Opinion
No. 12–P–315.
2013-03-20
COMMONWEALTH v. Cesar SANTANA.
By the Court (CYPHER, KANTROWITZ & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Cesar Santana, was found guilty, by a jury, of two counts of indecent assault and battery on a child under fourteen years of age. On appeal, he claims error in (1) the admission of first complaint testimony, (2) the use of a transcript, (3) the admission of testimony concerning a postallegation investigation by the Department of Children and Families (DCF), and (4) the prosecutor's closing argument. We affirm.
First complaint. Commonwealth v. Murungu, 450 Mass. 441, 445 (2008), counsels that “on unusual occasions, the first person the victim informs of the incident may not be required to be the first complaint witness.” In such a situation, a judge must “carefully and thoroughly” analyze whether a substitution is permissible. Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). The decision made is reviewed under an abuse of discretion standard. Ibid. Here, the judge engaged in a thoughtful analysis and, upon hearing of the first complaint witness's (G.A.) bias and recantations, decided to substitute the victim's mother for G.A., who was the stepdaughter of the defendant. In these circumstances, there was no abuse of discretion. See Commonwealth v. Murungu, 450 Mass. at 446 (first complaint witness who has “obvious bias or motive to minimize” or distort victim's remarks may be substituted).
Nor was there error in not allowing the defendant's wife to serve as the first complaint witness, given her obvious bias.
Whether to hold a voir dire depends upon the circumstances of the case. Here, given that G.A. provided a pretrial statement and later testified before the grand jury, there was no error in not conducting a voir dire.
Transcript. Initially, the defendant argued that Detective Figueroa had authored the transcript of his interview with the defendant. Upon reading the brief of the Commonwealth, the defendant's appellate counsel conceded that she was in error, recognizing that while Figueroa conducted the interview, he did not prepare its transcription. The defendant now argues in his reply brief that the transcript contained errors and should not have been used at all. As the videotape of the interview was shown to the jury, there is little chance that the use of the transcript in fact prejudiced the defendant.
DCF. Statements the defendant made to the DCF investigator were used for impeachment purposes, to show that they were inconsistent with those he made to the police. The testimony on this point was relatively brief. There was no error in its introduction.
Closing argument. The defendant makes two arguments concerning the prosecutor's closing. As for the first comment concerning motive to lie, the comment was in fair response to the argument of the defendant's trial counsel calling into question the credibility of the victim. See Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008).
As to the second point, the objection by the defendant's trial counsel was sustained. The judge also instructed the jurors that closing arguments were not evidence. As such, there was no error on this point.
We have considered all the arguments of the defendant. To the extent we did not discuss them in detail, we found nothing in them requiring such detailed discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm.
Judgments affirmed.