Commonwealth v. Stephen Jaszek.

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

24-P-641

COMMONWEALTH

vs.

STEPHEN JASZEK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury-waived trial, the defendant,

Stephen Jaszek, appeals from his convictions of four counts of

rape of a child and one count of indecent assault and battery on

a child. He argues that an excessive amount of prior bad acts

evidence was improperly admitted at trial and that the

prosecutor's closing argument was inflammatory, expressed

improper opinions, and vouched for witness credibility. For the

reasons set forth below, we affirm.

Background. We summarize the facts the judge could have

found, reserving certain details for later discussion. Jaszek

is a former elementary school music teacher. The victim -- an

adult by the time of trial -- was one of Jaszek's students when
she was in the third through fifth grades. For several months

starting in the fall of the victim's fifth-grade year, Jaszek

frequently told her to stay inside from recess for extra music

lessons. It was during these extra lessons that the assaults

occurred.

The victim did not like Jaszek as a teacher, describing him

as "mad and loud," and recalling being scared of him. She

testified to Jaszek's getting mad at her on at least two

specific occasions when he assaulted her. She further testified

that there were other times when Jaszek would be mad and yell at

her without her knowing why.

The victim struggled with her mental health throughout her

life, including experiencing selective mutism as early as third

grade, attending an in-patient behavioral clinic as a teenager,

and seeking counselling while in college. Medical records from

various points in her life were introduced at trial, including

notes on her memory and mental health.

The victim was a senior in high school when she first

disclosed to a friend that she had been assaulted by her music

teacher in elementary school. Then, in college, the victim

began seeing a therapist regarding the assaults, and eventually

law enforcement became involved.

Jaszek was subsequently indicted. The victim was the only

witness who testified directly to the assaults, with other

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witnesses providing varying degrees of corroboration. Of the

Commonwealth's twelve witnesses, eight -- including the victim -

- testified to Jaszek being an angry, scary, creepy,

intimidating, or even violent person. Jaszek did not object to

the vast majority of this testimony; when he did object, it was

not on propensity grounds.1

Jaszek's defense was that the assaults had never happened

and that the victim's memory and testimony were unreliable. On

cross-examination of the victim and during closing arguments,

defense counsel used portions of her medical records to

challenge her credibility. The only witness for the defense was

a cognitive psychologist who testified as an expert about memory

distortion and the creation of false memories. Jaszek was

convicted.

Discussion. As Jaszek did not object at trial on the

grounds he now argues, we review to determine whether any error

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). That

1 Jaszek objected on hearsay grounds to the victim's
mother's testifying about Jaszek's angry or violent behavior as
reported to her by her children. The objection was initially
sustained but was later overruled when the subject came up again
in relation to the mother's motivation for avoiding the victim's
being in Jaszek's class, a nonhearsay reason for its admission.
Jaszek also objected to one witness's characterization of Jaszek
as having "a reputation"; the judge sustained the objection "as
to reputation testimony."

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question turns on whether we have "a serious doubt whether the

result of the trial might have been different had the error not

been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

1. Propensity and prior bad acts. Jaszek argues that

evidence of his having a bad temper, being angry, mistreating

students, or breaking classroom objects was inadmissible

propensity evidence. He further argues that, even if the

evidence was otherwise admissible, the amount of such evidence

was so unfairly prejudicial as to require a new trial. In the

specific context of this jury-waived trial, and where Jaszek did

not object on propensity grounds at any point, his arguments are

unpersuasive.

Evidence of prior bad acts may not be introduced to prove

the defendant's "bad character or propensity to commit the crime

charged, but such evidence may be admissible if relevant for

some other purpose" (citations omitted). Commonwealth v.

Helfant, 398 Mass. 214, 224 (1986). One permissible purpose is

"to show [the victim's] state of mind -- the explanation for her

long-delayed disclosure of what had happened to her: fear of

the defendant." Commonwealth v. McKinnon, 35 Mass. App. Ct.

398, 404-405 (1993). Nonetheless, "even if relevant, a judge

must guard against the risk that evidence of prior bad acts will

divert . . . attention from the charged acts," Commonwealth v.

