Petition for Writ of Certiorari — Domingo Palma, Petitioner v. Massachusetts

Supreme Court briefOct 28, 2021

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No.

______________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________________________

DOMINGO PALMA,

Petitioner,

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

______________________________________________________

On A Petition For A Writ Of Certiorari To

The Massachusetts Appeals Court

______________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________

ERIC BRANDT

Counsel of Record

THOMAS COMBS

Committee for Public

Counsel Services

75 Federal Street

Boston, MA 02110

(617) 482-6212

ebrandt@publiccounsel.net

Attorneys for Petitioner

QUESTION PRESENTED

This case presents a question of significant importance

calling for summary reversal. A trial court’s authority to

declare a mistrial implicates some of the most fundamental

rights a criminal defendant has: the right to a fair trial under

the Sixth Amendment, see United States v. Gonzalez-Lopez, 548

U.S. 140, 145 (2006) (“the purpose of the rights set forth in

[the Sixth] Amendment is to ensure a fair trial”), and to due

process under the Fourteenth Amendment, see Strickland v.

Washington, 466 U.S. 668, 684-685 (1985) (“The Constitution

guarantees a fair trial through the Due Process Clauses”). And

yet, reviewing courts in Massachusetts have adopted a standard

so deferential as to grant unlimited discretion to trial judges

who deny motions for mistrial that ought to be allowed.

This case epitomizes the danger of such a jurisprudence.

Here, in a prosecution for rape, a prosecution witness nonresponsively testified to groundless, irrelevant, and

inflammatory bad act evidence in utter disregard of an agreed-to

in limine ruling, and the prosecutor’s corresponding

instructions to the witness (and even in disregard of the

court’s direct admonition to properly answer yes-or-no

questions). Among other things, this witness made uncorroborated

claims that the defendant possessed a gun, asserted that threats

were made to the complainant (her daughter) with that same non-

existent gun, and speculated that threats were made to the

complainant with the gun (a claim that the complainant herself

did not substantiate). Defense counsel raised immediate

objections and moved for a mistrial. The trial court denied the

motion. Now in an impossible strategic situation, counsel sought

to lessen the blow by further cross-examination, only to have

the witness give another non-responsive, and more inflammatory,

answer — to the effect that the defendant’s gun ownership was

spawned by his hatred of “people of color.” Trial counsel again

contended that a fair trial was impossible. The prosecutor asked

the court not to mistry the case, and the court pushed forward

without providing a curative instruction until the following

day. The trial ended in the defendant’s conviction.

It cannot be consonant with constitutional principles that

this sequence of events withstands meaningful appellate review.

But in Massachusetts, reviewing courts seem to take a certain

pride in their refusal to reverse a trial judge’s decision to

deny a motion for mistrial. See, e.g., Commonwealth v. Silva, 93

Mass. App. Ct. 609, 615-616 (2018) (“the defendant has not

pointed to a single Massachusetts case, and we have found none,

where an appellate court has concluded that a mistrial was

required because the jury would not be able to disregard

evidence they were instructed to disregard”). Such a stance

iii

trenches upon Constitutional rights and the Federal law that

flows from it.

The question presented is:

Are the Sixth and Fourteenth Amendments

violated by a trial court’s refusal to grant

a mistrial where a prosecution witness

injects groundless, irrelevant, and

inflammatory bad act testimony, and the

resulting prejudice was neither cured nor

curable?

TABLE OF CONTENTS

QUESTION PRESENTED............................................ ii

TABLE OF CONTENTS.............................................. v

TABLE OF AUTHORITIES.......................................... vi

PETITION FOR A WRIT OF CERTIORARI.............................. 1

OPINION AND ORDER BELOW........................................ 1

JURISDICTION................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED............................. 2

STATEMENT OF THE CASE.......................................... 2

REASONS FOR GRANTING THE PETITION.............................. 8

THIS COURT SHOULD GRANT CERTIORARI TO MAKE CLEAR THAT MOTIONS

FOR MISTRIAL, A FUNDAMENTAL TOOL FOR THE PRESERVATION OF A

DEFENDANT’S CONSTITUTIONAL RIGHTS, MUST BE ALLOWED IN CASES

LIKE THE INSTANT ONE WHERE THE PREJUDICE CREATED BY IMPROPER

TESTIMONY BECOMES INCURABLE. ................................ 10

CONCLUSION.................................................... 15

TABLE OF APPENDICES........................................... 18

TABLE OF AUTHORITIES

Cases

Arizona v. Washington, 434 U.S. 497 (1978) ................... 12

Strickland v. Washington, 466 U.S. 668 (1985) ................ ii

Gori v. United States, 367 U.S. 364 (1961) ............... 11, 15

Strickland v. Washington, 466 U.S. 668 (1985) ................ ii

United States v. Perez, 9 Wheat. 579 (1824)

