Opinion
10-P-1621
12-12-2011
COMMONWEALTH v. LUIS SNOW.
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
On appeal from convictions of indecent assault and battery on a child under the age of fourteen, the defendant argues that a substantial risk of a miscarriage of justice arises from the erroneous admission of first complaint testimony of the victim's cousin, Dawn. In particular, he contends that (1) there was no first complaint, and (2) the victim's testimony improperly provided more detail about the complaint than is permitted. We affirm.
Because the defendant neither raised these arguments below, nor objected on these grounds at trial (even after voir dire of Dawn), we consider whether admission of the first complaint testimony was error and, if so, whether the error gives rise to a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no error. See Commonwealth v. King, 445 Mass. 217, 243 (2005) (first person whom victim tells about sexual assault is permitted to testify regarding details of complaint and surrounding circumstances); Commonwealth v. Arana, 453 Mass. 214, 220 (2009) (same). There is no dispute that Dawn was the first person to whom the victim disclosed the defendant's sexual abuse. Dawn recounted that during a sleepover celebrating Dawn's birthday the victim, who was normally very active and very talkative, 'wasn't acting herself.' Dawn kept asking the victim what was wrong, and the victim kept saying, 'Nothing.' Finally, when Dawn asked her if the defendant was touching her, the victim said, 'Yes,' and began to cry.
Contrary to the defendant's present contention that the victim's disclosure is not an actual complaint for purposes of the first complaint doctrine, the victim's affirmative answer and actions in response to Dawn's questioning constitutes a complaint of sexual abuse. Contrast Commonwealth v. Murungu, 450 Mass. 441, 445-446 (2008) (no complaint where victim expresses unhappiness, upset, or other such feelings, but does not actually state that she has been sexually assaulted). The victim expressed more than mere unhappiness with the defendant; she burst into tears and affirmed that '[he] was touching her.'
Similarly lacking merit is the defendant's argument that the victim's more detailed recollection of what she told Dawn improperly expanded on what is permitted under the first complaint doctrine. [FN1] A victim may testify regarding the specific details of the complaint, as such testimony may be essential to the jury's understanding of the first complaint witness's testimony. See Commonwealth v. King, 445 Mass. at 245 (victim may provide specific details of first complaint rather than mere fact that she complained); Commonwealth v. Arana, supra (same). Any inconsistency between Dawn's recollection and that of the victim regarding the details of what was disclosed goes to the weight to be accorded the testimony in assessing witness credibility, not its admissibility. See Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 415 (2010). 'While such discrepancies may have provided fodder for cross-examination and argument as to witness credibility, they did not render [Dawn] something other than a first complaint witness or her testimony something other than first complaint testimony.' Commonwealth v. Sullivan, 78 Mass. App. Ct. 631, 636 (2011) (Grasso, J., concurring). Compare Commonwealth v. Scanlon, 412 Mass. 664, 670 (1992).
In any event, we discern no substantial risk of a miscarriage of justice arising from admission of the first complaint testimony. Indeed, the defendant attempted to use the discrepancy to his advantage in closing argument.
Judgments affirmed.
By the Court (Grasso, Smith & Meade, JJ.),