Dwyer, 448 Mass. 122, 129 (2006), and such evidence will not be

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admitted if its probative value is outweighed by the risk of

unfair prejudice to the defendant. See Commonwealth v. Crayton,

470 Mass. 228, 249 (2014).

Evidence of Jaszek's bad temper and poor treatment of his

students was relevant for at least one nonpropensity purpose.

Specifically, the evidence explained why the victim did not

disclose the assault at the time, i.e., that she was scared of

Jaszek and did not want him to be mad at her. Testimony from

other witnesses about Jaszek's temper tended to corroborate the

victim's testimony and so was relevant to her credibility and

the accuracy of her memory, which were decisive issues here.

See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013)

(witness's credibility is relevant issue in any case).

Thus, the evidence was admissible unless its prejudicial

effect outweighed its probative value. In general, this risk is

low in a jury-waived trial, because the judge is presumed to

have applied correct principles of law and not to have relied on

evidence for an improper purpose. See Commonwealth v. Milo M.,

433 Mass. 149, 152 (2001); Commonwealth v. Dragotta, 89 Mass.

App. Ct. 119, 128 (2016), S.C., 476 Mass. 680 (2017). Here, the

amount of evidence about Jaszek's temper appears to have been

excessive. But, even assuming that some of the testimony would

have been excluded had there been an objection, Jaszek has not

argued on appeal that the judge considered the evidence for an

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improper purpose. Indeed, when discussing an objection at one

point, defense counsel told the judge, "[t]here's no jury here,

so I trust that you'll filter it out." As we see no unfair

prejudice on this issue, any error in admitting the evidence

created no substantial risk of a miscarriage of justice.2

2. Closing argument. Jaszek argues that the prosecutor

made two main errors in his closing argument: (1) expressing a

personal opinion on the evidence, including by vouching for the

victim's credibility, and (2) appealing to the sympathies of the

fact finder. While we agree that some portions of the

prosecutor's argument were impermissible, we conclude that there

was no substantial risk of miscarriage of justice.

a. Personal opinion and vouching. The Commonwealth's

arguments as to the evidence and the victim's credibility were

within the bounds of zealous advocacy and retaliatory reply.

"Improper vouching occurs if 'an attorney expresses a personal

belief in the credibility of a witness, or indicates that he or

she has knowledge independent of the evidence before the [fact

finder].'" Commonwealth v. Kee, 449 Mass. 550, 560 (2007),

2 Nonetheless, the better practice in a jury-waived trial
would be to object, because a judge may not be immune from the
effects of unduly prejudicial evidence. There is still a risk
that excessive bad acts evidence may overwhelm a trial and
divert a judge's attention from the charges and conduct at
issue.

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quoting Commonwealth v. Ortega, 441 Mass. 170, 181 (2004).

However, "a prosecutor may argue zealously in support of

inferences favorable to the Commonwealth's case that reasonably

may be drawn from the evidence," Commonwealth v. Carriere, 470

Mass. 1, 22 (2014), including replying to defend a witness's

credibility where the defendant has attacked it. See Kee,

supra.

Here, the prosecutor appropriately responded to Jaszek's

theory that the victim's memory was unreliable or false. The

prosecutor's broad statements such as "[t]he only way [the

victim's] statements make sense is if they happened", did not

express any personal belief that the events occurred, but

instead argued the inferences that the fact finder could

reasonably draw from the testimony of the victim and the

numerous witnesses who corroborated it. Thus, we see no error

on this ground.

b. Appealing to sympathies and inflaming passions. Jaszek

further argues that the prosecutor's closing argument was overly

inflammatory and designed to arouse the passions of the fact

finder. Although we agree that a number of the prosecutor's

statements were inappropriate, we conclude that there was no

substantial risk of miscarriage of justice.

In closing arguments, "prosecutors may not play . . . on

the [fact finder's] sympathy or emotions" (quotation and

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citation omitted). Commonwealth v. Martinez, 476 Mass. 186, 197

(2017). A prosecutor also may not use language which is "so

rousing or inflammatory as to sweep the [fact finder] beyond

rational examination of the evidence." Commonwealth v.

Lassiter, 80 Mass. App. Ct. 125, 132 (2011).

