Opinion
No. 11–P–754.
2012-10-23
COMMONWEALTH v. Carlos L. DAVILA.
By the Court (HANLON, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Carlos L. Davila, was found guilty of indecent assault and battery on a child under the age of fourteen, in violation of G.L. c. 265, § 13B. Following a jury-waived trial on the subsequent offense charge, the trial judge found the defendant guilty and sentenced him to a term of fifteen years to life. The conviction was based on an incident which occurred after a barbeque thrown by the victim's parents where the defendant kissed the victim on the lips and used his tongue. The defendant argues on appeal that the trial judge erred by (1) foreclosing any inquiry of the first complaint witness, the victim's mother, regarding her potential bias toward the defendant; (2) limiting the direct examination of a defense witness, Jessenia Morales, and by prohibiting the defense from presenting Elaine de los Santos as a witness; and (3) admitting Detective Hurton's testimony repeating the victim's pretrial statement describing her assailant, which she made after viewing a photographic array, as it was impermissible hearsay. We affirm. Discussion. 1. Foreclosing cross-examination of victim's mother. During cross-examination of the victim's mother, a premature objection by the prosecutor, which incorrectly was sustained, was followed by a sidebar conversation. The judge clarified her ruling and, consistent with the judge's pretrial ruling, informed defense counsel that on cross-examination he could not elicit a hearsay statement made by the defendant.
However, the judge did not foreclose defense counsel from establishing that an argument took place between the victim's mother and the defendant. The trial judge did not foreclose all inquiry into the subject of bias. The defendant could have established that an argument between the defendant and the victim's mother had occurred. The ruling made prior to trial and reiterated at sidebar only prohibited testimony regarding the defendant's statement to the police. Even if, contrary to the judge's ruling, the defendant's out-of-court statement was admissible for the limited purpose of supplying context, the defendant suffered no prejudice because the defense chose not to pursue questioning about whether an argument occurred.
Although the prosecutor may have had a legitimate concern that the defendant's cross-examination would elicit testimony about what the defendant said out of court to the police, the objection was premature because defense counsel merely asked the witness if she had argued with the defendant. The prosecutor, instead, should have requested to be heard at sidebar.
2. Limiting direct examination of Morales and excluding de los Santos. The defendant did not object to the trial judge's sustaining the prosecutor's objections to the questions about the relationship between Morales and the victim's father, therefore, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002). The defendant argues that he should have been permitted to question Morales with regard to her prior relationship with the victim's father. Defense counsel did not make an offer of proof. As there was no evidence of past or present hostility between them, the defendant's theory of bias was entirely speculative. See Commonwealth v. Tam Bui, 419 Mass. 392, 401 (1995); Commonwealth v. Quegan, 35 Mass.App.Ct. 129, 133 (1993). The trial judge was within her discretion to limit inquiry into the subject. See Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993).
Because the defendant objected to the trial judge's ruling to prohibit de los Santos from testifying, we review to determine whether the error, if any, was prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). After conducting a thorough voir dire, it was apparent that if de los Santos testified, the jury would hear evidence that, contrary to the first complaint witness's testimony that the victim made a first complaint on Monday, it was actually the day after the incident, on Saturday. On the other hand, de los Santos's testimony would amount to a repetition of the essential details of what the first complaint witness testified she was told by the victim. See Commonwealth v. King, 445 Mass. 217, 243 (2005). Even if the trial judge should have admitted the testimony, the significant risk of prejudice to the defendant from a repetition of the details of the victim's report to the first complaint witness in comparison to the minimally probative value of the testimony enables us to say, with confidence, that the exclusion of the testimony did not influence the jury or had only slight effect. See Commonwealth v. Martinez, 431 Mass. 168, 174 (2000).
3. Permitting Detective Hurton to repeat victim's description of assailant. The defendant raises for the first time on appeal the admissibility of Detective Hurton's testimony that the victim, during an identification procedure in which she was shown a photographic array, stated that “[h]e [pointing to a photograph of the defendant] was the person that kissed her on the mouth. Therefore, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010). Detective Hurton's testimony was admissible for a reason independent of first complaint because it was a statement of identification. See Mass. G. Evid. § 801(d)(1)(C) (2012). Unlike first complaint testimony, pretrial identifications “are not hearsay, and are admissible for substantive purposes relating to the question of identification.” Commonwealth v. Adams, 458 Mass. 766, 773 (2011). Here, the fact that the victim was available for cross-examination provided the foundation for the admission of testimony by the third-party observer, Detective Hurton. See Commonwealth v. Cong Duc Le, 444 Mass. 431, 437–440 (2005). Furthermore, the law permits the third-party observer to testify about the words used by the identifying witness to provide context for the jury. See Commonwealth v. Adams, supra at 772.
Judgment affirmed.