Opinion
13-P-1332
03-23-2015
COMMONWEALTH v. GEORGI GEORGIEV.
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
After a jury trial in a District Court, the defendant was convicted of indecent assault and battery of a person over fourteen. We affirm.
Background. On the night of November 17, 2011, the victim went to two bars in Hyannis with friends. There she consumed approximately six alcoholic drinks. At closing time, she and one of her male friends (who was also a friend of the defendant) received a ride to the home of the defendant whom she had met earlier that night. The defendant there gave her, from an unmarked bottle, a shot of what he termed "Bulgarian moonshine," and she drank two beers as well. She asked the defendant for a ride home (which he had promised her earlier), and he told her that he should not be driving because he had been drinking.
The victim eventually fell asleep on the couch in her clothes. An hour or so later, she awoke to find herself naked from the waist down, with the defendant's mouth on her vagina and rectum. She screamed at the defendant, retrieved her pants (which were inside out) from halfway across the room, and summoned the mutual friend who had been sleeping in another room. The friend then drove her home in the defendant's car.
Discussion. Sufficiency and jury instructions. Given the amplitude of evidence that the defendant committed an indecent assault and battery based on the victim's incapacity to consent, the defendant's sufficiency arguments merit no discussion. Nor do we discern any errors in the instructions the judge gave. See Commonwealth v. Mountry, 463 Mass. 80, 89-93 (2012).
The defendant also argues that the judge erred in not instructing the jury sua sponte that in evaluating whether a reasonable person should have known that the victim was incapable of consent, they could consider the extent to which his own intoxication diminished his capacity to appreciate this. See id. at 92-93. However, even if such an instruction would have been warranted had the defendant requested it (an issue we do not reach), the absence of one here did not create a substantial risk of a miscarriage of justice. In fact, the main evidence on which the defendant bases his claimed entitlement to such an instruction (his telling the victim that he should not be driving) suggests that he was not intoxicated to the point that he was unable to appreciate the victim's inability to consent.
Testimony of detective. The Commonwealth presented the testimony of the lead police detective in addition to that of the victim. His testimony was brief, amounting to only five and one-half transcript pages of direct examination and five and one-half pages of cross. The defendant raises several arguments relating to this testimony.
Without objection, the detective testified that testing of the victim's underpants revealed the presence of amylase, a constituent of saliva. The defendant argues that allowing such evidence in through the police detective violated his rights under the Confrontation Clause, and that the detective was not otherwise competent to speak to such issues. Because there was no objection, our review is limited to whether such testimony created a substantial risk of a miscarriage of justice. See Commonwealth v. Alebord, 467 Mass. 106, 112-113 (2014).
We have allowed the Commonwealth's unopposed motion to strike from the appellate record the underlying laboratory report and the police report, because they were never admitted in evidence.
Although the defendant did not stipulate that he put his mouth on the victim's vagina and rectum, the defendant did not challenge such testimony and, as a practical matter, the trial from the start was all about consent. Thus, even assuming that the saliva testimony should not have been admitted, the jury's hearing it did not create a substantial risk of a miscarriage of justice.
The defendant argues more generally that "[t]here was no legitimate reason to put [the detective] on the stand," and that his testimony served only to convey that the police credited the victim's account. We disagree. The testimony was relevant in that it provided the jury with a framework of the investigation. Moreover, as noted, the detective's testimony was brief, and he was subject to a forceful cross-examination. At no point did the detective explicitly vouch for the victim's credibility, and we discern no basis for concluding, as the defendant suggests, that the detective implicitly vouched for the victim simply by testifying. Even if we were to conclude that some of the detective's testimony was improper, it did not create any reversible error. Compare Commonwealth v. McCoy, 456 Mass. 838, 850-853 (2010).
The only relevant objection that the defendant lodged was to the detective's fairly innocuous statement that he was assigned to the case because "[t]here are certain cases that we get called out on, that we're trained for certain kinds of investigations and this was one of them."
First complaint. The Commonwealth did not present a first complaint witness. However, the victim's own testimony suggested that she told her father of the assault after she returned home that morning. Again, because there was no objection, our review is confined to whether a substantial risk of a miscarriage of justice was created.
The victim testified that on the ride home she was concerned about how to tell her father, that she eventually spoke with him that morning, and that she then went to the hospital. From this testimony, the jury reasonably could have inferred that she told her father what had happened, something the prosecutor emphasized in her closing.
The victim testified without contradiction that she was upset and angry when she awoke. Testimony from a defense witness (the mutual friend) reinforced this. Especially viewed in this context, that the victim apparently soon thereafter told her father of the events (and went to the police) was of such little evidentiary consequence that it could not have created a substantial risk of a miscarriage of justice.
To the extent that the defendant seeks to reframe his arguments as ones based on ineffective assistance, his arguments fail for similar reasons. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002).
Judgment affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: March 23, 2015.