Opinion
20-P-1056
03-09-2022
COMMONWEALTH v. Imer SOTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of rape and kidnapping. On appeal, he raises a variety of issues. We conclude that none of his claims entitle him to relief. Accordingly, we affirm the judgments.
1. Redirect testimony. The defendant claims that Officer Michael Szegda should have been prohibited, over the defendant's objection, from testifying on redirect examination that the victim described the unprotected sex as nonconsensual. We disagree. On cross-examination, defense counsel asked Szegda whether the victim indicated to him that she had unprotected sex with a male, and the officer answered, "Correct." Without the clarification on redirect, the jury would have been left with an unfair impression of the victim's account. Defense counsel opened the door, the clarification was not hearsay, it was on the same subject matter of the prior cross-examination, and it was necessary to the understanding of the victim's statement. These elements made the clarification proper under the doctrine of verbal completeness. See Commonwealth v. Aviles, 461 Mass. 60, 75 (2011). It was also not improper for Szegda to explain that given the victim's account, the Sexual Assault Unit was brought to the scene. See Commonwealth v. King, 445 Mass. 217, 226 (2005). Therefore, the judge did not abuse her discretion by permitting the redirect examination, and the first complaint doctrine was not violated.
In a convoluted fashion, the defendant also claims for the first time on appeal that the testimony of various police officers was unnecessary and prejudicial. We disagree. The Commonwealth, which bears the burden of proof, is entitled to put on police witnesses explaining how the matter was investigated. Each officer's testimony was relevant to the case, each provided background information, and one officer provided a foundation for the admission of evidence; they did not merely provide cumulative accounts. See Commonwealth v. Espinal, 482 Mass. 190, 202 (2019) ; Commonwealth v. McCoy, 456 Mass. 838, 847 (2010). There was no error, and thus, no risk that justice miscarried.
2. Nurse's examination. The defendant also claims that the testimony of Alison Griffin, a registered nurse, regarding the victim's hospital examination and evidence collection was irrelevant and improperly admitted. We disagree.
Griffin was not herself a sexual assault nurse examiner (SANE), but she worked in the emergency department as a registered nurse and had been trained in evidence collection by a clinical nurse specialist.
"It is not improper, as a general matter, to introduce testimony explaining the SANE process, either to provide background for testimony of a SANE nurse ... or to lay a foundation for the admission of physical evidence in a SANE kit." Commonwealth v. Dargon, 457 Mass. 387, 398 n.13 (2010). See Commonwealth v. McCoy, 456 Mass. 838, 847 (2010). Here, without objection, Griffin testified in detail regarding her examination of the victim based on the allegations of oral, vaginal, and anal penetration. She explained the medical reasons for each test, the steps she took to perform the exam, and explained the condition of the victim's body, including that what she observed could have occurred in the course of ordinary sexual intercourse. This was proper. See Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 702 (2009).
The defendant's reliance on Commonwealth v. Arana, 453 Mass. 214 (2009), is misplaced. In Arana, the Supreme Judicial Court held that "a patient's statement of how alleged injuries were suffered, or by whom inflicted, generally is not admissible in the Commonwealth, even if made to a physician." Id. at 231. However, a patient's statement "relevant to a patient's medical treatment" is admissible. Id. Here, Griffin testified to the medical reasons underlying the victim's statements. For example, the victim's statement regarding where penetration had occurred, and what force was used, were necessary for Griffin to check for tears, scrapes, and other signs of trauma. Griffin's questions relative to the victim's menstrual cycle and whether ejaculation occurred were relevant to treating potential sexually transmitted disease and understanding pregnancy risk.
The defendant also claims the victim's father was improperly permitted to offer emotional, irrelevant testimony. We disagree. The purpose of the victim's father's testimony was to lay a foundation for the admission of the victim's statement to him as an excited utterance. Over objection, the father was permitted to state that when he received the late-night phone call from the victim, he "felt nervous" and that "everything was running through [his] mind because of his daughter," at which point he was cut off by the judge. Other portions of the father's testimony reflecting his state of mind came in without objection, or did not come in because an objection was sustained. Because the defendant sought to call into question the father's timeline of events, the father's testimony regarding his emotional state was relevant to explain any temporal discrepancies. See Mass. G. Evid. § 401 (2021). Indeed, consistent with the father's voir dire testimony, at trial, the father admitted on cross-examination that he was not entirely certain of the time frame in which everything occurred. Contrast Commonwealth v. Lorette, 37 Mass. App. Ct. 736, 742-743 (1994) (emotional suffering of victim's family is not probative of defendant's guilt), S.C., 422 Mass. 1014 (1996).
