Opinion
19-P-646
10-26-2020
COMMONWEALTH v. Carlos FEBUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of aggravated rape, indecent assault and battery on a person under the age of fourteen, and intimidation of a witness. On appeal, he argues that a substantial risk of a miscarriage of justice was created by the improper admission of multiple complaints of sexual assault. See Commonwealth v. King, 445 Mass. 217, 242-248 (2005), cert. denied, 546 U.S. 1216 (2006). We disagree, and affirm the defendant's convictions.
Background. The defendant is the victim's stepfather's father, and the victim referred to him as her grandfather throughout trial. When the victim was five or six years old, she was left alone with the defendant and her younger brother at the defendant's home. On this date, the victim was watching cartoons in her grandmother's bedroom when the defendant entered the room and instructed the victim to lay on her stomach. The defendant then pulled the victim's pants down, and touched her vagina with his hands. He proceeded to insert his penis between the victim's buttocks, and moved his body back and forth. During the offense, the defendant briefly stopped and left the bedroom to look out of the window in the living room. He returned to the bedroom, and again placed his hand on the victim's vagina and inserted his penis in between her buttocks. After the offense, the defendant instructed the victim not to tell anybody about what happened.
At trial, the victim was called as the Commonwealth's first witness. She testified that the first person she told about the assault was her mother. She testified that she told her mother about the assault several years after it had occurred when she was approximately eight or nine years old. The victim recalled doing so after waking up from a nightmare in which the defendant was "coming to kill [her]." She testified that she had often experienced nightmares about the defendant, and told her mother in hopes that the nightmares would cease.
The victim's mother was called as the next witness for the Commonwealth. On direct examination, the mother testified that the victim told her about the sexual assault in the same year that it had occurred. She testified that she brought the victim to Great Brook Valley Health Center after she learned about the assault because she found discharge in the victim's underwear, but that she did not tell any of the medical professionals that the victim was assaulted. On cross-examination, the mother testified that several years after the assault, while the victim was sleeping in her bed, she overheard the victim state in her sleep, "Grandfather, don't touch me, don't touch me." The mother testified that, on this date, she brought the victim to UMass Memorial Medical Center and contacted the police.
Discussion. The defendant contends that the Commonwealth introduced evidence of multiple complaints by the victim, in violation of the first complaint doctrine announced in King, 445 Mass. at 242. Because the defendant did not object at trial, we review to determine if the admission of the evidence was in error, and whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Aviles, 461 Mass. 60, 72 (2011).
The first complaint doctrine permits the Commonwealth, in its case-in-chief, to introduce testimony of the first person the victim told about the sexual assault (first complaint witness) describing the details of the first complaint, and the circumstances surrounding that complaint. See King, 445 Mass. at 242-243. Additionally, "[w]here a first complaint witness testifies at trial regarding the complaint, the complainant also may testify about the details of the first complaint and the reasons why it was made at that particular time." Aviles, 461 Mass. at 68. First complaint evidence is only admissible for assessing the credibility and reliability of the complainant's testimony. See King, supra at 248. We review the admission of first complaint evidence for an abuse of discretion. See Aviles, supra at 73.
Here, the victim testified that she first reported the sexual assault to her mother several years after it occurred, while the mother testified that the victim told her immediately. The defendant contends that the introduction of the mother's testimony amounted to a "second complaint." We have previously interpreted the first complaint doctrine to "permit some discrepancy between the testimony of the complainant and the first complaint witness." Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 586 (2013). A "complete congruence of the testimony" is not required because the testimony of the first complaint witness is only admissible for the purpose of assessing the complainant's credibility. Id. As such, a defendant is "free to cross-examine both the first complaint witness and the complainant about the details of the complaint, and draw to the jury's attention any discrepancies in the complainant's story that come to light." King, 445 Mass. at 245. For example, in Commonwealth v. Wallace, 76 Mass. App. Ct. 411 (2010), the complainant initially did not recall reporting the assault to the first complaint witness, and when he subsequently remembered the conversation, his recollection was much different than that of the first complaint witness. In that case, we determined that the difference in the complainant's and first complaint witness's recollection went "to the weight of the evidence, not to its admissibility," and concluded that the testimony of the first complaint witness was properly admitted. Id. at 415.
In this case, there was an obvious discrepancy in the victim's and the mother's testimony about when the first complaint occurred. When the mother was asked about the first complaint on direct examination, she was permitted only to testify about the initial complaint, even if the victim had told her about the assault on another occasion. See Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009) ("where a complainant makes successive complaints to the first complaint witness, the initial complaint is the only evidence admissible as first complaint"). Consequently, the mother, as required, limited her testimony on direct examination to the complaint that was made first in time. The fact that the victim testified that the first complaint occurred at a different time and did not recall, or did not believe, that she told her mother in the immediate aftermath of the assault did not necessarily render the mother's testimony inadmissible. Rather, the discrepancy in timing went to the weight of the evidence, and "provided fodder for cross-examination." Wallace, 76 Mass. App. Ct. at 415. We do not believe that the judge abused his discretion in admitting this evidence.
The defendant does not challenge the mother's testimony on cross-examination about the incident involving the victim's nightmare about the defendant, nor could he, as he elicited the testimony himself. See Commonwealth v. Dumas, 83 Mass. App. Ct. 536, 540 (2013).
Even if we were to assume that the admission of the mother's testimony was in error, we are confident that it did not create a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010). Immediately preceding the mother's first complaint testimony, as well as prior to jury deliberations, the judge instructed the jury that they were only to consider first complaint evidence to determine the credibility and reliability of the complainant, not as evidence that the assault in fact occurred.
When the mother testified about the first complaint on direct examination, there was no objection from defense counsel. Defense counsel then used the discrepancies in the mother's and the victim's testimony to the defendant's advantage both during cross-examination and in his closing argument. He pointed out that, while the mother claimed to have learned about the assault immediately after its occurrence, she failed to report the assault to the medical professionals at Great Brook Valley Health Center and continued to allow the defendant to spend the night at their home. During closing argument, defense counsel focused on the fact that the mother's testimony significantly differed from the victim's testimony and that her testimony was also inconsistent with DCF records and medical records from both the year of the assault and the year that the assault was reported. In fact, a majority of defense counsel's closing argument focused on the mother's testimony and her motive to lie. Finally, in the Commonwealth's closing argument, the prosecutor recognized the issues with the mother's testimony, did not argue the mother's version of the events, and asked that the jury only focus on the victim's testimony. Because the mother's testimony about the first complaint and its timing became an integral aspect of the defendant's defense, we discern no substantial risk of a miscarriage of justice. See McCoy, 456 Mass. at 851 ("Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant"); Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2008) (where testimony erroneously admitted is "equally, if not more important to the defense," there is no substantial risk of miscarriage of justice).
While it is unclear from the record, and was not addressed at oral argument, whether defense counsel was made aware of the substance of the mother's first complaint testimony prior to trial, it could be inferred from the record that the failure to object to her testimony at trial was a "reasonable tactical decision." McCoy, 456 Mass. at 850.
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Judgments affirmed.