Opinion
13-P-333
12-15-2014
COMMONWEALTH v. BRIAN RACINE.
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
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a child under the age of fourteen. On appeal, he claims that: (1) the judge made certain evidentiary errors, (2) the child witness's testimony was tainted, and (3) he was prejudiced by the Commonwealth's amendment of the indictment. We affirm.
He thereafter pleaded guilty to the subsequent offense portion of the indictment.
1. Evidentiary claims. a. Demeanor testimony. After receiving a report of abuse, a police officer interviewed the defendant at his home. The officer testified that initially the defendant answered questions matter-of-factly. It was only when asked about the alleged abuse that the defendant became anxious, elevated the pitch of his voice, left the room several times, and appeared to hyperventilate. Out of concern for the defendant's health, the officer terminated the interview and called for an ambulance. The officer further testified that during his interview with the defendant's sister, she spoke in a "higher than normal conversational tone." The defendant claims the officer's testimony was unfairly prejudicial and should not have been admitted.
That interview occurred at the station later the same day.
The officer answered multiple questions on direct examination about the defendant's demeanor before defense counsel objected on unspecified grounds to the officer's statement that the defendant's "symptoms . . . were similar to hyperventilating." The objection was overruled. Defense counsel did not specify the grounds of his objection, or renew it at any point during the officer's further testimony about the defendant's or his sister's demeanor. We thus consider any claim of error to be unpreserved.
Contrary to the position asserted by the defendant, testimony concerning the demeanor of a defendant during police questioning is generally admissible. See Commonwealth v. Elangwe, 85 Mass. App. Ct. 189, 199-200 (2014). The officer's testimony in the present case about the defendant's demeanor during questioning was relevant to the jury's assessment of the truthfulness of the defendant's answers to the officer's questions, and could give rise to a reasonable inference of consciousness of guilt. "The defendant's demeanor and behavior in the course of police [investigation] certainly was relevant because it helped the jury in assessing the answers given." Commonwealth v. Borodine, 371 Mass. 1, 6-7 (1976), cert. denied, 429 U.S. 1049 (1977).
The defendant's reliance on Commonwealth v. Ridge, 455 Mass. 307, 321-322 (2009), is misplaced for two reasons. First, the defendant's right to remain silent was not yet an issue at the time of the interview in this case. Contrast Commonwealth v. Beneche, 458 Mass 61, 73-74 (2010). Second, the court in Ridge, supra, did not resolve the issue, deeming any error to have been nonprejudicial.
The relevance of the defendant's sister's demeanor is less clear. But even assuming it was error to admit this testimony, it was not prejudicial. The testimony was brief in the context of both the officer's entire testimony and the rest of the evidence at trial, and it was marginal to the central issues of the case.
b. Excluded impeachment testimony. On direct examination by the prosecutor, the victim's mother testified that the victim "wasn't very clear on when" the assault had occurred. During the mother's cross-examination, defense counsel attempted to introduce evidence that her "impression" when she spoke to police was that the assault had occurred on November 9, 2008. The prosecutor objected on relevancy grounds, and the judge sustained the objection. The defendant claims the prior statement should have been offered both for impeachment purposes and in support of his alibi defense. There was no abuse of discretion. See Commonwealth v. Barnes, 399 Mass. 385, 393 (1987).
The mother's statements were not inconsistent. In both instances, she lacked direct knowledge of when or on what day the assault occurred. The mother's testimony at trial appropriately declined to offer an opinion about when the assault occurred; since she had no direct knowledge of the timing of the assault, her opinion was inadmissible. Nevertheless, even if her prior statement expressing such an opinion had been admitted, it would not have been sufficient to support a jury instruction on alibi as the defendant claims on appeal. The defendant was only able to argue he had an alibi for one day of the nine-day window during which the assault was alleged to have occurred. The victim testified that he was unsure of the day the assault occurred, and the mother, having no direct knowledge of her own on the subject, could not have overcome that deficit in the evidence, regardless of her earlier "impression" or belief.
The Commonwealth alleged the crime took place between November 1, 2008, through November 9, 2008. The defendant had an alibi for his whereabouts on November 9, 2008, only.
2. Competency of the child victim. The defendant claims the prosecutor improperly solicited promises from the victim as to how he would answer questions posed to him on the witness stand. He claims, when asked about the details of the assault on direct examination, the victim became uncertain in his answers. The prosecutor requested a brief recess to which defense counsel objected. The judge called counsel to sidebar, during which the prosecutor indicated that she thought the victim might "need[] a minute . . . [because] he had very clear memories of that and he promised not to answer 'I don't know' when he was having difficulty, but he is answering 'I don't know' to questions I believe he does know the answer to." The judge denied the prosecutor's request for a recess and direct examination of the victim resumed.
The defendant claims that the prosecutor's disclosure at sidebar somehow "tainted the victim's testimony and undermined his ability as a witness to accurately recount his experience." The defendant's argument lacks merit.
A "taint hearing" is a required procedure if a child victim's competency is called into question. See Commonwealth v. Allen, 40 Mass. App. Ct. 458, 462-463 (1996) . Here, the witness's pretrial promise to the prosecutor did not signal any erosion of his ability to either "observe, remember, and give expression" to events that he had "seen, heard, or experienced" or "comprehend the difference between truth and falsehood." Commonwealth v. Thibeault, 77 Mass. App. Ct. 419, 423-424 (2010), quoting from Commonwealth v. Monzon, 5 Mass. App. Ct. 245, 248 (2001). If anything, the victim promised to report what happened as accurately and truthfully as possible.
3. Amended indictment. At the close of all the evidence, the Commonwealth moved, pursuant to Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979), to amend the indictment to reflect the actual evidence presented at trial, namely that only one assault had occurred. The judge allowed the motion. On appeal, the defendant concedes that the amendment was one of form and not substance, see Commonwealth v. Domino, 465 Mass. 569, 575 (2013), but nevertheless contends that it resulted in prejudice.
The original indictment stated that "on divers dates from the first day of November . . . through the ninth day of November . . . the [defendant] did commit an indecent assault and battery." In its amended form, the phrase "on a date between" is substituted for the phrase "on divers dates."
The purpose of a complaint or indictment is "to furnish the accused with such a description of the charge against him as will enable to him to make his defence." Commonwealth v. Montanino, 409 Mass. 500, 512 (1991), quoting from United States v. Cruikshank, 92 U.S. 542, 558 (1875). The amended indictment reduced the number of assaults alleged from multiple incidents to a single assault committed during the exact same time frame previously charged. Consequently, there was no error, nor resulting prejudice to the defendant from the amendment.
Judgment affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 15, 2014.