Date: 06-19-2015

Case Style: Commonwealth of Massachusetts v. Daniel J. Bowers

Case Number: 11-P-166

Judge: By the Court (Rapoza, C.J., Berry & Trainor, JJ.2

Court: Commonwealth of Massachusetts Court of Appeals

Plaintiff's Attorney:

Defendant's Attorney:

Description: The defendant appeals from his convictions of four counts
of incest in violation of G. L. c. 272, § 17, from the trial
judge's subsequent denial of his motion for a new trial,1 and
from an order effecting certain clarifying docket entries. He
argues that (1) he was denied the right to a public trial; (2)
he was denied the opportunity to impeach the victim with a prior
false allegation; (3) there was an insufficient foundation for
the introduction in evidence of the defendant's admission by
silence; and (4) the dockets relating to his case remain
1 The defendant filed a motion for a new trial on August 24,
2011, and it was denied on October 31, 2011. Later, on January
9, 2012, he filed a "motion to supplement, reconsider, and grant
hearing on [his] motion for a new trial." This motion was also
denied, on February 13, 2012. The defendant filed timely
notices of appeal from both orders of denial. For convenience,
in our discussion we treat both motions together and refer to
them as a single motion for a new trial.

inaccurate and do not properly reflect the proceedings against
him. We affirm.
Right to a public trial. The defendant asserts that his
right to a public trial was violated based on a sign that read,
"Stop. Do not enter. Judge instructing jury," which was
affixed to the outer doors of the court room during his trial.
As the defendant failed to show that there was in fact a closure
of the court room, we conclude that the defendant's right to a
public trial was not violated.
The trial judge acted within her discretion when, in
considering the defendant's motion for a new trial, she did not
credit the affidavits of the defendant's mother, father, son,
and girl friend. In their affidavits, each stated that during
the trial he or she observed members of the public read the sign
on the court room door and then walk away from the court room.
On appeal, "[w]e accept a motion judge's determination of the
credibility of an affidavit on a motion for a new
trial, Commonwealth v. Ridge, 455 Mass. 307, 325 (2009),
especially where, as here, the judge also presided at
trial." Commonwealth v. Bell, 460 Mass. 294, 306 (2011).
The trial judge here relied on her own memory of the court
room in which she had presided over numerous trials. The judge
found that from the bench one can clearly see when the outer
doors of the court room are closed. She also found that the
2
doors were open during the defendant's trial and were closed
only while she was charging the jury after spectators had been
given the opportunity to stay or to leave, which does not amount
to an impermissible closure. See Commonwealth v. Cohen (No. 1),
456 Mass. 94, 112 n.27 (2010). As the sign would have been
visible only when the doors were closed, she found it would not
have been visible during the trial when the doors were open.
The judge's reliance on her own memory was not improper in the
circumstances. See Commonwealth v. Greineder, 458 Mass. 207,
220-222 (2010). Nor did she clearly err or commit a clear abuse
of discretion in concluding that the court room had not been
closed during the trial. See id. at 225.
Prior false accusation. The defendant asserts the trial
judge should have ordered a new trial based on an affidavit that
stated the victim had made a prior false allegation. After
reviewing the record, we conclude that the defendant has failed
to demonstrate that the judge erred in not crediting the
affidavit and in subsequently denying the defendant's request
for a new trial.
The defendant submitted an affidavit of Travis Phillips in
which Phillips claimed that the victim had "falsely accused
[him] of making inappropriate sexual advances towards her."
Generally, acts of misconduct not resulting in a conviction
cannot be used to impeach a witness. Commonwealth v. Podkowka,
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445 Mass. 692, 696 (2006). The defendant relies on an exception
to this rule that applies when "the witness was the victim in
the case on trial, her consent was the central issue, she was
the only Commonwealth witness on that issue, her testimony was
inconsistent and confused, and there was a basis in independent
third-party records for concluding that the prior accusations of
the same type of crime had been made and were
false." Commonwealth v. LaVelle, 414 Mass. 146, 151-152 (1993),
quoting from Commonwealth v. Sperazza, 379 Mass. 166, 169
(1979), citing Commonwealth v. Bohannon, 376 Mass. 90, 95
(1978). This exception, known as the Bohannon rule, does not
apply here.
First, the defendant's reliance on Bohannon is misplaced as
consent is not an issue, let alone the central issue, in an
incest case. Second, the affidavit did not allege that the
victim accused Phillips of a crime similar to incest, rather it
merely stated that he had made inappropriate sexual advances.
Finally, in order to qualify under the Bohannon rule, "the
evidence of falsity of an accusation must be
solid." Commonwealth v. Costa, 69 Mass. App. Ct. 823, 831
(2007), quoting from Commonwealth v. Wise, 39 Mass. App. Ct.