................. 11

Malinovsky v. Ct. of Com. Pleas of Lorain County, 7 F.3d 1263

(6th Cir. 1993) ......................................... 11

United States v. Apicelli, 839 F.3d 75 (1st Cir. 2016) ....... 11

United States v. Pagán–Ferrer, 736 F.3d 573 (1st Cir. 2013) .. 13

United States v. Torres, 162 F.3d 6 (1st Cir. 1998) .......... 13

Commonwealth v. Amran, 29 N.E.3d 188 (Mass. 2015) ............ 12

Commonwealth v. Silva, 106 N.E.3d 699 (Mass. App. Ct. 2018) .. 12

Statutes

28 U.S.C. § 1257(a) ........................................... 1

Constitutional Provisions

U.S. Const. amend. VI ........................................ ii

U.S. Const. amend. XIV ....................................... ii

PETITION FOR A WRIT OF CERTIORARI

Domingo Palma respectfully petitions this Court for a writ

of certiorari to review the judgment of the Massachusetts

Appeals Court in this case.

OPINION AND ORDER BELOW

The opinion of the Massachusetts Appeals Court can be found

among the unpublished opinions of that Court at 99 Mass. App.

Ct. 1129 (2021) and is attached in the petitioner’s Appendix

(App. 19).1 Mr. Palma filed a timely application for further

appellate review to the Supreme Judicial Court, which that Court

denied.

See Commonwealth v. Palma, 488 Mass. 1102 (2021). The

docket entry showing the denial is also attached in the Appendix

(App. 26).

JURISDICTION

The judgment of the Appeals Court was entered on June 16,

2021. A timely application for further review by the Supreme

Judicial Court was sought and denied. This Court has

jurisdiction under 28 U.S.C. § 1257(a) where a final judgment

The attached Appendix will hereinafter be referred to as “App.

*” and the trial transcripts will be referred to by volume and

page number as “*:*” where each volume will be cited

chronologically. The defendant’s Record Appendix below will be

cited as “R.A. *.”

has been rendered by the highest Court in the Commonwealth of

Massachusetts.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

guarantees that a criminal defendant has the right to a fair and

impartial trial. The Fourteenth Amendment provides, in pertinent

part: “No State shall . . . deprive any person of life, liberty,

or property, without due process of law.”

STATEMENT OF THE CASE

I. Factual Background.

On December 12, 2013, a Suffolk County grand jury returned

seven indictments against the defendant, Domingo Palma: two

counts of aggravated rape of a child, in violation of G.L. c.

265, § 23, and five counts of indecent assault and battery on a

person under fourteen years old, in violation of G.L. c. 265, §

13B (R.A. 20-26).

Domingo was involved in a romantic relationship with

Sylvette Lopez, the mother of the complainant, C.B. The

relationship lasted for several months in the summer of 2013.

During this period, Sylvette sometimes picked up C.B.’s brother

from his job; C.B. usually accompanied her mother on these

trips, but was sometimes left home with Domingo (III:102). It

was at these times that C.B. alleged that Domingo committed

various sexual assaults (III:104-110, 117).

The Commonwealth introduced evidence of a phone call that

Sylvette overheard (or instructed C.B. to make so that she could

listen in); C.B., either before or after this call, allegedly

disclosed that Domingo had touched her inappropriately.

The

Commonwealth also introduced “thumbnails” of the defendant and

C.B. together in a bed and a short voicemail that C.B. left on

Domingo’s phone (V:182, VI:22).

There was no forensic evidence to corroborate C.B.’s

allegations. Investigators sought to collect C.B.’s bedding as

potential evidence but Sylvette threw it out before they could

do so; to the extent that forensic testing was performed,

however, it did not reveal the presence of semen in C.B.’s room,

nor did an evidence collection kit from C.B.’s person yield any

connection to Domingo (V:121, 147-156).

The defendant testified in his own defense. He explained

that he had made an attempt to break up with Sylvette just

before the allegations arose and that she had threatened him,

saying, “You will have a lot of trouble . . . you don’t know

exactly what is going to happen” (VI:89-91). He provided a

statement to police after his arrest and permitted them to

search his phone and his car (VI:94-95, 101). He categorically

denied touching C.B. in an inappropriate way (VI:102, 112).

II. Trial Proceedings.

Prior to trial, the court addressed the defendant’s motion

in limine regarding prior bad acts, specifically, to exclude

allegations from Sylvette that Domingo owned a gun and made

threats to Sylvette (I:9-10).

Both the defense and the

Commonwealth believed that this testimony was inadmissible; the

court agreed (I:13). The prosecutor asserted that she instructed

Sylvette not to testify about these acts both at the in limine

stage and before Sylvette’s testimony (I:14, IV:81).

At one point during Sylvette’s cross-examination, counsel

asked about a conversation where C.B. teased Sylvette, saying

that she and Domingo were “boyfriend and girlfriend”;

specifically, counsel asked Sylvette whether Domingo “appear[ed]

surprised” that C.B. was saying this (V:74). At first Sylvette

gave no response, so defense counsel asked again, “Did he appear

surprised?”; to which Sylvette replied, “I believe that he had

[C.B.] frightened because he used to threaten me with a

revolver” (V:74). Defense counsel moved to strike, and Sylvette

began to say, “No, it’s the truth. He threatened me with --”

before indiscernible crosstalk occurred; the court struck the

answer as it attempted to restore order and asked the parties to

approach the bench (V:74-75).

