Opinion
16-P-553
07-10-2017
COMMONWEALTH v. Jose ARRIETA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of two counts of indecent assault and battery on a person over the age of fourteen. G. L. c. 265, § 13H. On appeal, he challenges his convictions based on the theory that they resulted from a violation of the first complaint doctrine and that they stemmed partially from improper prior bad acts evidence. He also argues that improprieties in the Commonwealth's closing argument created a substantial risk of a miscarriage of justice. We affirm.
He further argues that defense counsel's failure to object to the admission of the first complaint testimony amounted to ineffective assistance of counsel.
Background. The cleaning company that employed both the victim and the defendant assigned each of them to clean the same building in Lexington. The defendant was convicted of assaulting the victim on two separate occasions while at work, both in October, 2009. The jury were warranted in finding the following facts. First, on a Friday night, the victim found the defendant waiting for her as she exited a cleaning supply closet. He took her hand and placed it over his pants on his groin. Second, later that month, the victim was changing her clothes in the same closet when the defendant entered and turned off the light. He proceeded to place an arm around her neck, lick her face, and press his penis against her anus. She was able to stop the assault before it progressed further.
Prior to trial, the Commonwealth argued two motions in limine moving to introduce both Carlos Sanabria and Sergeant Christina Demambro as first complaint witnesses. Sanabria was a superior of both the alleged victim and defendant and was only told of the first incident. Demambro is a member of the Lexington police department and was only informed of the second incident. The defendant did not object to either motion, and they were each allowed. The Commonwealth argued an additional motion in limine requesting to introduce evidence of prior bad acts of the defendant as they related to his relationship with the victim. This too was allowed, but limited to testimony about the defendant's general actions toward the victim rather than specific instances of conduct. At trial, the victim, Sanabria, Demambro, and the defendant each testified.
According to the victim's testimony, she continued to work for the company without disclosing either assault until November, 2009, when she spoke to Sanabria. At that time, she only told Sanabria about the first incident. Years later, in May of 2012, she told Sergeant Demambro about the second incident. The victim also testified that she had not told her husband about what happened in detail, only "on the surface."
Sanabria testified that the victim told him that the defendant "tried to touch her" while she was going to get a vacuum cleaner, and stated that he did not recall the victim disclosing specific information about this event. Demambro recounted that the victim told her that while at work in October, 2009, she was "pushed over [a] toilet, and her pants were pulled down," and she was sexually assaulted by the defendant. The victim and defendant also testified, with the victim's testimony largely detailing the facts of the two assaults outlined above and discussing her workplace relationship with the defendant. The defendant, on the other hand, testified that his relationship with the victim deteriorated during their time working together and he denied each alleged assault.
This disclosure took place during the second meeting between the victim and Demambro in May, 2012. They first met in January, 2010, but did not discuss the assault.
Discussion. First complaint. The defendant asserts that the introduction of first complaint testimony from both Sanabria and Sergeant Demambro violated the first complaint doctrine. He further asserts that the victim's testimony regarding statements she made to her husband and meetings she had with police also violated the doctrine, as did the prosecutor's references to a conversation the victim had with Sanabria's assistant, Daniel Salista.
Evidence of her conversation with Salista was elicited by the defendant. The reference in the Commonwealth's closing argument simply detailed that the victim complained to Salista about having problems with the defendant, and Salista indicated that she should learn to get along with him or risk losing her job.
The first complaint doctrine is no longer to be considered an evidentiary rule, but rather "a body of governing principles to guide a trial judge on the admissibility of first complaint evidence.... The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence." Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). Under the doctrine, as first set forth by the Supreme Judicial Court in Commonwealth v. King, 445 Mass. 217, 242-243 (2005), only the first person whom a victim tells of a particular sexual assault will be permitted to testify. The witness "may testify to the complainant's statements of the facts of the assault," as well as "the circumstances surrounding the initial complaint" (citation omitted). Id. at 244, 246. The complainant is also permitted to testify as to what was said during the first complaint, as well as "why the complaint was made at that particular time" (footnote omitted). Id. at 245.
