Opinion
21-P-534
06-02-2022
COMMONWEALTH v. SMITH AUGUSTIN.[1]
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
The defendant, Smith Augustin, was convicted by a jury of one count of indecent assault and battery on a person over the age of fourteen, G. L. c. 265, § 13H. On appeal, he claims that (1) testimony was admitted at trial in violation of the first complaint doctrine; (2) a police detective was improperly permitted to testify about the details of the investigation; (3) the judge erred in failing to provide the jury with written instructions on the elements of the crime charged; (4) the prosecutor misstated evidence during closing argument; and (5) the use of terms "rape" and "sexual assault" at trial prejudiced the defendant. Discerning no reversible error, we affirm.
Background.
We recite the facts as the jury could have found them. On June 28, 2018, the victim was a manager of a Wendy's restaurant, and was sent to cover a closing shift, from 6 P..M. to 1 A.M., at a Wendy's location she had on occasion worked at but was not her regularly assigned location. The defendant was scheduled to work at the same Wendy's that evening. Though the defendant and the victim had worked together a "small handful of times" before, they did not speak much due to "language issues."
The defendant's primary language is Haitian Creole.
Instead of arriving at the beginning of his scheduled shift at 8 P..M., the defendant arrived to work sometime between 11:30 P..M. and 12 A.M. At that time, only the victim and one other female employee were working. Upon his arrival, the defendant went to the back of the restaurant to work the grill, while the other employee was taking orders and the victim was completing various tasks around the restaurant. At one point, when the victim went to the back area of the restaurant, the defendant used his cell phone to show her a pornographic video. The victim testified that she glanced at the video and saw "genitalia and like sex." She testified that the defendant commented on the size of the man's penis in the video and asked her, "do [you] like that," to which she responded that she did not and that it was "gross."
After this exchange, the victim did her best to keep her distance from the defendant for the remainder of the shift, instead completing tasks near the front of the restaurant where the other employee was located. Nevertheless, toward the end of the shift, after the restaurant had already been closed to the public, the victim retreated to an office located in the back area to count money and complete paperwork. Through a window in the office which allowed her to see into the back area of the restaurant, the defendant made "kissy faces" at the victim, causing her to feel "very uncomfortable." Around the same time, the other employee, having finished her responsibilities, approached the victim and asked if she could leave for the evening. The victim released that employee, leaving the victim and the defendant alone at the restaurant.
As the victim was preparing to lock the restaurant, the defendant grabbed her arm and attempted to dance with her. The victim pushed him off and said to stop. The defendant laughed in response. The victim then locked the restaurant and walked to her car, which was parked in the restaurant parking lot. As she walked, the victim could hear the defendant approaching behind her, and once she got into her car, the defendant stood at the passenger side and stated that he "needed a ride." Before the victim had the opportunity to reply, the defendant let himself into her car and sat in the passenger seat. Noticing another car in the parking lot that she believed to be the defendant's, the victim drove the defendant over to that car and asked if it was his. The defendant denied that the car belonged to him, but used his keys to make the car "light up" while laughing.
The victim ordered the defendant out of her car. He, however, refused to go until she gave him her cell phone number. The victim repeatedly declined to give the defendant her cell phone number. At some point, the defendant grabbed the victim's cell phone from her hands, and stated that he would leave her alone once she gave him her cell phone number. Eventually, the victim "just gave him [her] number," and the defendant called her phone immediately to ensure that the number was accurate. The victim again insisted that the defendant get out of her car, but still the defendant did not do so. Instead, he asked the victim for a kiss, and when she refused, he began to get physical by "grabbing [the victim] and trying to kiss [her] neck." The victim testified that she was "shocked," and tried to angle her body away from the defendant while he hunched his body over the center console and attempted to pull her toward him.
At this point, the defendant grabbed the steering wheel and told the victim to drive to a dark and secluded section of the parking lot next to the dumpsters. The victim testified that "at that point, [she] just knew [she] couldn't stop it from happening." The victim followed the defendant's instruction and parked her car by the dumpsters. Immediately thereafter, the defendant adjusted the victim's seat, so she was lying flat, and removed her pants and underwear. The defendant kissed the victim's thigh and abdomen area, and then climbed over the center console and got on top of the victim. Once atop the victim, the defendant unbuttoned and pulled down his pants and penetrated the victim with his penis. The victim testified that she requested that the defendant put on a condom because she "felt like that [was] the only thing [she] had control of," but the defendant did not use a condom. When the defendant was finished, he ejaculated on the victim's stomach and climbed back over to the passenger seat.
