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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.
2

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.

 

1 In the interest of privacy, we use the same pseudonyms 

adopted by the Appeals Court. Commonwealth v. Dorazio, 85 Mass. 

App. Ct. 1127 (2014). See Commonwealth v. Aviles, 461 Mass. 60, 

61 n.1 (2011).

2 The jury acquitted the defendant of indecent assault and 

battery on a child under the age of fourteen (Jane), G. L. 

c. 265, § 13B.

3 The Appeals Court consolidated the defendant's direct 

appeal with the appeal from the denial of his motion for a new 

trial.
3

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 later gravitated toward spending time 

with the children.

During the summer after Susan completed kindergarten, in 

1996, she was playing with several children in the defendant's 

basement. The defendant asked her to go outside with him to 

look at something in the back yard. They went through a door in 

the basement that opened up under a deck. The other children 

stayed inside. The defendant knelt down on his left knee, 

touched Susan on her back, and asked her to sit on his right 

knee. Susan complied. The defendant put his hand on Susan's 

inner thigh, then slid his fingers under her shorts and under 

her underwear. He inserted one of his fingers into her vagina 

and moved it "in circular motions." This went on for a "few 

minutes," until the defendant heard something and they went back 

inside the house.
4

Approximately one to two weeks later, "[i]t happened 

again." Susan was playing at the defendant's house with other 

children and the defendant asked her to go outside with him. 

Under the deck, he knelt on one knee and had her sit on the 

other. The defendant put his hand inside her underwear and 

inserted a finger into her vagina, moving it "[a]round and in 

and out" for a "few minutes."4

Sometime around 2000 or 2001, the defendant separated from 

his wife and moved out of the neighborhood. He did not, 

thereafter, attend any neighborhood gatherings.

In June, 2008, after seeing the defendant at a gasoline

station, Susan went home "hysterical" and told her mother (the 

first complaint witness for Susan) that the defendant had "hurt 

her" and in response to her mother's questions "looked at her 

lap."5

 

4 During Susan's cross-examination, defense counsel 

questioned her about using a ladder to view a bird's nest under 

the defendant's porch. Susan recalled a bird's nest somewhere 

under the defendant's porch, but not using a step ladder to see 

it.

5 During the cross-examination of Susan's mother, she 

recalled a bird's nest in the deck area of the defendant's porch 

in the summer of 1996. Her daughter showed it to her. Susan's 

mother, however, denied that the defendant had informed her of 

an incident involving Susan where Susan had fallen off a step 

ladder that she had climbed to view the nest. Susan's mother 

also testified that the defendant did not give her a video

recording of the bird's nest.
5

Concerning the other complainant, during the late spring or 

early summer of 1998, when she was six years of age, Jane 

testified to playing Wiffle ball with some children in the 

defendant's back yard; the defendant was pitching. The ball 

went into some nearby woods. The defendant asked Jane to go 

inside his house to get another ball. Jane followed the 

defendant to the laundry room in the basement. The defendant 

told Jane that the Wiffle balls were on a shelf above the 

washing machine that he could not reach. He told her that she 

would have to reach for the ball and lifted her on top of the 

washing machine. As Jane stood on top of the machine, the 

defendant touched the inside of her knee with one hand. The 

defendant then moved his hand under Jane's underwear and touched 

her vagina, moving his fingers around "[v]ertically" for about 

ten seconds. Frozen, Jane heard something jingle and the 

defendant took her right hand, put his penis in it, and told 

her, "Hold on. Hold this."6 In seventh grade, Jane first told a 

friend (her first complaint witness) about the incident.

Over the defendant's objection, the judge admitted evidence 

from three witnesses concerning an incident that took place on 

June 13, 1998, at a restaurant in Burlington involving the 

 

6 These facts served as the basis for indecent assault and 

battery charge, on which the defendant was acquitted.
6

defendant and a young girl, J.D., who was six years of age.7 

J.D. testified that, on that date, she was at the restaurant 

with friends and family celebrating her birthday. She and a 

friend8 were in a play tube along with other children. Also 

present was an adult male and his toddler son. The girls tried 

to avoid the man, but he cornered them in a dead end and began 

chatting with them. J.D. gave a description of the man, but was 

unable to identify him in the court room.

