Opinion
14-P-1222
03-25-2016
COMMONWEALTH v. FRANCISCO CARRASCO-SANCHEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
This appeal follows the defendant's conviction of assault and battery as a lesser included offense on a complaint charging indecent assault and battery of a person who has attained the age of fourteen. He raises several challenges to his conviction. The defendant asserts that (1) a substantial risk of a miscarriage of justice was created when evidence of multiple out-of-court complaints were admitted in violation of the first complaint limitation set forth in Commonwealth v. King, 445 Mass. 217 (2005); (2) his counsel's failure to object to the multiple complaint testimony amounted to ineffective assistance of counsel; and (3) the evidence was insufficient under G. L. c. 265, § 13H, inserted by St. 1980, c. 459, § 5, to establish that the victim "ha[d] attained age fourteen." We affirm.
1. Multiple complaint testimony. The defendant contends that a substantial risk of a miscarriage of justice was created by the admission of multiple complaint testimony through the victim, Eric Wilson (the first complaint witness), and the investigating police officer. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). We consider each argument in turn.
a. The victim. Ordinarily, victims are prohibited from testifying about multiple complaints because such statements "allow[] fresh complaint testimony through the back door." Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). When such testimony is elicited by the defendant, as was the case here, there is no such prohibition. See Commonwealth v. Murungu, 450 Mass. 441, 447 (2008) ("Although we limit the Commonwealth to one first complaint witness, the defendant is not so bound"). In an effort to discredit the victim in this case, defense counsel solicited the victim's multiple accounts and probed the various inconsistencies within each retelling. "Because the defendant pursued this strategy, there is no merit to his suggestion on appeal that the complainant[] w[as] impermissibly permitted to testify that [she] had told a number of people about the [assault]." Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 318 n.9 (2008).
b. The first complaint witness. Next, the defendant faults counsel for failing to object to Wilson's testimony that he advised the victim to report the incident and that if she did not, he would and, further, that he then, along with several others, accompanied the victim when she reported the incident to her supervisor.
Wilson testified that he met with the victim at a shopping mall on the day following the incident and advised her that he would report the assault if she did not do so. Wilson further testified that he accompanied the victim, along with another employee, to report the incident to the general manager of the restaurant where the victim and the defendant worked.
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 that 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 particular time."Commonwealth v. King, 445 Mass. at 218-219. "The doctrine, however, is not intended to be used as a shield." Commonwealth v. Arana, 453 Mass. 214, 228 (2009). Accordingly, "[i]t does not . . . prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible." Id. at 220-221. Once defense counsel sought to impeach the victim with her complaints to other individuals, Wilson's testimony was independently admissible to rehabilitate the victim's credibility. See Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009).
From the outset, the defense strategy was to impeach the victim's credibility. In his opening statement, defense counsel announced that "the Commonwealth's entire case . . . hinges on the credibility of a single witness," referring to the victim. Thereafter, the defendant elicited the various accounts in an effort to show that the victim's story was continually changing. In his closing, defense counsel argued that the victim first told a "white lie" to her "crush," Wilson, to get his attention, and that with each subsequent recounting of the story, the lie "snowballed . . . out of her control" into an "awful untruth." Having pursued this strategy, the defendant cannot claim prejudice from the "piling on" of multiple complaint testimony by the Commonwealth. See Commonwealth v. Murungu, 450 Mass. at 442-443. We see no error.
c. Officer Zichella. The parties dispute whether the defendant preserved his objection to the testimony of Saugus police Officer Matthew Zichella. The defendant objected to the challenged testimony on fresh complaint grounds, therefore, we will review for prejudicial error. The defendant contends the officer's testimony, that he became "interested" in arresting the defendant after speaking with the victim, violated the fresh complaint limitation and unfairly cloaked the victim's testimony with "an official belief of the victim by the police." We disagree.
To the extent the defendant argues that Officer Zichella's testimony regarding the victim's demeanor was admitted in error, we disagree. "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. Demeanor evidence may be of particular importance in a case such as this, where the trial devolves to a contest of credibility concerning whether the charged offense, here [indecent assault and battery], occurred." Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 800-801 (2011) (quotation omitted).
While testimony describing the investigative process generally "creates the imprimatur of official belief in the complainant" and therefore "is unnecessary and irrelevant to the issue of the defendant's guilt, and is extremely prejudicial" (see Commonwealth v. Stuckich, 450 Mass. at 457), no such prejudice was created here. Even if we were to assume that the officer's testimony was erroneously admitted, it did not influence the jury, as evidenced by their acquittal of the defendant on the more serious charge of indecent assault and battery on a person having attained the age of fourteen. See Commonwealth v. Bly, 444 Mass. 640, 654-655 (2005).
2. Ineffective assistance of counsel. The defendant's challenges to the multiple complaint testimony fares no better recast as a challenge to the conviction on the basis of ineffective assistance of counsel. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010). We will not second guess counsel's strategic decisions to permit evidence that dove-tailed with his defense and supplied the basis upon which to argue that the victim gave varying accounts and should not be believed. See Commonwealth v. Drew, 447 Mass. 635, 647-650 (2006).
3. Sufficiency of the evidence. Finally, the defendant asserts that the charge of indecent assault and battery lacked evidentiary support and that, therefore, the judge erred in submitting it to the jury. We need not reach the merits of this claim. The jury acquitted the defendant of that charge, rendering the claim moot. See Commonwealth v. Pena, 462 Mass. 183, 186 (2012), quoting from Murphy v. Hunt, 455 U.S. 478, 481 (1982) (in general, "a case becomes moot 'when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome'").
Judgment affirmed.
By the Court (Trainor, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.