Opinion
10-P-1983
11-10-2011
COMMONWEALTH v. KEVIN W. KRZANOWSKI.
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
After a jury-waived trial, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. On appeal, the defendant raises a variety of claims, each discussed below, none of which requires the reversal of his conviction.
1. The first complaint witness. The defendant claims that he received ineffective assistance of counsel when his attorney did not object to Detective Roxanne Bradley being designated as the first complaint witness. The defendant also claims that his attorney should have moved to strike the victim's mother's testimony as improper additional complaint evidence. We disagree with both claims.
. The defendant did object on hearsay grounds, but first complaint testimony is not hearsay. See Commonwealth v. King, 445 Mass. 217, 241 n.21 (2005).
Although the victim first spoke to her mother about meeting the defendant at the river, she did not disclose the assault until she spoke to Bradley. When the victim's mother was asked by the prosecutor what, if anything, the victim shared with her about the incident at the river, the mother replied, 'nothing really.' The fact that the victim's mother called the police and took the victim to the police station after speaking to her, does not transform the mother's testimony into corroborative complaint evidence. This testimony was properly admitted to explain why the victim went to the police, as well as what her demeanor was at the time. See Commonwealth v. Bianchi, 435 Mass. 316, 323 (2001); Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009). There was no error in permitting Bradley to testify as the first complaint witness, and no reason to strike the victim's mother's testimony.
Finally, even if there was error, given that the defendant's trial was jury-waived, any such error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008). Because there is no risk that justice miscarried, there is no basis to conclude that the defendant received ineffective assistance of counsel. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).
2. Patricia Gay's testimony. The defendant claims that the admission of Patricia Gay's testimony violated his right to confrontation, and that defense counsel's failure to move to strike that testimony amounted to ineffective assistance of counsel. Before exercising her right under the Fifth Amendment to the United States Constitution not to incriminate herself, Gay briefly testified that she was not with the defendant on the date of the incident, and that a few days later, she assisted the defendant at the police station. After invoking her Fifth Amendment privilege, the judge excused her. The judge gave no indication as to how he intended to treat Gay's testimony, and the defendant did not move to strike it. As the Commonwealth properly concedes, this was error. See Commonwealth v. Funches, 379 Mass. 283, 291-294 (1979).
Because the issue was not preserved, we review only to determine whether there exists a substantial risk of a miscarriage of justice, an analysis which subsumes the ineffective assistance equation. See Commonwealth v. Curtis, supra. Because 'judges in jury-waived trials are presumed to know and correctly apply the law,' we presume that the judge appropriately disregarded Gay's testimony, which was presented without the benefit of cross-examination. Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005). Given this presumption, and the absence of contrary evidence, we cannot conclude that there exists a substantial risk of a miscarriage of justice. See Commonwealth v. Adkinson, 442 Mass. 410, 421 (2004).
3. Public trial. The defendant claims that his right under the Sixth Amendment to the United States Constitution to a public trial was violated by the judge's decision to exclude all but attorneys from entering the courtroom during the minor victim's testimony. Although some ambiguity is present in the judge's statements, we assume that the judge's order resulted in a partial closure of the courtroom. See Commonwealth v. Downey, 78 Mass. App. Ct. 224, 229 (2010) (transcript revealed courtroom closure during voir dire). However, because the defendant failed to object to the partial closure, or to raise any concern related to it, we hold that he has waived his claimed violation of the Sixth Amendment. Commonwealth v. Dyer, 460 Mass. 728, 736 (2011). Unlike the waiver of counsel, the Supreme Judicial Court has not mandated that the waiver of public trial rights be memorialized in a colloquy. Id. at 735-736. Although the record discloses that the requirements for a partial closure were not met, see Commonwealth v. Caldwell, 459 Mass. 271, 282 (2011), citing Waller v. Georgia, 467 U.S. 39, 48 (1984), the defendant waived his rights by consenting to the proceedings without objection or complaint. Commonwealth v. Dyer, supra at 736. In light of the waiver, we do not apply a structural error analysis. Id. at 735 n.7. To the extent the defendant is entitled to our review under the substantial risk of a miscarriage of justice standard that we apply to other unpreserved errors, he has neither made that claim nor has he carried the burden of establishing the existence of such a risk. See Commonwealth v. LaFaille, 430 Mass. 44, 51 (1999) (defendant's burden to prove existence of a substantial risk of a miscarriage of justice).
The judge stated the following prior to the victim's testimony: 'Except for the attorneys who are involved in this case I'm going to ask counsel if you don't mind to please wait outside, we have a minor here.' After the victim answered some preliminary questions, the judge interrupted, and stated: 'Excuse me. If the court officer could insure that no one comes into the courtroom during this person's testimony. Okay. All right, I will -- attorneys will certainly be allowed into the courtroom, okay? But that gentleman was just looking for his bag. That's fine. I'm not certainly going to deny you, it's a public trial so attorneys can come in. All right.'
In Commonwealth v. Dyer, 460 Mass. at 737, the Supreme Judicial Court reviewed the unpreserved public trial claim pursuant to G. L. c. 278, § 33E, i.e., substantial likelihood of a miscarriage of justice, because the defendant had been convicted of murder in the first degree.
The defendant makes three additional claims that are all without merit. First, the defendant claims that the evidence regarding the sexual nature of the defendant's conversations with the victim, and the evidence that she was thirteen years old at the time, was irrelevant. Putting aside that most of the challenged evidence was not the subject of an objection, the evidence was plainly relevant. The sexual tenor of the conversations was properly admitted to show the nature of the defendant's relationship with the victim. See Commonwealth v. Durand, 457 Mass. 574, 600 (2010). The evidence that the victim was thirteen years old was necessary to prove an element of the crime of which the defendant was convicted. See G. L. c. 265, § 13B. Second, the defendant claims that there was insufficient evidence to support his conviction. The victim's testimony that the defendant touched her breasts and her vagina was more than sufficient to support the defendant's conviction. To the extent the defendant was unsure as to which alleged touching constituted the crime, he could have requested a bill of particulars. Finally, because there was neither an error, nor a substantial risk of a miscarriage of justice, there can be no cumulative error.
--------
Judgment affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),