A lengthy sidebar conference followed. Defense counsel

moved for a mistrial (V:75). The court said that it would

“remind [the jury] of things that are not evidence” (V:75).

Defense counsel replied,

I don’t see how a jury instruction, Judge, can do

anything. She’s making this allegation. I have no

option but to explore it. . . . I’m between a rock and

hard place because I wasn’t going to ask anything of

that -- to elicit that testimony and she just blurted

it out in response to the question, ‘Did Mr. Palma

appear surprised?’

(V:75). The court responded, “I struck the testimony. I’m going

to remind the jury at the end that I struck the testimony and

I’ll give them additional encouragement as to -- if you can, if

you want, you can explore it if you want, I guess. Even though

it’s stricken, I think it’s fair to ask some follow-up

questions” (V:76 [emphasis added]). The court considered

potential curative instructions; defense counsel maintained that

“[o]nce it’s stricken, it’s highlighted, whether they discuss it

or not. It’s still in the back of their minds. It’s essentially

known once it’s heard by the jury. I have no alternative but to

explore it . . . .” (V:77-78). Counsel ultimately stated that

his client “cannot get a fair trial now that she’s brought this

up” (V:80). The court moved on, telling Sylvette she needed to

listen carefully to the questions and to do her best to answer

yes or no to questions calling for such an answer (V:81).

The cross-examination continued. Sylvette testified that

Domingo kept a gun in his car and threatened her with it there;

that she never told her children of these threats; and that she

never called the police (V:82-83, 85). When asked if the threats

occurred “in the early part of the summer,” Sylvette replied,

“Yes, and he would always carrying a gun [sic]. He would say

that he had to be safe in case anything happened. He hates

people of color and that in case anyone of color approach him”

(V:85 [emphasis added]).

The jury was excused and another sidebar was convened

(V:86). The court noted that Sylvette testified contrary to the

court’s order despite a sufficient instruction by the prosecutor

(R.A. 19). Counsel expressed concern that, with three AfricanAmerican members of the jury, Sylvette’s non-responsive

statement that the gun was carried out of a specific fear of

“people of color” further eroded the defendant’s right to a fair

trial. He stated, “I don’t know how much more prejudicial a

situation he can have at this point” (V:91-94).

After a break for lunch, the Commonwealth asked the court

to deny the ongoing motion for mistrial (V:95). The court stated

again that the decision to cross-examine further on the topic of

firearms was a strategic one made by defense counsel and that

the court would not permit any rehabilitation from the

Commonwealth on that topic (V:98). At no time that day did the

court provide a curative instruction.

The following day, in its final charge, the court

instructed the jury that “this case is not about any threats or

any other conduct by the defendant directed at Ms. Lopez and

this case also does not in any way concern any firearm.

Testimony from Ms. Lopez on those matters do not bear in [sic]

the issue you need to decide in this case which concerns alleged

conduct alleging the defendant and [C.B.]” (VI:250). The

allowance of the motion to strike Sylvette’s testimony was never

explicitly reversed, either during Sylvette’s cross-examination

or in the court’s final instructions.

III. Decision of the Massachusetts Appeals Court.

The defendant filed a timely notice of appeal and the case

was entered in the Appeals Court on May 28, 2020. While the

appeal was pending in that Court, the trial judge allowed the

defendant’s motion to stay his sentence in an order dated

February 9, 2021, finding that the defendant had raised issues

“worthy of appellate attention” (App. 29).

The case was argued on May 4, 2021. A panel of the

Massachusetts Appeals Court (Vuono, Desmond & Massing, JJ.)

affirmed the defendant’s convictions in an unpublished decision

on June 16 (App. 19). The defendant moved to extend his stay of

sentence pursuant to Mass. R. A. P. 6(b)(5) so that he could

pursue further appellate review; this motion was allowed on June

22.

The defendant applied to the Supreme Judicial Court for

further appellate review. His application was denied on August 2

(App. 26). The defendant’s stay expired by the terms of the

previous order. He reported to the Suffolk Superior Court to

resume his sentence without incident.

REASONS FOR GRANTING THE PETITION

A trial court has inherent authority to grant a mistrial in

order to bring a trial to an end, without a determination on the

merits, because of a prejudicial error that cannot be corrected.

It is an indispensable tool for trial courts confronted with

proceedings that have become fundamentally unfair, thereby

ensuring that a defendant’s constitutional rights to due process

and a fair trial are preserved. No appellate decision in

Massachusetts, however, has ever reversed a trial judge’s denial

of a motion for a mistrial. That ruling is reviewed for an abuse

of discretion, a standard that, in practice, appears to give

unlimited leeway to the trial judge.

Here, the jury heard improper testimony that the defendant

carried a gun, that he threatened a witness with a gun, that

this witness speculated he threatened the complainant with a

gun, and -- if that was not bad enough -- that he obtained the

gun because “he hates of people of color.” Not only had the

parties agreed to exclude this very testimony before the trial

began (an agreement adopted by the trial judge), but it all came

in the form of non-responsive answers to the questions put to

the witness. The defendant moved for a mistrial in response. The

trial court denied the motion and the trial resulted in the

defendant’s conviction. After exhausting state appellate review,

the conviction was upheld.

The effect of this jurisprudence is to dissuade trial

courts from mistrying cases where it is necessary to do so. A

judge, already facing immense institutional pressure to complete

a trial once it has begun, is further disincentivized from

mistrying a case where he or she knows that the denial of such a

motion will invariably be upheld on appeal. Instead of fostering

judicial economy by finishing trials once they have started,

this practice leads to suspect verdicts obtained in the face of

incurable trial errors. It thus erodes defendants’

constitutional rights to due process and a fair and impartial

trial.

This case presents errors so manifestly and unduly

prejudicial that a fair trial became impossible. The errors

compounded on one another, multiplying until the prejudicial

effect could not be cured. But the parties cannot be faulted for

their reactions in real time when the original error was

attributable solely to the witness herself, a witness bent on

poisoning the proceedings with forbidden, unreliable and

irrelevant testimony. For this reason, a mistrial was the only

option and the trial court abused its discretion in denying the

defendant’s motion.

This Court should take the opportunity presented here to

affirm the propriety of mistrials under such circumstances, not

only to cure a grave injustice to the defendant, but to bring

Massachusetts law into alignment with the protections provided

under federal law. In doing so, this Court should stress the

necessity of using mistrials to avoid suspect verdicts and,

correspondingly, of a meaningful standard of review that

comports with the constitutional rights to a fair trial and due

process.

THIS COURT SHOULD GRANT CERTIORARI TO MAKE CLEAR THAT MOTIONS

FOR MISTRIAL, A FUNDAMENTAL TOOL FOR THE PRESERVATION OF A

DEFENDANT’S CONSTITUTIONAL RIGHTS, MUST BE ALLOWED IN CASES LIKE

THE INSTANT ONE WHERE THE PREJUDICE CREATED BY IMPROPER

TESTIMONY BECOMES INCURABLE.

Sylvette’s testimony about the defendant’s supposed gun

ownership and threats with a gun, her speculation that he made

similar threats to C.B., and, certainly, her allegations that he

carried a gun because “[h]e hates people of color,” were not

statements that the jury could disregard. Moreover, the trial

court’s instructions did not ask the jury to disregard them,

leaving them in evidence for an indeterminate purpose. This

caused profound and incurable prejudice requiring reversal.

The mistrial is a time-honored mechanism for halting a

proceeding that has become fundamentally unfair. In United

States v. Perez, 9 Wheat. 579 (1824) (Story, J.), this Court

stated that “the law has invested Courts of justice with the

authority to discharge a jury from giving any verdict, whenever,

in their opinion, taking all the circumstances into

consideration, there is a manifest necessity for the act, or the

ends of public justice would otherwise be defeated.” In other

words, where “the ends of substantial justice cannot be attained

without discontinuing the trial[,]” a mistrial is warranted.

Gori v. United States, 367 U.S. 364, 368 (1961). Thus, “[a]

mistrial is defined as a trial which has been terminated prior

to its normal conclusion because of . . . prejudicial error that

cannot be corrected at trial[.]” Malinovsky v. Ct. of Com. Pleas

of Lorain County, 7 F.3d 1263, 1269 (6th Cir. 1993), quoting

Black's Law Dictionary 1002 (6th ed. 1990).

Trial judges are granted wide discretion in determining

whether a mistrial is appropriate and any decision denying a

motion for mistrial is reviewed for an abuse of that discretion.

See, e.g., United States v. Apicelli, 839 F.3d 75, 86 (1st Cir.

2016). Although that grant appears to be a wide one, see Gori,

367 U.S. at 368. (Supreme Court has “consistently declined to

scrutinize with sharp surveillance the exercise of that

discretion”), it is not an unlimited one. In describing Perez’s

“manifest necessity” standard, this Court has held that “the key

word ‘necessity’ cannot be interpreted literally; instead . . .

we assume that there are degrees of necessity and we require a

‘high degree’ before concluding that a mistrial is appropriate.”

Arizona v. Washington, 434 U.S. 497, 506 (1978).

Massachusetts is just one of many states who have adopted a

similarly lenient standard toward trial judges’ determinations

of when a mistrial is appropriate. See, e.g., Commonwealth v.

Amran, 471 Mass. 354, 359 (2015) (trial court has “broad

discretion” regarding motions for mistrial and a reviewing court

owes deference to such rulings). But Massachusetts has taken

this approach to an unconstitutional extreme. Recently, its

Appeals Court noted that it could not find “a single

Massachusetts case . . . where an appellate court has concluded

that a mistrial was required because the jury would not be able

to disregard evidence [as instructed.]” Commonwealth v. Silva,

93 Mass. App. Ct. 609, 615-616 (2018). Surely, it is not

impossible for a trial judge’s assessment to be incorrect. But

absent a single reversal -- ever, in the history of the

reviewing courts in Massachusetts -- that appears to be the view

underlying the cases on this issue.

Federal case law lays out the following approach in

determining whether a motion for mistrial was appropriate: a

reviewing court must look to the totality of the circumstances,

considering in particular “1) whether an appropriate curative

instruction was issued, 2) whether the judicial response was

timely, and 3) whether appellants successfully rebutted the

presumption that the jury followed the judge’s instructions.”

United States v. Pagán–Ferrer, 736 F.3d 573, 586 (1st Cir.

2013). The existence of a curative instruction matters in this

context; if a curative instruction is “promptly given, a

mistrial is only warranted in rare circumstances implying

extreme prejudice.” United States v. Torres, 162 F.3d 6, 12 (1st

Cir. 1998). Applying the approach noted above, the denial of the

mistrial was constitutional error in this case.

As outlined above, Sylvette’s improper testimony was

grossly prejudicial, and the prejudice was neither cured nor

curable. The trial court did not give a prompt curative

instruction, see Torres, supra, but waited instead until the end

of the trial. And at that time, he told the jury only that

Sylvette’s erroneous testimony “do[es] not bear in [sic] the

issue you need to decide in this case” (VI:250). The court did

not withdraw the evidence from the jury’s consideration, and

thus left it before the jury for some indefinite purpose.

This case perfectly illustrates why the mistrial is so

crucial to fair trial practice. The errors here -- Sylvette’s

unresponsive comments, volunteered to unfairly disparage the

defendant in blatant violation of the court’s orders -- caused

extreme prejudice. Because the prejudice multiplied as the

parties reacted in real time, the errors were not readily

remediable. They were caused in the first place by the witness’s

flagrant disregard of the in limine ruling (and even of the

court’s contemporaneous admonition to properly answer yes-or-no

questions, see V:81). They were then highlighted by the court’s

initial allowance of the motion to strike and the lengthy

ensuing sidebar. The court’s subsequent resistance to granting a

mistrial and, instead, its encouragement to pursue crossexamination on ostensibly stricken testimony (V:74-76), further

exacerbated the prejudice. Defense counsel, now in an impossible

strategic situation, sought to lessen the blow of Sylvette’s

accusations by further cross-examination in accordance with the

court’s ruling, only to have Sylvette give yet another

unresponsive answer, to the effect that the defendant’s gun

ownership was spawned by his hatred of “people of color” (V:85).

Trial counsel asserted again that a fair trial was impossible

(V:87-88, 93-94). But the Commonwealth asked the court not to

mistry the case (V:95) and the court pushed forward without

providing a curative instruction until the following day.

Both the trial court and defense counsel were in difficult

situations, and both tried, in their own way, to mitigate the

errors. But these attempts, well-intentioned as they were, only

caused the trial to spin further out of control, multiplying the

prejudicial effect of Sylvette’s testimony beyond a point where

it could be cured. A mistrial was the only option. The trial

needed to be “discontinu[ed]” in order for any resulting verdict

to comport with “substantial justice.” Gori, 367 U.S. at 368.

A jurisprudence that discourages the use of this mechanism

is contrary to the basic constitutional guarantees of a fair

trial and due process. A grant of discretion so wide that no

appellate court will meaningfully review, or ever reverse, a

lower court’s decision is not a sufficient bulwark against

unfair trials. Herein lies a valuable lesson for our trial

courts: there is a point when a trial becomes so unfair that no

instruction can rescue it. That point was reached in this case.

The denial of the mistrial was constitutional error. This Court

should grant certiorari in this case to make clear to courts in

Massachusetts, and elsewhere, that their discretion in ruling on

motions for mistrials is not, in fact, unlimited.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition.

ERIC BRANDT

Counsel of Record

THOMAS COMBS

Committee for Public

Counsel Services

75 Federal Street

Boston, MA 02110

(617) 482-6212

ebrandt@publiccounsel.net

Attorneys for Petitioner

No.

______________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________________________

DOMINGO PALMA,

Petitioner,

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

______________________________________________________

On A Petition For A Writ Of Certiorari To

The Massachusetts Appeals Court

______________________________________________________

APPENDIX

______________________________________________________

ERIC BRANDT

Counsel of Record

THOMAS COMBS

Committee for Public

Counsel Services

75 Federal Street

Boston, MA 02110

(617) 482-6212

ebrandt@publiccounsel.net

Attorneys for Petitioner

TABLE OF APPENDICES

Commonwealth v. Domingo Palma, 20-P-0597, slip op.,

Massachusetts Appeals Court (June 16, 2021). . . . . . . 19

Commonwealth v. Domingo Palma, FAR-28367 (2021) . . . . . . . 26

Order on Defendant’s Motion for Stay of Sentence (Barry-Smith,

J.) (February 9, 2021) . . . . . . . . . . . . . . . . . 27

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009)), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

20-P-597

COMMONWEALTH

vs.

