Opinion
14-P-330
05-20-2015
COMMONWEALTH v. ISMAEL MALAVE.
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
In January of 2004, the defendant, Ismael Malave, was indicted for rape of a child in violation of G. L. c. 265, § 23 (count 1), rape of a child with force in violation of G. L. c. 265, § 22A (count 2), and assault with intent to rape a child under the age of sixteen in violation of G. L. c. 265, § 24B (count 3). After a jury trial, the defendant was found guilty of count 1 as charged, guilty of the lesser included offense of rape of a child on count 2, and not guilty of count 3. He was sentenced to concurrent terms of eight to ten years of incarceration on counts 1 and 2. The judge also imposed community parole supervision for life (CPSL) to begin upon completion of the defendant's incarceration. On appeal, the defendant challenges the admission of fresh complaint testimony, the trial judge's instructions to the jury, and the imposition of CPSL. We affirm the defendant's convictions, and vacate the imposition of CPSL.
Discussion. 1. Fresh complaint testimony. The defendant's trial took place prior to the Supreme Judicial Court's decision in Commonwealth v. King, 445 Mass. 217, 218 (2005). Therefore, the fresh complaint doctrine that was in effect prior to that decision is applicable to our review, rather than the "first complaint" doctrine that superseded it. Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 575 (2006).
The Commonwealth argued at trial that the alleged sexual offenses took place during July and August of 2001, and that the victim reported the abuse on March 21, 2002, seven months after the second alleged offense. Prior to trial, the Commonwealth filed a motion in limine to admit fresh complaint testimony from two police officers and Dana Jones, a friend of the victim. After argument, the judge denied the Commonwealth's motion as to the police officers and reserved decision regarding Jones pending voir dire. The voir dire did not occur, however, because the Commonwealth did not elicit fresh complaint testimony from Jones. However, during the course of the trial, the Commonwealth elicited from the victim what she had told her guidance counselor and the police officers about the alleged sexual assaults.
A pseudonym.
The defendant argues that the fresh complaint testimony regarding the victim's statements to her guidance counselor and the two police officers was inappropriate, as her complaint was untimely and her testimony was improperly self-corroborative. Because the defendant did not object to the testimony at trial, we review the defendant's claim to determine whether there was a substantial risk of a miscarriage of justice. Commonwealth v. Whelton, 428 Mass. 24, 26 (1998).
"The preliminary decision whether a complaint is sufficiently fresh to be presented to the jury lies in the sound discretion of the trial judge and should be made according to whether the complaint was 'reasonably prompt' in the particular circumstances of the case." Commonwealth v. Montanino, 409 Mass. 500, 508 (1991) (citation omitted). When determining whether a child's report of sexual abuse was reasonably prompt, our courts consider several factors: the length of delay; the age of the child; the emotions of embarrassment, confusion, and fear attendant in the case; the relationship between the child and the defendant; whether the defendant held a position of trust in the child's life; whether the defendant threatened or coerced the child; and, where the defendant played some supervisory role in the child's life, the length of time the child was out from under the defendant's control. Commonwealth v. Fleury, 417 Mass. 810, 814-815 (1994). We conclude there was sufficient evidence to support a finding of timeliness, including testimony regarding the victim's fear of the defendant, her relationship with the defendant, and the defendant's statements to the victim that she should not tell anyone about their relationship. As such, there was no abuse of discretion on this point, and certainly not a substantial risk of a miscarriage of justice, especially where defense counsel used the delayed disclosures to his advantage.
The defendant's challenges to the victim's testimony as to self-corroboration also fail. Under the fresh complaint doctrine, a victim of sexual assault may testify "only to the fact that a fresh complaint was made and to whom it was made." Commonwealth v. Peters, 429 Mass. 22, 30 (1999). The victim here exceeded the permissible parameters but her comments were "brief and fleeting," Commonwealth v. Montanez, 439 Mass. 441, 449 (2003), and therefore we conclude they did not result in a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), citing Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997). See Commonwealth v. Souther, 31 Mass. App. Ct. 219, 222 (1991) (fresh complaint testimony "was so lacking in color or detail that it added next to nothing to the government's case").
2. Jury instructions. The defendant also challenges the judge's decision not to deliver fresh complaint or missing witness instructions. Again, because the defendant did not preserve the issue for appeal, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Whelton, 428 Mass. at 26.
a. Fresh complaint. Given the inherent risks of fresh complaint testimony, Commonwealth v. Licata, 412 Mass. 654, 659-660 (1992), "judges have been advised, although not required, to instruct the jury as fresh complaint testimony is admitted, and again during the final charge, that such testimony may not be used as substantive evidence," Commonwealth v. Howell, 57 Mass. App. Ct. 716, 722 (2003), and that the testimony may only be utilized if the jury deems the complaint sufficiently prompt. Commonwealth v. Montanino, 409 Mass. at 510. In the instant case, excepting the defendant's motion in limine, the defendant did not request an instruction on fresh complaint evidence, nor did he object to the judge's instructions to the jury. As such, the defendant failed to preserve his claim of error. See Commonwealth v. Torres, 420 Mass. 479, 483 (1995) (applying Mass.R.Crim.P. 24[b], "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection"). We also discern no substantial risk of a miscarriage of justice arising out of the failure to give the instruction as the limited amount of fresh complaint testimony provided added little to the Commonwealth's case.
b. Missing witness. Next, the defendant argues that the judge should have delivered a missing witness instruction. The Commonwealth initially planned to call Barbara Wood as a witness since she was present for the first offense. However, she did not testify at trial. During his closing argument, defense counsel highlighted the Commonwealth's failure to call Wood to the stand, as she was the victim's friend and the only witness to the first offense besides the victim and the defendant. On appeal, the defendant asserts that the trial judge, after allowing the defense to make a missing witness argument to the jury, was then obligated to deliver a missing witness instruction.
A pseudonym.
The victim alleged that she and the defendant had sexual intercourse on a park bench during the daytime, while Barbara Wood sat next to them.
We are unpersuaded, as the defendant's argument was specifically addressed and rejected in Commonwealth v. Williams, 450 Mass. 894 (2008) (Williams). Similar to the facts of Williams, defense counsel in the case at bar failed to follow proper practice, which is to obtain the judge's permission before making a missing witness argument to the jury. Commonwealth v. Smith, 49 Mass. App. Ct. 827, 830 (2000). "[B]y declining to interrupt defense counsel's missing witness argument, the judge did not conclude implicitly that the foundational requirements for a missing witness instruction had been met." Williams, supra at 901-902. Moreover, even if the foundational requirement had been met, "the issue of a missing witness can be covered by comment of counsel in final argument, by instruction alone, or by both methods." Id. at 901 n.4, quoting from Commonwealth v. Anderson, 411 Mass. 279, 285 (1991). Therefore, the lack of a missing witness instruction did not create a substantial risk of a miscarriage of justice because "without having laid a proper foundation, the defendant effectively made [and reaped the benefits of] an argument he was not entitled to make." Williams, supra at 902.
3. Community parole supervision for life. Lastly, the defendant requests that we vacate the imposition of CPSL in his case, pursuant to the holding of Commonwealth v. Cole, 468 Mass. 294, 308-309 (2014). The Commonwealth concedes this point and our review confirms the necessity of the concession. Ibid. Given that the defendant completed his incarceration on July 24, 2014, his CPSL sentence will be vacated and his case will not be remanded for resentencing. See id. at 311. Contrast Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014).
Conclusion. For the foregoing reasons, we vacate the CPSL sentence, but otherwise affirm the judgments.
So ordered.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 20, 2015.