Opinion
10-P-1673
03-16-2012
COMMONWEALTH v. SAURABH CHHIBBER.
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
The defendant appeals his convictions on two counts of indecent assault and battery on a person age 14 or over. See G. L. c. 265, § 13H. We conclude that the judge abused his discretion by allowing substitution of the first complaint witness, and reverse.
We apply the standard of review set forth in Commonwealth v. Aviles, 461 Mass. 60, 71-73 (2011), because this case was pending on appeal at the time Aviles was decided. See Commonwealth v. Bonds, 424 Mass. 698, 700 (1997); Commonwealth v. Place, 81 Mass. App. Ct. 229, 232 (2012). Accordingly, we treat the rules previously established under the first complaint doctrine as 'guidelines' governing the judge's exercise of discretion. See Aviles, supra at 73.
We therefore do not address the defendant's other contentions. The claim of violation of the right to public trial is unlikely to recur; the contentions alleging improper multiple first complaint testimony and impropriety in the prosecutor's closing argument are unlikely to arise, if at all, in the same context, given our decision here.
Where feasible, the first complaint witness should be the first person who was told of the sexual assault. See Commonwealth v. King, 445 Mass. 217, 243 (2005). A judge has limited discretion to designate a substitute first complaint witness in unusual circumstances. See id. at 243-244. One of those circumstances occurs when 'the encounter that the victim has with the first person does not constitute a complaint . . . .' Commonwealth v. Murungu, 450 Mass. 441, 446 (2008).
The first person to whom the woman we will call Susan spoke about the incident was her sister. The Commonwealth filed a motion in limine to substitute a witness we will call Bruce as the first complaint witness on the basis that a report of an indecent assault was not made to the sister. The judge held an evidentiary hearing at which Susan testified that she called her sister at work, that the sister was very busy, and that the telephone call was brief. Susan told her sister that the defendant came on to her, that she was upset, that he pushed her onto a porch and tried to kiss and touch her, and that she was crying and screaming while these events took place. The second person to whom Susan spoke was Bruce, who called Susan after being urged to do so by the sister. Susan gave Bruce a more detailed account.
Susan's report to her sister describes a nonconsensual sexual encounter that left her fearful and screaming. This constituted a complaint for purposes of first complaint. The judge's finding to the contrary is clearly erroneous. See id. at 447 (judge properly designated as first complaint witness the person to whom the victim, crying, showed 'hickey' on her neck and said she was scared, but did not describe defendant's participation; complaint sufficiently described a nonconsensual sexual encounter). The judge also abused his discretion by requiring a description of the rape. The exact details of the sexual assault need not be described, even in a rape case, see id. at 446, and here, although the defendant was originally charged with rape, the charge was reduced to an indecent assault and battery. More to the point, to impose such a requirement defeats the purpose of the first complaint doctrine by substituting the 'best' complaint for the 'first' complaint. See ibid. (Commonwealth may not 'pick and choose among various complaint witnesses to locate the one with the most complete memory, the one to whom the complainant related the most details, or the one who is likely to be the most effective witness'). See also Commonwealth v. McGee, 75 Mass. App. Ct. 449, 501-502 (2009). The final reason given by the judge, that the sister might be biased in favor of Susan, also constitutes an abuse of discretion. Her sister did not testify at the voir dire hearing, and there was no factual basis in the record for this conclusion. Moreover, this exception to the first complaint rule is applicable only when the first complaint witness is biased against the alleged victim. See Murungu, 450 Mass. at 446.
Both parties urged the judge to hear from Detective Curelli, who had also interviewed Susan. The defendant told the judge that Curelli's notes in fact stated that Susan told her sister 'everything.' Nonetheless, the judge refused to permit Detective Curelli to testify at the motion in limine and thereby frustrated the purpose of voir dire. Compare Murungu, supra at 446- 447; Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008); Commonwealth v. McGee, supra at 500. Detective Curelli then testified at trial that he spoke to the sister, and that 'there was talk that' Susan reported that the defendant had attempted to pull Susan's pants down and touch her. This description of the complaint would have been highly relevant to the substitution issue, and it was an abuse of discretion to cut short the voir dire.
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Whether viewed as preserved error or analyzed for a substantial risk of miscarriage of justice, see Commonwealth v. Aviles, 461 Mass. 60, 66 (2011), the error requires a new trial. 'The trial in this case presented a duel of credibility . . . .' Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 545 (2006). The defendant denied that the encounter took place, there were no witnesses to the alleged assault, and no medical or forensic evidence. Bruce was a friend of the defendant, a fact the prosecution relied upon in its closing. The testimony of Bruce was 'substantially more detailed,' see Commonwealth v. McGee, supra at 501-502, than the sister's would have been, and may have been accepted more readily by the jury both because of its detailed nature and his friendship with the defendant. We cannot say that the error 'did not influence the jury, or had but a very slight effect,' Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), or that we have no 'serious doubt whether the result of the trial might have been different had the error not been made.' Commonwealth v. Ewing, supra at 544, quoting from Commonwealth v. Acevedo, 446 Mass. 435, 450 (2006). The judgments are reversed and the verdicts are set aside.
So ordered.
By the Court (Grasso, Fecteau & Sullivan, JJ.),