Opinion
19-P-36
04-15-2020
COMMONWEALTH v. Brian RICHARDSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of indecent assault and battery, stemming from allegations by the victim that the defendant groped her without her consent at a bar. The defendant assigns error to the failure by the trial judge to instruct the jury on the first complaint doctrine, and to the admission of a redacted letter written by the victim about the incident. We discern no cause to disturb the conviction, and affirm.
Though the defendant refers to the admission of several statements by the victim complaining to others about the assault, he raises no claim of error on appeal regarding their admission, instead confining his argument to the failure to instruct on first complaint.
"First complaint testimony may be admitted for a limited purpose only, to assist the jury in determining whether to credit the [alleged victim's] testimony about the alleged sexual assault. The testimony may not be used to prove the truth of the allegations. The jury must be so instructed." Commonwealth v. King, 445 Mass. 217, 219 (2005).
It is undisputed that the victim's first complaint was to the doorman at the bar, in which she said: "You're lucky that I did not call the police. Your friend needs some serious help. He just grabbed me." There was no objection to the victim's testimony, on grounds of hearsay or otherwise, and no request for instruction on first complaint. In any event, the lack of details in the victim's comment, and the fact that the doorman did not testify, suggest that the evidence did not significantly influence the jury's determination of the defendant's guilt. Thus, we do not have a "serious doubt whether the result of the trial might have been different" had the judge explained that the statement was admitted solely to assist in the jury's assessment of the victim's credibility, and not for its truth. Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
No first complaint instruction was required regarding the victim's letter to the bar, as it was admissible for a purpose independent of first complaint. The first complaint doctrine "does not ... ‘prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible.’ " Commonwealth v. Aviles, 461 Mass. 60, 69 (2011), quoting Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). In Aviles, supra at 67, the victim testified that her second disclosure of an alleged rape was to her grandmother; that testimony was not admissible under the first complaint doctrine. However, it was independently admissible because it "served to rebut a defense theory of fabrication" and therefore "was not merely ... corroboration of [the victim's] accusations." Id. at 70. Similarly, in the present case, though the letter was not admissible under the first complaint doctrine, it was independently admissible to rebut the defendant's claim of recent fabrication. In opening and closing, the defense argued that "there was no good reason" and "simply no reason" for the victim to have waited four months before reporting the incident to the police "if there was any truth to her story." The letter and the details contained within it directly refuted this argument, as they showed that the victim deferred reporting the assault to police because she believed that the allegations in her letter would prompt the bar to take internal remedial actions. Therefore, the trial judge did not err in admitting the redacted letter.
Had he requested it, the defendant would have been entitled to instruction that the letter should only be used for that limited purpose. See Commonwealth v. Purdy, 459 Mass. 442, 453 (2011). But a judge is not required to give limiting instructions sua sponte, nor does the lack of a limiting instruction necessarily create a substantial risk of a miscarriage of justice. Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). Where the letter was redacted by agreement and did not include facts beyond what already was in evidence, and where neither party mentioned the letter in closing, we see no substantial risk of a miscarriage of justice arising from the absence of a limiting instruction. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 757 n.6 (2016).
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Judgment affirmed.