Before exiting the victim's car, the defendant noticed that the gasoline tank was running low, and he told the victim that he would purchase her more gasoline. The victim drove the defendant to his car in the parking lot and agreed to follow him to a nearby gasoline station, explaining that she "felt it was justification in itself" for the defendant to purchase her gasoline. As the victim began to follow the defendant, she noticed a police cruiser in the parking lot that subsequently followed her as she drove to the gasoline station. The victim further explained that she did not stop the officer or seek to gain his attention because she "didn't believe really what happened," and ultimately the cruiser turned in a different direction than she and the defendant were going.
When the two arrived at the gasoline station, the defendant asked the victim to go into the store with him. She agreed. While in the store, the defendant attempted to take a photograph with the victim, but she declined to do so. After getting gasoline, the victim left and drove home. Once at home, the victim undressed and noticed marks on her neck from the defendant. She showered and attempted to sleep.
The following day the victim sent a message to her cousin via Snapchat, relaying to her "everything that happened" the prior evening. As a result, the victim's cousin testified as the first complaint witness. She testified that Snapchat messages disappear after twenty-four hours unless saved. She testified that she did not save the exchange with the victim, although she regretted not doing so, and therefore, her testimony was derived solely from her memory. The cousin further testified that, after the victim told her what happened and stated that she was "forced to consent," the cousin told the victim to "get a rape kit done." Despite her cousin's urging, the victim did not go to the hospital that evening, which was a Friday, but instead drank alcohol and worked her closing shift at Wendy's. The victim did the same thing that Saturday. On Sunday, however, when the victim went into work, she had a "mental breakdown" and conveyed what happened to another manager, who in turn notified the district manager, who ultimately reported the incident to police. Thereafter, at the direction of the police, the victim went to the hospital for a "rape kit," the results of which included recovery of biological material that the parties stipulated matched the defendant's deoxyribonucleic acid (DNA) profile.
Discussion.
1. First complaint issues.
In sexual assault cases, the first complaint doctrine limits the testimony surrounding a witness's disclosure of the abuse to others. See Commonwealth v. King, 445 Mass. 217, 245 (2005), cert, denied, 546 U.S. 1216 (2006). Only one witness may testify in the prosecution's case-in-chief as to the details of the sexual abuse and the circumstances surrounding the first complaint. Id. The alleged victim is also permitted to testify about the details of the first complaint, including the reasons why it was made at a particular time. Id. at 244. However, to prevent the harm from multiple witnesses "piling on," the alleged victim cannot testify that he or she made additional complaints beyond the first complaint, even when no details about those conversations are elicited. Id. at 245. See Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009). Nevertheless, testimony concerning multiple complaints may be admitted where the judge determines that the testimony is "relevant and admissible for reasons that are independent of the first complaint doctrine." Commonwealth v. Monteiro, 75 Mass.App.Ct. 489, 494 (2009), quoting Arana, supra at 229. "We review the admission of first complaint testimony for abuse of discretion." Commonwealth v. Torres, 86 Mass.App.Ct. 272, 277 (2014) .
a. Multiple complaints.
The defendant first argues that it was error to admit testimony indicating that, in addition to telling her cousin, the victim reported the assault to her manager, who notified the district manager, who then called the police. This testimony was not admissible under the first complaint doctrine. See Commonwealth v. Aviles, 461 Mass. 60, 68-69 (2011). Indeed, when the victim initially testified on direct examination -- without elicitation from the prosecutor --that she told her manager and district manager about the assault, the judge sustained the defendant's objection to the testimony. It was only after the defendant, on cross-examination, challenged the victim about her failure to follow Wendy's policies and procedures in reporting the incident on the night that it occurred that the judge allowed the victim to testify on redirect examination that she did indeed report the incident to Wendy's in some fashion. Based on the cross-examination of the victim, this testimony was admissible, in the judge's discretion, to rebut the defense theory that the assault was consensual and the victim failed to promptly report the incident to Wendy's officials because she was fearful that she would be reprimanded for engaging in sexual conduct with a subordinate. Cf. Id. at 69-70 (evidence of additional complaints admissible on redirect to rebut defense theory of fabrication raised through cross-examination). We discern no abuse of discretion in the admission of this testimony.
The defendant further argues that it was error to admit Detective Daniel Perry's testimony that he "received a call from a supervisor regarding a call that they received about a possible sexual assault," because it amounted to improper "piling on" of first complaint testimony. Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). Even if this testimony was inadmissible under the first complaint doctrine, we perceive no substantial risk of a miscarriage of justice from its admission, as the testimony merely repeated what the jury already knew --that the district manager called the police -- and it did not in any way insinuate that the detective believed the report. See Commonwealth v. Kennedy, 478 Mass. 804, 815 (2018).
b. Testimony by first complaint witness.