When his son started crawling in the opposite direction, 

the man placed his hand on J.D.'s knee and his other hand on her 

friend's knee. His hand went up and under her dress and inside 

the front of her underwear, where it stayed for a minute or two 

before there was an interruption of some kind and the man and 

 

7 Before J.D. testified, the judge gave an extensive 

limiting instruction concerning the use of the evidence of this 

incident, telling the jury that the Commonwealth bore the burden 

of proving by a preponderance of the evidence that the incident 

had occurred; that the incident formed the basis of a criminal 

charge for which the defendant had been acquitted; that the jury 

could not consider the evidence as bad act or propensity 

evidence or as a substitute for proof that the defendant 

committed the crimes charged in this case; and that they could 

consider the evidence only on the limited issue whether the 

defendant had acted intentionally or by mistake, accident, or 

some other innocent purpose and not for any other purpose. 

Before the other two witnesses testified, the judge reminded the 

jury that this instruction also applied to their testimony.

8 The friend did not testify.
7

the girls headed in opposite directions. J.D. later saw the man

when she was with her father.

J.D.'s father testified that, at the party, another parent 

had approached him, after which he summoned J.D. from the tube

structure and asked her if someone had touched her, then asked 

her to point out who had done so. She identified a man the 

father had seen earlier in the tubes, and whom he identified in 

the court room as the defendant. J.D.'s father told the manager 

that his daughter had been assaulted and requested that he 

telephone the police.

Burlington police Officer Charles T. Ferguson responded and 

was directed to a man he identified at trial as the defendant. 

After the defendant identified himself, the officer administered 

the Miranda warnings to the defendant and told him that he 

wished to speak with him about some "allegations" concerning 

some improper touching of girls.9 Asked whether he had had any 

contact with any children not his own, the defendant replied 

that "he may have had an accidental bumping of children up while 

he was in there playing with his children, but as far as 

knowingly touching them, he said absolutely not."

 

9 The judge gave a limiting instruction at this point, to 

the effect that the officer's statements were not evidence and 

that the jury were to consider only the defendant's responses.
8

The defendant testified. He denied placing Susan on his 

knee or sexually assaulting her, and denied spending time with 

Jane in his basement and placing her on top of the washing 

machine and touching her as she testified. The defendant 

recalled taking his toddler son, in 1998, to a restaurant where 

they met two girls in a tube play structure. He testified that 

they remarked on his "cute baby," who then crawled all over 

them. The defendant had to change position, but was able to 

pull his son away from the girls. The defendant and his son 

crawled away and the girls "scooted by" and "bumped" him as they 

passed. The defendant was arrested later that day, was tried, 

and was acquitted.10

Discussion. 1. Joinder. Contrary to the defendant's 

contention, there was no abuse of discretion in the denial of 

his motion for relief from prejudicial joinder. Commonwealth v. 

Walker, 442 Mass. 185, 199 (2004). The facts of this case 

demonstrate that, although each offense involved different 

complainants, they were similar insofar as age and gender, and 

both were neighborhood children who knew the defendant and to 

whom the defendant had access. Commonwealth v. Gaynor, 443 

 

10 During his direct and cross-examination, the defendant 

testified about an incident in which he claimed that Susan 

climbed a step ladder to see a bird's nest under his deck. She 

was unsteady, almost fell off, and the defendant had to grab her 

by the leg and the buttocks to lift her down.
9

Mass. 245, 260-261 (2005). In addition, the manner and 

circumstances in which each had been isolated from the other 

children, distracted, and touched demonstrated that the offenses 

were related for joinder purposes because they involved a common 

pattern of conduct. Commonwealth v. Pillai, 445 Mass. 175, 181-

182 (2005). The temporal proximity between the offenses, two 

years, was not too remote, and both offenses took place at the 

defendant's home. Gaynor, supra; Commonwealth v. Feijoo, 419 

Mass. 486, 489 (1995) (five-year time span for joined offenses 

not overly attenuated). Last, the defendant failed to show 

prejudice of a nature that is so compelling that he was denied a 

fair trial. Gaynor, supra at 263.