DOMINGO PALMA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant, Domingo Palma, of two

counts of rape of a child in violation of G. L. c. 265, § 23,

and four counts of indecent assault and battery on a child under

the age of fourteen in violation of G. L. c. 265, § 13B. The

victim, whom we shall call Sally, is the daughter of the

defendant's former girlfriend (mother). On appeal, the

defendant argues that the judge erred by failing to grant a

mistrial after the mother testified that the defendant had

threatened her with a firearm despite having been informed that

the judge had excluded that evidence. We affirm.

Background. Prior to trial, defense counsel filed a motion

in limine that sought to prevent the mother from testifying, as

she had stated in a previous interview, that the defendant had

threatened her with a firearm. At the hearing on the motion,

the prosecutor agreed that such testimony was not admissible,

and the motion was allowed without objection. At trial,

however, despite having been advised by the prosecutor not to

reveal anything about the alleged threat or the defendant's use

of a firearm, the mother testified in response to a question

posed by defense counsel that she believed Sally was frightened

of the defendant "because [the defendant] used to threaten me

with a revolver." Defense counsel immediately moved to strike

the answer, which the judge did. Defense counsel then requested

a mistrial, which the judge denied. The judge offered to

instruct the jury that the stricken testimony was not evidence

in the case; however, because defense counsel believed that a

curative instruction was not adequate in the circumstances, he

elected instead to explore the issue through further questioning

to undermine the mother's credibility.1 Thereafter, in response

to defense counsel's questions on cross-examination, the mother

testified that (1) the defendant threatened her on three

occasions by showing her a revolver; (2) she never told her

children about the threats because she did not want to scare

them; (3) the defendant always carried the gun "in case anyone

1 We note that the decision of defense counsel to pursue the

issue on cross-examination was a conscious strategic decision

that was not unreasonable at the time it was made. The mother

was hostile toward the defendant, and defense counsel's decision

to exploit that hostility effectively demonstrated her bias

which, in turn, significantly diminished her credibility.

of color approach[ed] him" because "[h]e hates people of color";

and (4) he carried the gun in the glove compartment of his truck

or underneath the seat of his car.2 On the following day, before

the trial recommenced, the judge offered to strike all the

testimony regarding the firearm and threats in its entirety, but

defense counsel declined.

In his closing argument, defense counsel relied on the

mother's testimony regarding the alleged threats with a firearm

to support his theory that she was not credible. He argued that

it was unlikely that the mother would not have told her older

sons about the defendant threatening her with a gun and that her

allegation that he carried the gun because he hated people of

color was an attempt to impugn his character in front of the

jury. By contrast, in her closing remarks the prosecutor told

the jury to ignore the testimony altogether. She argued:

"The testimony you heard about gun possession and threats

are a distraction. The defendant is not charged with those

things. It is not your job to determine whether he's

guilty or not guilty of those things. Completely put it

out of your mind. Do not be distracted by it. Focus on

what is important. Focus on the charges in this case

Focus on the allegations of what the defendant did to

[Sally]."

2 The defendant testified that he did not own a firearm. He also

testified that a few days before he was arrested, he had

attempted to end his relationship with the mother, and that the

mother responded by threatening him, stating that he would have

"a lot of trouble."

In his final charge to the jury, the judge specifically

addressed the testimony about the defendant's alleged threats

and use of a firearm and instructed the jury as follows:

"Let me say a word about certain testimony you heard in

this case. Recall that during [the mother's] testimony, at

one point she testified in certain terms [threats]

allegedly made against her by the defendant involving a

gun. I initially struck that testimony from that point,

which means you must disregard. However, upon further

questioning by defense counsel [the mother] testified

further about those alleged threats and about the alleged

firearm. That testimony was not stricken but I want to

provide this instruction now after close of the evidence.

"First, this case is not about any threats or any other

conduct by the defendant directed at [the mother] and this

case also does not in any way concern any firearm.

Testimony from [the mother] on those matters do not bear in

the issue you need to decide in this case which concerns

alleged conduct alleging the defendant and [Sally].

"Second, I'll advise the jury that no charges are pending

now and no charges have ever been brought against Mr. Palma

related to any threats or other conduct directed at [the

mother], or related to any firearms."

Discussion. The defendant argues that the mother's initial

disclosure that he had threatened her with a firearm required

the judge to declare a mistrial and that no curative instruction

was adequate to cure the prejudice that flowed from the improper

testimony.3 We disagree.

The parties do not agree on the applicable standard of review.

The Commonwealth maintains that the only issue preserved on

appeal is whether a mistrial should have been granted based on

the mother's initial disclosure that the defendant had

threatened her with a firearm. The defendant argues that

because he was forced to elicit additional testimony from the

mother, we should consider all of the mother's testimony in

determining whether there was prejudicial error. We need not

We review the decision not to declare a mistrial for an

abuse of discretion, affording deference "co that judge's

determination of whether [there was] prejudicial error, how much

any such error infected the trial, and whether it was possible

to correct that error through instruction 7,o the jury."