The defendant next argues that the victim's cousin's testimony that she wished she had saved the Snapchat conversation with the victim and that she encouraged the victim to get a rape kit exceeded the bounds of the first complaint doctrine. He contends that such testimony implied that the cousin believed the victim's complaint, and as a result, improperly bolstered the victim's credibility. We are not persuaded.
The first complaint witness is permitted to testify about the circumstances surrounding the complaint, including "the events or conversations that culminated in the complaint," as well as "other relevant conditions that might help a jury assess the veracity of the complainant's allegations." King, 445 Mass. at 246. The cousin's statement to the victim that she should get a rape kit was part of a conversation that took place during the complaint. Further, in context, the cousin's testimony that she regretted not saving the Snapchat exchange with the victim was merely a recognition of the limitation of her memory regarding the specific words used in the complaint, which was made over one year prior to trial. This testimony aided the jury in their role to assess whether the first complaint supported or detracted from the credibility of the victim, which is the very purpose of first complaint testimony. See Id. at 247-248. We discern no error or substantial risk of a miscarriage of justice resulting from the admission of this unobjected-to testimony. See Aviles, 461 Mass. at 72.
2. Details of investigation.
The defendant further argues that Detective Daniel Perry was improperly permitted to testify about the details of his investigation, including that he asked the victim if she wanted a rape kit, he took samples from the victim's rape kit to the State Police Crime Laboratory, he collected the victim's clothing from the night of the incident, and he interviewed a number of people, including the victim, the defendant, the first complaint witness, and several Wendy's employees. The defendant did not object to the testimony he challenges on appeal; thus, we review to determine whether its admission was error, and if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 846 (2010) .
The defendant did object to the detective's testimony concerning the appearance of the victim in the surveillance video taken from the gasoline station. Though the defendant does not specifically make this claim on appeal, the Commonwealth concedes that this testimony may have amounted to nonexpert opinion evidence on a matter that was for the jury to determine. See Commonwealth v. Anderson, 19 Mass.App.Ct. 968, 969 (1985). Because the video was admitted in evidence, permitting the jury to independently assess the victim's demeanor at the gasoline station, we perceive no prejudice. Id.
"[T]estimony detailing an investigation generally is not allowed unless it is from the first complaint witness or in response to a defense theory." McCoy, supra at 847. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) ("The fact that the Commonwealth brought its resources to bear on this incident creates the imprimatur of official belief in the complainant"). However, such testimony may be admissible if it serves an "independent purpose." See McCoy, supra.
With respect to Detective Perry's testimony concerning the rape kit, it is important to note that the victim testified that, at the direction of the police, she went to the hospital for a rape kit examination, and it was stipulated by the parties that the results of that examination matched the defendant's DNA profile. As such, even if it exceeded the bounds of permissible testimony, Detective Perry's statement that the victim went to the hospital for a rape kit was merely cumulative of other admissible evidence, and we discern no prejudice. Moreover, during his testimony, Detective Perry explained that as part of the rape kit the victim "was seen by a trained nurse who . . . takes certain evidence and statements from her and we then take that kit and bring it to the State Police Crime Lab." This testimony provided the jury with context for the parties' stipulation. Compare McCoy, 456 Mass. at 847 (testimony describing role of sexual assault nurse examiner admissible for purpose "of providing background information and laying a foundation for the admission of physical evidence included in the sexual assault examination kit") .
The defendant also argues that Detective Perry's testimony was inadmissible because he was not qualified as an expert to explain the process for testing rape kit samples or opining on the results. We disagree that Detective Perry's testimony amounted to explaining the process for testing samples such that an expert was required, but recognize that he indeed testified that the results of the rape kit matched the defendant. However, because that testimony was cumulative of other admissible evidence, we discern no prejudice. See Commonwealth v. Comtois, 399 Mass. 668, 674-675 (1987).
Similarly, the victim testified that the police collected and photographed her clothing from the night of the incident. Photographs of the clothing were also admitted in evidence. As a result, we have no "serious doubt" that the results of the trial would have been different had Detective Perry not testified that, as part of his investigation, he collected the victim's clothing from the night of the incident. See Commonwealth v. Silvelo, 96 Mass.App.Ct. 85, 91 (2019), quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016) ("The substantial risk standard requires us to determine 'if we have a serious doubt whether the result of the trial might have been different had the error not been made'").
