Opinion
21-P-988
01-06-2023
COMMONWEALTH v. WILLIAM BEIER.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted after a jury trial of assault of a child with intent to rape, two charges of indecent assault and battery on a child under fourteen, two charges of indecent assault and battery on a person aged fourteen or older, and three charges of rape of a child aggravated by a ten-year age difference. The convictions all stemmed from a continuing course of sexual abuse that the defendant perpetrated on the victim, his biological daughter, while she was living in his home. On appeal the defendant argues that the lack of specificity in the indictments prevented him from preparing a defense, that the trial judge erred by admitting cumulative first complaint testimony, and that the delay in bringing the case to trial violated his constitutional rights. We affirm.
The defendant lived alone with the victim during the relevant time periods.
The defendant's appellate counsel raised this last claim pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981).
1. Specificity of indictments.
Each of the indictments alleged that the offense occurred on "divers dates," bounded by two of four dates: June 29, 2014, the victim's twelfth birthday; June 28 and June 29, 2016, the day before and the day of the victim's fourteenth birthday; and March 7, 2017, the day that the Department of Children and Families (DCF) removed the victim from the defendant's custody. The defendant now claims that the lack of more specific dates in the indictments prevented him from preparing a defense. But the defendant did not raise this claim before trial, either by moving for a bill of particulars or by moving to dismiss the indictments. Cf. Commonwealth v. Kirkpatrick, 423 Mass. 436, 439, cert. denied, 519 U.S. 1015 (1996) (defendant moved for bill of particulars and then moved to dismiss indictments "as supplemented by the particulars" based on lack of specificity). The claim is therefore waived. See Commonwealth v. Hrycenko, 417 Mass. 309, 312 (1994); Commonwealth v. Buckley, 76 Mass.App.Ct. 123, 129 (2010); G. L. c. 277, § 47A.
Even absent waiver, we see no grounds warranting a new trial. Where, as here, a child is the victim of a continuing course of sexual abuse and, as is common, cannot differentiate among the assaults by date and time, "the guarantee of due process does not require that the Commonwealth attempt the artificial task of identifying a specific instance of abuse as a basis for [conviction]." Kirkpatrick, 423 Mass. at 444. In these types of cases, the central question before the jury is the overall credibility of the victim -- i.e., the "jury will either believe that a consistent and repetitive pattern of abuse has occurred . . . or they will disbelieve it." Id. at 442.
Here, the Commonwealth provided the defendant during discovery with copies of the police report and the grand jury minutes, which detailed the nature of the victim's allegations.The defense at trial was that these allegations were not credible because the victim had mental health issues and a motive to fabricate. The defendant fails to articulate how his defense would have been different had the indictments been more precise as to the dates of the assaults. While the defendant speculates that he might have been able to present an alibi defense, "in the case of a resident abuser, as opposed to someone with episodic or limited access to a child, 'only infrequently can an alibi or identity defense be raised.'" Kirkpatrick, 423 Mass. at 441, quoting People v. Jones, 51 Cal.3d 294, 319 (1990). An alibi defense would have been implausible on the facts of this case given that the defendant lived alone with the victim during the years when the abuse was ongoing. See Kirkpatrick, supra at 441-442 (no "possible suggestion of alibi" where "the victim's mother was drinking heavily during the relevant period, and the victim's older sister was only sporadically at the family's apartment"). The defendant has thus failed to show that he was prejudiced in his ability to present a defense. See Commonwealth v. Sineiro, 432 Mass. 735, 737-738 (2000) (defendant not prejudiced by lack of more specific dates and times in indictments where he "was furnished with copies of police reports and grand jury minutes," "[h]is defense at trial was that the crimes had never occurred," and "[t]he claimed lack of precision in the indictments did not bear on the central question before the jury concerning the credibility of the victims").
The Commonwealth has moved to expand the record to include a copy of the police report, which is not part of the trial record. We need not resolve the motion, as we have not considered the police report in reaching our decision.
