Opinion
10-P-430
12-22-2011
COMMONWEALTH v. MIGUEL ESCOBAR.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant on multiple counts of indecent assault and battery on a child, G. L. c. 265, § 13B; open and gross lewdness, G. L. c. 272, § 16; assault with intent to rape a child, G. L. c. 265, § 24B; and rape and abuse of a child, G. L. c. 265, § 23. He appeals, arguing ineffective assistance of counsel, improper closing statement by the prosecutor, and incorrect jury instructions. We affirm.
The jury acquitted him on several other charges.
1. Background. The Commonwealth presented the following evidence. The victim first came from El Salvador to the United States at age nine, speaking no English. She lived with the defendant, the man she believed to be her biological father, and his family, in Cambridge. Some six months after the victim's arrival and before her tenth birthday, the defendant began touching her in a sexual way, fondling her chest and digitally penetrating her. After her tenth birthday, he placed her hand on his genitalia and later attempted to insert his penis into her vagina. The victim reported this to a teacher at school, Joanne Schiano. The victim was subsequently removed from the family home and placed in foster care. The district attorney's office interviewed her twice, once on March 30, 2001 (when she was ten), and again on December 10, 2003 (when she was thirteen). Both interviews (videotaped) were conducted by child interview specialist Ann Beck. The victim was sixteen when she testified at trial.
At trial, the defense theory was that the victim and defendant were seldom if ever alone and that her tale was created in retaliation for her being required to do irksome household chores. Defense counsel subpoenaed but did not, however, call Beck. Nor did he offer at trial the videotaped forensic interviews of the then ten and thirteen year old victim. He also did not file a written motion to introduce past sexual conduct of the victim. During closing argument, the prosecutor told the jury that, if they believed the victim's testimony, that testimony could provide proof beyond a reasonable doubt. Finally, the judge instructed the jury on the use to which they were to put Schiano's testimony as first complaint witness, stressing that they were to consider that testimony only for the purpose of assessing the credibility of the victim's testimony at trial; the judge did, however, say that the jury must consider whether the Commonwealth had proven that those statements had been made voluntarily and were 'fresh.'
2. Ineffective assistance of counsel. The defendant cites three bases for this claim: failure to call an available material witness, Beck; failure to offer the videotapes of the victim's two earlier interviews; and failure to make a written motion for an exception to the rape shield law in order to introduce evidence about the victim's past sexual conduct or history.
The preferred method to raise a claim of ineffective assistance of counsel is through a motion for new trial. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). A defendant can succeed on an ineffective assistance claim on direct appeal only if the ineffective assistance is made out by facts that indisputably appear on the trial record. Id. at 811.
The two-prong standard for demonstrating ineffective assistance of counsel requires that the defendant (1) show 'behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' which in turn (2) then 'likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
(a) Failure to call Beck as a rebuttal witness. Defense counsel subpoenaed Beck, but did not place her name on the list of witnesses. Contrary to the defendant's assertion, he was not precluded from calling Beck because she was not identified on the witness list. The judge allowed the Commonwealth's motion to quash the subpoena because, according to an affidavit of Beck, she had no present memory of the substance of the two interviews she had conducted and so could not provide testimony as to statements made by the victim during their course. See Commonwealth v. Martin, 417 Mass. 187, 196- 197 (1994). The judge noted the defendant's right to readdress the issue of calling Beck as a rebuttal witness should the evidence so warrant. However, because Beck had no present memory of the detailed content of the interviews conducted several years earlier, there was no basis for the judge to allow the defendant to call her as a rebuttal witness. No error by counsel is shown. Further, even if there were error, as Beck lacked any present recollection of the original interviews, her testimony could not have been used to impeach the victim's testimony, so the defendant was not deprived of a substantial ground of defense.
(b) Failure to proffer the two interview videotapes. The videotapes would have been admissible by the adverse party only as prior statements of the victim inconsistent with her actual trial testimony, whether on direct or cross-examination. See Commonwealth v. Gil, 393 Mass. 204, 219 (1984). A witness may be asked to explain inconsistencies between trial testimony and prior statements. See Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). During trial, defense counsel used the bulk of his cross-examination of the victim to address those prior statements, eliciting from her an admission of each of the prior inconsistencies that the defendant now emphasizes in his brief. Because of defense counsel's effectiveness at cross-examination, the defendant was not entitled to introduce additional evidence of those same recorded inconsistencies once the victim had admitted to them at trial, and the defendant now fails to argue any legitimate alternative basis for their admission. See Gil, 393 Mass. at 219. Thus, the failure to proffer the videotapes was not ineffective, but even it were, the defendant was not deprived of a substantial ground of defense.