"By ‘circumstances,’ we mean that the witness may testify to his or her observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant's allegations or assess the specific defense theories as to why the complainant is making a false allegation." King, supra at 246.
As none of the defendant's three asserted violations of the first complaint doctrine were objected to at trial, we review to determine whether there was error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1965). A substantial risk of a miscarriage of justice exists "if the evidence and the case as a whole ... [leave the court] with a serious doubt that the defendant['s] guilt had been fairly adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997).
Asserted violations of the first complaint doctrine are reviewed for abuse of discretion. See Aviles, supra. The defendant cannot show an abuse of discretion in the present case, much less a substantial risk of a miscarriage of justice.
The defendant asserts that Sergeant Demambro's testimony violated the first complaint doctrine in two ways: first, because Sanabria had already testified as a first complaint witness to the anal assault, and second, because Demambro testified as to her earlier meeting with the victim in 2010. We are unpersuaded. Sanabria's testimony related solely to the first assault. Demambro, on the other hand, testified exclusively to the second assault. As such, their individual testimony related to two entirely discrete acts and disclosures, and the admission of each of their testimony did not violate the first complaint doctrine. See Commonwealth v. Kabreau, 454 Mass. 287, 294 (2009) (two first complaint witnesses permitted to testify because "disclosures involved multiple and increasingly more serious assaults," they "were made separately, ... and they concerned significantly different types of assault").
The second asserted violation of the first complaint doctrine—the victim's testimony regarding conversations she had with her husband and in her first meeting with Sergeant Demambro—is similarly without merit. Specifically, the victim testified that she disclosed surface-level information about the assaults to her husband and mentioned that she had met with police several times about the assaults. There is no evidence that any of these conversations were complaints, and any suggestion that, in this instance, mere mention of conversations without detail rises to a level of substantially risking a miscarriage of justice is unfounded. See Commonwealth v. Murungu, 450 mass. 441, 446 (2008) ("Testimony of a vague conversation that does not ‘complain’ that a sexual assault occurred ... may communicate to the jury that the victim in fact did not complain at all ...").
The defendant's final asserted violation of the first complaint doctrine was the prosecutor's mentioning of the victim's complaint to the defendant's supervisor, Salista, during closing arguments. The victim's testimony, elicited by the defendant, regarding her conversation with Salista was as follows: "I told him that [Sanabria] wouldn't let me work. I didn't give him details, but I ... was having a hard time establishing contact with [Sanabria]. And it was just on the surface and then [Salista] told me ... not to say anything, better not say anything because you are going to be fired." In its closing argument, the Commonwealth referenced this testimony, stating that "she told Daniel Salista what had happened and told Daniel Salista that she was having problems with the defendant [and] that Daniel Salista told her you need to just figure out how to get along with him. You're going to get fired if you report this." The defendant suggests that the Commonwealth stating that the victim "told Daniel Salista what had happened" was either a factual misstatement or, in the alternative, suggests that Salista was the proper first complaint witness for the assault, not Sanabria. The testimony referenced by the Commonwealth was not introduced by the government, but was elicited by the defendant. As such, he cannot now assert a first complaint violation stemming from the admission of that testimony. See Commonwealth v. Torres, 86 Mass. App. Ct. 272, 277-778 (2014) (defendant "opened the door" to testimony that exceeded first complaint doctrine by first eliciting that testimony). The prosecutor's reference to it was a fair argument. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ( "We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence"). Even if we were to consider the Commonwealth's mention of the conversation with Salista elicited by the defendant to be a factual misstatement, we discern no substantial risk of a miscarriage of justice. As such, the defendant's argument is without merit.
The defendant asserts that his counsel's failure to object to the admission of the alleged erroneous testimony and closing argument amounted to ineffective assistance of counsel. As we have concluded that none of these alleged violations of the first complaint doctrine actually implicated the doctrine, it was not ineffective of trial counsel to not object to their admission. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996) ("[F]ailing to pursue a futile tactic does not amount to constitutional ineffectiveness").