922, 923 (1995). That has not been demonstrated here. We
conclude that the judge did not err in not crediting this
affidavit and denying the motion for a new trial to the extent
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it relied on evidence not shown to be admissible under
the Bohannon rule.
Admission by silence. The defendant claims that the judge
improperly admitted in evidence testimony of the victim's mother
that the defendant had failed to respond to her accusations
during a telephone call. In support of this claim, the
defendant asserts that (1) a proper foundation for an admission
by silence had not been laid, and (2) he did, in fact, respond
to the mother's accusations. After careful review of the
record, we conclude that the mother's testimony was properly
admitted in evidence and the judge correctly instructed the jury
on the issue of admission by silence.
A foundation for evidence of an admission by silence is
laid by a showing that the defendant "heard and understood the
statement, that he had an opportunity to respond, and that the
context was one in which he would have been expected to respond
to an accusation." Commonwealth v. Olszewski, 416 Mass. 707,
719 (1993). Viewed in the light most favorable to the
Commonwealth, the record indicates the victim's mother called
the defendant on the telephone and confronted him about the
victim's allegations against him. The mother testified she told
the defendant to admit what he did or she would call the police,
and he said nothing. She also testified that she could hear him
5
sobbing, thus showing that the defendant heard and understood
what was being said.
The defendant asserts that this testimony should not have
been admitted because, on either of two alternative theories, he
responded to her accusation. First, he asserts that he did, in
fact, respond during the telephone call. This assertion,
however, is based on testimony that was never presented at the
voir dire hearing concerning the admissibility of the mother's
testimony. Rather, the testimony came later in the trial when
the defendant's girl friend testified that she had been
listening in on the telephone call between the defendant and the
victim's mother and that she heard him deny the allegations. In
the circumstances, there was no error in allowing the mother to
testify to her conversation with the defendant, considering the
evidence before the judge at the voir dire hearing.
Alternatively, the defendant claims that his telephone call
to the police shortly after the conversation with the victim's
mother was in response to her accusations and that, as a result,
it could not be said that he had remained silent in a way that
amounted to an admission. He provides no case law to support
his argument in this regard, nor are we aware of any.
Consequently, we do not agree that the defendant's call to the
police within one hour after the initial telephone conversation
6
constitutes a response to the mother's accusation as understood
in our case law relating to admissions by silence.
In any event, where both the victim's mother and the
defendant's girl friend testified to the content of the
telephone call, the defendant was not unduly prejudiced. The
jury had the opportunity to hear the testimony of the
defendant's girl friend, which, if deemed credible, supported
the claim that he had not remained silent. It was also clear
from the judge's instructions that after weighing the testimony
of the two witnesses the jury had to decide whether or not the
defendant had been silent. Her instructions similarly made
clear that if they concluded the defendant had remained silent,
they had to make a further determination. As the judge stated,
"[t]he Commonwealth is suggesting that the defendant Mr.
Bowers['s] silence was evasive or ambiguous and therefore
amounts to a silent admission by him that the accusation made at
that time was true. If you believe the testimony of [the
victim's mother] concerning that conversation you will have to
decide whether that is a fair conclusion to draw from it."
Viewed in the light most favorable to the Commonwealth,
there was ample evidence for the jury to conclude that the
defendant had remained silent during the telephone call.
Consequently there was also a sufficient foundation for the
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judge to instruct the jury relative to an admission by silence,
which she did correctly. There was no error.
Dockets. The defendant also appeals from the trial judge's
final order involving the dockets of the Worcester and Franklin
divisions of the Superior Court Department relating to his case.
He claims that they remain inaccurate and do not properly
reflect the proceedings against him.
We acknowledge that there was an initial mistake in which
the dockets suggested that the defendant was charged with seven
rather than four counts of incest. This error, however, has
been corrected. The dockets now properly reflect the
proceedings against the defendant and he has suffered no
prejudice as a result of the initial error.

Outcome: Judgments affirmed.
Order denying motion for new
trial affirmed.
Order denying motion to
supplement, reconsider, and
grant hearing on motion for
new trial affirmed.
Order entered March 26, 2012,
clarifying dockets
affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: