Opinion
14-P-232
04-12-2017
COMMONWEALTH v. James D. FULLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the defendant challenges his convictions on two counts of indecent assault and battery on a child under fourteen years of age and the denial of his postconviction motion for new trial. We affirm.
The defendant was acquitted of a third such count.
1. Direct appeal. Multiple complaint evidence. The defendant argues that it was error to permit testimony, on direct examination by the Commonwealth, concerning multiple complaints, particularly where no first complaint instruction was given to the jury. It is well-established that "we ‘no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of one witness' who, where feasible, will be the first person told of the sexual assault. Such witness ‘may testify to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief.’ " Commonwealth v. Aviles, 461 Mass. 60, 67-68 (2011), quoting from Commonwealth v. King, 445 Mass. 217, 242-243, 245 (2005), cert. denied, 546 U.S. 1216 (2006). Where, as here, a first complaint witness testifies at trial, the victim still may not "testify to the fact that she ‘told’ others, apart from the first complaint witness, about the sexual assault, even where the details of the conversation have been omitted." Aviles, supra at 68. However, the doctrine does not prohibit otherwise-admissible evidence from being introduced, provided the judge carefully balances the testimony's probative and prejudicial value. See Commonwealth v. Arana, 453 Mass. 214, 220-221, 225 (2009). "The testimony of multiple witnesses may not be used solely to enhance a victim's credibility, without serving any additional evidentiary purpose." Commonwealth v. McCoy, 456 Mass. 838, 846 (2010).
On direct examination, the victim testified that she asked a friend what she should do if someone was touching her, and that the friend told her that she "should probably tell someone." She then testified that she "told" her guidance counselor and, subsequently, two detectives. She did not provide any details of the circumstances or content of those conversations. Defense counsel did not request a limiting instruction for this testimony, and the trial judge did not sua sponte raise the issue or provide such an instruction. Of the individuals the victim testified she told about the abuse, only one of the detectives testified at trial. Though he briefly mentioned interviewing the victim, he provided no details about the substance of this interview. The defendant does not challenge this latter testimony on appeal.
The protocols for admitting first complaint testimony were not adhered to in this case. The Commonwealth did not designate a proposed first complaint witness before trial, nor did it seek leave to offer the testifying police officer as the substitute first complaint witness. See Commonwealth v. Murungu, 450 Mass. 441, 442-443 (2008). The first complaint doctrine does not appear to have been raised or discussed at all during the course of the trial (or pretrial proceedings), whether by the parties or by the judge, despite the fact that the trial occurred in 2012, seven years after Commonwealth v. King, supra. No first complaint instruction—or any other limiting instruction—was given to the jury.
The Commonwealth does not take the position that there was no error, but rather argues only that any error did not result in a substantial risk of a miscarriage of justice. We agree. "A substantial risk of a miscarriage of justice exists when we 'have a serious doubt whether the result of the trial might have been different had the error not been made.' " Commonwealth v. McCoy, 456 Mass. 838, 850 (2010), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Here, the impact of the improper complaint testimony was minimal. The testimony was exceedingly brief and omitted any detail as to the content of the complaints or their surrounding circumstances. See Commonwealth v. Roby, 462 Mass. 398, 409 (2012). The victim did not repeat any inflammatory details of the abuse in discussing the complaints, and her testimony was not compounded by having a series of multiple complaint witnesses testify. The victim's testimony "could have been viewed as inherently biased" and was therefore particularly "weak." Ibid. Under the circumstances, we are persuaded that there was no substantial risk of a miscarriage of justice resulting from the multiple complaint testimony.
The defendant's argument that counsel was constitutionally ineffective in failing to object to the multiple complaint testimony must fail as well. As no substantial risk of a miscarriage of justice was created by the error, it cannot form the basis for a claim of ineffective assistance of counsel. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) ; Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 574 n.4 (2007).
2. Motion for new trial. a. Ineffective assistance of counsel based on failure to file motion to suppress. The defendant argues that his motion for new trial should have been allowed because trial counsel was ineffective for failing, among other things, to file a motion to suppress the defendant's statements to police. "In order to show that counsel was ineffective for failing to file a motion to suppress evidence, the defendant must show such a motion likely would have succeeded." Commonwealth v. Buckman, 461 Mass. 24, 40 (2011). We review to determine whether the motion judge abused his discretion or committed other error of law in concluding that the defendant failed to meet that burden here. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013).
The defendant contends that his statements to police were involuntary because they were made immediately after a polygraph examination. Although he implicitly acknowledges that the interview was not custodial, he argues that "problematic tactics" such as deception, implied promises of leniency, and minimization were sufficiently coercive to render his statements involuntary. Commonwealth v. Baye, 462 Mass. 246, 257 (2012). See Commonwealth v. DiGiambattista, 442 Mass. 423, 434-436 (2004). In evaluating the voluntariness of statements made during police interrogation, we must determine "whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act." Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998), quoting from Commonwealth v. Raymond, 424 Mass. 382, 395 (1997).
Although defense counsel did not file a motion to suppress, he did seek to exclude the statements on the basis that they were "so intertwined with references to the polygraph and its result, that they [could not] be separated."
"Factors relevant to the totality of the circumstances include whether promises or other inducements were made to the defendant by the police, as well as the defendant's age, education, and intelligence; experience with the criminal justice system; and his physical and mental condition, including whether the defendant was under the influence of drugs or alcohol." Commonwealth v. Durand, 457 Mass. 574, 596 (2010). Police use of polygraph results during the course of interrogation does not itself necessarily constitute impermissible coercion. See Commonwealth v. Medeiros, 395 Mass. 336, 348-349 (1985) ; Commonwealth v. Colby, 422 Mass. 414, 416-417 (1996) ; Commonwealth v. Auclair, 444 Mass. 348, 354-356 (2005). Likewise, even strong statements indicating police belief in the accuracy of polygraph results do not necessarily themselves render resulting statements involuntary. See Colby, supra.
