Commonwealth v. Shannon Polacke.

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-1020

COMMONWEALTH

vs.

SHANNON POLACKE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was convicted of two counts of rape of a child with force and

two counts of aggravated rape of a child. This case presents a

classic credibility contest between the victim and the

defendant. The victim was the defendant's daughter, who was a

young teenager at the time the offenses were committed. The

defendant, who testified in her own defense, denied all the

allegations, contending that the victim was not credible.

On appeal, the defendant contends that the judge erred in

admitting prior bad act evidence.1 Mindful that we are reviewing

1She also claims that her trial counsel's performance was
deficient in several respects. As a result of our disposition,
most of this evidence to determine whether any error created a

substantial risk of a miscarriage of justice,2 we conclude that

this case presents the rare circumstance in which prior bad act

evidence may have overwhelmed the proceedings; the record lacks

careful and reasoned judicial scrutiny of each act, and the jury

were not provided with contemporaneous limiting instructions.

Accordingly, we are constrained to vacate the convictions.

Background. 1. Facts. We summarize the facts the jury

could have found reserving certain details for our discussion of

the issues. The victim and her twin brother grew up in a

"tumultuous" household after their parents separated when they

were about two years old. When the victim was in either the

sixth or seventh grade, she spoke with the defendant about her

sexual orientation. The defendant dismissed the victim's

thoughts that she might be a lesbian, contending that the victim

was "just confused" and "might not be ready for a man yet." The

defendant told the victim that "she was going to try and help

[her]," brought her into the bathroom, "had [the victim] remove

we need not reach the defendant's ineffective assistance of
counsel claims.

2 We note there was an objection to the admission of three
acts, and therefore we review those for prejudicial error. See
Commonwealth v. Crayton, 470 Mass. 228, 252 (2014). Our
conclusion is the same as to these acts, and we would reach the
same result regardless of the standard of review applied.

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[her] pants and underwear," and inserted a tampon with the

plastic applicator into the victim's vagina "repeatedly." She

"didn't stop even when [the victim] was crying out, telling her

to stop and to not do that." The victim "was in a lot of pain"

and felt "agony between [her] legs." The defendant told the

victim that "[she] was tight" and only stopped assaulting her

once the victim "started bleeding down there."

At the end of their freshman year of high school, the

victim's brother moved out of the defendant's home because of

his contentious relationship with the defendant. The victim

continued to live with the defendant throughout that summer.

The defendant explained to the victim's friends that the brother

moved out because "[he] was the abusive one and . . . she was

afraid of him." The victim disputed this account and told her

friends that it was not true. When the defendant learned what

the victim said from the friends' parents, she became "really

upset at [the victim]" and confronted her about it. She told

the victim "that [her brother] was going to abuse [her] and try

and rape [her]." When they arrived home, the defendant brought

the victim to the bathroom, had her remove her pants and

underwear, and "put her fingers in [the victim's] vagina." The

victim testified that this assault prompted her to leave the

defendant's home and move in with her father, stepmother, and

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brother at the beginning of her sophomore year of high school.

The victim described her relationship with her stepmother as

"[v]ery loving and maternal." In fact, she considers her

stepmother "[her] mother," and not the defendant.

On cross-examination, the victim, in response to a question

posed by trial counsel, stated that she told her stepmother that

the defendant had raped her. Approximately four years later, in

2021, the victim reported these incidents to the police. The

defendant testified and denied all the allegations. The

Commonwealth also called Dr. Stephanie Block as an expert

witness in the areas of children's "disclosures of abuse" and

their "memory for trauma."

2. The motion in limine and the bad act evidence at trial.

Prior to trial, the Commonwealth filed a motion in limine

(motion) to admit eight3 instances of the defendant's prior and

contemporaneous bad acts: (1) telling the victim that her

biological father never wanted a daughter or his children and

never cared for them; (2) not paying for essential utilities and

leaving her children unsupervised for hours at a time; (3)

dragging the victim's brother down the stairs while he was

inside of a sleeping bag and shaking him (sleeping bag incident)

3 For ease, we shall refer, as do the parties, to the
multiple acts of violence by the defendant described in
paragraph three of the motion as one act.

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and throwing items at the wall and her children; (4) watching

the victim shower, turning the water to cold, and commenting on

her body; (5) inappropriately remarking about the victim's body

with comments such as the victim being "really tight"; (6)

commenting while intoxicated about feeling like a "pedo" when

speaking to the victim's friends and "lovers" (videorecorded by

the victim and shown to the jury); (7) refusing to bring the

victim to therapy because she did not want the victim to "talk

shit" about her; and (8) forcing the victim's brother out of the

car and leaving him on the side of the road while upset with him

(car incident).

"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[s] occurred and

that the defendant was the actor'" (citation omitted).

