Opinion
13-P-1952
04-14-2015
COMMONWEALTH v. AARON DIRGO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from convictions of aggravated rape of a child (four counts), G. L. c. 265, § 23A(b), and indecent assault and battery on a child under fourteen years of age (two counts), G. L. c. 265, § 13B, and from the denial of his motion for a new trial. He complains of a violation of the first complaint doctrine and various improper statements made by the prosecutor in her opening statement and final argument.
The aggravating factor is that the defendant was more than ten years older than the victim.
In Commonwealth v. Aviles, 461 Mass. 60, 73 (2011), the Court held that the first complaint doctrine is to be "a body of governing principles to guide a trial judge on the admissibility of first complaint evidence." Because a "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, [the] established first complaint jurisprudence, and [the] guidelines for admitting or excluding relevant evidence," ibid., appellate review of the allowance of first complaint evidence is for abuse of discretion.
The defendant did not oppose the determination that the victim's schoolmate was appropriately called as the first complaint witness. Rather, he argues that the victim's first statement to the witness, in which she disclosed kissing and handholding with the defendant, should have been the allowable first complaint testimony -- especially given that the allegation of "french kissing" constituted the basis of one of the two counts of indecent assault and battery -- rather than the later disclosure to the witness of an act of oral sexual intercourse, as the judge ruled. Given that neither the victim nor the witness described this first kissing as consistent with an indecent assault and battery, we discern no abuse of discretion in the ruling by the judge that this first description was not of a sexually assaultive nature. The kissing incident initially disclosed to the witness was not the same incident or conduct that formed the basis of the indecent assault and battery indictment, which was based on a later incident and different conduct.
More troublesome are the defendant's complaints about the prosecutor's opening statement and final argument. In light of the lack of objection, however, we must examine these claims to determine whether a substantial risk of a miscarriage of justice was thereby created, either singly or cumulatively. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) ("An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not 'materially influence[]' the guilty verdict").
First, regarding the Commonwealth's opening statement, the Commonwealth correctly conceded that the trial prosecutor improperly stated at the outset of her remarks that the jury were among her clients. However, when this misstatement is viewed in the context of the entire opening, together with the judge's instructions during empanelment, prior to the opening statements of counsel, and later during final instructions, we are confident that the jury understood their proper role as neutral and impartial fact finders and were not influenced. We discern no substantial risk that a miscarriage of justice was created.
Turning to her closing statement, in particular, the defendant contends that the prosecutor misrepresented the evidence at trial when she argued that the victim learned sexual terminology from the alleged abuse, improperly commented on evidentiary rulings that prevented the Commonwealth from introducing additional corroborating evidence impliedly in its possession, and argued that the jury should credit the victim simply because she had appeared in court.
Generally speaking, a "prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom. Counsel may also suggest conclusions to be drawn from the evidence as an attempt to assist the jurors in analyzing the evidence. While generally great latitude is permitted in argument, counsel must be careful to avoid misstating principles of law, infringing or denigrating constitutional rights, and provoking undue sympathy or bias." Commonwealth v. Marquetty, 416 Mass. 445, 450-451 (1993) (quotations and citations omitted).
First, we disagree with the defendant's characterization of the prosecutor's depiction of the victim's inexperience and embarrassment as "ha[ving] learned sexual terminology" from the alleged abuse by the defendant. The prosecutor may comment, properly, on the victim's appearance and demeanor, such as discomfort and embarrassment, which would have been observed by the jury during her testimony and when prompted by the prosecutor's questions to describe the various sexual acts in which she had engaged with the defendant. Furthermore, there was a basis for the prosecutor to comment in argument on the victim's sexual inexperience, prior to her relationship with the defendant, in the victim's testimony that her sexual experiences with the defendant were "all new to [her]" and that she had lost her virginity to the defendant. Asked questions aimed at showing how she had avoided pregnancy, she said in response to a question by the prosecutor that she was familiar with the term "ejaculation." She attempted, upon being asked to define it, to give its meaning, but then said, "I don't know. I don't know." Thus, even when considering the prosecutor's comments on the victim's discomfort using sexual terms "that for the most part were, foreign to her before she engaged in all of these things with the defendant," viewing the comments in context, we are satisfied that the prosecutor's remarks were properly based on the evidence and appropriately directed to the issue of the victim's credibility. See, e.g., Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 542 (2012). Contrast Commonwealth v. Beaudry, 445 Mass. 577, 579-580 (2005) (prosecutor's comments regarding child victim's sexual innocence not derived from any evidence presented).
The defendant also contends that the prosecutor's comment that the first complaint doctrine prevented the Commonwealth from calling additional witnesses to corroborate the victim was improper. He contends that such statement ran afoul of two basic principles: first, that the Commonwealth may not suggest that it "has special knowledge by which it can verify the witness's testimony," Commonwealth v. Gaudette, 441 Mass. 762, 770 (2004), and that implying the existence of such witnesses constituted improper "back door piling on of complaints on top of the first complaint testimony," Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 206 (2012). Nonetheless, we consider the statement, as did the trial judge in his ruling on the defendant's motion for a new trial, as consistent with his instructions on first complaint.