2. Admission of evidence relating to prior acquittal (the 

alleged incident involving J.D.). The judge delayed ruling on 

the Commonwealth's motion in limine to admit evidence of the 

alleged incident involving J.D. until the fourth day of trial, 

at which time he allowed the motion over defense counsel's 

objection. The defendant argues that the erroneous admission of 

this evidence prejudiced him and deprived him of his right to a 

fair trial and due process under the State and Federal 

Constitutions. We address first the defendant's contention that 

the evidence lacked relevance as rebuttal to the defense of 

accident or lack of intent and that, on that basis, it was 

inadmissible under general evidentiary principles. Because we 
10

discern no error in the admission of the evidence on relevancy 

grounds, we go on to resolve the issue on the constitutional 

grounds raised for the first time in this appeal.

a. Admissibility under evidentiary principles. The 

defendant objected at trial to the admission of the evidence on 

relevancy grounds. Therefore, we review this claim for 

prejudicial error. Commonwealth v. Montez, 450 Mass. 736, 744 

(2008). "Generally, evidence of a defendant's prior misconduct 

may not be admitted to show bad character or propensity to 

commit the crime charged." Id. "However, such evidence may be 

admissible, if relevant, to show a common scheme or course of 

conduct, a pattern of operation, absence of accident or mistake, 

intent, or motive." Commonwealth v. Barrett, 418 Mass. 788, 

793-794 (1994). "When a court is presented with evidence of 

uncharged conduct by the defendant toward a child other than the 

complainant, the conduct in issue, to be admissible, must be 

closely related in time, place, and form of acts to show a 

common course of conduct by the defendant . . . so as to be 

logically probative." Id. at 794.

"If the judge finds that the evidence in question meets the 

above requirements, he or she next must determine whether its 

probative value is outweighed by a risk of undue prejudice to 

the defendant." Id. "It is implicit in the general rule 

regarding the inadmissibility of prior bad acts evidence that 
11

the admission of such evidence carries with it a high risk of 

prejudice to the defendant." Id. at 795.

"Before prior bad act evidence can be admitted against a 

defendant, the Commonwealth must satisfy the judge that 'the 

jury [could] reasonably conclude that the act occurred and that 

the defendant was the actor.'" Commonwealth v. Rosenthal, 432 

Mass. 124, 126 (2000), quoting Huddleston v. United States, 485 

U.S. 681, 689 (1988). "The Commonwealth need only show these 

facts by a preponderance of the evidence." Commonwealth v. 

Rosenthal, supra at 126-127.

The defendant argues that, at trial, his defense counsel 

did not raise a defense of accident or lack of intent such that 

the evidence would have been relevant to rebut such a defense. 

The record does not support this contention. See Commonwealth

v. Kingston, 46 Mass. App. Ct. 444, 449-450 (1990) ("Whether a 

defense has been fairly raised is a matter of law for the 

court"). Prior to the introduction of the bad act evidence (the 

alleged incident involving J.D.), defense counsel questioned 

both Susan and her mother about the existence of a bird's nest 

under the defendant's deck and Susan's use of a ladder to view 

it. See notes 4 and 5, supra. This cross-examination laid a 

foundation to question the defendant about these matters when he 

testified. See note 10, supra. Then, in his closing argument, 

defense counsel stated that Susan was not lying, but was 
12

"confused" about what had transpired between her and the 

defendant. What really had happened, according to defense 

counsel, was that Susan had fallen off a ladder and the 

defendant had touched her buttocks when he grabbed her to catch 

her. Although defense counsel did not use the words "accident," 

"mistake," or "lack of intent," this essentially was what he was 

arguing. Viewing the record as a whole, we are able to see 

beyond the euphemism "confusion" and recognize the development 

and existence of a defense of accident or mistake at trial. 

Thus, we conclude that the judge acted within his discretion in 

admitting the evidence on the question whether the defendant had 

acted with intent and on the issue of the absence of accident or 

mistake.

The defendant contends the evidence should not have been 

admitted because it lacked a close relation in time, place, and 

form of acts to be logically probative. We disagree.