Commonwealth v. Leonard, 428 Mass. 782, 785 (1999). In its

motion, the Commonwealth argued that the acts were "highly

relevant to show the defendant's course of conduct, the nature

of the relationship between the defendant and the alleged

victim, her biological daughter, and the alleged victim's state

of mind." In response, at the motion hearing, trial counsel

told the judge that "[he] generally ha[d] an objection to the

admission of prior bad acts in the instance of uncharged conduct

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that rises to criminal behavior." At trial, he specifically

objected to the defendant's telling the victim that her

biological father did not want a daughter or care about her or

her brother, the sleeping bag incident, and the car incident.

After a hearing, the judge allowed the motion in part. He

admitted evidence of the sleeping bag incident on the condition

that the victim testified that "[she] saw it and that there was

something about [it] that made her afraid and [that she]

continued to be afraid as she was growing up." The judge

cautioned, however, that he "[was] not sure that [he] would let

the victim get into more of the specifics" because he "[did not]

think it would be fair to the defendant and it would be

prejudicial to her if there [were] two witnesses talking about

all the facts and circumstances of [that] incident." The judge

reasoned that the acts were relevant to "show the background of

the family dynamics, which would be important in why the . . .

victim disclosed or didn't disclose and when she disclosed."

At trial, the victim testified to all eight acts, although

with a slight variation to acts four and five. The victim's

brother testified to acts two, three, and eight. Three

additional acts, that were not the subject of the Commonwealth's

motion, were elicited at trial without objection. The victim's

brother testified that the defendant (1) said that the victim

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was "an ugly baby"; (2) put makeup on the victim that "made her

look like a clown," embarrassing the victim and prompting much

ridicule at a school dance; and (3) commented on the victim's

genitals and those of the victim's brother's girlfriend,

referring to them as "ham" and "roast beef," respectively.

Discussion. The defendant contends that the judge erred in

admitting "unduly prejudicial prior bad act evidence," that

created a substantial risk of a miscarriage of justice. "A

substantial risk of a miscarriage of justice exists when we have

'a serious doubt whether the result of the trial might have been

different had the error not been made.'" Commonwealth v.

Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v.

Azar, 435 Mass. 675, 687 (2002). In analyzing a claim under

this standard, we review the evidence and the case as a whole

and ask four questions:

"(1) Was there error? (2) Was the defendant prejudiced by
the error? (3) Considering the error in the context of the
entire trial, would it be reasonable to conclude that the
error materially influenced the verdict? (4) May we infer
from the record that counsel's failure to object or raise a
claim of error at an earlier date was not a reasonable
tactical decision?" (citations omitted).

Randolph, supra at 297-298.

It is well settled that evidence of a defendant's bad

character and uncharged bad acts is not admissible to show a

defendant's propensity to commit the charged crime but may be

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admissible if relevant for other purposes such as "common

scheme, pattern of operation, absence of accident or mistake,

identity, intent or motive." Commonwealth v. Dwyer, 448 Mass.

122, 128 (2006), quoting Commonwealth v. Marshall, 434 Mass.

358, 366 (2001). See Mass. G. Evid. § 404(b) (2025). "In

sexual assault cases, some evidence of [bad character and]

uncharged conduct may be admissible to give the jury a view of

the entire relationship between the defendant and the alleged

victim . . . ." Dwyer, supra at 128-129. "However, such

evidence should not be admitted if its probative value is

outweighed by the risk of unfair prejudice to the defendant."

Commonwealth v. Nascimento-Depina, 496 Mass. 1, 9, cert. denied,

146 S. Ct. 260 (2025). "Whether evidence is relevant in any

particular instance, and whether the probative value of relevant

evidence is outweighed by its prejudicial effect, are questions

within the sound discretion of the judge." Commonwealth v.

Smiley, 431 Mass. 477, 484 (2000), quoting Commonwealth v.

Valentin, 420 Mass. 263, 270 (1995), S.C., 470 Mass. 186 (2014).

We will not disturb the exercise of that discretion in the

absence of "palpable error" (citation omitted). Commonwealth v.

McCowen, 458 Mass. 461, 478 (2010). Without question, "the

prosecution may not introduce evidence of a defendant's prior or

subsequent bad acts for the purpose of demonstrating bad

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character or propensity to commit the crime[s] charged"

(citation omitted). Commonwealth v. Butler, 445 Mass. 568, 574

(2005). It is also true that the Commonwealth "[i]s entitled to

present as full a picture as possible of the events surrounding

the incident itself." Commonwealth v. Bradshaw, 385 Mass. 244,

269-270 (1982).

Here, the defendant was charged with raping her daughter.

The Commonwealth alleged that the motive was not sexual

gratification, but rather to attempt to control, manipulate,

degrade, and punish the victim, something the defendant

vehemently denied. The jury were presented with a classic

credibility contest. Although the nature of the crime was woven

into the fraught family dynamics, the prior bad acts

"consist[ed] almost entirely of acts showing the defendant's

poor treatment of [the victim]." Commonwealth v. Morris, 82

Mass. App. Ct. 427, 441 (2012). To be admissible, there must be

a "logical relationship" between the prior bad act and the crime

charged (citation omitted). Commonwealth v. Facella, 478 Mass.

