Opinion
No. 11–P–573.
2012-06-15
COMMONWEALTH v. William SARCIA.
By the Court (GRASSO, MILLS & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of one count of assault and battery, G.L. c. 265, § 13A, and one count of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A. The jury was deadlocked on three other charges, namely assault with intent to rape, G.L. c. 265, § 24, and two additional counts of assault and battery by means of a dangerous weapon. Nolle prosequi dispositions were entered on the deadlocked charges.
The two convictions arose from incidents that occurred on October, 17, 2006, when the victim returned to the defendant's apartment after unsuccessfully attempting to purchase “crack” cocaine for the defendant. Upon the victim's return, the defendant allegedly beat her with his fists and with an acoustic guitar. The victim also testified at trial that the defendant, while naked, ordered her to take off her clothes, and pinned her down and tore open her pants when she refused to comply. The defendant appeals the convictions, arguing that the judge erred in (1) allowing a nurse who treated the victim to testify as the first complaint witness, when the victim had told a different person about the assault before her visit to the hospital, (2) admitting testimony from the first complaint witness that mentioned the nonsexual assault charges against the defendant, without giving a simultaneous limiting instruction, (3) admitting first complaint testimony where no completed sexual assault occurred, (4) denying the defendant's challenge for cause of a juror whose sibling was a rape victim, and (5) admitting statements from a mutual friend of the victim and the defendant that constituted impermissible hearsay and “backdoor” first complaint testimony. We conclude that the arguments are unpersuasive and we affirm the judgments.
Discussion. The judge was within his discretion to designate Nurse Grillo as the first complaint witness instead of Nancy Vasconcelos. The court may allow first complaint testimony from someone other than the first person to whom the victim disclosed a sexual assault, when, as the judge found here, the first person is either unavailable or has an obvious bias or motive to minimize or distort the victim's remarks. See Commonwealth v. King, 445 Mass. 217, 243–244 (2005); Commonwealth v. Murungu, 450 Mass. 441, 445–446 (2008). Based on Vasconselos's lack of memory owing to drug use and her evasive and confrontational voir dire, the judge was well within his discretion in concluding that the criteria of King and Murungu permitted the substitution of Nurse Grillo as the first complaint witness instead of Vasconcelos.
With regard to the defendant's second argument, the defendant was not entitled to a simultaneous instruction limiting the first complaint testimony to corroboration of the victim's account of the sexual assault, because he neither requested such an instruction, nor objected to its absence. See Commonwealth v. Rose, 13 Mass.App.Ct. 951, 954 (1982). See also Commonwealth v. Rosado, 434 Mass. 197, 206 (2001). In any event, given the comprehensive first complaint instructions the judge gave to the jury on multiple occasions, as well as the fact that the defendant was not convicted of assault with intent to rape, the absence of such an instruction did not create prejudice, let alone a substantial risk of a miscarriage of justice.
The defendant's third argument fails because first complaint testimony was warranted in this case, where the facts as alleged by the victim, if true, constituted assault with intent to rape. See Commonwealth v. O'Connor, 407 Mass. 663, 669–670 (1990); Commonwealth v. Arana, 453 Mass. 214, 219 (2009).
With regard to the defendant's fourth argument, the judge was within his discretion to refuse to dismiss juror “A” for cause, where there was no manifest evidence of juror prejudice. See Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). Although juror A, when asked if a past sexual assault of his sister would affect his impartiality, answered “I don't believe so,” the “use of seemingly equivocal language ... is not determinative of the juror's ability to be impartial.” Commonwealth v. Jaime J., 56 Mass.App.Ct. 268, 274 (2002). See Commonwealth v. Bryant, 447 Mass. 494, 500–501 (2006). In this case, we defer to the judge's determination of the juror's impartiality, which was made after the judge questioned the juror at some length and had ample opportunity to observe his demeanor. See Seabrooks, supra at 443–444. For the reasons stated in the Commonwealth's brief at pages 45 and 46, the judge was similarly within his discretion to refuse to dismiss jurors “B,” “C,” and “D.”
Finally, there was no error in the admission of testimony from Gale Fabiano recounting a telephone conversation with the defendant two days after the attack, during which he told her that the victim's boyfriend had called him and threatened to kill him because the boyfriend had learned that the defendant had kidnapped the victim, raped her, and put her into a coma. The challenged testimony was offered by the Commonwealth to provide context for the relevant and admissible statements by the defendant in the same phone conversation that he “might have slapped” the victim, and was not offered for the truth of the matter, as the judge instructed the jury in detail. See Commonwealth v. Mullane, 445 Mass. 702, 711 (2006). For this and for other reasons stated by the Commonwealth on pages 47–50 of its brief, Fabiano's testimony was properly admitted.
Judgments affirmed.