Opinion
19-P-1196
02-16-2021
COMMONWEALTH v. SHELDON ALJOE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Boston Municipal Court, the defendant, Sheldon Aljoe, was convicted of two counts of indecent assault and battery on a child under fourteen years of age. On appeal, the defendant claims that the identification evidence was insufficient to support his convictions, certain evidence was admitted in error, and the judge erred in failing to declare a mistrial. We affirm.
The first assault occurred in the spring of 2016; the other occurred on November 16, 2016.
1. Identification evidence. In 2016, the victim lived with her mother, her younger brother, and her stepfather, the defendant. The victim was then ten or eleven years old and had shared a home with the defendant since she was an infant. Notwithstanding the resulting familiarity between himself and the victim, the defendant claims that the victim's identification was insufficient. We review claims of insufficient evidence to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Here, the defendant and the victim lived together for approximately ten years, and the defendant was the only adult male living in the home at the time of the assaults. The victim identified the defendant in the court room as the person who assaulted her. The victim did not identify her assailant by name. And, although the defendant claimed that the victim could not see her assailant because it was dark in her bedroom, the victim detailed her observations. As to the first assault, the victim described a tall man wearing a T-shirt and shorts and who had a ponytail. As to the second assault, the victim saw the defendant in the home just prior to the assault; following the assault, the victim looked directly at the defendant, recognized him, and was able to describe his hair, belt buckle, and pants. Moreover, the identification was further confirmed by the defendant's similar conduct, see infra, on other occasions.
To the extent that the defendant contends that the victim's identification was not credible, and that the lighting was insufficient, these claims go to the weight of the evidence and the credibility of the witness, assessments which fall within the province of the jury. See, e.g., Commonwealth v. Sylvia, 456 Mass. 182, 190-191 (2010); Commonwealth v. Cruz, 445 Mass. 589, 596 (2005).
2. Evidentiary issues. a. Text messages. At trial, the Commonwealth was permitted to introduce copies of text messages that the victim testified she sent to her friend immediately following the second assault, describing what had occurred. The defendant argues that because the friend to whom the text messages were sent did not testify at trial, the text messages did not qualify as first complaint evidence, and therefore were introduced in error. Under the first complaint doctrine,
"the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of the first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that time" (emphasis added).Commonwealth v. King, 445 Mass. 217, 218-219 (2005). Here, the victim sent a text message to her friend immediately following the second assault describing what had occurred. The friend's testimony was not required because the text messages themselves were the first complaint, admissible not for their truth, but to corroborate the victim's account of the assault. See Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008) ("If, in fact, the letter was the first complaint that is the end of the matter. The letter would be the first complaint evidence"). See, e.g., Commonwealth v. Lyons, 71 Mass. App. Ct. 671, 673 (2008) (recording of 911 call by victim itself admissible as first complaint).
The judge twice provided a detailed limiting instruction to the jury as to the purpose of this evidence. See Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018) (juries presumed to follow judge's instructions).
There is also no merit to the defendant's claim that the text messages sent after the second assault constituted improper first complaint evidence of the first assault. References to the first assault were redacted from the text messages and were not presented to the jury as part of the first complaint evidence. Notwithstanding, on cross-examination, the defendant questioned the victim about whether she ever reported certain details regarding the first assault. Because the defendant opened the door to this evidence, on redirect, it was proper for the prosecutor to ask the victim about text messages concerning the first assault. "Once the defendant opened the door on cross-examination, the Commonwealth was entitled to attempt to rehabilitate the witness." Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009). See, e.g., Commonwealth v. Holiday, 450 Mass. 794, 815 (2008); Commonwealth v. Mendes, 441 Mass. 459, 469-470 (2004); Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 537 (2012).
b. Sexual assault nurse examiner report. The defendant argues that it was error to admit the sexual assault nurse examiner (SANE) report because it constituted a second first complaint, and it was not a medical report. SANE reports, including the victim's statements about the assault, are admissible pursuant to G. L. c. 233, § 79. See Commonwealth v. Dargon, 457 Mass. 387, 394 (2010). See also Mass. G. Evid. § 803(6)(B) (2020).
