Opinion
19-P-136
04-10-2020
COMMONWEALTH v. Anthony BARSOUM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of two counts of indecent assault and battery on a person fourteen years or older, G. L. c. 265, § 13H, and one count of open and gross lewdness, G. L. c. 272, § 16. On appeal, the defendant claims that the trial judge erred by (1) allowing a school counselor to whom the victim disclosed the abuse to testify as the first complaint witness when the victim had told her boyfriend about the assaults first; (2) admitting evidence of the defendant's uncharged bad acts; (3) excluding evidence regarding the reasons why the victim received a medical disqualification from enlistment in the United States Army and excluding medical records related to the disqualification; (4) permitting the Commonwealth to amend the bill of particulars on the first day of trial; (5) denying a challenge for cause to one prospective juror; and (6) providing the jury with a written copy of the jury instructions without first obtaining consent from the parties. We affirm.
Background. The jury could have found the following facts. The defendant was employed as a recruiter for the Army when he met the victim, whom we shall call Sheila, at Everett High School. Sheila was sixteen years old at the time and expressed an interest in enlisting. Over the course of the following few months, the defendant met with Sheila at the school and at the recruiting office in Malden to discuss a career in the Army. Sheila's mother and her boyfriend at the time, Louis Cardona, attended some of the sessions. Eventually, once she turned seventeen, Sheila took the required entrance and physical examinations. The exams were conducted in Boston on March 17 and 18, 2016. Sheila did not pass the physical exam. She was medically disqualified on the basis of a specific medical condition, the nature of which was not disclosed to the jury. The defendant, who had accompanied Sheila and another recruit to the examinations, drove Sheila home. After dropping off the other recruit, the defendant and Sheila stopped for lunch at a Taco Bell restaurant. At one point, the defendant began to talk about his personal life. He told Sheila that his wife was pregnant and that he was not "getting any [sex]." He then said that he wanted to have anal sex with his wife, but she had refused, and asked Sheila a number of pointed questions about her sexual experiences and preferences. The two finished lunch and returned to the defendant's car. Before driving Sheila to her boyfriend's house, the defendant showed her a pornographic video recording (video) on his cell phone. The video depicted two people dressed in military attire having anal intercourse. After the video ended, the defendant drove Sheila to her boyfriend's house in Everett.
A short time later, the defendant and Sheila discussed the possibility of her obtaining a waiver of her medical disqualification so that she would be able to enlist in the Army. The defendant and Sheila set up a time to meet to go over the paperwork. The defendant picked Sheila up from her home in Everett and drove her to his home in Peabody. It was early in the morning, and the defendant said that the recruiting office was not open yet. While driving, the defendant began to touch Sheila, putting his hand on her thigh. Sheila told him not to touch her, and the defendant stopped and apologized, saying that he did not want to make her uncomfortable.
When they arrived at the defendant's home, the defendant's wife was not there. Instead of going over paperwork, the defendant played a movie. While he was sitting next to Sheila on the couch, the defendant began to touch her thigh and breasts. Sheila told the defendant to stop. The defendant got up and left the room. When he returned, he exposed his penis, and while standing in front of Sheila he touched himself stating, "Look how you got me," and "What do you want to do with it?" Sheila did not respond. The defendant proceeded to masturbate in front of Sheila. The defendant eventually changed into his Army uniform and drove Sheila to her boyfriend's house.
Sheila avoided contact with the defendant thereafter and made no further attempts to enlist in the Army. About six months later, in early September 2016, Sheila saw the defendant at the high school and became upset. She reported the incident to a school counselor, Julie Ann Murphy. Murphy was employed at the high school as a behavior management therapist and testified as the Commonwealth's first complaint witness. Murphy testified that she saw Sheila in the hallway and noticed that she was upset. Murphy brought Sheila to her office, and Sheila revealed that she had seen someone in the building that had previously tried to recruit her to the Army and who had made sexual advances toward her. Sheila disclosed that, during the prior academic year, the person had picked her up in Everett, reached over and touched her breasts while driving her to his home in Peabody, and, once there, said things that made her uncomfortable.
The defendant denied the allegations. He testified at trial and claimed that he never spoke to Sheila about sexual matters, did not show her a pornographic video, and never took her to his home. He asserted that Sheila was upset about the medical disqualification, which he described as "very serious in nature." He acknowledged that he took Sheila to lunch at Taco Bell following her exams, but testified that they primarily discussed the reasons for the disqualification. According to the defendant, Sheila broke off communication with him after he told her that the disqualification was permanent and that there was nothing he could do to help her obtain a waiver.