Furthermore, and contrary to the defendant's claim, the prosecutor's closing argument did not improperly utilize the father's testimony. Rather, after being painted a liar in the defendant's closing argument, the prosecutor argued why the victim was credible based on her actions and demeanor. See Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009) (prosecutor permitted to "argue strenuously from the evidence that the Commonwealth's witnesses were credible").
3. Limitation on cross-examination. The defendant also claims the judge improperly restricted his cross-examination of Paul Daniels, the bar manager, who had viewed the surveillance video, which was later accidentally lost. Daniels testified that he did not recall the contents of the video. The judge then allowed the defendant to refresh Daniels's recollection with a police report written by a detective to whom Daniels had given a statement. After reviewing the report, Daniels maintained that his memory had been refreshed "to some extent." Daniels then testified that he remembered seeing a black car and attempting to zoom in on the car's license plate, but he could not remember "much more than that." With this background, the defendant asked Daniels if it was "fair to say that you did not see anyone get pulled into a --," at which point the prosecutor lodged an objection, which the judge sustained. Now, for the first time on appeal, the defendant claims that by sustaining the Commonwealth's objection, the judge unfairly restricted his right to cross-examination in violation of the Sixth Amendment to the United States Constitution.
At trial, after the prosecutor's objection was sustained, the defendant merely stated that he had "[n]othing further." He made no claim that the judge's ruling violated his rights, including those found in the Sixth Amendment. Despite this, relying on Commonwealth v. Wray, 88 Mass. App. Ct. 403, 406 (2015), the defendant claims the issue was preserved because he had put the judge on notice of what he intended to ask and was later not permitted to do so. For purposes of this case, we will assume the evidentiary claim is preserved, as it does not affect the outcome.
The Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights provide defendants with an opportunity for cross-examination; they do not guarantee a "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Commonwealth v. Cong Duc Le, 444 Mass. 431, 438 (2005), quoting United States v. Owens, 484 U.S. 554, 559 (1988). See Commonwealth v. Edwards, 444 Mass. 526, 535 (2005) ("the right to cross-examine adverse witnesses under art. 12 is not absolute"). At bottom, the right to cross-examination "is subject to the judge's broad discretion." Commonwealth v. Lucien, 440 Mass. 658, 663 (2004). See Mass. G. Evid. § 611(b)(1) (2021).
"A witness whose memory has been exhausted may have that memory refreshed in the presence of the jury by any means that permits the witness to testify from his or her own memory." Commonwealth v. Woodbine, 461 Mass. 720, 731 (2012). Where a writing has been used to refresh a witness's memory, "the testimony which the witness then gives must be the product of present recollection." Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978). See Mass. G. Evid. § 612(a)(1).
Here, Daniels's memory had been refreshed "to some extent." What he remembered was attempting to read the license plate number on the black car, and that he could not remember "much more than that." The defendant's excluded question sought information from a well that had run dry. Indeed, the judge could have reasonably understood that by stating he could not remember "much more than that," that Daniels's memory was exhausted. To avoid any uncertainty, the judge asked, "Is that what you remember seeing at this point after reading the report," to which Daniels replied, "Yes."
While there must be a good faith basis for questions asked on cross-examination, Commonwealth v. McGann, 484 Mass. 312, 321 (2020), here it would not have been outside the range of reasonable alternatives for the judge to have concluded that Daniels's memory had been exhausted. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Implicit in the judge's exercise of discretion was her concern that the focus of the inquiry was what Daniels remembered, after reviewing the report, that he saw. See Hoffer, 375 Mass. at 376 (when witness's recollection is refreshed, "the testimony which the witness then gives must be the product of present recollection"). Based on Daniels's testimony on this point, there was an affirmative basis in fact to believe that he could not answer the question the judge excluded. Because the video had been lost and Daniels's memory had been exhausted, the defendant had no evidence to support the innuendo in the question. See Commonwealth v. Knowles, 92 Mass. App. Ct. 617, 623-624 (2018). In other words, the defendant did not have "a reasonable belief that the facts implied by the questions could be established by admissible evidence." Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014). There was no abuse of discretion.
