Opinion
18-P-1352
03-26-2020
COMMONWEALTH v. Jorge MENJIVAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jorge Menjivar, appeals from numerous judgments entered after two jury trials before the same judge. At the first trial, the jury found the defendant guilty of violating an abuse prevention order and deadlocked on other charges. At the retrial, the jury found him guilty on three indictments charging rape of a child aggravated by age difference, three indictments charging rape of a child, and single indictments charging assault and battery, threatening to commit a crime, and intimidation of a witness. The victim of the sexual and physical assaults and the threats was the defendant's daughter. The victim's mother, the defendant's wife, was the named victim in the indictments for violation of an abuse prevention order and witness intimidation. We affirm.
a. Notice of abuse prevention order. The defendant contends that the evidence at the first trial was insufficient to sustain his conviction of violating the abuse prevention order because the Commonwealth failed to prove that he had adequate notice of the conduct prohibited by the order. See Commonwealth v. Delaney, 425 Mass. 587, 592-593 (1997), cert. denied, 522 U.S. 1058 (1998). Notice was insufficient, he contends, because the order was in English, he did not understand English, and the jury were not instructed on how the Commonwealth must prove notice under these circumstances. He suggests that the judge should have instructed the jury on the concept of "inquiry notice" as set forth in Commonwealth v. Olivo, 369 Mass. 62, 68-69 (1975), with special emphasis on the resources available to him as an incarcerated Spanish speaker.
The defendant did not raise this argument in his motion for a required finding, nor did he object to the instruction on notice at trial. Accordingly, our review is limited to considering whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Melton, 436 Mass. 291, 294 n.2 (2002) ; Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Because the defendant did not request the nuanced instruction he now proposes, nor seriously contest notice, the judge had no obligation to craft a special instruction sua sponte. See Commonwealth v. Tavares, 471 Mass. 430, 439 (2015). The victim's mother, who obtained the G. L. c. 209A order, testified that the defendant was present in court when the order was issued and that he had a translator. The return of service indicated that the order was delivered to the defendant in hand. Although written in English, the order included prominent warnings, in eleven languages including the defendant's language, Spanish, that it was an official court order and that the recipient should get it translated. In his telephone conversation with the mother, which he initiated from jail in violation of the order, he acknowledged its existence and talked about her withdrawing it. We discern no error, nor any risk that the defendant was convicted of violating the no-contact provision of the order without knowledge that the order prohibited such contact.
b. Jury voir dire. The Commonwealth's case relied primarily on the victim's testimony, as there was no medical or scientific evidence of sexual assault. During individual voir dire at the second trial, at the Commonwealth's request and over the defendant's objection, the judge asked each juror a variant of the following: "I will instruct you that evidence may come in a variety of forms, and the law does not require any particular type of evidence, including physical evidence, is that an instruction you'll be able to follow?" The defendant contends that this voir dire question violated his Federal and State constitutional rights to an impartial jury because it effectively instructed the jurors not to consider the absence of physical evidence and led to selection of a jury that was predisposed to convict.
During the early stages of voir dire, the judge asked a slightly different version of this question, in which she said that "the law does not require any particular type of evidence; therefore, to prove a defendant guilty beyond a reasonable doubt the Commonwealth is not obligated to present physical evidence. Do you understand that?" Three jurors who heard this version were seated before the judge reworded the question after further objection by defense counsel.
"The scope of a voir dire is in the sound discretion of the trial judge and will be upheld absent a clear showing of abuse of discretion." Commonwealth v. Garuti, 454 Mass. 48, 52 (2009). The Supreme Judicial Court has expressed skepticism about the need for voir dire questions to counteract the so-called "CSI effect" and has warned that such questions should be posed sparingly. See Commonwealth v. Gray, 465 Mass. 330, 339 (2013). The risk of such questions is that they may undermine a defendant's legitimate defense based on lack of evidence and inadequate police investigation, as permitted by Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). See Gray, 465 Mass. at 338-339 & n.7 ; Commonwealth v. Perez, 460 Mass. 683, 690 n.12 (2011).