We also observe that there was a valid strategic reason for defense counsel to avoid proffering at a jury trial videotapes that would show the victim, first as a vulnerable child of ten and then a thirteen year old girl, recounting allegations of sexual abuse.
© Failure to file a written motion to admit evidence of the victim's past sexual conduct or history. The defendant argues that the absence of a written motion resulted in such evidence being excluded over the defense's objection. However, the judge allowed defense counsel to make an oral proffer and conducted a hearing on the issue. In addition, defense counsel filed a motion to reopen cross-examination of the victim regarding the incident of past sexual conduct, prompting a further hearing on the issue. The judge's ruling on the merits, after extensive argument, was not due to the alleged technical omission. Defense counsel could not have done more to advocate for the admissibility of the past conduct evidence. No ineffectiveness is shown.
The defendant also argues that, due to defense counsel's oversight, the judge improperly excluded evidence that the victim had allegedly been involved in a prior sexual assault. The defendant argues that the victim told a Department of Social Services investigator that she had once been digitally penetrated while still in El Salvador. The defendant does not cite authority for the claim that the judge's exclusion was improper, nor does he cite any additional evidence that counsel failed to present at trial. We have reviewed the discussion between defense counsel and the judge. Evidence of prior sexual conduct can be admitted as evidence of a prior false allegation. Commonwealth v. Bohannon, 385 Mass. 733, 749-752 (1982). Evidence of prior sexual conduct can also be admitted if the victim's knowledge appears to be beyond her expected knowledge for her age and experience and there is evidence that others may have abused her; this prior abuse must be similar to the abuse alleged in the present case, and the defendant must show that the specific details of the prior incident are relevant. Commonwealth v. Ruffen, 399 Mass. 811, 816 (1987). After reviewing trial counsel's arguments to the judge, we conclude that there was no abuse of discretion when the judge concluded, after careful examination, that the prior allegation was neither sufficiently substantially similar nor sufficiently shown to be false as to merit an exception to the rape shield exclusion. Thus, no ineffectiveness has been shown.
In 2008, the Department of Social Services was renamed the Department of Children and Families.
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3. Prosecutor's closing statement. The defendant claims that the prosecutor in his closing argument improperly implied to the jury that the standard of proof was not 'beyond a reasonable doubt' but rather mere credibility of the complainant's testimony. The defendant cites the prosecutor's statement that 'the testimony of [the victim], ladies and gentlemen, if you find it credible, can be proof beyond a reasonable doubt.' As counsel did not object at trial, the standard for appellate review is whether the alleged error caused a 'substantial risk of a miscarriage of justice.' See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). In context, the prosecutor did not shift the standard of proof, but instead correctly stated the principle that the victim's testimony was direct evidence and, if believed, could constitute sufficient evidence to convict beyond a reasonable doubt, without the requirement of additional physical or eyewitness evidence. See Commonwealth v. Bennett, 13 Mass. Appt. Ct. 954, 955 (1982). There was no error, let alone error creating a substantial risk of a miscarriage of justice.
4. Improper jury instruction. The defendant claims that the judge gave an improper jury instruction, which misled the jury into believing that there were additional elements of the crime the prosecution would have to prove. The defendant cites the judge's instructions to the jury that 'you have to determine whether or not the Commonwealth has proven to you that she made the statements voluntarily, but also that they were fresh or they were made to the person under all circumstances [that] were appropriate in terms of the timing.' Defense counsel did not object, so the standard of review remains substantial risk of a miscarriage of justice. See Randolph, 438 Mass. at 294.
The instruction, while arguably incorrect, was inconsequential error. The 'fresh complaint' doctrine has been replaced by the 'first complaint' doctrine. Commonwealth v. King, 445 Mass. 217, 242 (2005), cert. denied, 546 U.S. 1216 (2006). Other instructions the judge gave at the time of Schiano's testimony, corroborating the time and content of the victim's first report of the abuse, made clear that the jury were to use the testimony for that limited purpose, rather than to prove the substance of the victim's claim. If the jury understood the judge's instructions to mean that the Commonwealth would have to prove that the victim's statements to Schiano had been made voluntarily and promptly, then they would have held the Commonwealth to a more rigorous evidentiary standard than actually required, benefitting rather than prejudicing the defendant's case. The error is inconsequential. No substantial risk of a miscarriage of justice has been shown.
5. Conclusion. We are not persuaded by the defendant's arguments.
Judgments affirmed.
By the Court (Mills, Katzmann & Milkey, JJ.),