Commonwealth v. Dylan M. Welch.

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

23-P-734

COMMONWEALTH

vs.

DYLAN M. WELCH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court jury convicted the defendant of rape of a

child by force resulting in serious bodily injury and extortion

by threat of injury. 1 On appeal the defendant argues that the

judge abused her discretion by dismissing a prospective juror

with autism and by limiting the defendant's cross-examination of

the victim, that the judge should have sua sponte excluded

screening test results for the presence of blood as unduly

prejudicial, and that the prosecutor made improper statements in

her closing argument. We affirm. 2

1The Commonwealth also charged the defendant as a youthful
offender with two counts of assault with intent to rape a child.
The judge allowed the defendant's motion for a required finding
of not guilty on one of the assault charges, and the jury
acquitted the defendant on the remaining charge.

2We acknowledge the amicus brief submitted by the
Disability Law Center.
Background. The defendant and the victim first met in

summer school in 2017 and stayed in contact through text

messages and social media. Their communication grew more

frequent and sexual in nature during the spring of 2019. The

victim eventually met the defendant in June 2019 at his house in

Pittsfield, and the two had consensual sex.

After their June encounter, the defendant started texting

the victim "all the time" and sending her "threats and stuff."

In early July he said that he would "have people show up to

[her] house to . . . beat [her] up" because she told someone

they had sex. The defendant's threats caused the victim to

block him on Facebook Messenger.

Sometime later that summer, the defendant and the victim

started talking again through Instagram, and they met up in

September once more to have sex. Over the following weeks, the

defendant continued asking the victim to spend time with him,

but she declined on multiple occasions. The victim avoided

being with the defendant because she "thought it was going to

result in, like, sex." The defendant's messages became

increasingly aggressive as the victim came up with excuses not

to see him, and he threatened her again that he would have

"girls show up at [her] house to beat [her] ass." The victim

was unsure "what was going to happen if [she] didn't . . . end

up meeting up with" the defendant because of "the threats" and

2
grew "tired of him . . . asking all the time." She ultimately

agreed to go for a walk with him, but only after confirming that

"nothing was going to happen."

On October 14, 2019, the victim met the defendant at his

house, and they walked toward the train tracks at the Berkshire

Regional Transit Authority (BRTA) station. Video footage from

BRTA captured them walking westward on the tracks at 2:11 P.M.

before returning east at 3:18 P.M. The victim estimated that

she followed the defendant for ten or twenty minutes on the

train tracks until he led her into the woods.

Once they were in the woods, the defendant pushed the

victim to the ground, demanded that she take her clothes off

from the waist down, put lubricant on his hand, and inserted

"his whole hand" into her vagina. It was "hurting really bad,

so . . . [she] continuously told him to . . . stop and . . . let

[her] leave." When the defendant took his hand out, the victim

noticed that it was covered with "a lot of blood." He then held

her against a tree to make her perform oral sex on him while

repeatedly slapping her face. The victim tried to stop, but the

defendant said that if she did, he was going to "try to do . . .

anal."

When the assault ended, the victim and the defendant left

the woods together. They parted ways at some point on the train

tracks, after which the victim continued walking on the tracks

3
for what felt like "a long time" before finding a sidewalk. She

"kept walking down the sidewalk for a good amount of time" until

she came across XtraMart, a gas station, at approximately

4:22 P.M. By the time the victim arrived, she was lightheaded

from "bleeding . . . really bad." The victim used the phone at

XtraMart to call home for a ride, and her mother arrived to pick

her up at approximately 4:30 P.M. Her mother noticed that the

victim's pants were "soaked in blood" and, sometime after

arriving home, contacted the police.

The responding officer called an ambulance after seeing

that the victim was losing a lot of blood. At the hospital the

victim was diagnosed with a grade 3 or 3a laceration of her

vagina that extended to her anal sphincter muscle. The injury

required surgery to repair and a laparoscopy to remove excess

blood from the victim's abdomen. She was discharged from the

hospital one week later.

