Opinion
11-P-19
04-24-2012
COMMONWEALTH v. JASON AMATO.
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
After a jury trial, the defendant was convicted on two counts of statutory rape in violation of G. L. c. 265, § 23. We affirm the convictions but remand for resentencing.
First complaint witness. The defendant first argues that the trial judge abused his discretion by failing to conduct, sua sponte, a voir dire hearing before the testimony of the Commonwealth's first complaint witness. Such a hearing is required when there is a question as to which person the victim first complained, Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008), or when the Commonwealth seeks to offer a substitute first complaint witness. Commonwealth v. Murungu, 450 Mass. 441, 446-447 (2008). Here, the Commonwealth designated Eugene Landry as a substitute first complaint witness and the defendant did not object. Where there is 'no . . . factual dispute' as to 'who the first complaint witness was,' there is 'no need for a voir dire.' Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010), distinguishing Stuckich. Although he cites the same cases, the defendant actually argues, without additional authority, that a different voir dire hearing should have been held, one that would have given the judge a preview of the first complaint witness's testimony. In fact, the judge offered to hold such a hearing, stating, 'I am glad to conduct a brief voir dire of the first complaint witness, limited only to what it is he will say that the alleged victim told him.' After some discussion, it was agreed that defense counsel would examine a police report said to recount the witness's testimony and would ask for a hearing if defense counsel saw the need. He never did so.
On direct examination, the witness testified that the victim told him that 'from age thirteen, it was primarily just oral sex, and then at sixteen is when they had sex.' On cross-examination, the witness testified that, at the first meeting, the victim told him only that she and the defendant had 'fooled around,' and that he had learned later about 'the other stuff.' The judge then struck a portion of the testimony from the direct examination and instructed the jury they 'may only consider, that the [victim] told this witness that she and . . . the defendant . . . had fooled around.' On redirect examination, the witness reiterated his testimony that the victim had told him that she began having oral sex with the defendant when she was thirteen. On recross, the witness again agreed that, at the first meeting, the victim told him only that she and the defendant had 'fooled around.' The judge, at sidebar, told counsel that he would leave his earlier instruction as it was given and would not take any further action at that time, so as not to be seen to be weighing in on the witness's credibility which, he observed, was 'in shambles.' He agreed that he would give the limiting instruction again during his final charge to the jury, and although he did not repeat the instruction word for word, he reminded the jury of the instruction and stated that it remained his 'instruction entirely in force.' Neither side objected.
The defendant now argues that the fact that the judge did not hold a voir dire hearing sua sponte, to preview the first complaint witness's testimony, constituted an abuse of his discretion. We disagree. The witness's credibility was a matter for the jury to decide; the judge, perhaps in an abundance of caution, instructed them to disregard everything the witness might have learned from the victim at a time after the first complaint. The jury is presumed to have followed the judge's instructions. Commonwealth v. Degro, 432 Mass. 319, 328 (2000). Moreover, the testimony that was struck was not particularly prejudicial to the defendant; the witness did not disclose anything that the victim had omitted. In addition, it is not at all clear that a voir dire hearing would have revealed the contradictions that emerged at trial. We see no error and therefore no substantial risk of a miscarriage of justice.
The judge also gave careful instructions on first complaint testimony at the time the witness testified and at the end of the trial testimony.
Nor can we say on this record that defense counsel was somehow ineffective for failing to foresee the course the testimony would take and to request a voir dire hearing to forestall it. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). According to the trial judge, counsel's vigorous cross-examination left the witness's credibility 'in shambles'; in light of that, it may be that the defendant actually benefited from the testimony. 'When . . . a defendant raises an ineffective assistance argument for the first time on direct appeal instead of in a motion for a new trial, 'we will reverse the defendant's convictions only if the ineffectiveness 'appears indisputably on the trial record.'' Commonwealth v. Medeiros, 456 Mass. 52, 61 (2010), quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).' Commonwealth v. Powell, 459 Mass. 572, 583 (2011).
Tuey-Rodriquez instruction. After the jury had deliberated for three days, the presiding juror reported that the jury were unable to reach a unanimous verdict. The judge proposed to give a Tuey-Rodriquez instruction; defense counsel objected and moved for a mistrial, which motion the judge denied. Instead, the judge gave the standard instruction. The defendant did not object to the substance of the instruction; nor on appeal does he argue that the instruction was flawed in any way. He maintains only that the jury had deliberated long enough. In his view, the fact that the jury returned a verdict some thirty-five to forty minutes after the instruction 'demonstrates that the deadlocked jury may have been coerced into reaching a verdict.' This is pure speculation: the jury's verdict is equally consistent with having heard, and taken to heart, the judge's unexceptionable instruction. We see no error. 'A trial judge has discretion in deciding when to give the charge.' Commonwealth v. Haley, 413 Mass. 770, 779 (1992). See Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 316 (2008).
See Commonwealth v. Tuey, 8 Cush. 1 (1851); Commonwealth v. Rodriquez, 364 Mass. 87 (1973).
A different judge substituted for the trial judge, who was unavailable at that moment. Nothing turns on that fact.
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Global positioning system device. Finally, the defendant argues, and the Commonwealth agrees, that the commission of the offenses in this case preceded the enactment of G. L. c. 265, § 47, which requires as a term of probation for any convicted sex offender the wearing of a global positioning system (GPS) device. As a result, that statute cannot be applied to him. See Commonwealth v. Cory, 454 Mass. 559, 572-573 (2009). It is not clear, however, whether the judge imposed the wearing of a GPS device as a condition of probation because he believed that he was required by the statute to do so. Thus, the defendant must be resentenced. 'On remand, the sentencing judge must vacate that portion of [the defendant's] sentence imposing GPS monitoring, unless in the exercise of the judge's discretion [he] determines that GPS monitoring is an appropriate condition of [the defendant's] probation.' Commonwealth v. Vallejo, 455 Mass. 72, 89-90 (2009).
The convictions are affirmed, and the matter is remanded for resentencing.
So ordered.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.),