As to time, the alleged incident involving J.D. occurred in 

June, 1998. The conduct in this case allegedly occurred in the 

summer of 1996 (Susan) and between February, 1998, and February, 

1999 (Jane). Thus, we conclude that the alleged incidents were 

sufficiently close in time.

Turning to place, although the alleged acts against the 

complainants in this case occurred at the defendant's home and 

the alleged acts involving J.D. took place at a restaurant, both 
13

locations were in Burlington. More significantly, the defendant 

allegedly committed the acts that took place at a location and 

time when young children were separated from their parents and 

in circumstances where he was able to create a distraction 

before allegedly touching them.

Concerning the acts themselves, the defendant commenced by 

allegedly touching each complainant's underwear. We add that 

the complainants were the same gender and near the same age. 

These numerous similarities were sufficient to show "a common 

course of conduct by the defendant . . . so as to be logically 

probative." Barrett, 418 Mass. at 794.

The judge properly could conclude that the relevant and 

probative value of the evidence concerning J.D. was very high 

and that the potential for undue prejudice could be minimized by 

a limiting instruction. Montez, 450 Mass. at 746. The judge's 

limiting instructions stated the proper and limited use of the 

testimony. See note 7, supra. He repeated this instruction at 

the conclusion of trial in his final charge, and the jurors are 

presumed to follow the instructions. Commonwealth v. Francis, 

432 Mass. 353, 359 (2000). There was no error under existing 

evidentiary law. Montez, supra.

The "manner" in which the evidence concerning J.D. came in 

does not alter our conclusion. Here, the defendant argues that 

undue prejudice resulted because J.D. alluded to the possibility 
14

that there was another alleged victim. The record does not 

support this contention. J.D. testified to her personal 

observation that in addition to touching her, the defendant put 

his hand on her friend's knee, no more. While the responding 

officer testified thereafter that he went to the restaurant to 

investigate and questioned the defendant about the "possible 

explicit touching of . . . young female girls," it was clear 

from the context that the touching of J.D. was the only 

suggested inappropriate touching that was alleged. Further, 

during the officer's testimony, the judge instructed the jury 

that they were not to consider the officer's questions "to the 

extent that they imply such knowledge of the case." In 

addition, the defendant had admitted to "bumping" children at 

the restaurant.

We reject the defendant's suggestion that this bad act 

evidence overshadowed the trial. The Commonwealth presented its 

case over three days; this bad act evidence consisted of the 

brief testimony of three witnesses (covering approximately forty 

pages). The incident involving J.D. was no worse than the 

conduct alleged at trial. Further, the jury acquitted the 

defendant on the indictment alleging indecent assault and 

battery of Jane, which demonstrates a careful consideration of 

the evidence.
15

b. Admissibility under constitutional principles. In 

addition to arguing that the evidence concerning J.D. was 

inadmissible under evidentiary principles, the defendant also 

argues that the admission of this evidence violated his 

constitutional rights. Specifically, for the first time on 

appeal, the defendant argues that it was a violation of his 

rights to due process and a fair trial under art. 12 of the 

Massachusetts Declaration of Rights to admit the evidence 

concerning the alleged incident involving J.D. because he had 

been acquitted of that charge (acquittal evidence). He also 

contends that art. 12 "demands that the Commonwealth be 

collaterally estopped from introducing such evidence." The 

defendant's arguments turn not on the fact that there was a

prior "bad act," but rather on the fact that the defendant had 

been acquitted of the charge, which he suggests necessarily 

means that he did not commit the underlying conduct forming the 

basis for the charge.

The defendant's argument has been rejected under the 

Federal Constitution. "As a matter of Federal constitutional 

law, collateral estoppel does not bar the government in a 

criminal prosecution from introducing evidence from a separate 

prosecution on unrelated charges in which the defendant was 

acquitted." Francis, 432 Mass. at 359 n.5. In Dowling v. 