Discussion. 1. Excusal of juror. In the course of

empaneling the jury, the judge informed the attorneys that a

court officer had alerted her that juror no. 65 had "severe

autism." The judge further stated that she believed it would

"become self-evident when [juror no. 65] presents that he

probably wouldn't be a fair and impartial juror" but that she

did not "want to jump to conclusions" or "discriminate against

him based on his disability." During the judge's voir dire,

4
juror no. 65 confirmed that he had not raised his hand to any of

the questions the judge asked to the venire, that he could be

fair and impartial, that he had just graduated from high school,

and that he was available for a two-week trial. He also

confirmed that neither he nor anyone that he was close to had

been a victim or accused of sexual assault and that he was not a

member of any group that provides advocacy or counseling for

sexual assault survivors. After this initial voir dire, the

judge stated that she was "inclined to excuse [juror no. 65] for

cause, given his presentation" but "wanted to give [the

attorneys] a chance to object" first. When both attorneys

indicated they had questions for the juror, the judge allowed

voir dire to proceed.

Defense counsel followed up with one additional question --

whether juror no. 65 would be able to pay attention to "a lot of

records and a lot of testimony" over the course of several days.

Juror no. 65 replied, "Yes, I think so. I'm a pretty good

listener." At this point the judge resumed questioning the

juror, asking whether he had an individualized education plan in

high school and what kind of supports he had received. Juror

no. 65 replied that he was given extra time on assignments

because he "was a little bit slower than the other students."

When the judge asked "why is that," juror no. 65 stated that he

was "just a little bit different 'cause on the autistic

5
spectrum." After the prosecutor indicated she had no questions,

the judge stated again that she "intend[ed] to challenge [juror

no. 65] for cause" but that, as it was "a close case," she

wanted to first "inquire of the attorneys whether they ha[d] any

objection to that." Both attorneys stated they had no

objection, and the judge excused the juror.

Despite his lack of objection at trial, the defendant now

argues that he is entitled to a new trial because the judge

excused juror no. 65 without conducting an adequate inquiry into

whether he was competent to serve. A judge is accorded a large

degree of discretion in the jury selection process, which

extends to assessing a prospective juror's competency. See

Commonwealth v. Heywood, 484 Mass. 43, 45 (2020). But

neurodivergence alone, without any indication of an effect on

competency to serve, is not a proper basis on which to exclude a

juror for cause. See G. L. c. 234A, § 3 ("All persons shall

have equal opportunity to be considered for jury service").

Here, we agree with the defendant and the amicus curiae

that the voir dire conducted by the judge was not appropriately

designed to elicit relevant information about juror no. 65's

competency. Juror no. 65's responses during the judge's initial

voir dire, and his response to defense counsel's follow-up

question, do not on their face indicate that he would be unable

to perform the duties of a juror. If the judge still had

6
concerns about his competency, she should have asked questions

focused on that issue, such as whether there were any

impediments to juror no. 65's ability to access and analyze the

evidence and, if so, whether accommodations could be made to

allow him to serve. Cf. Heywood, 484 Mass. at 45-46

(empanelment of blind juror appropriate where judge asked

whether he would "'feel comfortable' with having another juror

describe the photographic evidence" and whether he could follow

testimonial evidence without assistance, and juror responded

affirmatively). That juror no. 65 had an individualized

education plan and needed extra time on his school assignments

is insufficient standing alone to rebut the presumption that he

is competent. See id. at 47 ("General Laws c. 234A, § 3,

creates a presumption of competency for all jurors, including

those with disabilities, who then must be evaluated on a case-

by-case basis to determine whether service is 'feasible'").

Moreover, while we do not preclude the possibility that it may

be appropriate to exclude a juror based on "presentation," to

the extent the judge did so here, she failed to provide specific

findings on the record, adequate to permit appellate review, as

to why juror no. 65's presentation translated to concerns about

his ability to serve. Cf. Commonwealth v. Maldonado, 439 Mass.