"The Commonwealth is allowed to call one witness to talk about what a victim says as a result of the sexual assault. One witness or one shot. Who was it? [A.B.]. Why? Because she was the first person to whom that complaint was made. It wasn't a detective. It was not . . . her mother. It was her friend. And the judge is going to instruct you again on that. "The Commonwealth has one shot, the one witness that we can call and that's it. That's it. So it shouldn't be any surprise when you hear that instruction again why the Commonwealth did not parade witness after witness in here to tell you the same thing. We can't. We can't."
We consider this comment to be fair response to the defendant's cross-examination of the victim, when she answered that she had spoken to her mother and at least one police investigator about her sexual relationship with the defendant, and to the closing statement by defense counsel, in which he identified other potential witnesses that the prosecutor could have but did not call to testify, including police with whom the victim spoke. Proper closing argument may "include a right of fair reply by a prosecutor to impressions created by the defendant's closing." Commonwealth v. DeJesus, 17 Mass. App. Ct. 1020, 1021-1022 (1984). While the defense argument could be read to imply a broader failure, the Commonwealth's view that the argued reference was to the lack of testimony from others with whom the victim had spoken about her statements, especially given the extent to which the victim was cross-examined about statements she gave to the police, is not unreasonable. We fail to discern how the defendant was harmed.
Last, and most problematic, is the defendant's contention that the prosecutor suggested, improperly, that the victim should be believed because she had come into court and testified and had nothing to gain by testifying.
"His Honor is going to give you some instructions about assessing credibility in witnesses. And when he gives you that instruction, he's going to ask you, what does that witness stand to gain or to lose by testifying the way they do? What is their motive? Ask you that -- ask yourselves that. What did [the victim] gain by coming forward on this case? What did she gain? Did she gain anything at all? And think about -- think to yourselves, when she sat on the witness stand yesterday and today and was telling you -- relaying all of the facts of her relationship with the defendant, relaying different sexual acts that they would engage in, do you think that was easy for her to do that? She subjected herself to your scrutiny in telling you -- even still as a teenager, she's not yet sixteen, she told you about what they did together. She told you about all the sexual things that they did together. Did she seem embarrassed at times? Maybe a little uncomfortable in using terms that for the most part were foreign to her before she engaged in all of these things with the defendant. Think about that."
In Commonwealth v. Beaudry, 445 Mass. at 586-587, the court discussed a statement made in the closing argument of the prosecutor to the effect that the victim "was credible simply because she testified at trial, that she had 'no motive to lie about what her father did . . . nothing to gain by coming in this courtroom and telling you something that wasn't true.' After further statements in this vein, the argument continued: 'The defendant has a stake in the outcome of this case. The defendant has a motive to lie. . . . Think about who has a motive . . . to not tell you the truth, who has a stake in the outcome of this case.'" In response to an objection by the defendant, the judge agreed that a curative instruction was necessary so that the jury would not draw an inference favorable to the witness simply because she testified. Id. at 586. Because the defendant had expressed his satisfaction with the instructions, his claim, on appeal, that the curative instruction was insufficient was determined to be unpreserved and did not contribute towards the ultimate reversal of the conviction in that case for other reasons related to the prosecutor's closing. Id. at 587-588.
In Beaudry, the judge's curative instruction stated: "I want to caution you . . . that the fact that a complaining witness has come into court and testified before you does not entitle that witness to any greater credibility. And in fact, the mere fact that somebody has come into court to testify does not mean that their testimony is entitled to be believed by you because of the mere fact that they showed up in court and testified. If you have been invited in the argument of counsel to make such an evaluation of a witness's testimony, I instruct you that you are to disregard that" (emphasis omitted). Id. at 586-587.
Thereafter, in Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009), in which the trial judge overruled the defendant's objection to statements in the prosecutor's closing and no curative instruction was given, this court reversed the convictions, because, "[b]y alluding to conjectured embarrassment experienced by a young woman in coming before a group of strangers to describe a sexual assault, including her menstruation and use of a sanitary pad, the prosecutor sought to bolster the credibility of the complainant by virtue of her willingness, despite such a burden, to come into court and testify." While we consider the quoted remarks in the present case to have been similarly improper to those in Commonwealth v. Ramos, supra, here there was no objection at trial to the closing argument and in the context of the entire argument, we do not consider the remarks to have created a substantial risk of a miscarriage of justice. Here, the defense was that the victim was "delusional" and that she had made up the allegations because her mother had found a marijuana pipe in the victim's purse and the victim needed a story to divert her mother's attention. The prosecutor argued that the victim was credible, that she was not making up the allegations, that the victim still had strong feelings for the defendant, and that the reason she testified as she did was because the allegations were true. While the argument that the victim should be believed because she had nothing to gain by testifying was improper, we are not persuaded that the jury would have placed undue weight on the victim's willingness to testify in assessing her credibility, or that the argument "materially influenced" the verdicts. Commonwealth v. Freeman, supra. Commonwealth v. Alphas, supra.
The defendant's claim of an improper amendment to the indictments to change the initials of the victim from H.G. to H.R. is without merit. See G. L. c. 277, § 35, and Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979). Last, the defendant's claim of insufficient evidence of the ten-year age disparity between the victim and the defendant is also without merit, given testimony, inter alia, that the defendant celebrated a thirtieth birthday at a party in 2010, hosted by the victim's mother, when the victim was twelve or thirteen.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 14, 2015.