Discussion. 1. Substitute first complaint witness. Prior to trial, the Commonwealth filed a motion in limine seeking to designate Murphy as the first complaint witness. The prosecutor acknowledged that Sheila had first disclosed the assaults to her then boyfriend, Cardona, but claimed that Cardona was not cooperative, was biased against Sheila, and, in any event, had no memory of being told about the events in question. Thus, the Commonwealth sought to call Murphy as its first complaint witness instead of Cardona. Defense counsel objected, and the judge conducted a voir dire of both Cardona and Murphy, after which he allowed the Commonwealth's motion.
The judge did not did abuse his discretion in allowing the Commonwealth to substitute Murphy for Cardona. Cardona testified that he had no memory of Sheila telling him about the assaults even though he could remember other events clearly. According to Cardona, he suffered from postconcussion syndrome as a result of playing football and, as a result, had poor memory. As the judge observed:
"[Cardona] is either completely incompetent, or he is feigning memory loss given ... the nature of the relationship and some of the description he gave.
"I'm leaning more towards incompetent listening to the number of times he got hit in the head ... or his ... post-concussion syndrome, but either way he is clearly either incompetent or feigning memory loss which is a justification under [ Commonwealth v. Murungu, 450 Mass. 441 (2008),] and [ Commonwealth v. King, 445 Mass. 217, 243-244 (2005), cert. denied 546 U.S. 1216 (2006),] to allow a substitute fist complaint witness."
As the judge correctly observed, our cases hold that a judge may allow first complaint testimony from someone other than the first person to whom the victim disclosed a sexual assault where, as here, the first person has no recollection of the complaint of the alleged sexual assault from the victim. See Commonwealth v. Holt, 77 Mass. App. Ct. 716, 722 n.5 (2010). See also Murungu, supra at 445-446; King, supra.
2. Prior bad acts. Prior to trial, the judge allowed the Commonwealth's motion in limine to permit Sheila to testify about the defendant's statements to her regarding the absence of a sexual relationship with his wife and other related sexual remarks while the two were having lunch at the Taco Bell. The judge also permitted Sheila to testify that the defendant had shown her a pornographic video on his cell phone. The judge denied the Commonwealth's request to introduce the defendant's statement made while the two were on the couch at his home to the effect of, "I've had sex with other recruits before." We discern no error.
It is well settled that the prosecution "may not introduce evidence that a defendant previously has misbehaved ... for the purposes of showing his bad character or propensity to commit the crime charged" (quotation omitted). Commonwealth v. Morgan, 460 Mass. 277, 289 (2011). See Mass. G. Evid. § 404(b) (2019). However, the prosecution may introduce that same evidence for other valid reasons, such as to show common plan, pattern of conduct, intent, or motive, so long as its probative value is not outweighed by the danger of unfair prejudice. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998).
Here, the judge properly balanced the probative value of the evidence against its potential for unfair prejudice and permitted the Commonwealth to introduce some, but not all, of the evidence that it sought to admit. More importantly, the evidence in question was relevant and admissible to show the defendant's intent and state of mind. "The case law is particularly clear that evidence of uncharged sexual misconduct, when not too remote in time, ‘is competent to prove an inclination to commit the [acts] charged ... and is relevant to show the probable existence of the same passion or emotion at the time in issue.’ " Hanlon, 44 Mass. App. Ct. at 817-818, quoting Commonwealth v. King, 387 Mass. 464, 470 (1982). We conclude that the judge did not abuse his discretion in concluding that the probative value of the challenged evidence outweighed any prejudicial effect.
3. Evidence of the reasons for Sheila's medical disqualification. Prior to trial, the defendant filed two motions in limine seeking to introduce evidence of the reasons for which Sheila received a medical disqualification. The first motion sought to admit in evidence certain medical records created and maintained by the Army. The second motion sought permission to cross-examine Sheila about her medical disqualification and to allow the defendant to testify about Sheila's statements to him regarding the reasons for her disqualification. Following a nonevidentiary hearing, the judge denied both motions. We discern no error.