460, 466 (2003).

7
All that said, we acknowledge that the judge only excused

juror no. 65 after both parties stated on the record that they

did not object to her doing so. We therefore cannot know what

additional questions the judge might have asked had the parties

not acquiesced. In these circumstances we review the judge's

decision for a substantial risk of a miscarriage of justice,

Heywood, 484 Mass. at 45, 3 and we discern no such risk. As the

defendant more or less concedes, nothing in the record suggests

that the dismissal of juror no. 65 affected the result of the

trial or deprived the defendant of a fair and impartial jury.

See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 435 (2016) (no

substantial risk of miscarriage of justice where defendant did

not show "serious doubt" as to jury's impartiality). The

defendant is thus not entitled to a new trial on this basis.

See Commonwealth v. Mora, 82 Mass. App. Ct. 575, 578-579 (2012).

We are also unpersuaded by the defendant's argument that

the judge's dismissal of juror no. 65 violated his right to a

jury drawn from a fair cross-section of the community. The

defendant has not established on this record that people with

3 The defendant claims that the improper dismissal of juror
no. 65 constituted structural error, thereby relieving him of
the obligation to demonstrate prejudice. Even assuming that the
dismissal would qualify as structural error, but see
Commonwealth v. Williams, 481 Mass. 443, 454-455 (2019),
structural error can still be waived by the defendant's failure
to object. See Commonwealth v. Ralph R., 490 Mass. 770, 785
(2022); Heywood, 484 Mass. at 45.

8
autism, assuming they constitute a "distinctive group," were

"significantly underrepresented in the venire" as a result of

juror no. 65's dismissal. Commonwealth v. Evans, 438 Mass. 142,

149-150 (2002). Our decision in Commonwealth v. Alves, 96 Mass.

App. Ct. 540, 547 (2019), in which we presumed prejudice, is

distinguishable for at least this reason. 4

2. Limitations on cross-examination of the victim. At

around 4:02 P.M. on the third day of testimony, the judge

brought counsel to sidebar. The judge informed defense counsel

that he had cross-examined the victim for "well over two hours"

and asked how much more time he needed. When counsel replied

that he anticipated another fifteen or twenty minutes, the judge

requested an offer of proof. Counsel explained that he wanted

to ask more about "location," which appeared to refer to the

location of the assault in light of the victim's path of travel,

but the judge noted that that topic had been covered. Counsel

then sought to inquire about why the victim continued to speak

with the defendant after blocking him on social media. The

judge allowed further inquiry on that issue, and counsel asked a

few more questions before ending his cross-examination for the

4 While we acknowledge the amicus curiae's request that we
set out specific procedures for trial judges to follow when
inquiring of jurors who are neurodivergent, we do not believe
this case to be the appropriate vehicle to do so, given the
parties' acquiescence to the dismissal of juror no. 65 and the
undeveloped state of the record.

9
day. After the jury were excused, counsel raised that he also

wanted to ask the victim about photographs she took in the

hospital, noting that "[it] was a little bit rushed at the end

there." The judge suggested that the parties stipulate to the

admission of the photographs. 5

The next day the defendant filed a written objection to the

termination of cross-examination, in which he identified the

following additional topics he wanted to cover with the victim:

"Even though Counsel only gave as an offer of proof that he
wished to inquire about the social media blocking, his work
flow was taking the testimony east from the BRTA station,
which would have segued into what was said between her and
the Defendant upon parting ways, and to the Xtramart
telephone call, what she said to the sales clerk, whether
there was blood on her pants, and her use or non-use of
underpants that the mother had testified actually belonged
to her."

The judge overruled the objection, which the defendant now

challenges as an abuse of discretion. As the judge stated in

her ruling, all of the issues raised were preserved, so our

review is for prejudicial error. See Commonwealth v. Hobbs, 482

Mass. 538, 558 (2019).

