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Defense asks Appeals Court for new trial in Lugo appeal, citing repeated 'other touchings' evidence
Summary
At oral argument, defense counsel urged the Massachusetts Appeals Court to order a new trial in Commonwealth v. Jorge Lugo, saying trial counsel introduced prejudicial evidence of multiple touchings and the prosecutor inflamed jurors; the Commonwealth countered that testimony described continuous conduct. Decision pending.
The Massachusetts Appeals Court heard argument on an appeal by Jorge Lugo, whose counsel told the panel trial counsel's strategy and the prosecutor's closing combined to unjustly prejudice the jury.
"Trial counsel repeatedly made the siblings look credible," Miles Melopez told the three-judge panel, arguing the jury heard evidence suggesting "countless other touchings" and that some elicited statements were unnecessary and harmful to the defense. Melopez said the admission and use of prior statements and testimony about other incidents—without an appropriate limiting instruction—left the jury free to use that evidence for propensity rather than the narrower purposes permitted by law.
Why this matters: appeals courts evaluate whether errors at trial were prejudicial enough to require a new trial or reversal. The case centers on whether admission of prior-consistency or prior-bad-acts testimony and the prosecutor's remarks created cumulative error sufficient to undermine confidence in the verdict.
Melopez walked the panel through the record, saying defense questioning introduced prior interviews and that excerpts were placed in the impounded appendix for the motion-for-new-trial judge's review. He argued that, even if some prior statements are admissible for impeachment, their introduction here was tactically imprudent and significantly harmful because it confirmed aspects of the complainants' accounts.
The Commonwealth, represented by Rich Lisenhower, answered that the testimony described a continuous or repeated course of conduct by the defendant toward the complainant and therefore was not classic prior-bad-acts evidence used to prove propensity. "The question is what did the defendant do to CC and CC said this is..." Lisenhower told the court, urging the panel to view the testimony in context of how the charges were tried.
The justices spent substantial time questioning counsel about notice and the framing of the charges (single-date vs. multiple incidents), whether evidence was introduced with or without a limiting instruction, and whether the defense's tactical choices at trial foreclose appellate relief. The panel repeatedly probed whether excerpts of the pretrial interview were actually before jurors at trial or only appeared later in the record during the motion for new trial.
No decision was announced from the bench. The Appeals Court will consider briefs and the record before issuing a written ruling.
What happened next: The panel moved on to two separate appeals after hearing the arguments today; no ruling was made in court on Lugo's motion for a new trial.