United States, 493 U.S. 342 (1990), the United States Supreme 
16

Court held that because of the different standards of proof, the 

introduction of so-called acquittal evidence did not violate the 

collateral estoppel component of the double jeopardy clause of 

the United States Constitution. Id. at 348-349. The Court also 

concluded that its admission did not violate the Federal 

Constitution's due process clause. Id. at 352-354. Many courts 

have allowed the introduction of relevant evidence of prior 

charged incidents even where a defendant has been acquitted of 

such offenses. See Commonwealth v. Barboza, 76 Mass. App. Ct. 

241, 243 n.6 (2010) (collecting cases). We, however, have not 

decided "whether under the Massachusetts Constitution evidence 

introduced in a criminal prosecution at which the defendant was 

acquitted may later be used against a defendant in an unrelated 

criminal prosecution." Krochta v. Commonwealth, 429 Mass. 711, 

718 n.14 (1999).

We have observed that "[t]he Commonwealth's Constitution 

has no explicit double jeopardy provision." Commonwealth v. 

Forte, 423 Mass. 672, 674 (1996). See Kimbroughtillery v. 

Commonwealth, 471 Mass. 507, 510 (2015). "Certain double 

jeopardy concepts are no doubt embraced within the Massachusetts 

Constitution's due process of law provisions, but those 

provisions do not . . . provide protection greater than the 

explicit protections of the Federal double jeopardy clause." 

Forte, supra. In addition, double jeopardy concepts have been 
17

embraced in statutory and common law. Kimbroughtillery, supra. 

Because the "same principles and protections" afforded by the 

double jeopardy clause are similarly embraced in the doctrine of 

collateral estoppel, we have often applied that common-law 

doctrine to resolve claims of successive prosecutions for the 

same offense. See id. at 510-511. In Commonwealth v. Benson, 

389 Mass. 473, 478, cert. denied, 464 U.S. 915 (1983), we set 

forth the general principles that we use in applying the 

doctrine of collateral estoppel:

"Collateral estoppel is an established rule of criminal 

law. See Ashe v. Swenson, 397 U.S. 436 (1970); 

Commonwealth v. Lopez, 383 Mass. 497 (1981). Collateral 

estoppel 'means simply that when an issue of ultimate fact 

has once been determined by a valid and final judgment, 

that issue cannot again be litigated between the same 

parties in any future lawsuit.' Ashe v. Swenson, supra at 

433. See Commonwealth v. Scala, 380 Mass. 500, 503 (1980). 

The doctrine of collateral estoppel may work in two ways. 

First, it may bar totally a subsequent prosecution if one 

of the issues necessarily decided at the first trial is an 

essential element of the alleged crime in the second trial. 

Second, even if a prosecutor may proceed to a second trial, 

the doctrine may bar the introduction of certain facts 

determined in the defendant's favor at the first trial. 

See United States v. Lee, 622 F.2d 787, 790 (5th Cir. 

1980). The doctrine of collateral estoppel will preclude 

either the subsequent prosecution or the introduction or 

argument of certain facts, only if the jury could not have 

based their verdict rationally on an issue other than the 

one the defendant seeks to foreclose. Ashe v. Swenson, 

supra at 444. Whenever the doctrine of collateral estoppel 

is raised by a defendant, the task of the court is to 

decide exactly what issues were, or should have been, 

determined at the first trial. . . . See Sealfon v. United 

States, 332 U.S. 575, 578-579 (1948)" (footnote omitted).
18

In making this determination, the court must look for the 

concurrence of a (1) common factual issue, (2) prior 

determination of that issue between the same parties,11 and (3) 

determination of that issue in favor of the party raising the 

doctrine of collateral estoppel. See Lopez, supra at 499. See 

also Kimbroughtillery, supra at 511.

It has been observed that a general verdict of "not guilty" 

that usually is rendered in a criminal case means that it is a 

"rare case where it [is] possible to determine with certainty 

what the jury in the earlier prosecution has decided." United 

States v. Cioffi, 487 F.2d 492, 498 (2d Cir. 1973), cert. 

denied, 416 U.S. 995 (1974). "A finding of not guilty at a 

criminal trial can result from any number of factors having 

nothing to do with the defendant's actual guilt." Benson, 389 

Mass. at 481, quoting Commonwealth v. Cerveny, 387 Mass. 280, 

285 (1982).12 "It is sometimes possible to determine that the 

 

11 The prior adjudication must have applied to the 

Commonwealth and to the defendant now invoking the doctrine. 

