SIKORA

Amy M. Belger for the defendant.John T. Mulcahy, Assistant District Attorney, for the Commonwealth.
Present: TRAINOR, KATZMANN, & SIKORA, JJ.

SIKORA, J.

A Superior Court jury convicted the defendant on one indictment charging rape, G.L. c. 265, § 22( b ).

The main issue of this appeal is the admissibility of first complaint testimony in circumstances in which the alleged victim had complained initially about the defendant's physical abuse but then waited one week to complain about sexual abuse. The defendant contests also the trial judge's admission of purported hearsay evidence and a separate judge's pretrial denial of the defendant's motion to subpoena the victim's treatment records from a community health center. For the following reasons, we affirm.

Background. The jury heard the following testimony. The victim and the defendant began dating in October, 2006. They moved into a hotel in December, 2006, and the next month into an apartment in Melrose. The victim paid for the furnishings of the apartment and paid all of the rent. Her young son lived with the couple.

From December onward, the defendant asserted control over the victim. He took possession of her money, credit cards, identification cards, and keys. He would accompany her to the bank and force her to give him money. He took possession also of her cellular telephone and monitored her conversations by forcing her to talk on the “speaker phone.”

The victim described a course of mental, verbal, physical, and sexual abuse. In February, 2007, he began to coerce sexual relations, including oral, vaginal, anal, and, on one occasion, digital penetration. The physical abuse included punching, kicking, and slapping, and resulted in bruises to her ribs, back, and head. The physical and sexual abuse continued even after the victim became pregnant in or about early May of 2007.

On May 12, the defendant agreed to travel to the victim's parents' home in Northampton for Mother's Day. The victim's mother, father, sister, sister's boyfriend, and son were present at the home. When the victim and her sister had a chance to be alone, they went into a bathroom. The victim told her sister about the physical abuse and displayed her bruises from recent beatings. The victim made no mention of sexual abuse at that time.

As a result of that conversation, the victim and her sister planned to talk on the following Wednesday, May 16, for the purpose of devising a strategy to rescue the victim from the relationship. On Wednesday, the victim and her family developed a code to trigger the rescue operation. The code would be a telephone call from her mother; the mother would state that she was taking the victim's son to the park. This message would signal to the victim that her family would come to her apartment on the following morning to take her away from the defendant.

On Friday, May 18, the victim received the coded telephone call from her mother. Several members of the victim's family and a Melrose police officer came to her apartment on the morning of Saturday, May 19. After the police officer forced the defendant to leave the apartment, the victim told her sister about the sexual abuse. At trial, the victim's sister testified as the first complaint witness.

Analysis. 1. First complaint testimony. The first complaint doctrine permits a judge to admit testimony from the recipient of a complainant's initial report of sexual assault. Commonwealth v. King, 445 Mass. 217, 218–219, 241–248, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006). See generally Mass. G. Evid. § 413 (2013). The first complaint witness may testify also to the circumstances surrounding the complaint, including “her observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the [complainant's] veracity....” Commonwealth v. King, supra at 246, 834 N.E.2d 1175. The two main goals of the first complaint doctrine are (1) to refute the stereotype that silence is evidence that the complainant lacks credibility and (2) to provide to the jury as complete an account as possible of how the accusation of sexual assault arose. Commonwealth v. Aviles, 461 Mass. 60, 72, 958 N.E.2d 37 (2011), citing Commonwealth v. King, supra at 243, 247, 834 N.E.2d 1175.

We review a judge's decision to admit first complaint evidence for abuse of discretion. Commonwealth v. Aviles, supra at 73, 958 N.E.2d 37. If the defendant objected to the admission of first complaint testimony, we must determine whether any error was prejudicial. Commonwealth v. Arana, 453 Mass. 214, 228, 901 N.E.2d 99 (2009). Therefore, we can affirm only if we are convinced “that the error did not influence the jury, or had but very slight effect....” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983). Here, the defendant preserved his objection to the first complaint testimony. He presents two principal challenges on appeal: (1) that the victim's May 12 complaint to her sister of only physical abuse should have precluded testimony about the victim's May 19 complaint of sexual abuse; and (2) that the testimony of the victim's sister exceeded the scope of the victim's testimony about the alleged sexual abuse.

a. First complaint of sexual assault. The defendant maintains that the judge's decision to admit the victim's sister's testimony of the victim's disclosure to her of sexual assault one week after revealing only physical abuse amounts to the admission of an improper “second complaint” or “expanded complaint.” We disagree and interpret the first complaint doctrine to permit the admission of the first complaint of sexual assault. Commonwealth v. King, 445 Mass. at 243, 834 N.E.2d 1175 (“that single complaint witness ... may testify to the details of the alleged victim's first complaint of sexual assault ...” [emphasis supplied] ).