Commonwealth v. Amran, 471 Mass. 354, 359 (2015), quoting

Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). Here, there

is no question that the testimony at issue was inadmissible and

that the mother violated the pretrial ruling excluding evidence

of the defendant's alleged prior bad acts. However, because the

judge immediately struck the mother's initial response and

clearly and forcefully instructed the jury in his final charge

that they were to disregard the stricken answer and further

instructed the jury that the additional testimony about the

alleged threats and the reasons why the defendant allegedly had

a firearm elicited by defense counsel was not relevant to the

charged offenses, we are satisfied that any potential prejudice

was sufficiently neutralized.

Furthermore, we do not agree with the defendant's assertion

that the Commonwealth did not have a strong case. To the

contrary, Sally's allegations of sexual abuse were corroborated

resolve this disagreement because we assume without deciding

that we should consider all the testimony in determining whether

a mistrial was required and in evaluating 7,he issue of

prejudice.

by additional compelling evidence. Sally's brother testified

that the defendant would visit Sally's room at night and that he

saw them in bed together twice. The mother and Sally's other

brother described a telephone call between Sally and the

defendant that the brother claimed to have recorded. That same

brother testified that the defendant referred to himself and

Sally as a couple and mentioned that they had had sexual

intercourse.4 In addition, a voicemail that Sally left on the

defendant's telephone telling the defendant "Baby[,] I miss you,

can't wait . . . for us to be together again," was played for

the jury. Sally testified that the defendant asked her to leave

the voicemail for him. Finally, Sally testified that the

defendant took photographs of himself and Sally together. The

photographs, which were admitted in evidence, showed the

defendant and Sally in Sally's room. The defendant was

shirtless and kissing Sally, and Sally was kissing the

defendant's nipples. Although the defendant testified at trial

and denied that he had touched Sally inappropriately, he

acknowledged that on one occasion he fell asleep in bed with

Sally while they were watching a movie, and that Sally had once

4 For the most part, the brother summarized his interpretation of

the defendant's statements. At one point, paraphrasing, the

brother described the defendant as saying, "Oh, no, my love.

We're going to go, we're going to leave this. After we leave

this, we're going to talk about our future and our lives

together."

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT

CRIMINAL ACTION

No. 1384CR11033

SUFFOLK, ss.

COMMONWEALTH

vs.

DOMINGO PALMA

ORDER ON DEFENDANT'S MOTION FOR A STAY OF SENTENCE

PENDING APPEAL

On September 3, 2019, a jury found defendant, Domingo Palma, guilty of two counts of

rape of a child and four counts of indecent assault and battery on a child. I sentenced Palma to

ten years to ten years, one day in State Prison, the mandatory minimum sentence under G.L. c.

265, § 23A, to be followed by probation. For the last seventeen months, Palma has been serving

that sentence, currently at MCI-Gardner. Palma's appeal is pending before the Appeals Court,

where the parties have filed their briefs. On January 11, 2021, Palma filed a motion for a stay of

his sentence pending appeal, and I held a hearing on February 5, 2021 after the Commonwealth

filed its opposition. For the reasons discussed briefly below, Palma's motion for a stay of

sentence pending appeal is ALLOWED.

Because his appeal is pending, Palma may seek a stay of his sentence pending appeal.

Mass. R. App. P. 6(b); Mass. R. Crim. P. 31. The Supreme Judicial Court's decision in

Commonwealth v. Nash, 486 Mass. 394 (2020) provides the standard for me to apply in

reviewing Palma's motion. I must evaluate: (1) the defendant's likelihood of success on appeal,

(2) certain security factors, and (3) certain risks associated with the pandemic. Id. at 403. With

respect to the first factor, the defendant need not show he is likely to succeed on appeal. Instead,

the burden on the defendant to establish the requisite possibility of success is not

onerous; . . . the defendant must show that there is at least one appellate issue of

sufficient heft that would give an appellate court pause — in other words, one or

more issues that require a legitimate evaluation, that would engender a dialectic

discussion among an appellate panel where both sides find some substantive

support, and that would, if successful, lead to a favorable outcome for the

defendant.

Id. at 404. The second factor requires me to consider "security" factors including the possibility

of flight to avoid punishment, the potential danger to any person or the community, the

likelihood of criminal acts if defendant is released pending appeal, and bail-related

considerations such as family connections, community roots, prior criminal record, seriousness

of the crime and strength of the evidence.. Id. at 405. Finally, so long as the COVID-l9

pandemic continues, I am to consider the risks posed by incarceration during the pandemic,

mindful of the judiciary's continuing objective to reduce prison and jail populations, where that

can be done in a "safe and responsible manner." Id. at 406. If a defendant would qualify for a

stay under the "traditional, two-factor test," I need not consider the risks posed by the pandemic.