At oral argument, the defendant asserted for the first time that the SANE report did not comport with G. L. c. 233, § 79G, because the record certification was unsigned. However, a review of the exhibit submitted to the jury bears the required signature. Accordingly, this claim fails. Moreover, the SANE report was admitted under G. L. c. 233, § 79G, and was certified as required by the statute.
And, as required, the ultimate conclusions concerning the charged crimes were redacted from the records. See Dargon, 457 Mass. at 394, citing Commonwealth v. Dwyer, 448 Mass. 122, 137 (2006).
In addition, "[t]he first complaint doctrine does not . . . prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible" so long as it serves a "purpose other than to repeat the fact of a [first] complaint and thereby corroborate the complainant's accusations" (quotation and citations omitted). Commonwealth v. Aviles, 461 Mass. 60, 69 (2011). Here, the redacted SANE report was admitted for the independent, nonhearsay purpose of showing that the victim underwent a medical examination, and not for the truth of any statement in the report. See Adoption of Luc, 484 Mass. 139, 148 n.20 (2020) ("Hearsay is defined as an out-of-court statement offered to establish the truth of the words contained in the statement" [emphasis added]). See also Mass. G. Evid. § 801(c)(2) (2020).
Lastly, as to prejudice, the defendant's experienced trial counsel noted that the redacted SANE report was helpful to the defendant because there were no findings contained in the SANE report.
c. Admission of uncharged conduct. The defendant contends that it was error to permit the victim to testify to uncharged conduct that occurred between the two charged assaults. We disagree. The victim was permitted to testify that the defendant repeatedly entered her bedroom as she slept and touched her clothing. The evidence was not introduced to show the defendant's bad character or propensity to commit the charged crime. See Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). Rather, it was offered to show a pattern of conduct to prove that the charged conduct was not accidental. See Commonwealth v. Vera, 88 Mass. App. Ct. 313, 319 (2015). It was also relevant to the identity of the defendant as the perpetrator. See id. And, the evidence gave "the jury a view of the entire relationship between the defendant and the . . . victim." Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006). See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71-72 (2018) (evidence of uncharged conduct between defendant and victim relevant and admissible "to show that the relationship between the defendant and the victim was one of continuous sexual abuse" [quotation and citation omitted]).
Moreover, the evidence was limited to the defendant's touching of the victim's clothing while she slept. The judge instructed the jury on the limited purpose of this evidence, thereby minimizing the risk of prejudice. See, e.g., Commonwealth v. Walker, 442 Mass. 185, 202-203 (2004).
3. Mistrial. The defendant contends that the judge was required to sua sponte declare a mistrial because a witness used an analogy involving the words "rape kit." The decision as to whether to declare a mistrial is within the discretion of the trial judge. See Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). Here, the reference was fleeting, and was not responsive to the question the prosecutor asked. The judge immediately sustained the defendant's objection to the witness's isolated reference to a rape kit, and ordered the testimony struck. See, e.g., Commonwealth v. Baptista, 86 Mass. App. Ct. 28, 32 (2014) (no abuse of discretion in denial of mistrial where witness's "fleeting" reference to inadmissible bad act evidence was followed by prompt curative instruction). The defendant did not seek any additional judicial intervention, and did not request a mistrial. The jury were instructed multiple times that they were not to consider anything struck from the record. This was sufficient to cure any possible prejudice. See, e.g., Commonwealth v. Abrahams, 85 Mass. App. Ct. 150, 155-156 (2014) (repeated reference to rape kit did not create substantial risk of miscarriage of justice where judge immediately issued curative instruction).
Judgments affirmed.
By the Court (Blake, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 16, 2021.