393, 405 (2017). In many instances these acts were untethered

to the crimes charged. Examples of this include the defendant

(1) commenting on the victim's and her brother's girlfriend's

genitals, referring to them as "ham" and "roast beef"; (2) not

paying for essential utilities; and (3) commenting while

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intoxicated about feeling like a "pedo" when speaking to the

victim's friends and "lovers" (captured on videotape and played

at trial).

Where, as here, the defense centered on attacking the

victim's credibility, the evidence of the nature of the

relationship between the defendant and the victim arguably

provided context for the rapes that would otherwise seem

inexplicable. See Bradshaw, 385 Mass. at 269-270. However,

even if permissible for this reason, the question is whether its

probative value was outweighed by the risk of unfair prejudice

to the defendant. See Commonwealth v. Crayton, 470 Mass. 228,

249 (2014). "It is implicit in the general rule regarding the

inadmissibility of prior bad acts evidence that the admission of

such evidence carries with it a high risk of prejudice to the

defendant." Commonwealth v. Anestal, 463 Mass. 655, 672 (2012),

quoting Commonwealth v. Barrett, 418 Mass. 788, 795 (1994). The

potential prejudice is of several types:

"Such evidence compels the defendant to meet charges of
which the indictment gives [her] no information, confuses
[her] in [her] defen[s]e, raises a variety of issues, and
thus diverts the attention of the jury from the crime
immediately before it; and, by showing the defendant to
have been a knave on other occasions, creates a prejudice
which may cause injustice to be done [her]."
Anestal, supra at 665, quoting Commonwealth v. Jackson, 132

Mass. 16, 20-21 (1882).

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Here, the judge did not expressly weigh the probative value

of the prior bad act evidence against the risk of unfair

prejudice to the defendant. See Commonwealth v. Samia, 492

Mass. 135, 148 (2023). And we cannot say that he did so

implicitly by the admission of the evidence, see id., where the

judge indicated that he would defer certain rulings until he

heard some initial testimony, but failed to revisit the

admissibility of the bad act evidence. This causes us concern

because, "even if relevant, a judge must guard against the risk

that evidence of prior bad acts will divert the jury's attention

from the charged acts." Dwyer, 448 Mass. at 129. Here, the

sheer amount of prior bad act evidence introduced by the

Commonwealth was substantial in comparison to the evidence

presented of the crimes charged. Indeed, it risked overwhelming

the case with bad act evidence and distracting the jury from

determining whether the Commonwealth proved its case beyond a

reasonable doubt. And although it was incumbent on the

defendant to object, our cases suggest that even without an

objection, there are occasions when "[t]he judge should . . .

intervene[] to prevent" these dangers. Id. This case presents

that occasion and the judge did not do so. See Commonwealth v.

Roche, 44 Mass. App. Ct. 372, 380-381 (1998) (to guard against

unfair prejudice, judge should limit quantity of bad act

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evidence admitted). Moreover, in a case turning almost entirely

on credibility, the prior bad act evidence may have improperly

bolstered the victim's credibility. See Commonwealth v.

Scullin, 44 Mass. App. Ct. 9, 13 (1997) (in credibility contest

"repeated references" to other acts likely made "significant

impression" on jury). See also Commonwealth v. Clark, 23 Mass.

App. Ct. 375, 381-382 (1987) (substantial risk of miscarriage of

justice created where erroneously admitted evidence could have

enhanced victim's credibility, which was "decisive issue" in

case).

Finally, the admission of bad act evidence may create a

"need [for the judge] to instruct the jury with particular care

what to do in order to avoid diversionary misuse of the

material." Commonwealth v. Mills, 47 Mass. App. Ct. 500, 505-

506 (1999). Indeed, adequate contemporaneous and final limiting

instructions may tip the balance in favor of admissibility. See

Commonwealth v. Gomes, 475 Mass. 775, 785 (2016). The judge did

not mitigate any potential prejudice by the admission of this

evidence by providing clear, forceful contemporaneous limiting

instructions, only providing them in his final charge to the

jury, as part of his entire final instructions.4 Even

4 Trial counsel did not request a limiting instruction, and
failed to follow up on the judge's invitations to possibly
provide one on request.

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contemporaneous limiting instructions have sometimes been held

insufficient to prevent undue prejudice, see, e.g., Dwyer, 448

Mass. at 128-129 & n.8. Here, there were none.

Accordingly, we are constrained to conclude that the

judge's admission of extensive prior bad act evidence, without a

careful balancing of its probative value against the risk of

unfair prejudice, and without any contemporaneous limiting

instructions, despite the lack of objection, was an abuse of

discretion and created a substantial risk of a miscarriage of

justice. See Crayton, 470 Mass. at 252. See also L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Judgments vacated.

Verdicts set aside.

By the Court (Blake, C.J.,
Vuono & Neyman, JJ.5),

Clerk

Entered: April 21, 2026.

5 The panelists are listed in order of seniority.

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