a. The records. The parties did not dispute that the records at issue were presumptively privileged and, as such, were subject to the so-called Lampron-Dwyer protocol. See generally Commonwealth v. Dwyer, 448 Mass. 122, 139-147 (2006) ; Commonwealth v. Lampron, 441 Mass. 265, 267-271 (2004). See also Mass. G. Evid. § 1108(g) (2019). Thus, the records, or portions thereof, were admissible only if their introduction was necessary for the defendant to receive a fair trial. See Mass. G. Evid. § 1108(g)(3). The records revealed the date of Sheila's physical examination and the specific medical condition that led to her medical disqualification. Specifically, the records showed that Sheila had indicated on an official form that she had not previously engaged in self-harm by cutting herself, and that she had been disqualified from serving in the military because her examining physician had observed scars on her forearm consistent with self-harm. The defendant argued that this information was necessary to show (1) an inconsistency regarding Sheila's report of the date of the alleged sexual assault; and (2) that Sheila had failed to disclose on her initial application that she had engaged in self-harm and that this failure demonstrated that she was untruthful. The Commonwealth agreed to stipulate to the discrepancy regarding the date of the offense, but opposed the introduction of evidence concerning Sheila's medical condition. In a written memorandum of decision, the judge ruled that the Commonwealth's stipulation was a reasonable alternative to the introduction of the records and that evidence of Sheila's specific medical condition was not relevant to any issue in the case, including bias.
We review the judge's ruling for an abuse of discretion, see Commonwealth v. Dargon, 457 Mass. 387, 400 (2010), and conclude there was none. As regards the discrepancy in the date of the offense, the judge correctly determined that a stipulation was an adequate alternative. Indeed, based on the stipulation, trial counsel argued to the jury that Sheila's timeline was inconsistent. With regard to Sheila's specific medical condition, the judge did not abuse his discretion in ruling that Sheila's statements to the effect that she had not harmed herself did not demonstrate bias against the defendant. The bias, if any, stemmed from the fact that Shelia (allegedly) was prone to fabricate the allegations because the defendant did not help her to obtain a waiver and not from the fact that she had harmed herself in the past.
b. Cross-examination of Sheila and the defendant's testimony. As noted, the defendant filed a second motion in limine seeking permission to cross-examine Sheila about her medical disqualification. He also sought to testify himself about Sheila's statements to him regarding the scars on her arms and that she had been sexually abused by her grandfather. The motion was denied.
The defendant argues that by limiting his cross-examination the judge denied him the right to confront witnesses against him in violation of art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution. While the right to confront and cross-examine witnesses "is an essential and fundamental requirement" for a fair trial, a defendant's confrontation right is not absolute (quotation omitted). Commonwealth v. Miles, 420 Mass. 67, 71 (1995). "Although the defendant is entitled to a reasonable cross-examination of witnesses against him, the scope of cross-examination rests largely in the sound discretion of the trial judge." Id. In addition, we will "not overrule a trial judge's determination as to the proper scope of cross-examination unless the defendant demonstrates that the judge abused his discretion and that the defendant was prejudiced thereby." Id. at 72. The defendant has not made that showing here.
"[T]he judge was permitted to limit the defendant's cross-examination of the witnesses to prevent embarrassment and harassment." Commonwealth v. Chicas, 481 Mass. 316, 321 (2019). The topics on which the defendant sought to cross-examine Sheila were highly sensitive and of little or no relevance. There was no reason to believe that Sheila's having harmed herself in the past or that her having been sexually abused by her grandfather compromised her ability to be truthful. See id. at 321-322. The trial judge did not abuse his discretion in limiting the defendant's cross-examination of Sheila.
In addition, for the reasons discussed above, the defendant has failed to show prejudice. Trial counsel was permitted to ask Sheila about the medical disqualification generally and to ask her whether she was disappointed that she would not be able to obtain a waiver. In addition, the defendant was permitted to testify generally that he had not known about any grounds on which Sheila might be disqualified prior to her medical examination and had not expected her to be disqualified, as well as about his asking her afterward about why she had been disqualified and her reluctance to answer until they had dropped off the other recruit and were alone at the Taco Bell.
4. Amendment to the bill of particulars. In general, amendments to bills of particulars are permissible at any stage of the proceedings and have been allowed as late as after the evidence has closed or even after final arguments. See Commonwealth v. Barnoski, 418 Mass. 523, 538-539 (1994). See also Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979) ("Upon his own motion or the written motion of either party, a judge may allow amendment of the form of a complaint or indictment if such amendment would not prejudice the defendant or the Commonwealth").