Criminal defendants have the constitutional right to cross-

examine witnesses. See Commonwealth v. Chicas, 481 Mass. 316,

320 (2019). Nevertheless, the right to cross-examine is subject

5
After the Commonwealth later refused to so stipulate, the
photographs were marked for identification for purposes of
appeal.

10
to reasonable limitations "based on concerns about . . .

harassment, prejudice, confusion of the issues, the witness's

safety, or interrogation that is repetitive or only marginally

relevant." Id., quoting Commonwealth v. Johnson, 431 Mass. 535,

540 (2000). A judge's decision to limit cross-examination is

reviewed for an abuse of discretion. See Chicas, supra at 319.

The judge was well within her discretion to terminate

further inquiry on the topic of the victim's path of travel and

the location of the assault. Considering that the defense at

trial centered on consent, the testimony would have been of

limited relevance. See Johnson, 431 Mass. at 538 ("judge did

not abuse her discretion by excluding questions that would not

likely lead to any relevant evidence"). Moreover, the victim

had already testified that the assault occurred in the woods

near train tracks in an area that she was unfamiliar with, that

she did not recognize the location captured in the BRTA videos,

and that she could not identify any landmarks or otherwise point

to where the assault happened. Further questioning on the

subject would have been cumulative of that testimony. See

Commonwealth v. Rosadilla-Gonzalez, 20 Mass. App. Ct. 407, 414

(1985) (no abuse of discretion in excluding "obviously

repetitive questions").

In fact all of the topics that the defendant sought to ask

about were either of limited relevance to his defense of consent

11
or cumulative of other testimony. The defendant does not

explain how questioning the victim about the photographs she

took in the hospital would have led to relevant evidence. 6 And

the remaining subjects identified in the defendant's objection

were covered in previous testimony. 7 The judge therefore

properly limited cross-examination on these subjects. See

Commonwealth v. Jordan, 439 Mass. 47, 55 (2003).

The defendant has also failed to demonstrate prejudice. He

suggests that cross-examination on these topics would have led

to testimony supporting an inference that the victim's injury

occurred from some other cause. But even putting aside the

implausibility of that theory in light of the evidence, the

defense at trial was consent. None of the topics that the

defendant sought to explore would have supported his claim of

consent in any material way. The restrictions on cross-

6 The photographs were digitally altered "selfies."

7 Regarding what was said between the defendant and the
victim as they parted ways, the victim testified that the
defendant told her "to keep . . . walking straight," while the
defendant testified that he told the victim to "go fuck
herself." The victim previously covered her conversation with
the XtraMart clerk, testifying that she asked him if he had a
phone she could use. She also previously testified that she was
"bleeding . . . really bad" when she arrived at XtraMart, and
her mother confirmed that the victim's pants were "soaked in
blood." In addition, there was already evidence introduced that
the underwear worn by the victim matched her size and not her
mother's.

12
examination therefore did not undermine his chosen defense. See

Commonwealth v. Daye, 411 Mass. 719, 735-736 (1992).

3. Admission of screening test results. At trial the

Commonwealth introduced the results of screening tests for

blood, which suggested that blood was present in six stains on

the sweatshirt worn by the defendant during the assault.

Subsequent confirmatory testing for blood came back negative for

two stains. Because of the small size of the remaining four

stains, they were not subjected to confirmatory testing but

instead preserved for DNA testing. DNA testing on two of the

stains, located on the interior and exterior right front sleeve

of the sweatshirt, indicated the presence of DNA as to which the

defendant and the victim were possible contributors.

The defendant did not object to the admission of the

screening test results at trial but now asserts that the judge

abused her discretion by failing to sua sponte exclude them as

unduly prejudicial. We discern neither error nor a substantial

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

398 Mass. 1, 7 (1986). The Supreme Judicial Court has held that

results of preliminary screening tests for blood are admissible

without the need for confirmatory evidence. See Commonwealth v.