Commonwealth v. Stephens, 451 Mass. 370, 379-380 (2008). See 

Commonwealth v. Benson, 389 Mass. 473, 478 n.6, cert. denied, 

464 U.S. 915 (1983) ("doctrine of collateral estoppel only 

applies in a criminal case where there is mutuality of the 

parties").

12 "A not guilty verdict may result from an exclusionary 

rule of evidence, inadequate investigation or proof, the 

composition of the jury, or the defendant's own insanity. 

Moreover, the jury may assume the power to acquit out of 

compassion or prejudice, and the prosecution is then powerless 
19

jury's verdict necessarily implies one or more particular 

findings of fact, but such a determination requires a showing of 

the evidence adduced at the trial and the instructions under 

which the jury arrived at its verdict." Commonwealth v. 

DeCillis, 41 Mass. App. Ct. 312, 315-316 (1996), citing Sealfon, 

332 U.S. at 579.

Here, the defendant is not seeking to foreclose a second 

prosecution of charges based on the alleged incident with J.D. 

Rather, the defendant seeks to use the doctrine of collateral 

estoppel in order to "bar the introduction of certain facts 

determined in the defendant's favor at the first trial"

involving J.D., for which he was acquitted, at the trial 

involving the complainants Susan and Jane. See Benson, 389 

Mass. at 478. Application of the doctrine of collateral 

estoppel as enunciated above, however, demonstrates that its 

essential components technically have not been met. First, the 

acquittal evidence was admitted pursuant to a lower standard of 

proof than that required for a conviction, and second, the 

defendant has not satisfied his burden of showing that the jury 

in the trial involving J.D. "necessarily decided" that he did 

not engage in unlawful sexual conduct with J.D.

 

to seek a judgment notwithstanding the verdict or a new trial on 

the ground that the verdict is against the weight of the 

evidence." Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982).
20

These determinations, however, do not resolve the issue. 

Not all State courts follow the Supreme Court's holding in 

Dowling, supra. See State v. Perkins, 349 So. 2d 161, 163-164 

(Fla. 1977); State v. Mundon, 129 Haw. 1, 4 (2012); State v. 

Wakefield, 278 N.W.2d 307, 309 (Minn. 1979); Kerbyson v. State, 

McMichael v. State, 98 Nev. 1, 3-4 (1982); State v. Scott, 331 

N.C. 39, 42 (1992); State v. Holman, 611 S.W.2d 411, 413 (Tenn. 

1981); 711 S.W.2d 289, 290 (Tx. Ct. App. 1986). As noted by 

Justice Brennan in his dissenting opinion in Dowling, there are 

a number of inherent problems in admitting evidence of a crime 

for which a defendant was acquitted despite its relevance on 

issues other than propensity in a subsequent trial:

"First, '[o]ne of the dangers inherent in the 

admission of extrinsic offense evidence is that the jury 

may convict the defendant not for the offense charged but 

for the extrinsic offense. This danger is particularly 

great where . . . the extrinsic activity was not the 

subject of a conviction; the jury may feel the defendant 

should be punished for that activity even if he is not 

guilty of the offense charged.' . . . Alternatively, there 

is the danger that the evidence 'may lead [the jury] to 

conclude that, having committed a crime of the type 

charged, [the defendant] is likely to repeat it.' . . . 

Thus, the fact that the defendant is forced to relitigate 

his participation in a prior criminal offense under a low 

standard of proof combined with the inherently prejudicial 

nature of such evidence increases the risk that the jury 

erroneously will convict the defendant of the presently 

charged offense." (Citations omitted.)

Dowling, 493 U.S. at 361-362 (Brennan, J., dissenting). 

"Moreover, because of the significance a jury may place on 

evidence of a prior criminal offense, presenting a defense 
21

against that offense may be as burdensome as defending against 

the presently charged offense." Id. at 362 (Brennan, J., 

dissenting). "[Because] the lower standard of proof makes it 

easier for the jury to conclude that the defendant committed the 

prior offense, the defendant is essentially forced to present 

affirmative evidence to rebut the contention that he committed 

that offense." Id. (Brennan, J., dissenting).