The Commonwealth filed a motion to amend the dates reflected in its bill of particulars from "February 1 -- February 29, 2016" to "March 18 -- April 15, 2016," on March 28, 2018. At that time, trial was scheduled to commence on the same day. As the prosecutor explained, while Sheila had always maintained that the defendant sexually assaulted her after she had taken her written and physical examinations, she initially reported that the sexual assault occurred in February, shortly after her birthday. However, upon reviewing records provided by the Army, the Commonwealth learned that those examinations had taken place on March 18, 2016, and as a result, Shelia now recognized that the sexual assaults had occurred slightly later than she had previously thought. The defendant objected to the amendment, and the motion was denied. However, the trial was continued and did not start until May 22, 2018. By that time, the defendant had been aware of the new dates for nearly two months. On the first day of trial, the Commonwealth filed a motion to reconsider the denial of its motion to amend the bill of particulars, which the judge allowed, but he limited the range of dates from March 18 to March 31.
The defendant claims that he was "forced to adjust a ‘huge portion’ of his defense on the first day of trial." However, he had notice regarding the proposed amendment nearly two months before trial. In these circumstances, we discern no error. See Barnoski, 418 Mass. at 539 (no error in allowing amendment after close of evidence where "amendment did not add anything new to the case" and "[d]efense counsel knew long before trial ... [and] was not ‘surprised’ or ‘unable to present an adequate defense,’ due to the amendment" [citation omitted] ). Indeed, as the Commonwealth notes in its brief, the defendant testified that he was in New Hampshire on Saturday, March 19, 2016 -- the most likely date of the offenses, given that the physical exam occurred on March 18th -- and provided bank records to corroborate his testimony. Lastly, we note that the defendant could have, but did not, seek a continuance.
5. Failure to excuse juror for cause. The defendant argues that his right to a fair trial by an impartial jury was violated when the trial judge failed to excuse for cause a juror who indicated during voir dire that he would tend to believe a civilian witness who had not been accused of a crime over a civilian witness who had been accused of a crime. The defendant argues that, because the judge failed to excuse the juror for cause, trial counsel was forced to use a peremptory challenge to remove this juror, and later, having exhausted his peremptory challenges, was forced to accept a juror whom he otherwise would have removed with a peremptory challenge. See, e.g., Commonwealth v. Somers, 44 Mass. App. Ct. 920, 922 (1998). A transcript that includes the judge's colloquies with individual jurors is not available, as discussions at sidebar were inaudible. After trial, the defendant filed a motion to correct an omission from the record, and the judge held a hearing on October 24, 2018. After the hearing, the parties stipulated as follows:
"During jury impanelment [sic], the trial judge declined to excuse for cause a juror who said that he would tend to believe a civilian witness not accused of a crime over a civilian witness who is accused of a crime. Defense counsel objected to this. Defense counsel expended one of his peremptory challenges on this juror. Defense counsel exhausted his peremptory challenges."
The scope of voir dire of a potential juror rests in the sound discretion of the trial judge, and the judge's determination that a juror is impartial will not be overturned in the absence of a clear showing of an abuse of discretion. See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010). When a defendant alleges that the trial judge erroneously failed to remove a juror for cause, "prejudice generally is shown by the use of a peremptory challenge to remove [that] juror ... together with evidence that the defendant later was forced to accept a juror he would have challenged peremptorily but was unable to because his peremptory challenges had been exhausted." Id. Here, however, the defendant did not identify in his motion below, nor at the hearing, nor in his brief on appeal, the juror whom he was forced to accept because he had exhausted his peremptory challenges. See Commonwealth v. Bryant, 447 Mass. 494, 500 (2006) (showing of prejudice insufficient where defendant "identifies no empaneled juror whom he would have replaced if he had retained additional peremptory challenges"). There is no evidence in the record regarding a juror whom trial counsel would have removed with a peremptory challenge had any remained to him. The trial judge made no findings in this regard, and the stipulation of the parties does not address the issue. The defendant thus has failed to establish that there was a juror whom he would have removed if he had had another peremptory challenge remaining. See id.
6. Jury instructions. There is no merit to the defendant's contention that the judge committed prejudicial error by providing the jury with a written copy of the jury instructions without the agreement of the parties, as the parties' consent was not required. See Commonwealth v. Guy, 441 Mass. 96, 108 (2004) ("A judge may provide the jury with an accurate statement of the elements of a crime in a summary form, in writing, without the parties' consent").
Judgments affirmed.