Even if the judge should have allowed the question to be asked, we conclude that the defendant was not prejudiced because the excluded matter would not have "influence[d] the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). According to the report used to refresh Daniels's recollection, there were two women seen getting into the black car, and Daniels was unable to see the license plate. However, according to the victim, her roommate, and the defendant himself, only the victim, and not her roommate, entered the car where the crimes occurred. Also, according to the defendant, the car that he was in was a different color, model, and make from the car Daniels reported to the police. Finally, according to the defendant, his initial encounter with the victim, which lasted fifteen to twenty minutes, occurred on the street, which is also contrary Daniels's report of seeing the two women entering the black car. In the end, and contrary to the defendant's claim, had the matter been before the jury, it would not have bolstered his version of events. Accordingly, and assuming error, we can say with fair assurance that the jury would not have been substantially swayed by the error. See Commonwealth v. Flebotte, supra.
4. The hospital records. The defendant also claims that certain entries on the victim's hospital records were improperly before the jury. Prior to trial, the parties agreed to redact the records, but nonetheless, portions of the records admitted in evidence remained unredacted. The defendant objected to the admission of the records on relevance grounds, but he did not seek additional redactions. In this posture, the claim is unpreserved.
To determine whether the unredacted records created a substantial risk of a miscarriage of justice, and keeping in mind that "[e]rrors of this magnitude are extraordinary events and relief is seldom granted," Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions: "(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?" (Citations omitted.) Id. at 298. "Only if the answer to all four questions is ‘yes,’ may we grant relief." Id. See Dargon, 457 Mass. at 397.
Here, the victim's medical records admitted in evidence contained six references to the word "assault" and the abbreviation "SA." Portions of these notations included labels of "diagnosis," which the Commonwealth properly agrees should have been redacted. However, when we apply the Randolph factors, 438 Mass. at 298, we also agree with the Commonwealth (for several reasons) that the answer to question factor (3) is "no," i.e., it would not be reasonable to conclude that the error materially influenced the verdict. The prosecutor made no mention of the inadmissible portions of the records in her closing argument. See Dargon, 457 Mass. at 398. Also, four of the entries stated that the victim was merely reporting a sexual assault, which was entirely consistent with the defense theory that the victim sought medical treatment because she had had unprotected sex that was consensual, but then claimed it was nonconsensual once her father learned of it.
Relative to the references to "diagnosis," Griffin, the examining nurse, testified that the victim was treated based on her allegation of having been sexually assaulted, and that the hospital had not conducted its own independent investigation. Important to the defense, Griffin also agreed that the victim's vaginal swelling could have been caused by ordinary sexual intercourse.
Finally, the now challenged notations were the same allegations that formed the basis of the rape indictment in this case, which was read to the entire venire when the defendant was set at the bar to be tried, and again after the jury were seated and sworn. It is also significant that hospital records did not include information outside the scope of these charges. Contrast Commonwealth v. Dwyer, 448 Mass. 122, 136-137 (2006) (defendant prejudiced by unredacted hospital record that contained statements concerning victim's sister, which implied that she, too, might have been abused by defendant). Rather, the unredacted remarks in the hospital records were entirely cumulative of the indictments, and were the very reason why the defendant was on trial for rape. See Commonwealth v. Braley, 449 Mass. 316, 326 (2007) (improper admission of cumulative evidence did not constitute prejudicial error).
5. Closing argument. The defendant further claims that the prosecutor's closing argument impermissibly claimed that the victim's willingness to go through the hospital examination made her more credible. We disagree.
"A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs.... When credibility is an issue before the jury, ‘it is certainly proper for counsel to argue from the evidence why a witness should be believed.’ " Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999), quoting Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). A prosecutor may also fairly respond to defense counsel's closing argument "to the extent necessary to correct any erroneous impression created by defense counsel." Commonwealth v. Christian, 430 Mass. 552, 566 (2000).
Here, the overarching theme of the prosecutor's closing argument was to examine the evidence from which the jury could find the victim credible, and to discount the defendant's argument that the victim falsified her allegation, and that she "t[old] stories to make herself look good." The prosecutor argued that it was implausible for the victim to have lied to her father and invented a sexual assault complaint under the circumstances, and that it was equally implausible for her to maintain that lie throughout her trip to the police station, the hospital examination, and up to the present day.
In one part of her implausibility theme, the prosecutor argued:
"And then to make things better, she's going to go to the police station, buck up her lie, and then go to the hospital where she's going to sit from 4 a.m., 5 a.m., 6 a.m., 7 a.m., until that nurse gets there, and then at that point she's going to consent to an exam from head to toe where she will be poked and prodded in her most intimate crev[ice]s of her body because, yup, she doesn't want to get in trouble for drinking, using her fake ID with her boyfriend. That doesn't make any sense, ladies and gentlemen."