Justice Brennan also observed that the use of acquittal 

evidence offends the established interests of preserving the 

finality of judgments and protecting individuals from 

governmental overreaching. Id. at 355 (Brennan, J., 

dissenting). Because of the nature of a "not guilty" verdict, 

it is difficult, at best, for a defendant to prove what issues 

were "actually decided" in the earlier proceeding at which he 

was acquitted. Id. at 357-358 (Brennan, J., dissenting). The 

result is inconsistent with the Supreme Court's "admonition in 

Ashe that an excessively technical approach to collateral 

estoppel 'would, of course, simply amount to a rejection of the 

rule of collateral estoppel in criminal proceedings, at least in 

every case where the first judgment was based upon a general 

verdict of acquittal.' [Ashe, 397 U.S. at 444]. Indeed, 

forcing defendants to choose between forgoing the protections of 

the Double Jeopardy Clause and abandoning the defense of a 

general denial raises grave due process concerns." Dowling, 
22

supra at 358 (Brennan, J., dissenting). Justice Brennan also 

found fault with the fact that the majority applied its 

reasoning to a successive criminal prosecution (and not a civil 

remedial proceeding as done in past cases) "in which the 

Government [sought] to punish the defendant and [based] that 

punishment at least in part on a criminal act for which the 

defendant [was] acquitted." Id. at 360 (Brennan, J., 

dissenting).

We find the thoughtful and extensive considerations 

enunciated in the dissenting opinion in Dowling to be 

instructive, and we conclude that the collateral estoppel 

protections necessarily embraced by art. 12 warrant the 

exclusion of the acquittal evidence in the circumstances of this 

case, a subsequent criminal proceeding involving alleged 

unlawful sexual conduct with minors.13 See Arizona v. Evans, 514 

U.S. 1, 8 (1995) (State courts "are absolutely free to interpret 

[S]tate constitutional provisions to accord greater protection 

to individual rights than do similar provisions of the United 

States Constitution"). We agree with Justice Brennan that the 

majority in Dowling does precisely what the Supreme Court in 

 

13 Our holding is limited to prior bad act evidence for 

which a defendant was acquitted. Our holding does not apply to 

the admission of prior bad act evidence where no criminal 

charges were commenced, where the criminal charges are pending, 

or where the criminal charges were dismissed before trial.
23

Ashe admonished, employing a hypertechnical application of the 

collateral estoppel doctrine. We add that such an approach

offends the principles of the presumption of innocence, the 

significance of being treated "legally innocent" that results 

when the prosecution fails to prove a defendant guilty beyond a 

reasonable doubt, and notions of fairness and finality.

Where the acquittal evidence was improperly admitted, we 

must now determine whether its admission created a substantial 

risk of a miscarriage of justice. See Commonwealth v. Jackson, 

419 Mass. 716, 719 (1995) (when issue appealed is not properly 

preserved below, we reverse if error created substantial risk of 

miscarriage of justice). We conclude that it did. Although

Susan and Jane may have presented as strong witnesses, their 

testimony acquired such force in part from the admission of the 

acquittal evidence. As a result, the defendant was put to the 

task of defending against not only the allegations involving 

Susan and Jane, but also those involving J.D. The trial 

involving the complainant J.D. had taken place approximately 

twelve years before the trial involving Susan and Jane, too 

remote in time not to result in prejudice to the defendant in 

having to defend again against those charges (because the 

defendant was acquitted, no record of testimony even exists). 

The judge's limiting instruction could not remedy such a defect, 

particularly where the prosecutor in this case only had to prove 
24

that that the defendant committed the acts involving J.D. by a 

preponderance of the evidence. We are constrained to reverse 

the defendant's convictions.14

Conclusion. For the reasons stated herein, the defendant's 

convictions are reversed and the cases are remanded for a new 

trial.

So ordered.

 

14 Our conclusion obviates the need to address the remaining 

issues argued by the defendant. That said, we agree with the 

resolution of those issues by the Appeals Court and see no basis 

to reverse the defendant's convictions or order a new trial on 

those grounds.