Here, Jaszek argues that the prosecutor twice improperly

described him as a "predator." We agree that precedent

disfavors use of the term "predator" to describe a defendant if

the literal definition of the term is not relevant to the case.

See Commonwealth v. Sheehan, 435 Mass. 183, 191 (2001);

Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 235 (2002).

Nonetheless, any error here created no substantial risk of a

miscarriage of justice. Although not dispositive, we consider a

defendant's lack of objection at trial as "some indication that

the tone [and] manner . . . of the now challenged aspects of the

prosecutor's argument were not unfairly prejudicial."

Commonwealth v. Barbosa, 477 Mass. 658, 669 (2017), quoting

Commonwealth v. Lyons, 426 Mass. 466, 471 (1998). Here, not

only did defense counsel fail to object, but his own closing

argument foreshadowed that "the Commonwealth is going to try to

paint [Jaszek] as a predator." Considering this combination, we

see no unfair prejudice.

Jaszek next argues that the Commonwealth's closing argument

disparaged defense counsel; we are not persuaded that there was

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any substantially prejudicial error. "Disparaging remarks about

the qualifications or motivations of defense counsel, or lawyers

in general, are disfavored." Commonwealth v. Awad, 47 Mass.

App. Ct. 139, 142 (1999). But "[a] prosecutor [is] permitted to

comment on the defense strategy and tactics." Commonwealth v.

Henley, 488 Mass. 95, 131 (2021). Here, the prosecutor's

characterization of defense counsel as "spen[ding] hours

flipping through [the victim's medical records], picking out

individual words," and "suggest[ing] that they mean something

that they don't" was a permissible response to the defense's

strategy of discrediting the victim based on specific statements

in her medical records. The prosecutor's description of such

efforts as attempts to "weaponize" the medical records added

little, but was not improperly disparaging; it did not criticize

counsel's "qualifications or motivations," Awad, supra. On the

other hand, the prosecutor's reference to defense counsel as

arguing "nonsense" was improper. See Commonwealth v. McCravy,

430 Mass. 758, 764 (2000) (improper to characterize "whole

defense" as "sham"). However, we see no significant prejudice

from this isolated characterization.

Jaszek finally argues that the prosecutor appealed to

emotions by concluding his closing argument with an extended

discussion of all the victim had "endured." The prosecutor used

the term "endured" in ten of the final twelve sentences of his

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argument. These repeated references both (1) risked improperly

appealing to the fact finder's sympathies and (2) bordered on

the impermissible suggestion "that a victim's testimony is

entitled to greater credibility merely by virtue of her

willingness to come into court to testify." Commonwealth v.

Helberg, 73 Mass. App. Ct. 175, 179 (2008). Nonetheless, we

cannot conclude that they created any substantial prejudice in

the present case.

"A trial judge sitting without a jury is presumed, absent

contrary indication, to have correctly instructed himself as to

the manner in which evidence was to be considered in his role as

factfinder." Commonwealth v. Batista, 53 Mass. App. Ct. 642,

648 (2002). Cf. Commonwealth v. Thad T., 59 Mass. App. Ct. 497,

508 (2003) ("Only a compelling showing of ineradicable prejudice

would cause us to conclude that [a] judge's instructions to

disregard [particular evidence] were inadequate"). Jaszek has

made no such showing here. Thus, considering this unrebutted

presumption, defense counsel's lack of objection throughout

closing arguments, and the evidence presented at trial, we are

not convinced that the result might have been otherwise but for

the prosecutor's errors. See LeFave, 430 Mass. at 174. Those

errors, even considered cumulatively, did not create a

substantial risk of a miscarriage of justice.

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That said, to the extent that "the government here managed

to skate a fine line between proper argument and reversible

error . . . there was no justification for cutting things so

fine. Were the facts changed but slightly, the outcome here

easily could [have] be[en] different" (citation omitted).

Commonwealth v. Correia, 65 Mass. App. Ct. 27, 38 n.11 (2005).

Even in a jury-waived trial, errors in closing arguments,

particularly if preserved, may sometimes require a new trial.

We conclude, however, that such is not the case here.

Judgments affirmed.

By the Court (Henry, Sacks &
Tan, JJ.3),

Clerk

Entered: January 13, 2026.

3 The panelists are listed in order of seniority.

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