]tudents are not to be excused simply by virtue of

their occupation. As with any other hardship excuse[s], those

for students must be based on an individualized finding and not

a blanket rule." On appeal the defendant contends that the

judge "systematically excused" students and as a result created

a substantial risk of a miscarriage of justice because college-

age jurors more likely would understand the susceptibility of

instant messaging to falsification.

Jury selection began on January 23, 2012, and consumed

almost five days. The judge informed each day's venire that the

trial would extend into early February. On each morning she

advised the venire generally that "this county [Hampshire] [has]

12
We have considered the defendant's remaining evidentiary
arguments (1) that the judge wrongly excluded testimony about a
Web log (blog) post from Dagenais undermining her credibility,
and (2) that the judge wrongly permitted cross-examination of
the defendant about an electronic mail (e-mail) photograph
belatedly disclosed by the Commonwealth. Neither ruling
constituted error causing prejudicial harm to the defendant.
24

a large number of students," and that "if you're a full-time

student and you feel it would be a real hardship for you to miss

that many classes, you should bring that to my attention,

because that could certainly be grounds for excusing you." This

phrasing remained consistent for each venire.13

Over the five-day empanelment the judge excused a total of

nineteen students for hardship, seventeen college students and

two high school students. Defense counsel did not object to any

of the excusals. The judge seated one student as a juror.

("I'm a student but I think I can handle the hardship.")

The assertion of improper systematic exclusion for

occupation fails upon two independent grounds. First, G. L.

c. 234A, § 74, inserted by St. 1982, c. 298, § 1, requires

prompt objection by a party to any "irregularity or defect" in

the empanelment process.14 "Under [that provision], a defect in

jury empanelment does not warrant reversal unless a defendant

13
Hampshire County contains Amherst College, Hampshire
College, Mount Holyoke College, Smith College, and the
University of Massachusetts at Amherst.
14
In relevant part, the statute reads:

"Any irregularity in . . . selecting, . . . excusing, . . .
[or] impanelling . . . jurors; . . . or any defect in any
procedure performed under this chapter shall not be
sufficient . . . to set aside a verdict unless objection to
such irregularity or defect has been made as soon as
possible after its discovery or after it should have been
discovered and unless the objecting party has been
specially injured or prejudiced thereby."
25

objects to it 'as soon as possible after its discovery or after

it should have been discovered and unless [he] has been

specially injured or prejudiced thereby.'" Commonwealth v.

Vuthy Seng, 456 Mass. 490, 495 (2010), quoting from G. L.

c. 234A, § 74. See Commonwealth v. Mora, 82 Mass. App. Ct. 575,

578-579 (2012). The defendant did not object to the excusal of

any student and has not substantiated any prejudice beyond the

general hypothesis of his loss of the students' special online

savvy.

If timely objection had preserved the merits, the record

would not show a violation of G. L. c. 234A, § 3. The judge did

not confer a categorical exemption on students. She instead

identified full-time student status as an available, but not

automatic, ground of hardship and excusal. The initiative

remained with the student. Of the nineteen excusals, fifteen

students brought their hardship status to the judge's attention

by raising their juror identification cards. The judge's

respect for their requests was reasonable. The defendant has

not argued that a one-to-two-week absence from classes would not

qualify as a hardship.

Judgments affirmed.