Lastly, testimony that the police interviewed the victim or other witnesses is generally not admissible. See Commonwealth v. Espinal, 482 Mass. 190, 203 (2019); McCoy, 456 Mass. at 847. Here, however, the fact that Detective Perry interviewed the victim was first brought up at trial by defense counsel during cross-examination of the victim. Pressing his theory of consent, defense counsel suggested via cross-examination that the victim's trial testimony varied from her original statements to Detective Perry. As a result, Detective Perry was permitted to testify that, when he interviewed the victim, "she became quite emotional. She began to cry. She was unable to speak." This testimony concerning the victim's demeanor was relevant and admissible to rebut the defendant's theory of consent. See Arana, 453 Mass. at 225 ("Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case"). While the detective's mention of interviewing the defendant, the victim's cousin, and several Wendy's employees was arguably not admissible, no substantive information about those interviews was elicited, and there was no mention of those interviews during closing argument. We therefore discern no substantial risk of a miscarriage. See Espinal, supra.
3. Jury instructions.
During deliberations, the jury requested a written copy of the definition of indecent assault and battery. The judge, the prosecutor, and defense counsel all mistakenly believed that the judge was not allowed to provide the jury with the elements in writing. Thus, by agreement of the parties, the judge orally reinstructed the jury on the elements of indecent assault and battery. The defendant now contends that doing so created an error necessitating reversal; we disagree. The defendant does not contend that the judge's verbal instructions were incorrect, or that they did not make clear that the jury must find each element beyond a reasonable doubt. The decision to provide the jury with the written elements of a crime lies within the discretion of the trial judge. Commonwealth v. Guy, 441 Mass. 96, 108 (2004). See Commonwealth v. DiBenedetto, 427 Mass. 414, 422 (1998) ("As long as the judge makes it clear that the jury must find each element of the crime beyond a reasonable doubt, a judge may, in the exercise of discretion, provide a jury with an accurate statement of the elements of each crime charged"). It would not have been an abuse of the judge's broad discretion to decline to provide the elements in writing if she had been aware that she was permitted to do so. Thus, we fail to see how her misunderstanding on this point created an error warranting reversal.
4. Closing argument.
During closing argument, the prosecutor referenced the victim's testimony that there were no other cars in the parking lot at the time of the assault, and then stated to the jury that this was "corroborated by numerous other witnesses." The defendant argues, and the Commonwealth concedes, that this was a misstatement of the evidence because there were not numerous witnesses who corroborated that fact. Indeed, there were none. We, however, agree with the Commonwealth that the error does not require reversal of the defendant's conviction.
The Commonwealth contends that, though numerous witnesses did not corroborate this statement, one witness, Officer David Wohler, did. We disagree. Officer Wohler merely testified that his attention was drawn to two cars peculiarly parked "side-by-side" in the parking lot on the night in question; he did not testify that they were the only two cars in the parking lot.
To begin, the defendant did not object to the error. "The absence of an objection, '[a]lthough not dispositive of the issue ... is some indication that the tone, manner, and substance of the now challenged aspect[] of the . . . argument [was] not unfairly prejudicial.'" Commonwealth v. Maynard, 436 Mass. 558, 570 (2002), quoting Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). Further, in the context of the entire argument, the statement was brief, and it did not go to a central issue at trial. See Commonwealth v. Chalue, 486 Mass. 847, 877-878 (2021). Moreover, the judge instructed the jury both at the outset of the trial and during the final charge that closing arguments are not evidence and that, if in conflict, the jury's recollection of the evidence controls. We presume that the jury followed these instructions. See Commonwealth v. Silva, 455 Mass. 503, 522 (2009).
5. Use of terms "rape" and "sexual assault" at trial.
Finally, the defendant argues that references at trial to "rape" and "sexual assault" were highly prejudicial to the defendant. We have previously cautioned against using such conclusory terms during trial. See Commonwealth v. Duarte, 97 Mass.App.Ct. 268, 276 (2020); Commonwealth v. McNickles, 22 Mass.App.Ct. 114, 121 n.10 (1986). Here, however, the defendant did not object to the use of these terms, and we are confident that the references did not create a substantial risk of a miscarriage of justice.
Notably, the word rape was first used by defense counsel during opening statements. After openings, the judge brought this issue up to the parties, the Commonwealth stated that it was "going to try not to draw anymore attention to that," and defense counsel stated that he would "do [his] best not to refer to it that way." Regrettably, however, the words were brought up several more times at trial, but for the most part in the context of the rape kit, which the Commonwealth now acknowledges should have been referred to at trial as an "evidence collection kit." See Commonwealth v. Abrahams, 85 Mass.App.Ct. 150, 155-156 (2014). Throughout the trial, and in the parties' stipulation, the kit was referred to as either a "rape kit" or a "sexual assault kit." As we have previously noted, it was undisputed that the victim went to the hospital for such an examination. Thus, considering the context in which the terms were used at trial, we are confident that they had little effect on the outcome of the case.
Judgment affirmed.
By the Court
The panelists are listed in order of seniority.