However, so long as the judge's questions do not have the effect of predisposing potential jurors toward convicting the defendant or prohibiting them from considering the lack of physical evidence in their deliberations, see Perez, 460 Mass. at 691, it is within the judge's discretion to ask questions designed to determine "whether the absence of physical or scientific evidence would prevent them from fairly evaluating the evidence introduced at trial." Gray, 465 Mass. at 339. Here, the voir dire question (in both forms, see note 1, supra ) properly "reminded the jurors that the Commonwealth was not legally required to produce any particular kind of evidence to prove its case." Commonwealth v. Young, 73 Mass. App. Ct. 479, 485 (2009).
The questions "did not commit the jury to a verdict in advance and, as posed, did not have the effect of creating a jury comprised only of individuals predisposed to convicting the defendant based solely on the Commonwealth's evidence, without consideration of the scientific evidence the Commonwealth failed to introduce." Gray, 465 Mass. at 340. A single juror was removed for cause after stating in response to the challenged voir dire question, "I think I would need some sort of physical evidence." It is not clear from the record, however, that the juror's removal was in fact based on his answer to the challenged question, as the juror made several remarks during his protracted individual voir dire that called his impartiality into question. Even if his answer was the sole reason for his removal, it was proper for the judge to seek "an assurance that the jurors would not automatically vote to acquit due to lack of scientific evidence," Young, 73 Mass. App. Ct. at 485, and to dismiss a juror who would not give such an assurance.
Finally, the question did not prevent the jury from considering the absence of physical evidence in reaching their verdict; indeed, defense counsel argued for acquittal based in part on the lack of physical evidence to corroborate the victim's testimony, which he attacked as inconsistent and incredible. The defendant does not contend that the judge's final instruction on the issue was in any way problematic.
"Keep in mind that evidence may come in a variety of forms. It may be testimonial, documentary, physical, forensic, or scientific. The law does not require any particular type of evidence, but it does require that the Commonwealth prove the defendant's guilt beyond a reasonable doubt from all the evidence in the case."
c. Victim's statements at SAIN interview. During cross-examination of the victim and the mother at the second trial, defense counsel elicited the following testimony. After the charges against the defendant had been brought, the mother and two friends made a recording of the victim saying she had lied about the defendant abusing her, and that the mother went to court to attempt to withdraw the c. 209A order. Thereafter, the Department of Families and Children (DCF), which had become involved with the family, removed the victim and her younger brother (also at that time an alleged victim of sexual abuse by the defendant) from the mother's custody and placed them in foster care. By the time of trial, the mother and the children had been reunited. The defendant suggested that the reason the mother and the victim were testifying against him at trial was that they feared DCF would separate them again if they did not.
"SAIN" is an acronym for the Sexual Assault Intervention Network.
The recording of the recantation, along with a written transcription in Spanish and English, were admitted as exhibits.
After the victim and the mother had testified, the Commonwealth filed a motion in limine to admit statements the victim had made in a SAIN interview on September 13, 2013. The Commonwealth argued that the statements were admissible as prior consistent statements to rebut the defense that the victim's trial testimony was contrived to avoid trouble with DCF. The defendant objected that the statements did not satisfy the standard for prior consistent statements and amounted to improper piling on of fresh complaint testimony (the mother having testified as the first complaint witness). The judge allowed the Commonwealth's motion, and a police officer who had observed the SAIN interview testified about the forensic interview process and about the statements the victim made.
The Commonwealth filed a similar motion at the first trial, which the judge allowed. In arguing the motion at the second trial, both parties relied in part on the arguments they made during the first trial.
An exception to the general rule that prior consistent statements are inadmissible exists "where a trial judge makes a preliminary finding (1) that the witness's in-court testimony is claimed to be the result of a recent fabrication or contrivance, improper influence or motive, or bias; and (2) that the prior consistent statement was made before the witness had a motive to fabricate, before the improper influence or motive arose, or before the occurrence of the event indicating a bias." Commonwealth v. Caruso, 476 Mass. 275, 284 (2017). See Mass. G. Evid. § 613 (b) (2019). While the preliminary finding should be made explicitly, "on the record, outside of the jury's presence," the finding can be implied. Id. "[T]rial judges have broad discretion to determine whether circumstances warrant the admission of prior consistent statements to rebut a claim of a recent fabrication or contrivance, improper influence or motive, or bias." Id. at 285.