If a complainant delays disclosure, the defendant may still exploit the timing of the allegation, which is “simply one factor that the jury may consider in weighing the complainant's testimony.”

Id. at 242, 834 N.E.2d 1175. Here, the victim's decision to tell her sister first of only physical abuse falls within the category of delay; that deferral does not bar admission of her subsequent complaint of sexual abuse one week later. See ibid. See also Commonwealth v. Murungu, 450 Mass. 441, 445–446, 879 N.E.2d 99 (2008) (when the victim expresses to a witness unhappiness but does not actually allege a sexual assault, the encounter does not constitute a first complaint). The purpose of the first complaint rule is to mitigate the effect on the fact finder of the reluctance of a victim to reveal sexual assault specifically, not physical assault generally.

The trial judge recognized this distinction during the pretrial hearing. He responded to the defense counsel's argument that the conversation in the bathroom was the victim's “opportunity” to allege sexual assault with the comment that “first complaint means first complaint about sexual abuse.” The defendant's position would convert the first complaint doctrine to the first opportunity doctrine. It would effectively exclude the first complaint of sexual abuse if the complainant had made an earlier report of other abuse by the defendant to the same recipient witness. That restriction would underestimate the inherent difficulty of disclosure (such as feelings of denial, shame, or fear of publicity or of anticipated disbelief) and the unpredictable circumstantial inhibitions confronting a complainant at the moment of first opportunity (such as abusive or dependent relationships, or fear of retaliation by the perpetrator or by her own supporters).

Such a restriction would retreat from the purpose of the present rule, i.e., to prevent exploitation of silence or delay as an attack on the complainant's credibility. A reliable and fair concept of the first complaint rule recognizes both categories of reticence and permits the complainant adequate time and opportunity for the first disclosure of specifically sexual abuse.

Finally, the admissibility of a first complaint made at a subsequent opportunity after disclosure of other abuse leaves the defendant with a fair opportunity for examination and argument to the effect that the delayed disclosure should be a less credible disclosure. Here, in closing argument, defense counsel emphasized that the victim's failure to call the police or allege sexual assault on May 12 created reasonable doubt of her account of abuse. The judge's instruction informed the jury that the timing of the claimed offenses and the first complaint was “one factor” available for their consideration of her credibility.

b. Scope of first complaint testimony. As a consequence of our determinationthat the victim's sister was an appropriate first complaint witness, we must consider the propriety of her specific testimony. After the victim testified about the different acts of forced sexual assaults, her sister testified to her recollection of the victim's complaint on May 19. However, the victim's sister's testimony included two allegations absent from the victim's testimony: (1) that the defendant had raped the victim with an object; and (2) that the defendant had threatened her with the “beating of her life” if she did not capitulate to certain sexual acts.

We agree with the defendant that this testimony exceeded the scope of the victim's testimony. However, we find it neither prohibited by the case law nor harmful in the present circumstances. Instead, we interpret the first complaint standard to permit some discrepancy between the testimony of the complainant and the first complaint witness. The fresh complaint standard has not required the complete congruence of the testimony of the complainant and the complaint witness. “Fresh complaint testimony need not replicate precisely the victim's own testimony.... Some inconsistency ... is expected, and will often aid the jury in determining whether the fresh complaint testimony ultimately supports the complainant's story.” Commonwealth v. King, 445 Mass. at 235, 834 N.E.2d 1175.

The first complaint standard continues that limited tolerance.

Commonwealth v. Aviles, 461 Mass. at 72–73, 958 N.E.2d 37 (stating that “trial judges need greater flexibility to deal with the myriad factual scenarios that arise in the context of purported first complaint evidence” [emphasis supplied] ). See Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 414–415, 922 N.E.2d 834 (2010) (victim's brother allowed to testify to the victim's account of the defendant's sexual misconduct even though the victim did not remember their conversation; the fact that the victim remembered the conversation “somewhat differently” went to the weight of the evidence, not admissibility). Further, defense counsel may exploit such discrepancies during both cross-examination and closing argument. Commonwealth v. King, 445 Mass. at 245, 834 N.E.2d 1175 (“a defendant will be free to cross-examine both the first complaint witness and the complainant about the details of the complaint, and draw to the jury's attention any discrepancies in the complainant's story ...”). See Commonwealth v. Wallace, supra at 415, 922 N.E.2d 834.