Prior bad acts. The defendant contends that the admission of evidence of prior bad acts created a substantial risk of a miscarriage of justice. We discern no error. The testimony that was introduced was consistent with the judge's allowance of the Commonwealth's pretrial motion in limine, in which he stated that the Commonwealth "may establish nature of relationship leading up to assaults alleged." The victim briefly detailed the inappropriate way that the defendant acted toward her in the workplace, stating that the defendant would regularly lick his lips upon seeing the defendant and "would make gestures with his face ... with his eyes." The defendant asserts that this testimony equates to commenting on specific prior bad acts, such that any probative value is outweighed by its prejudicial effect. See Commonwealth v. McGee, 467 Mass. 141, 156 (2014). We conclude that there was no error in the admission of this testimony. The victim did not testify as to any specific instances of inappropriate conduct by the defendant, and the nature of their relationship prior to the attack certainly carried probative value. There was no error in its admission, and any prejudice that may have stemmed from those portions of testimony were reasonably determined to not outweigh its probative value. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002).
Closing argument. The defendant next contends that there were three errors in the Commonwealth's closing argument: (1) the prosecutor misrepresented the testimony regarding the victim's conversation with Daniel Salista, which we addressed above and need not further discuss; (2) the prosecutor improperly mentioned prior bad acts of the defendant; and (3) the prosecutor vouched for the victim's credibility and shifted the burden of persuasion to the defendant. He argues that these three errors, when considered cumulatively, amount to reversible error. Again, because none of these asserted errors were objected to at trial, we review for a substantial risk of miscarriage of justice. See Commonwealth v. Johnson, 429 Mass. 745, 748 (1999).
The defendant's position regarding an improper reference to prior bad acts testimony in the closing argument mirrors his previous argument that the testimony should have been excluded. As we have concluded that there was no error in the admission of that testimony, the Commonwealth's reference to it in closing argument was not improper.
Finally, the defendant argues that the Commonwealth vouched for the victim's credibility, thereby shifting the burden of proof to the defendant. The pertinent portion of the prosecutor's closing argument appears to be in response to the defendant's asserted theory that the victim fabricated the assaults as a means of retaliating for past workplace disputes. Utilizing a string of rhetorical questions, the prosecutor queries the plausibility of the two theories of the case: whether it was more likely that there were two assaults with delayed disclosures, or whether the assaults were fabricated by the victim. We perceive no burden shifting stemming from the prosecutor's closing argument. See Commonwealth v. Mattei, 90 Mass. App. Ct. 577, 582-583 (2016). See also Commonwealth v. Kater, 432 Mass. 404, 422 (2000), quoting from Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ("A prosecutor may argue ‘forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence’ "). Accordingly, we conclude there was no error.
The challenged excerpt of the closing argument is as follows, in full: "What's the alternative that the defendant was sort of insinuating during his testimony? The alternative, right, is that she made the whole thing up. He denied every bit of it, making inappropriate gestures to her. He said nothing happened. He wants you to believe that she came in here and everything she told you yesterday was completely made up from start to finish, A to Z, made up. Why? What is the motivation? Because she's angry that she didn't get a new vacuum cleaner? Because she's got some kind of bias argument against the defendant because she didn't get that extra hour at work a week, that extra $12 to $13 a week? That's why she's here six years later recounting a graphic and humiliating detail what the defendant did to her? Where is the motivation? How is that more believable than the story about her taking two-and-a-half years to finally come to terms with what happened in order to be able to report it? It's not. It's not. It's just not a story that works, that [the victim] came in here six years later and made up this humiliating and graphic story because she's upset that she didn't get a new vacuum cleaner. That's not the story that works."
We note that the judge properly instructed the jury that closing arguments are not evidence, and "[w]e presume that the jury followed the judge's instruction." Commonwealth v. Pillai, 445 Mass. 175, 190 (2005).
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Judgments affirmed.