Opinion
14-P-1889
02-23-2016
COMMONWEALTH v. DANIEL CORREIA.
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
The defendant was convicted by a jury in the Superior Court of one count of aggravated rape and two counts of contributing to the delinquency of a minor. On appeal he asserts error in the admission of first complaint testimony and the judge's instructions to the jury on that testimony, error in the testimony of a substitute deoxyribonucleic acid (DNA) analyst, and error in the denial of his motion for findings of not guilty.
The defendant was acquitted of two additional counts of aggravated rape. The judge allowed the defendant's motion for a required finding of not guilty with respect to a fourth count of aggravated rape and one count of posing a child.
We recite the facts as the jury could have found them. The events giving rise to the charges spanned two successive evenings on which the defendant, aged thirty-six, hosted and provided alcohol to a group of young people, including the fourteen year old victim, in his apartment. On the first evening the defendant caused the victim to perform oral sex on him. On the second evening the defendant dressed the victim in women's clothes, took pictures of him, and performed anal sex on him. The defendant's former roommate was intermittently present on the second evening; she saw that the defendant and the victim were drinking alcohol, subsequently observed women's clothes and makeup, and later witnessed that the victim was upset. The roommate left the defendant's apartment with the victim, who informed her, while crying, that the defendant had dressed him in drag and had sex with him. The victim then disclosed that he had given the defendant "a blow job" the night before. Eventually she accompanied the victim to Marlborough Hospital, where the victim was examined and an external genital swab was taken.
First complaint testimony. The defendant argues that the roommate's first complaint testimony was impermissibly vague, used to fill substantive gaps in the Commonwealth's case, and was introduced to show the victim's demeanor rather than to corroborate his testimony. We discern no error in the admission of the roommate's testimony, especially on this record where she was also a witness to the attendant circumstances. See Commonwealth v. King, 445 Mass. 217, 218-219 (2005) (First complaint witness may properly testify to "the fact of the first complaint and the circumstances surrounding [it]"). The defendant's argument with respect to the roommate's description of the victim's demeanor is based on the incorrect conclusion that this evidence was hearsay, rather than directly observed by the witness.
This was not a circumstance in which first complaint testimony provided details of the charged conduct that was not otherwise in evidence.
We likewise discern no error in the judge's instruction to the jury regarding first complaint evidence. The judge was not required to use the word "corroborate." Both at the time the testimony was received and in the final charge, the judge gave the instruction approved by the Supreme Judicial Court in King, id. at 247-248. We agree with defense counsel's statement made before the final instruction, "I think it's a good charge."
The trial judge correctly instructed the jury:
"[F]irst complaint [testimony] . . . may [be] consider[ed] only for a specific limited purposes, that is to establish the circumstances in which the complainant first reported the alleged offense and then to determine whether that first complaint either supports or fails to support the complainant's own testimony about the alleged crime.
"You may not consider this testimony as evidence that the alleged assault in fact occurred. The purpose of this first complaint evidence is to assist you in assessing the credibility and the reliability of the complainant's testimony here in court."
Substitute analyst. The defendant argues on appeal that the testimony of a DNA criminologist, Sherri Anderson, who did not perform the laboratory tests of his DNA violated his right to confrontation under the Sixth Amendment to the United States Constitution. There was no objection at trial. The record demonstrates that the testimony of Anderson, the substitute analyst, conformed in all respects to the requirements enunciated by the Supreme Judicial Court in Commonwealth v. Greineder, 464 Mass. 580 (2013). Anderson did not testify directly to the conclusions of the nontestifying analyst. Moreover, none of the data generated by the nontestifying analyst was introduced in evidence. Anderson did testify to the statistical significance of the defendant's known DNA profile matching the minor profile in the DNA mixture found on the victim's external genital swab. However, the Commonwealth established that Anderson did so based on her independent analysis of the probabilities from the summary report she generated herself.
The defendant argues that the results table was inadmissible as testimonial hearsay. The results table was never introduced in evidence.
The jury acquitted the defendant of the aggravated rape charge related to this evidence. See note 1, supra.
The defendant's claim of error stemming from the fact that Anderson reviewed the original STR test results but not those of the YSTR test is likewise unavailing. The Commonwealth did not seek to introduce any reference to the latter in evidence; the defendant chose to introduce the subject of the YSTR test through his own expert.
Sufficiency of the evidence. The defendant asserts that the judge erred in denying his motions for required findings of not guilty as to three charges of aggravated rape. We reserve our discussion to count one of the indictment, as the jury found the defendant not guilty of the other two counts of aggravated rape. The argument fails under the well-established standards by which we review claims of insufficiency. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The victim's testimony, the defendant's admission that the victim came to him for sex, and the corroborating testimony about underlying and associated events by the other witnesses provided ample evidence from which the jury could find the elements of the crime beyond a reasonable doubt. See ibid.
The victim's birth certificate was entered in evidence without objection.
Judgments affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.