Opinion
13-P-1409
04-21-2015
COMMONWEALTH v. NIGEL H. MORRIS.
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, the defendant was convicted of assault with intent to rape, indecent assault and battery, and assault and battery. He appeals, arguing that first complaint testimony was improperly admitted, along with improper testimony about the victim's demeanor, and that the prosecutor improperly bolstered the credibility of the Commonwealth's rebuttal witness during closing argument. We affirm.
Background. The jury heard evidence that, on the evening of September 4, 2002, the victim was hitchhiking on Nantucket with three young women friends. The defendant picked them up and drove them to a house on South Shore Road. Initially, all four hitchhikers got out of the car, but the defendant agreed to drive the victim home and she got back into the car and sat in the front seat.
When the defendant got to the victim's street, he drove past it, turning instead down another street farther away. The victim asked him to stop the car and, when he refused, she opened her car door; he slowed down, and then stopped. The victim jumped out of the car and tried to run back to the main road, but fell after tripping on brambles and bushes. The defendant caught up to her, jumped on her, knocked her to the ground, grabbed her around the neck, and sexually assaulted her. The victim testified that she "passed out for a little while, for like a second," and then heard a woman call out, "I called the cops. They're on the way." The defendant "scampered" away. The victim was able to memorize the "middle" numbers on the license plate of the defendant's car.
The victim ran to the house where she had heard the woman's voice. When the police arrived, she told one of the responding officers, Sergeant Christine Ladner, the details of the attack, and also gave a description of the defendant, his black car, and partial numbers from the car's license plate. Early the next morning, Ladner went to the victim's home. The victim and one of her three hitchhiker friends then rode in the back seat of the police car to Surfside Road, where the defendant was standing in front of a house with the headlights of a police car shining on him. The victim identified him as her attacker., The friend identified him as the man who picked her up.
The victim testified that the defendant as not "very tall. And he was black and Jamaican, and he had very obvious scarring on his face."
The friend testified that she recognized the defendant because she had recently been sitting in a car with him when he picked up her friends and her, and that he had "obvious" acne scarring on his face.
The defendant was arrested and arraigned in District Court on September 5, 2002. He apparently posted $2,500 bail on September 16, 2002, and then defaulted on October 28, 2002; a default warrant was issued. In February, 2012, the defendant was arrested on the default warrant. In May, 2012, indictments were returned and in June, 2012, he was arraigned in Superior Court.
At the trial, after the victim testified on direct examination, but before she was cross-examined, the judge addressed the defendant's motion in limine on first complaint evidence. The judge designated Ladner as the first complaint witness and confined Ladner's testimony to what she had heard from the victim on the evening of the attack. Defense counsel requested a voir dire, saying she was "really concerned about [Ladner's] memory," but the judge denied the motion and noted counsel's objection. In context, the objection appears to have been addressed to the issue of what the victim told Ladner at that first meeting, as opposed to the following day.
Defense counsel stated, "I suppose we could run into a situation where the testimony starts becoming what may have logically happened as . . . . "
Before Ladner testified to what the victim had told her the night of the attack, the judge gave a first complaint instruction. The defendant did not object to Ladner's first complaint testimony, nor to her recitation of the victim's initial statement to the police.
The defendant objected only to two things that Ladner said the victim had told her -- the first was, "He tried to get her to open up, implying open up her legs"; the other, "At one point a neighbor heard her and called out to them. And when she, which scared him." The judge noted that Ladner was repeating what the victim had said and did not find the statements "prejudicial." The judge later denied a motion to strike Ladner's testimony; defense counsel argued that parts of the victim's statement had been made outside and the earlier ruling had confined the first complaint to what was said that night in the kitchen. The judge responded, "Whether it was in the kitchen or outside is of no moment."
The defendant testified that, on the night the victim was attacked, he was drinking and playing pool at a club called the Muse. His friend, Patrick Lawrence, borrowed the defendant's car and did not return until late, after the club had closed at 1:00 A.M. and after the defendant had been hanging out with friends in the parking lot for another "hour and a half going on two hours." The defendant testified that, once Lawrence finally came back with his car, they had an argument about the fact that Lawrence had been gone so long with the defendant's car. Lawrence testified as the Commonwealth's rebuttal witness, stating that he was in Cleveland, Ohio, in September, 2002; he also testified that he did not have facial acne in 2000, 2001, or 2002.
The defendant testified that he left Cleveland, Ohio, with Lawrence in January, 2000, and traveled to Nantucket with him. He lived with Lawrence and his girlfriend when they arrived in Nantucket, until the defendant got a job and moved to his own apartment. The defendant testified that Lawrence had "bumps" on his face when he knew him in 2000. The defendant also testified that his own face was scarred because, when he was fifteen years old, a woman threw acid at her boyfriend and it also hit the defendant.
Discussion. First complaint testimony. (1) Present memory. On appeal, the defendant first argues that Ladner's testimony was inadmissible hearsay because it was not based on her independent memory of the incident, but rather her review of another police officer's report when she was preparing for trial. He also contends that he preserved this issue when he requested a voir dire of Ladner's testimony and later moved at trial to strike her first complaint testimony.