2. Cumulative first complaint testimony.
The defendant next claims error in the admission of testimony from Meredith Goc, the DCF worker who interviewed the defendant as part of DCF's investigation into the victim's allegations of sexual abuse. Specifically, for the first time on appeal, the defendant argues that Goc improperly served as an additional first complaint witness and that her testimony served no purpose other than to bolster the credibility of the victim. We disagree. Before Goc testified, the Commonwealth explained to the judge that the purpose of her testimony was to establish that, when the defendant learned of the victim's allegations, he refused to turn over the victim's electronic devices, even though he agreed to turn over her other belongings. Goc's testimony was admissible for this purpose and thus did not run afoul of the first complaint doctrine. See Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014) ("Evidence of . . . destruction or concealment of evidence . . . generally is admissible as some evidence of consciousness of guilt"); Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009) (first complaint doctrine does not prohibit testimony that "is otherwise independently admissible"). Goc's testimony was also brief, spanning six pages of transcript in total, and did not convey any impression that she thought the victim was credible. Thus, even assuming error, it did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Kebreau, 454 Mass. 287, 298 (2009).
Although the defendant does not cite to any specific part of Goc's testimony, the only mention of a complaint of sexual abuse occurred during the following exchange:
Q: "And did the letter he was provided with explain the nature of the allegation against him?"
A: "Yes, it did."
Q: "Specifically that it was an allegation of sexual abuse?"
A: "Yes."
Q: "What was his response to that?"
A: "He didn't know what that was about. He said that this, you know, was for molesters, that he didn't know why this came about."
Q: "Fair to say he denied any allegations of sexually abusing his daughter?"
A: "Yes."
3. Speedy trial.
The defendant was arraigned on June 15, 2017. On May 13, 2021, eleven days before the scheduled start of trial, he filed a motion to dismiss the indictments, claiming violations of Mass. R. Crim. P. 36 (b), 378 Mass. 909 (1979), and his constitutional rights to a speedy trial. The Commonwealth filed an opposition and attached as an exhibit a detailed chart explaining which time periods should be included in and excluded from the rule 36 (b) calculation; by the Commonwealth's analysis, all but 208 days were excludable. In denying the motion to dismiss, the trial judge expressly adopted the Commonwealth's analysis with respect to the defendant's rule 36 (b) claim. With respect to the defendant's constitutional claims, the judge found that "[t]he delays were largely necessitated by the [d]efendant's need to properly prepare for the trial," that "[t]he [d]efendant acquiesced in and did not object to the delays," and that "[a]ny delays occasioned by COVID [were] excluded by the various SJC COVID orders." Thus, the judge concluded, the defendant did not "demonstrate any prejudice or due process violation resulting from the delay in the trial of this matter."
On appeal the defendant does not point to any specific error in the judge's rule 36 (b) analysis. His passing statement that the judge "simply accepted the Commonwealth's claims of excludable time as sacrosanct" does not rise to the level of appellate argument. He has therefore failed to demonstrate that dismissal of the indictments was warranted under rule 36 (b).
As to the constitutional claims, we apply the following four factors to determine whether the defendant's rights to a speedy trial were violated: "the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant." Commonwealth v. Dirico, 480 Mass. 491, 506 (2018), citing Barker v. Wingo, 407 U.S. 514, 530 (1972). While the length of the delay here was substantial, the other three Barker factors weigh heavily in favor of the Commonwealth.
First, "there is no evidence (and no claim by the defendant) that the Commonwealth was deliberately attempting to delay the trial for the purpose of hindering the defense." Dirico, 480 Mass. at 506. To the contrary, the judge found, and the defendant does not contest, that the delay was "largely necessitated" by the defendant's need to prepare for trial. Second, the record shows that the defendant did not press his rights to a speedy trial but instead "was responsible for, benefited from, and acquiesced in the vast majority of the delay." Id. at 507. Third, nothing in the record indicates that the delay prejudiced the defendant's ability to prepare his defense. Although the defendant asserts that there were "numerous witnesses" who "were no longer available by the time the case actually went to trial," he did not raise any such claim in his motion and did not identify any of those witnesses or describe his efforts to locate them. Also, the testimony that the witnesses would supposedly have offered -- to the effect that the defendant's relationship with the victim "did not have a sexual component to it" -- would have had minimal to no probative value, and so any loss of their testimony occasioned by the delay did not impair the defense. See Commonwealth v. Butler, 464 Mass. 706, 718 (2013) (prejudice factor weighed against defendant where "any impairment to the defense [was] speculative at best").
Accordingly, applying the Barker factors "in their totality," we conclude that the defendant was not denied his constitutional rights to a speedy trial. Dirico, 480 Mass. at 508. The motion to dismiss was properly denied.
To the extent we have not addressed any of the specific arguments raised in support of the Moffett claim, we have considered them and see no grounds warranting relief.
Judgments affirmed.
The panelists are listed in order of seniority.