Opinion
13-P-1038
02-11-2015
COMMONWEALTH v. CARLOS GONCALVES.
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
Following a jury trial in Superior Court, the defendant was convicted of enticement of a child under the age of sixteen. We affirm.
The defendant was acquitted of two counts of indecent assault and battery on a person fourteen years or older and one count of assault with intent to rape.
Integrity of the grand jury process. The defendant's lead argument is that his conviction must be overturned because the Commonwealth violated the integrity of the grand jury process. He bases that argument on the Commonwealth's handling of asserted inconsistencies among the twelve year old victim's various pre-grand jury statements as to what had occurred. According to the defendant, the Commonwealth misled the grand jury both by omission (insufficiently bringing any inconsistencies to the grand jury's attention) and commission (the police witness's answering "yes" to being asked whether the account the victim provided during a Sexual Abuse Intervention Network [SAIN] interview was "consistent with" her earlier statements).
To the extent that the defendant also highlights alleged inconsistencies between the victim's earlier statements and her eventual testimony at trial, any such inconsistencies are irrelevant for purposes of assessing the integrity of the grand jury procedures.
The defendant was fully able to explore the alleged inconsistencies at trial, and the jury nevertheless convicted him. To be sure, that alone is not fatal to the defendant's claim. See Commonwealth v. Mayfield, 398 Mass. 615, 622 n.3 (1986). However, the opinions that reverse a conviction based on improprieties in the grand jury process all involve significant prosecutorial misconduct that simply is not present here. See, e.g., Commonwealth v. Washington W., 462 Mass. 204, 211-212 (2012) (withholding of exculpatory information in transcript and videotape of SAIN interview that directly contradicted testimony of grand jury witness regarding an essential element of offense charged). In this regard, we note that in all of the accounts that the victim provided prior to the grand jury proceedings, the victim reported that the defendant sexually assaulted her after she came to his apartment to collect a benefit he was offering. In this context, the defendant has not shown that the police officer's affirmation that the SAIN interview was "consistent with" the victim's earlier statements was a misrepresentation, much less the "intentionally or recklessly misleading, if not indeed outright false, assertion" that the defendant claims. The Commonwealth never represented that the victim's various accounts of the incident were identical in every respect, and, as revealed by a question posed by an astute grand juror, the grand jury picked up on the fact that there seemed to be inconsistencies in them. There were no improprieties in the grand jury process warranting reversal.
Discovery issue. The defendant also claims that he was entitled to receive a copy of confidential reports in Department of Children and Families (DCF) files compiled pursuant to G. L. c. 119, §§ 51A, 51B. Specifically, the defendant filed a motion seeking third-party production of DCF records regarding a closed case in which the agency apparently found allegations that the victim had been subjected to physical abuse by her grandmother and uncles to be "unsupported." The defendant claimed it was "unclear whether such allegations included sexual abuse," and argued that, if they did, the documents could be used for impeachment purposes under the doctrine recognized by Commonwealth v. Bohannon, 376 Mass. 90, 93-95 (1978). He also argued that the "records could provide valuable insight on [the victim's] ability to perceive and to remember correctly, which is admissible on cross-examination to attack a witness's credibility." After the defendant's initial motion was denied, the defendant filed a motion for "alternative relief" requesting that the judge examine the records in camera. That motion was also denied.
The judge denied both motions on the basis that the defendant had made an insufficient factual showing to demonstrate an entitlement to the requested relief. On appeal, the defendant emphasizes that without having been given access to the particular documents at issue, he was hamstrung in arguing their relevance and materiality. Such claims pass over various developments that occurred after the defendant's discovery requests were denied. Prior to trial, the parties filed cross-motions in limine on whether evidence related to the closed DCF matter could come into evidence. As those motions, the colloquy that occurred on the motions, and the subsequent offer of proof that the defendant made during trial all reveal, both parties had obtained a more refined understanding of the nature of the earlier incident (despite their apparently still not having obtained a copy of the confidential DCF reports). Based apparently on defense counsel's conversations with a DCF official, the defendant acknowledged that the earlier allegations of abuse by the victim's grandmother and uncles involved only physical, not sexual, abuse. The defendant argued that even though this did not fit within the Bohannon exception, he should still be allowed to get into the earlier matter, e.g., in cross-examination of the victim. The judge ruled otherwise, and the defendant has not challenged that ruling on appeal. With the judge having determined that the subject matter of the requested discovery was inadmissible, and the defendant having taken no appeal of that ruling, he cannot be heard to argue that the denial of his discovery requests caused him any prejudice. Compare Commonwealth v. Diaz, 431 Mass. 822, 830 n.7 (2000) (no prejudice from judge's denial of defendant's discovery request where the requested document and its subject matter were not admitted in evidence at trial).
Judgment affirmed.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 11, 2015.