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Commonwealth v. Jacobs, 52 Mass. App. Ct. 38 (2001)-error found
in joinder of two unrelated complaints, both charging indecent
assault and battery upon different victims for trial. In Jacobs,
the gravamen of the complaints was that the defendant, a licensed
chiropractor, had acted impermissibly in massaging one complainant's
buttocks and in touching the second complainant's breast tissue.
The two incidents occurred more than three years apart. The Commonwealth
argued that joinder was appropriate as the two complaints were
"related" as that term is used in Rule9(a)(1), Mass.R.Crim.P.
The Appeals Court disagreed noting that the more than three year
gap between the two incidents was inconsistent with the idea that
the defendant had engaged in a continuing or connected series
of episodes that were parts of a single scheme. 52 Mass. App.
Ct. at 40-42. The two incidents did not demonstrate a pattern
of distinctive conduct or the cohesion of repeated incidents.
52 Mass. App. Ct. at 43. Additionally, the Court reasoned that
evidence of the one incident would not be admissible at the trial
of the other incident. "The time interval, lack of connectedness,
absence of any markedly distinctive method of operation, would
speak as strongly against the admission of bad acts as they do
against allowance of joinder of the offense for trial under the
rule." 52 Mass. App. Ct. at 44. Because the joinder was improper,
the convictions could stand only if the misjoinder was proven
to be harmless. 52 Mass. App. Ct. at 46-47. Here, the Commonwealth
could not show that error was harmless and a new trial was ordered
on both complaints.
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