Here, the defendant specifically challenges the officer's claim to the effect that the polygraph exam was "[ninety-nine] percent accurate." The interrogating officer made the claim four times during the interview, although two of these times occurred after the defendant's admissions. The officer's representations, although apparently not correct, are not comparable to the intentionally falsified "incontrovertible" scientific or surveillance claims made by police in the cases upon which the defendant relies. See DiGiambattista, 442 Mass. at 434-435 (surveillance videotape); Commonwealth v. Monroe, 472 Mass. 461, 472 (2015) (deoxyribonucleic acid evidence). Indeed, the defendant himself did not appear convinced that the polygraph results were irrefutable, contending to police even late in the interview that the results at issue were caused by innocent stress and anxiety.
The Commonwealth does not argue that the officer's claims of accuracy are correct.
Generally, most of the statements pointed to by the defendant as improperly promising leniency fall within the guideline that "[a]n officer may suggest broadly that it would be 'better' for a suspect to tell the truth, may indicate that the person's cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past." Commonwealth v. Meehan, 377 Mass. 552, 564 (1979). See Commonwealth v. Johnson, 463 Mass. 95, 105 (2012) (approving officer's statement to defendant, "I want to give you the opportunity today to get out in front of this"). Officers did not offer the defendant assurance of a particular outcome should he confess, nor did they purport to have control over the sentence he would receive.
The defendant is correct that the officers used a variety of minimization techniques during the interview, such as referring to the offense as a mistake, noting that it could have been worse, and suggesting that the defendant may have been intoxicated. However, "the use of such tactics alone does not render statements made by the defendant involuntary. Rather, the relevant focus is on whether the defendant's will was overborne." Durand, 457 Mass. at 596. See Commonwealth v. O'Brian, 445 Mass. 720, 727 (2006) (confession voluntary where "minimization was not combined with any false statement concerning the evidence or the strength of the Commonwealth's case, and the detective ‘stopped short of making an assurance’ regarding the benefits of confessing" [quotation omitted] ). Here the totality of the circumstances demonstrate that his will was not overborne.
The defendant voluntarily sought the polygraph examination from State police after having been made aware of the allegations and having already spoken to them on a previous occasion. The entire recorded encounter, which included introductory conversation as well as the polygraph exam itself, took place over approximately three and one-half hours. The defendant was forty-six years old at the time of the interview, married with children, and had completed a high school education. He had no drug, alcohol, or mental health issues and felt "good" that day. From all indications in the transcript, the defendant "consistently had control over both his actions and mental faculties ... [and] was sober, alert, oriented, and lucid" during the interview, which was polite and not hostile in tone. Durand, 457 Mass. at 597. The defendant was reminded repeatedly during the interview that regardless of what he said, he would not be arrested that day.
The audio recording of the interview is not before us in this appeal, although the transcript is.
Ultimately, in consideration of all of these factors, the motion judge did not err in concluding that a motion to suppress, had defense counsel filed one, was not likely to succeed.
The defendant further argues that, even though no motion to suppress was filed, the trial judge should have explored the issue of voluntariness sua sponte. Such inquiry is required only when "evidence of ‘a substantial claim of involuntariness' is produced," Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 273–274 (1999), quoting from Commonwealth v. Brady, 380 Mass. 44, 49 (1980), which (for the same reasons we have set out above) it was not. Where the voluntariness of the statements is not a "live issue" at trial, there is no obligation for the judge either to conduct a voir dire or to instruct the jury on the humane practice rule. See Commonwealth v. Sheriff, 425 Mass. 186, 193 (1997).
Nonetheless, the judge instructed the jury to consider the voluntariness of the defendant's statements.
To the extent that the defendant argues that the statements presented by the prosecution were taken out of context and were therefore unfairly misleading to the jury, he was not prevented from seeking to introduce any additional statements from the interview. That he sought to omit all reference to the failed polygraph rather than attempt to raise the statements in support of an involuntariness argument to the jury was a reasonable tactical choice.
b. Additional claims of ineffective assistance. The defendant claims that his attorney failed to adequately impeach the victim with her prior inconsistent statements. Such a claim is subject to a stringent standard of review. Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). Here, further cross-examination risked eliciting allegations of a more inflammatory nature than those to which the victim had already testified. The tactical decision to avoid that risk was not manifestly unreasonable. See Commonwealth v. Watson, 455 Mass. 246, 256 (2009) (tactical decision by counsel will not be considered ineffective assistance unless manifestly unreasonable when made).
Notably, though an affidavit of trial counsel accompanied the defendant's motion for new trial averring that certain other decisions were not tactical, it was silent as to this issue, as it was with respect to his decision not to call character witnesses.
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The defendant also argues that his counsel should have called certain members of his (the defendant's) family as character witnesses. We have held that the decision not to offer character evidence generally does not establish ineffective assistance, and can be counterproductive. See Commonwealth v. McCarthy, 12 Mass. App. Ct. 722, 725–726 (1981) ; Commonwealth v. Medina, 20 Mass. App. Ct. 258, 261 (1985).
3. Remaining claims. To the extent that we have not specifically discussed other claims made by the defendant, they "have not been overlooked"—we have considered them and have found them to be without merit. Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
Order denying motion for new trial affirmed.