Id. at 407. Rather, where a defendant does not satisfy the traditional criteria, but comes close, the

pandemic-related risks may tip the scales in favor of a stay. Id.

Here, after hearing and careful consideration of the parties' arguments, I find that Palma

satisfies the two traditional criteria and is entitled to a stay pending appeal. With respect to the

merits of Palma's appeal, the Commonwealth argues that Palma's appeal is unlikely to meet with

ultimate success. The centerpiece of Palma's appeal is that he was entitled to a mistrial because

a witness—the victim's mother—testified that Palma owned a gun, had previously threatened her

with it, and kept it for protection from "people of color." In addition to being irrelevant and

prejudicial, testimony concerning the alleged gun was raised in limine before trial, excluded, and

the prosecutor instructed the witness not to raise that issue. The Commonwealth argues that,

though this testimony plainly violated an evidentiary ruling, it will not support a successful

appeal because: i) defense counsel at trial made the strategic decision to elicit further related

testimony from the witness to undermine her credibility, rather than leave the testimony stricken;

ii) I issued curative instructions; iii) the testimony was collateral to the main issues to be decided

by the jury; and iv) the evidence of Palma's guilt was overwhelming. I find persuasive the

Commonwealth's arguments that Palma is unlikely to succeed in his appeal. But the standard is

not whether Palma will succeed, but whether the appeal presents an issue "worthy of

presentation to an appellate court, one which offers some reasonable possibility of success." Id.

at 403, quoting Commonwealth v. Levin, 7 Mass. App. Ct. 501, 503-504 (1979). Here, the

witness's improper testimony and my denial of a mistrial in favor of a curative instruction,

layered with defense counsel's strategic decision to elicit additional testimony, followed by

additional jury instructions on the issue, raised a challenging trial issue. Even if I agree with the

Commonwealth with respect to the collateral nature of the testimony and the overall strength of

the evidence, the issues arising out of the witness' trial testimony and my response are worthy of

appellate attention.

With respect to the security factors, Palma is uniquely positioned to argue that he poses

no threat to the community or to flee, notwithstanding that he has already been sentenced to ten

years for a serious crime. He is 67 years old. The charges on which he was indicted in 2013 and

convicted in 2019 are the only entries on his criminal record. For six years between when these

charges were commenced in district court and his trial, Palma was released on GPS, He attended

all proceedings as required, and trial, mid did not violate any condition of release. If released

pending appeal, he proposes to return to his prior residence in Litchfield, New Hampshire,

monitored by GPS, to live with his longtime girlfriend and his son, in the same place he lived for

many years while awaiting trial. On this factor, the Commonwealth's principal contentions are

that Palma is now serving a ten year sentence after conviction, which increases his incentive to

flee, and that the nature of his crime—exploiting his position of trust and sexually abusing an

eleven year old girl—make him a risk to the community. .I acknowledge, of course, the serious

difference between facing a potentially long period of incarceration and actually serving such a

sentence. I also acknowledge the serious nature of Palma's criminal conduct. On balance,

however, I find that Palma has satisfied the security factor in favor of a stay. Notwithstanding

that he is at the front end of a ten year sentence of incarceration, which reflects the seriousness of

his criminal conduct, I find that, especially with the conditions of release I will impose, Palma is

not likely to pose a danger to the community or to re-offend, or to flee, and that his release to

home confinement at his residence, monitored by GPS, warrants a stay of his sentence while his

appeal is pending.

Because I find Palma satisfies the traditional two-prong analysis for a stay, I am not

obligated to consider the risks posed by the COVID-19 pandemic. Nonetheless, were Ito

determine that either of the two traditional criteria were not satisfied, the pandemic-related

circumstances would provide an additional basis for a stay. MCI-Gardner has experienced a

recent spike in COVID-19 infections. Indeed, although Palma received a COVID-19 vaccine in

recent weeks, his lawyer reports that Palma tested positive for COVID-19 immediately before

the February 5, 2021 hearing. The risks of COVID-19 while in prison have thus manifested for

this defendant. To address this reported positive test, my conditions will require Palma as a

condition of release to conform to any quarantine requirements as instructed by the DOC.

ORDER

Defendant's motion for stay of sentence pending appeal is allowed. Defendant Domingo

Palma shall be released pending appeal subject to the following conditions of release:

•

Palma shall reside at 10 Steven Way in Litchfield, New Hampshire, and shall be subject

to house arrest at that address, monitored by GPS bracelet, with windows only for legal

appointments and medical appointments, with advance notice and approval from

Probation Department. Palma shall not be released until affixed with GPS.

•

Palma shall provide a signed waiver of extradition to Probation Department.

•

Palma shall comply with quarantine requirements as instructed by the Department of

Corrections in connection with his release.

•

Palma shall have no contact, direct or indirect, with the victim in this case or her family.

•

Palma shall turn over his passport to Probation, unless Probation still possesses it as a

result of his previous pre-trial detention.

So ordered.

)46- 1\

114-41,

Christopher)K. Barry-Smith

Justice of the Superior Court

DATE:. February 9, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.