First, the defendant never raised this issue with the trial judge. Although defense counsel did ask for a voir dire of Ladner's testimony, saying she was "really concerned about the memory," when the judge denied the motion, the defendant did not object further or make any offer of proof. See Commonwealth v. Lenane, 80 Mass. App. Ct. 14, 19 (2011). The motion to strike was explained as prompted by Ladner's testimony that her conversation with the victim took place outside, rather than in the kitchen. The ground now argued, therefore, was not raised at trial.
Second, "a witness may at times review a document prior to testifying in order to refresh . . . her memory and better prepare to testify." Commonwealth v. Woodbine, 461 Mass. 720, 731 (2012). Ladner testified that, prior to trial, she had reviewed the police report prepared by another officer about the events that led to the defendant's arrest; Ladner had not, herself, prepared a report. Ladner testified that her testimony was based on what she recalled of the incident, as well as her review of the report, a document available to the defendant. At no time during her testimony did Ladner indicate that her memory was exhausted about the details of what the victim had told her or about her own participation in the investigation on September 4 and 5, 2002. We see no error or abuse of discretion in admitting that testimony. Cf. Commonwealth v. Aviles, 461 Mass. 60, 67 (2011).
(2) Relevance. The defendant also argues that first complaint testimony was irrelevant here because "there was no dispute as to whether a sexual assault had occurred or whether the victim had consented." First, as noted, the testimony was admitted without objection on that ground. We therefore "consider whether the testimony was properly admitted and, if not, whether the testimony created a substantial risk of a miscarriage of justice." Commonwealth v. Kebreau, 454 Mass. 287, 297 (2009).
Whether the sexual assault occurred does not appear to be in dispute on appeal; however, the defendant did not concede this fact at trial. As a result, "the Commonwealth retained the burden of proving every element of the crimes alleged." Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 857 (2013). At trial the defendant did not, as he now argues, present a singular theory of misidentification, but, rather, challenged both the victim's general credibility and the police investigation. He also stressed in his opening statement that the jurors "pay very close attention" to how the identification of the defendant occurred, and the description of the attacker the victim gave to the police.
When the defendant challenges a sexual assault victim's credibility, the first complaint witness (the first person told of the assault) "may testify to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint" under the first complaint doctrine. Commonwealth v. King, 445 Mass. 217, 243 (2005). This first complaint witness is permitted to testify to the details of the complaint itself to provide "the fact finder 'the maximum amount of information with which to assess the credibility of the . . . complaint evidence as well as the overall credibility of the victim.'" Id. at 244.
Here, Ladner's testimony, the only first complaint evidence, also served the separate important function of providing the jury with a fair understanding of the Commonwealth's case. Cf. Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 495-496 (2009). Ladner described the police investigation, including the response to the victim's allegations, the description she gave of the defendant and his car, and her subsequent identification. Accordingly, we are not persuaded that the judge committed error or abused her discretion in allowing Ladner's testimony as it "was properly admitted for the independent purpose of rebutting the inferences raised" by the defendant's challenge to the victim's overall credibility and the police investigation. Aviles, supra at 70-71.
Ladner's first complaint testimony was brief, approximately two pages in the trial transcript, and essentially mirrored the victim's trial testimony.
Evidence of the victim's demeanor. For the first time, the defendant also complains that evidence of the victim's demeanor was admitted improperly, serving "no purpose other than 'appealing to the jurors' emotions'." "Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case." Commonwealth v. Arana, 453 Mass. 214, 225 (2005). At trial, defense counsel left every issue open, including, particularly, the victim's credibility. In addition, the judge specifically instructed the jury to "put[] aside any personal likes or dislikes, opinions, prejudices, or sympathy." She also told them that "[t]o the extent that during the trial [they] heard testimony that was upsetting," they "must put aside any feelings or emotions that the testimony gave rise to." We see no error.
Closing argument. Finally, the defendant argues that during closing argument, the prosecutor impermissibly bolstered the credibility of the rebuttal witness, Patrick Lawrence, by posing a rhetorical question that implied that Lawrence had returned to Nantucket to tell the truth. In her closing argument, defense counsel had challenged Lawrence's credibility by saying, "Now, forgive me for the cynicism, but the likelihood of this man coming into this courtroom and being completely honest and saying, 'It was me,' slim to none. That happens in the movies." The prosecutor responded, "I would suggest, ladies and gentlemen, that [defense counsel] said it was like, it would be like a movie event if he came back and said he did it, but why would he come back at all?" The defendant agrees that there was no objection.
"Closing arguments must be viewed 'in the context of the entire argument, and in light of the judge's instructions to the jury, and the evidence at trial.'" Commonwealth v. Braley, 449 Mass. 316, 328 (2007), quoting from Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990). "A prosecutor is permitted to 'make a fair response to an attack on the credibility of a government witness.'" Commonwealth v. Smith, 450 Mass. 395, 408 (2008), quoting from Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). We see no error.
Judgments affirmed.
By the Court (Kantrowitz, Grainger & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 21, 2015.