Here, the preliminary finding can be inferred from the arguments in the Commonwealth's motion in limine, the discussion of the issue at trial, the judge's allowance of the motion, and the judge's instructions on prior consistent statements in her final charge to the jury.
The judge permissibly exercised her discretion to admit the victim's prior statements. As in Caruso, 476 Mass. at 285, defense counsel contended that a particular event -- here, the removal of the victim and her brother from her mother's custody when the mother attempted to withdraw the protective order -- influenced the witness's testimony. "The Commonwealth was entitled to rebut that suggestion." Id.
The defendant asserts that the Commonwealth could not properly use the victim's statements for this purpose, however, because at the time of the SAIN interview, DCF was already exerting pressure on the victim to fabricate claims against the defendant. The record provides little support for this assertion. The mother answered one question on cross-examination agreeing that "DCF and the police had already been in contact with her" before she obtained the c. 209A order on September 16, 2013, and the officer who testified about the SAIN interview stated that DCF representatives observe SAIN interviews "[o]n some occasions." But the DCF social worker assigned to the case testified that she was not involved with the family until October 2013, when the department conducted an emergency removal because the mother was attempting to vacate the c. 209A order, creating concerns for the children's immediate safety. The evidence permitted the judge to make the preliminary finding that DCF was not exerting pressure on the then eight year old victim at the time of the SAIN interview.
The social worker testified that two reports pursuant to G. L. c. 119, § 51A, were filed on September 11, 2013, triggering a fifteen-day investigation to determine if the allegations were supported. The case was then assigned to her for a forty-five day assessment. She did not complete her assessment, however, because of the emergency removal in October.
Because the evidence was independently admissible as a prior consistent statement, the first complaint doctrine did not require its exclusion. See Commonwealth v. Aviles, 461 Mass. 60, 69 (2011) ; Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). The prosecutor's brief references to the statements in closing argument, to which the defendant did not object, were not improper, and in any event did not create a substantial risk of a miscarriage of justice given the judge's specific instructions in her final charge on the limited use of such evidence and how the jury should evaluate it.
d. Sufficiency of evidence of witness intimidation. On the basis of the defendant's October 2013 telephone call to the mother from jail, in which he repeatedly asked her to withdraw the charges, to "tell them everything was a lie," and not to be intimidated, the jury found the defendant guilty of intimidation of a witness under G. L. c. 268, § 13B (b ). Based on the mild language and tone of the conversation, the defendant contends that the element of intimidation was absent. Although the evidence of intimidation was not overwhelming, viewing the evidence in the light most favorable to the Commonwealth, a rational jury could find the defendant guilty of intimidation beyond a reasonable doubt. See Commonwealth v. Hamilton, 459 Mass. 422, 426 (2011), quoting Commonwealth v. Hilton, 398 Mass. 63, 64 (1986) ("We consider ‘whether the Commonwealth produced enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was present’ ").
"Intimidation requires ‘putting a person in fear for the purpose of influencing his or her conduct.’ " Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100 (2015), quoting Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). The defendant's conduct "does not need to be overtly threatening." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124 (2010), quoting Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708 (2007). " ‘[T]he context in which [an] allegedly threatening statement [is] made and all of the surrounding circumstances’ may also be taken into account." Perez, 460 Mass. at 703, quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001).
The mother testified that she had a tumultuous relationship with the defendant, who was verbally abusive to her and the victim and was physically violent with her on occasion, as recently as just a few months before the telephone call. He was controlling, in that he would not let the mother visit her family or let them visit her. She "had conflicting feelings" when speaking with him on the telephone because her daughter and the defendant were telling opposite stories, and she was "confused" about what to do, but she nonetheless went to court to withdraw the restraining order because the defendant asked her to do so. The jury, who saw the victim's demeanor when she was testifying about their relationship and the phone call, could reasonably have concluded that she acted out of fear.
The mother testified that the defendant struck her with his clenched hand when their son, who was born in November 2012, was beginning to crawl.
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Judgments affirmed.