Opinion
No. 10–P–2254.
2012-07-23
COMMONWEALTH v. Vladamir PIERRE.
By the Court (VUONO, GRAINGER & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of one count of rape and two counts of furnishing alcohol to a minor. He raises a number of issues on appeal, none of which warrant reversal of his convictions. We summarize the facts the jury could have found and then address the defendant's claims in turn.
On November 4, 2006 the victim, whom we shall call Claire, and her best friend, Tammy, attended a birthday party for the defendant at his home in Milford. The victim was sixteen years old and the defendant was twenty-three years old at that time. Before the party, Claire and Tammy gave the defendant money to buy them alcohol. The defendant purchased wine coolers which Claire subsequently drank along with other alcoholic beverages until she passed out. Eventually, after vomiting and soiling herself, Claire borrowed a pair of the defendant's pajamas and fell asleep on the defendant's bed next to Tammy. The defendant digitally raped Claire as she was sleeping. When Claire woke up, the defendant's finger was in her vagina. The defendant then proceeded to have sexual intercourse with Claire, but stopped when Claire told him to get off her. Claire woke up Tammy and both of them went to the bathroom where Claire discovered she was bleeding. Claire told Tammy that the defendant had raped her and the girls left for Claire's house. Claire was crying and still feeling ill when she arrived home at approximately five o'clock in the morning. Claire's mother took her to the hospital where Claire received treatment and was examined by a sexual assault nurse examiner (SANE). Subsequent analysis of swabs taken from Claire's vagina disclosed the presence of the defendant's DNA.
While Claire and her mother were at the hospital, the defendant called the mother on her cell phone. The mother hung up a few times, however, at one point the defendant stated that he did not have “sex” with Claire. However, after Claire's mother told the defendant that Claire was at the hospital and that “something” would turn up, the defendant admitted that he and Claire had engaged in consensual “sex.” Also, in a subsequent statement to police, made after Miranda warnings were administered, the defendant admitted that he had consensual sex with Claire.
1. Medical records. Claire's medical records were admitted in evidence under G.L.c. 233, § 79, with no objection. Those records included a form entitled “Commonwealth of Massachusetts Sexual Assault Evidence Collection Kit.” At the conclusion of the trial the defendant sought to redact the form by deleting the word “assailant” and the phrase “sexual assault” which appears on the form under the heading “Diagnosis” and “Reason for Visit.” Noting that the nurse who had examined Claire and recorded the information on the form testified extensively on direct and cross-examination about her observations and the form itself, the judge determined that any redaction other than the term “diagnosis” was unnecessary.
We agree with the defendant that it was error not to redact the form as requested. See Commonwealth v. Dargon, 457 Mass. 387, 396–398 (2010). However, in the circumstances of this case, the error was not prejudicial. The SANE nurse testified—without objection—that these forms are completed as part of a “rape kit” which is offered to anyone who claims to have been sexually assaulted whether or not there is a reason to disbelieve that individual. Accordingly, we conclude that the error “did not influence the jury, or had but slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The Dargon, supra, decision was issued after the trial in this case and the judge did not have the benefit of its analysis.
2. Multiple complaint testimony. The defendant argues that the judge's allowance of testimony from Claire's mother and a family friend, Carol Anne, from which the jury could infer that Claire had told them about the rape, violated the first complaint doctrine. Without providing any details of the conversation, Claire's mother testified that Claire told her what was wrong. She also described Claire as upset and stated that she took her to the hospital where she then told the nurse what had happened. In addition, Carol Anne, who was living at Claire's home, testified that she had a conversation with Claire before she went to the hospital and that Claire was crying. Finally, the investigating police officer testified that he arranged to have Claire interviewed after he was “notified” that there was a victim at the hospital.
Under the “first complaint” doctrine, only the first person told of the sexual assault may testify to the details of the alleged victim's first complaint and the circumstances surrounding that complaint as part of the prosecution's case-in-chief. Commonwealth v. Aviles, 461 Mass. 60, 68 (2011), citing Commonwealth v. King, 455 Mass. 217, 243 (2005).
The challenged evidence is similar to the type of context evidence which we criticized in Commonwealth v. Place, 81 Mass.App.Ct. 229, 231–233 (2012). While we doubt that the testimony from Claire's mother or Carol Anne was necessary to establish why Claire was taken to the hospital, both witnesses testified as to Claire's hysterical demeanor and, as such, the testimony was probative of a contested issue in the case, i.e., whether Claire had consented to sexual intercourse with the defendant. See Commonwealth v. Arana, 453 Mass. 214, 225 (2009) (“[e]vidence 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”).
The police officer's testimony that he made arrangements to interview Claire was also inadmissible. However, there was no substantial risk of a miscarriage of justice where the jury would have reasonably assumed that an interview would take place on the basis of Claire's allegations.
3. Closing argument. The defendant next contends that during closing argument the prosecutor improperly referred to Claire's age to bolster her credibility. There was no objection at trial, and therefore we review the alleged errors under the substantial likelihood of a miscarriage of justice standard. Commonwealth v. Cheremond, 461 Mass. 397, 412 (2012). Only one of the challenged remarks gives us pause. The prosecutor should not have suggested, albeit implicitly, that the police did not believe the defendant because they “submitted the rape kit.” However, bearing in mind that remarks made during closing argument are viewed in the context of the entire argument, and in light of the judge's instructions to the jury, and the evidence at trial, we conclude there was no substantial risk of a miscarriage of justice. Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990).
4. Remaining issues. The defendant's remaining claims warrant little discussion. We disagree with the defendant that he was prejudiced when witnesses used the term “victim” in reference to Claire. Nor was the defendant denied a fair trial by references to Claire's age where age was relevant to the charge of furnishing alcohol to a minor. Moreover, the record does not support the defendant's contention that such references were excessive. We likewise reject the defendant's challenge to the judge's so called “child witness” instruction. Because Claire was a minor at the time of the offense, the judge decided to give the jury a modified version of the standard child witness instruction. In doing so, he referred to Claire as a “young person.” The instruction itself simply informed the jury how to assess credibility and may have, as the Commonwealth suggests, inured to the defendant's benefit. Nor are we persuaded that the defendant was prejudiced by the brief reference in Claire's medical records to the effect that she had no prior history of “penetration.”
On Form J of the Sexual Assault Evidence Collection Kit, the SANE nurse indicated that no special exam was done and stated in handwritten notation “pt [patient] had no prior penetration and no previous pelvic exams.”
Finally, there is no support for the defendant's claim that his right to due process was violated when the police officer to whom he spoke testified that the defendant initially declined to give a statement and then immediately changed his mind. The defendant did not invoke his right to remain silent. Rather, he participated in a lengthy interview wherein he made numerous exculpatory remarks. In any event, even if we were to assume that the challenged testimony was improper, we are confident that it did not contribute to the verdict. See Commonwealth v. Chase, 70 Mass.App.Ct. 826, 836 (2007).
Judgments affirmed.