The defendant objected to the language of the victim being "poked and prodded," as means to "heighten her credibility." Because that claim is preserved, we review for prejudice. Commonwealth v. Alvarez, 480 Mass. 299, 306 (2018).
The prosecutor had a right to argue inferences from the evidence favorable to her case, including why the victim was credible. See Commonwealth v. Francis, 391 Mass. 369, 372 (1984). It was also proper for the prosecutor to argue, based on the evidence, why the defendant's version of events was implausible. See Christian, 430 Mass at 566. See also Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 279 (2021). While the prosecutor's description of the victim's hospital examination as her being "poked and prodded," was unnecessary hyperbole, the prosecutor did not ask the jury to find the victim credible because she endured the exam. Rather, the prosecutor argued that it was not plausible for the victim to have invented the sexual assault under all the circumstances, including the timing and duration of the hospital examination and her trial testimony about it four years later; it was not an appeal to sympathy. See Freeman, 430 Mass at 118-119. See also Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982) ("jury could be expected to take both arguments with a grain of salt" where "most of the prosecutor's remarks were grounded in the evidence and the few extravagant remarks were responsive to equally extravagant defense tactics in final argument"). Contrast Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 809 (2009) ("no reason for either the prosecution or the defense to discuss or dwell on the pain and difficulty of the rape examination"). Finally, even though the prosecutor's remarks were unnecessary, they were properly mitigated by the judge's instructions (at the beginning and at the conclusion of the trial) that the jury were not to decide the case on sympathy and that closing arguments are not evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).
6. Jury question and instruction. After a few hours of deliberation, the jury asked whether an intoxicated person is capable of consent. Although there had been no prior request for an instruction on this topic, the parties agreed that the judge should instruct the jury in accordance with Commonwealth v. Blache, 450 Mass. 583 (2008). For the first time on appeal, the defendant claims the evidence of the victim's intoxication was insufficient to justify this instruction. We disagree.
In Blache, the court held that "an instruction concerning capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the [victim] was so impaired as to be incapable of consenting to intercourse" (emphasis added). Blache, 450 Mass. at 591-592. "The law does not require that the complainant have been rendered ‘unconscious or nearly so’ before she may be deemed past the point of consent." Id. at 591.
The judge explained to counsel that she was going to omit the language we emphasized in the quotation from Blache because it did not apply, and the defendant agreed. In a footnote in his opening brief, and in the text of his reply brief, the defendant now claims that the judge should have included this emphasized language to clarify that the intoxication must be "extreme" by providing other examples of incapacity such as "sleep, unconsciousness, mental retardation, or helplessness." Blache, 450 Mass. at 592 n.14. This claim is waived as it was raised for the first time in a footnote or in a reply brief. See Commonwealth v. Vick, 454 Mass. 418, 433 n.15 (2009) ; Commonwealth v. Hampton, 64 Mass. App. Ct. 27, 33 n.8 (2005). Even if this claim was not waived, the defendant did not object to the omission of the language in question. Indeed, he agreed to the omission. In addition, listing these separate manners in which a victim can be incapable of consenting does not bring greater clarity to the necessary level of alcohol intoxication for incapacity, especially where the victim need not be unconscious. Blache, supra at 591. Rather, that the victim's intoxication had to be "extreme," was properly conveyed to the jury with the language the judge used. There was no error, and thus, no risk that justice miscarried.
To determine whether the victim was so impaired as to be incapable of consenting, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. LeBlanc, 456 Mass. 135, 139 (2010). The victim and her friends consumed a great deal of alcohol over the course of the night having patronized several bars. The victim admitted that she drank eight pints of beer and two shots of hard liquor. See id. at 140. Her friends described her as "highly intoxicated," "pretty intoxicated," "heavily intoxicated," "definitely drunk," and "very intoxicated." Moreover, the victim attributed her loss of memory of certain events that night as based in part on the great amount of alcohol she drank. This evidence was sufficient to support a reasonable inference that the victim lacked the capacity to consent. See Commonwealth v. Jansen, 459 Mass. 21, 30-31 (2011).
The victim could also not recall how her underwear was removed in the car, which also supported an inference that she was too intoxicated to consent. See LeBlanc, 456 Mass. at 139.
To the extent that we have not specifically addressed subsidiary arguments in the defendant's brief, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.