Commonwealth v. Roe (Lawyers Weekly No. 11-181-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   15-P-878                                        Appeals Court   COMMONWEALTH  vs.  JOSHUA W. ROE.     No. 15-P-878.   Plymouth.     October 13, 2016. – December 28, 2016.   Present:  Cypher, Cohen, & Green, JJ.     Indecent Assault and Battery.  Evidence, Prior misconduct, Relevancy and materiality, Grand jury proceedings.  Grand Jury.  Practice, Criminal, Instructions to jury, Grand jury proceedings.       Indictment found and returned in the Superior Court Department on July 20, 2012.   The case was tried before Charles J. Hely, J.     Thomas Dougherty for the defendant. Keith Garland, Assistant District Attorney, for the Commonwealth.     CYPHER, J.  The defendant, Joshua W. Roe, appeals from his conviction by a Superior Court jury on January 8, 2015, of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B.  The defendant raises four arguments in this appeal:  (1) that the inadvertent disclosure of the defendant’s alleged prior sexual assault unduly prejudiced the defendant; (2) that the judge abused his discretion by allowing the victim’s father to testify about the defendant’s possible sexual interests; (3) that the judge erred in denying the defendant’s motion to dismiss the grand jury’s indictment; and (4) that the judge erred by denying the defendant’s motion in limine regarding the delayed disclosure of unexpected testimony by the victim.  Due to multiple errors, as discussed infra, including the admission in evidence of an inadmissible prior bad act, the conviction must be reversed. Background.  We summarize the facts that the jury could have found, reserving some details for later discussion of the issues raised by the defendant.  The defendant was an assistant Boy Scout leader for a troop in Wareham.  The victim, a thirteen year old boy, was a member of the defendant’s troop.  The defendant would sometimes bring the victim to and from scout meetings to help the victim’s family, whom he grew to know through a working relationship with the victim’s father.  In November, 2011, while driving the victim home, the defendant stated that he could stop the vehicle and have his way with the victim.  The victim asked whether the defendant was homosexual, and the defendant replied that he was bisexual.  In December of that year, the defendant stated to the victim, “you know I could turn you on.”  Later, in March, 2012, the defendant, his mother, and the victim were returning […]

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