Opinion
No. 15–P–733.
06-03-2016
COMMONWEALTH v. Omer O. CORMIER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Omer O. Cormier, was convicted of two counts of indecent assault and battery on a child under fourteen years of age. On appeal, the defendant claims that (1) the admission of testimony concerning multiple reports of sexual abuse to family members violated the first complaint doctrine, (2) certain testimony required a mistrial, and (3) the judge erred in allowing the witnesses to comment on the defendant's credibility. We affirm.
1. First complaint evidence. The victim, the defendant's twelve year old granddaughter, testified that she first reported the sexual abuse to her older brother. The judge allowed the brother to testify as a first complaint witness, which the defendant does not challenge on appeal. See Commonwealth v. King, 445 Mass. 217, 241–248 (2005), cert. denied, 546 U.S. 1216 (2006). In addition to the first complaint testimony, the victim testified that her brother told her other brother about what had happened, and that they all went together to speak to her mother. The victim, her mother, and her grandmother further testified about immediately confronting the defendant with the victim's report of sexual abuse. The defendant argues that this additional testimony, some of which he objected to, violated the first complaint doctrine because it presented the jury with evidence of multiple complaints. See Commonwealth v.. Stuckich, 450 Mass. 449, 456–457 (2008) ; Mass. G. Evid. § 413 (2016).
Defense counsel objected to the mother's testimony only.
The first complaint doctrine “does not ‘prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible.’ “ Commonwealth v. Santos, 465 Mass. 689, 700 (2013), quoting from Commonwealth v. Arana, 453 Mass. 214, 220–221 (2009). “Our review whether the evidence served an evidentiary purpose ‘separate and apart from the first complaint doctrine,’ Commonwealth v. Dargon, 457 Mass. 387, 400 (2010), is to determine whether the judge's evidentiary ruling was an abuse of discretion.” Commonwealth v. Santos, supra. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
Here, the challenged testimony served to provide a narrative context for evidence concerning the defendant's demeanor when confronted about the allegation. The demeanor evidence was relevant to rebut the defense theory that the victim's account of the event had been fabricated. See Commonwealth v. Santos, supra at 700–701 (although not the first complaint witness, mother's testimony about victim's appearance and demeanor admissible to rebut defense theory of fabrication). Moreover, the challenged testimony was brief, repeated no details of the initial event, and was not cumulative of the brother's first complaint testimony. See id. at 701. Because the evidence was independently admissible, and the defendant was not unduly prejudiced, the judge committed no abuse of discretion.
2. Motion for a mistrial. On direct examination, the victim's mother and grandmother both spontaneously testified that when they confronted the defendant, he told them he had been previously accused by others of indecent touching. In each instance, the judge immediately struck the testimony and instructed the jury to disregard it. The defendant moved for a mistrial after the mother's testimony, which the judge denied. “Whether to declare a mistrial is within the trial judge's discretion.” Commonwealth v. Kilburn, 426 Mass. 31, 37 (1997). Here, the witnesses' testimony came as a surprise and was not elicited by the prosecutor. Indeed, the statements were not responsive to the questions posed. The testimony was not detailed and was immediately stricken. Under these circumstances, we discern no abuse of discretion in the denial of the defendant's motion. See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005) (jurors “are presumed to follow instructions to disregard testimony”).
The defendant's reliance on Commonwealth v. Anestal, 463 Mass. 655 (2012), is misplaced. In Anestal, the judge did not sustain the defendant's objections to the challenged testimony, much less instruct the jury that the testimony was to be stricken from the record. Id. at 656.
3. Opining on the defendant's credibility. The defendant contends that several witnesses were permitted to opine about his guilt. While it is true that a witness may not comment on the credibility of other witnesses' testimony, Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), here, the witnesses testified about the defendant's appearance, demeanor, and conduct upon being confronted with the victim's allegations. Such evidence is relevant as to any consciousness of guilt displayed by the defendant and is accordingly admissible. See Commonwealth v. Roberts, 378 Mass. 116, 125 (1979).
We have carefully considered each of the arguments presented in the defendant's brief. To the extent that any particular claim has not been addressed specifically herein, we have deemed it to be without merit and not warranting discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgments affirmed.