Norris, 483 Mass. 681, 691 (2019); Commonwealth v. Duguay, 430

Mass. 397, 401-402 (1999). Also, the evidence was not unduly

prejudicial because it was presented at trial "with an abundance

13
of precaution." Duguay, supra at 402. A forensic scientist

testified that "a screening test . . . doesn't confirm whether

or not a biological sample is present" without further testing

"because the screening test does react with substances other

than blood." Another forensic scientist was asked whether she

could confirm, with respect to the stains on the sweatshirt,

"that any of that was proven to be blood," to which she replied,

"[N]o, we can't determine the source of the DNA." In light of

this testimony, we are bound by Norris and Duguay to reject the

defendant's argument.

4. Closing argument. The defendant challenges the

prosecutor's closing argument on three grounds. Because the

defendant did not timely object at trial, 8 we review to determine

whether any error created a substantial risk of a miscarriage of

justice. See Commonwealth v. Cuffee, 492 Mass. 25, 32 (2023).

The defendant first contends that the prosecutor

misconstrued the evidence by arguing that, when the defendant

removed his hand from the victim's vagina, "[t]his is where the

blood from [the victim] -- the presumptive tests for blood for

8 The defendant filed a written objection to the portion of
the prosecutor's closing argument that asserted there was blood
on the sweatshirt. This objection did not preserve the issue,
however, because it was made after the jury charge. See
Commonwealth v. Allison, 434 Mass. 670, 687 (2001) ("The
defendant's objection to the statement, made after the jury
instructions, was too late").

14
that DNA is on the inside cuff of his sweatshirt." The

prosecutor's statement was supported by the results of the

screening tests and DNA tests and the victim's testimony that

she saw blood on the defendant's hand when he removed it from

her vagina. As this portion of the prosecutor's closing was a

fair inference from the evidence, it was within the bounds of a

proper closing argument. See Cuffee, 492 Mass. at 32.

The defendant's second claim of error is that the

prosecutor misstated the evidence by suggesting that the assault

could have occurred near XtraMart. 9 Because this argument was

also a fair inference from the evidence, it was not improper.

The prosecutor noted earlier in her closing that the only

evidence placing the assault in a specific area was the

defendant's testimony, given that the victim "absolutely had no

idea where she was on those railroad tracks." The prosecutor

then explained that about one hour elapsed between the last BRTA

video and the victim's arrival at XtraMart. It was within this

context that the prosecutor suggested that the assault could

have happened after the BRTA video and closer to the XtraMart.

See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231

9 Specifically, the prosecutor stated that "[t]here's an
hour for them to travel that course -- that path along the
tracks together to a point near the XtraMart. To a point behind
the XtraMart, where there's a grassy area. And, there certainly
is enough time for a rape to occur like it did."

15
(1992) ("Remarks made during closing arguments are considered in

the context of the entire argument"). Furthermore, any

potential error in the statement was mitigated by the judge's

instruction that closing arguments are not evidence, which we

presume that the jury followed. See Commonwealth v. Silanskas,

433 Mass. 678, 702 (2001).

Finally, the defendant contends that the prosecutor

improperly appealed to the jury's sympathy by stating that the

victim's mother contacted the police "because it was apparent

something bad -- something evil had just happened." Although we

agree that the statement was ill-advised, it was "unlikely to

have affected the jury's verdict, and therefore is not cause for

reversal." Silanskas, 433 Mass. at 702. The prosecutor was not

referring to the defendant's character but was characterizing

what happened to the victim as "evil." Moreover, the judge

instructed the jury that closing arguments are not evidence and

that the jury were "not to be swayed by prejudice or by

sympathy, by personal likes or dislikes towards either side."

16
Again, we assume that the jury followed these instructions. See

id.

Judgments affirmed.

By the Court (Vuono, Shin &
Toone, JJ. 10),

Assistant Clerk

Entered: May 29, 2024.

10 The panelists are listed in order of seniority.

17