Commonwealth v. Dorazio (Lawyers Weekly No. 10-148-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11765 COMMONWEALTH vs. HERBERT DORAZIO. Middlesex. February 3, 2015. – September 2, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Rape. Assault with Intent to Rape. Evidence, Prior misconduct, Relevancy and materiality. Practice, Criminal, Trial of indictments together, Mistrial, New trial, Assistance of counsel, Fair trial, Collateral estoppel, Double jeopardy. Constitutional Law, Fair trial, Double jeopardy. Due Process of Law, Fair trial, Collateral estoppel. Fair Trial. Collateral Estoppel. Indictments found and returned in the Superior Court Department on February 12, 2009. The cases were tried before Thomas P. Billings, J., and a motion for new trial, filed on April 6, 2012, was heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Marissa Elkins for the defendant. Patrick G. Fitzgerald, Assistant District Attorney, for the Commonwealth. HINES, J. In July, 2010, a jury in the Superior Court found the defendant, Herbert Dorazio, guilty of rape of a child, Susan, by force, and of assault with intent to rape a second child, Jane.[1],[2] The defendant appealed. In a memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the convictions. Commonwealth v. Dorazio, 85 Mass. App. Ct. 1127 (2014). We granted the defendant’s application for further appellate review. Represented by new counsel on appeal, the defendant argues that his convictions should be reversed because the judge erroneously (1) denied his motion for relief from prejudicial joinder; (2) admitted certain evidence of prior bad acts and other propensity evidence; (3) denied his motion for a mistrial; and (4) denied his motion for a new trial based on ineffective assistance of trial counsel.[3] For the reasons that follow, we reverse his convictions. Facts. We recite the facts that the jury could have found, reserving the development of other facts to the discussion of specific issues raised. Commonwealth v. McCoy, 456 Mass. 838, 839 (2010). The incidents giving rise to the charges took place at the defendant’s home. Susan and Jane, the complainants, were neighbors of the defendant. Their families were part of a close-knit residential neighborhood, in which there were many families with young children who would frequently socialize together. While initially the defendant engaged with the adults during these occasions, he […]