Finally, the judge gave limiting instructions to the jury (1) after the victim testified that she had told her sister about the sexual abuse; (2) before the first complaint witness's testimony; and (3) during his final charge before deliberations. Those instructions informed the jury that they could consider the first complaint evidence only to assess the credibility and reliability of the victim's accusations. In these circumstances, any of the sister's testimony which exceeded the scope of the victim's allegations would have had no influence or only slight effect upon the jury. See Commonwealth v. Flebotte, 417 Mass. at 353, 630 N.E.2d 265.

2. Evidence of the rescue plan. The defendant argues that testimony by the victim's sister and father about the creation of the rescue plan was inadmissible hearsay. We disagree for the following reasons.

Since the defendant timely objected, we review the judge's admission of the purported hearsay evidence for abuse of discretion. See Commonwealth v. Ruiz, 442 Mass. 826, 832, 817 N.E.2d 771 (2004). “Hearsay is an out-of-court statement used to prove the truth of the matter asserted.” Commonwealth v. Silanskas, 433 Mass. 678, 693, 746 N.E.2d 445 (2001). See Mass. G. Evid. § 801 note, at 241–242 (2013) (evidence of statements admissible if the proponent offers them for nonhearsay purposes).

Here, the information admitted about the formation of the rescue plan did not constitute hearsay. Instead, the Commonwealth introduced the creation of the rescue operation for a nonhearsay purpose: to describe the physical ending of the relationship between the defendant and the victim. Omission of the plan would have left the jury uninformed of the reason for the arrival of the family and a police officer at the apartment on May 19. See Commonwealth v. Miller, 361 Mass. 644, 659, 282 N.E.2d 394 (1972) (out-of-court statements admissible to explain why the police officer approached the defendant); Commonwealth v. Rosario, 430 Mass. 505, 508–510, 721 N.E.2d 903 (1999) (same). See also Commonwealth v. Perez, 27 Mass.App.Ct. 550, 554, 540 N.E.2d 697 (1989), quoting from Commonwealth v. DiStasio, 294 Mass. 273, 287, 1 N.E.2d 189 (1936), cert. denied, 302 U.S. 683, 58 S.Ct. 50, 82 L.Ed. 527 (1937), overruled on other grounds, Commonwealth v. Forde, 392 Mass. 453, 457–458, 466 N.E.2d 510 (1984) (evidence of conversations that result in police action makes the presence of an officer “seem more natural and less mysterious”). Further, it was undisputed that members of the victim's family and a Melrose police officer arrived at the apartment of the victim and the defendant to intervene on the victim's behalf; the police officer testified to his involvement. As a result, the evidence of the plan was cumulative of other evidence independently admitted and properly before the jury.

In addition, the judge and the prosecutor instructed the witnesses not to relay other persons' comments made during the creation and execution of the plan. See Commonwealth v. Rosario, 430 Mass. at 509–510, 721 N.E.2d 903 (“Disclosure of the substance of the conversation ordinarily is not required ...”; prejudice is less likely if the jury hears that individuals acted “as a consequence of a conversation”). Testimony about the plan described its formation and execution, and not the comments of its participants about the truth of the victim's accusation.

3. Request to subpoena the victim's treatment records. Before trial, the defendant attempted to subpoena the victim's treatment records from a community health center, pursuant to Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979).

As the basis of the request, he argued that the victim's failure to comply with the center's rules affected her credibility, and that her mental health issues affected her ability to perceive events. The motion judge denied the request. We agree with the judge that the defendant failed to satisfy the criteria of Commonwealth v. Lampron, 441 Mass. 265, 269, 806 N.E.2d 72 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 140–141, 859 N.E.2d 400 (2006), which require a showing that the treatment records were (i) relevant; (ii) otherwise inaccessible to defense counsel in advance of trial; (iii) necessary for proper preparation by defense counsel and for prevention of delay of trial; and (iv) requested in good faith and not for a general exploratory or “fishing expedition” purpose. See Mass. G. Evid. § 1108 (2013).

Here, the essence of the defendant's request was that the relevance of the documents might generate information undermining the victim's credibility. However, as the judge found, the defense counsel failed to articulate “something more definitive to link the [victim]'s pre-abuse records at [the treatment center] to the issues of this case” (emphasis supplied). Likewise, the defense counsel's affidavit contained no information that the victim's mental illness affected her ability to perceive events. As a matter of law under the Lampron criteria, the defendant did not show the specific relevance of the documents. Commonwealth v. Lampron, supra. See Commonwealth v. Bourgeois, 68 Mass.App.Ct. 433, 436, 862 N.E.2d 464 (2007) ( “Generalizations and unsubstantiated statements concerning a particular victim's credibility are not enough”). Consequently the motion judge's denial of the requested order of production under rule 17(a)(2) constituted neither an error of law nor an abuse of discretion.

Judgment affirmed.