Opinion
21-P-115
09-26-2022
COMMONWEALTH v. DEOSDETE FARIA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A Superior Court jury convicted the defendant of assault and battery on a child by means of a dangerous weapon, indecent assault and battery on a child under the age of fourteen, and rape (aggravated by age difference). On appeal, the defendant claims error in the admission of certain medical evidence and in the prosecutor's closing argument. We affirm.
The jury acquitted the defendant of separate charges of the latter two offenses involving the same victim.
Background.
The victim was the defendant's stepdaughter. According to her testimony, the defendant started sexually abusing her when she was eight while the family was living in New Bedford, and continued for the next four years, including after the family moved to Taunton. The victim testified that on at least four occasions, the defendant sexually assaulted her, including by digitally penetrating her vagina.
According to the victim, the defendant also physically assaulted her in April 2016, hitting her with a belt and bruising her face. The victim's mother testified that she heard the victim yell, and found the defendant in the victim's bedroom with the victim on the floor. The victim's shirt was off, and the defendant was holding it in his hand. The defendant told the mother that he was "trying to discipline [the victim] or get her to clean her room."
The next day, the victim ran away, eventually ending up at a Walgreens, where she disclosed the defendant's abuse to the store manager. Testifying without objection as the designated first complaint witness, the store manager confirmed that the victim disclosed how her stepfather had beaten her the night before and how he had "also touched her in private parts." The store manager called the police, who took pictures of the victim and brought her to the hospital.
The defendant's theory at trial was that the victim fabricated the allegations to get back at her mother and the defendant for disciplining her for stealing the mother's cell phone. In support of this theory, defense counsel repeatedly emphasized the lack of physical evidence or testimony from other witnesses corroborating the victim's allegations of sexual abuse. She also aggressively attacked the victim's credibility, arguing, for example, that the "skill of her deception" allowed the victim "to create the story that will get the heat off her and [the defendant] thrown under the bus for good."
Defense counsel claimed in her opening statement that the victim's statements were "the only evidence [the jury] will hear of the alleged sexual assaults" as "[t]here is no physical or forensic evidence tied to those sexual allegations. There is no other corroboration of that story, other than the statements made by [the victim]." In her closing argument, she repeated: "there is no evidence that these episodes of sexual assault occurred, apart from the alleged victim's statements; no evidence gathered forensically and no evidence gathered from any source."
One of the Commonwealth's witnesses was the emergency room doctor. He testified in part as to why no physical examination of the victim's genitals was performed. Specifically, he explained that where there is a sexual assault allegation, such as the victim's "allegation of a digital penetration," the hospital's protocol for children under eleven or twelve is to forgo a genital exam if the alleged assault occurred more than seventy-two hours prior to treatment. Despite having pretrial notice that the doctor would provide this testimony, the defendant raised no objection prior to or at trial; nor did defense counsel explore the issue in cross-examination.
The prosecutor sought approval to admit various hospital records from the victim's emergency room visit through a pretrial motion in limine. The defendant opposed the motion only with respect to references to a belt as the cause of the victim's injuries. The judge reserved judgment until trial. At trial, the parties largely came to an agreement as to what would be redacted. Specifically, they agreed to redact those sections relating to the belt, certain words with legal significance, and references to the perpetrator's identity. Although defense counsel thereafter stated that she "d[idn't] believe" she had any more concerns, the next day she sought additional redactions, objecting to four specific references to the victim's allegations of sexual abuse. After hearing from both parties, the judge redacted two of these four statements, admitting those statements that were "more medically related" to "the reason why there was no . . . physical exam." The defendant did not thereafter object to this resolution.
The following two phrases were admitted: "there was digital penetration" and the "only penetration that's ever been done was digital penetration." The judge ordered two phrases to be redacted: "[Patient] states no sexual intercourse but prior finger penetration" and "for the past four years, he's had inappropriate touching with her."
Based on the allegations that the defendant had sexually abused the victim during the period the family still lived in New Bedford, the jury found the defendant guilty of indecent assault and battery on a child under fourteen, and rape of a child (aggravated by age difference). The jury also found the defendant guilty of assault and battery on a child by means of a dangerous weapon based on the April 2016 incident in Taunton involving the belt. The jury acquitted the defendant of the charges that were based on allegations of sexual abuse in Taunton.
Discussion.
1. Medical evidence.
The defendant contends that the doctor's testimony and medical records violated the first complaint doctrine, served no non-corroborative purpose, and were unfairly prejudicial. We disagree.
Evidence that otherwise is prohibited as "piling on" under the first complaint doctrine is allowed if it is independently admissible. Commonwealth v. Aviles, 461 Mass. 60, 73 n.10 (2011). "Our review whether the evidence served an evidentiary purpose 'separate and apart from the first complaint doctrine' is to determine whether the judge's evidentiary ruling was an abuse of discretion" (citation omitted). Commonwealth v. Santos, 465 Mass. 689, 700 (2013). "[A]fter careful balancing of the testimony's probative and prejudicial value, . . . it is within the judge's discretion to admit the testimony." Commonwealth v. Arana, 453 Mass. 214, 229 (2009).
Because the defendant lodged no objection to the doctor's testimony, our review is limited to whether any error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Dargon, 457 Mass. 387, 394 (2010). There was no error here. Especially where the defendant made an issue of the lack of corroborating physical evidence, the Commonwealth was entitled to explain why no physical examination of the victim's genitals was undertaken. See id. at 400 (approving of nurse's testimony about lack of genital exam, which was "particularly important where defense counsel challenged the victim's credibility in his opening statement" by referencing its absence). Moreover, contrary to the defendant's contention, the fact that the penetration was "digital" is relevant as the doctor testified that whether such exams are performed "depends on . . . what the allegation is."
Here, as in Dargon, 457 Mass. at 401, the "probative value of [the doctor's] independently admissible testimony outweighed any potential prejudice." Where the defendant did not object to the testimony, the judge can hardly be faulted for not explaining why the evidence was admissible.
As to the medical records, the parties dispute whether the defendant's objection to the two unredacted statements was preserved. We need not resolve that issue, because there was no reversible error whether our review be for prejudicial error or instead for whether there was a substantial risk of a miscarriage of justice.
As noted, the judge declined to redact two of the four statements that the defendant challenged after giving each side a chance to marshal their argument based on the relevant case law. There is no indication that the judge misapprehended the governing case law, and we discern no abuse of discretion in his exercise of judgment as to what additional redactions should be made. Moreover, even if the admission of the two statements had been error, the defendant has not demonstrated sufficient prejudice to warrant a new trial. The records went to the jury only after they had heard the unobjected-to -- and proper -testimony from the doctor as to why no genital exam was performed. The records largely duplicated that testimony, and any potential prejudice therefore was minimal at best. See Commonwealth v. Lopes, 478 Mass. 593, 603 n.8 (2018). We are confident that any error in the admission of those records did not sway the jury. See Dargon, 457 Mass. at 396-398 (errors in failing to redact more portions of medical record did not materially influence verdict). See generally Commonwealth v. Hobbs, 482 Mass. 538, 557 (2019) (even with regard to preserved claims of error, reversal not required where error had no or only "very slight" effect). The lack of prejudice here is further supported by the fact that the jury acquitted the defendant of half of the sexual assault charges, including all of the charges based on the alleged incidents that were closer in time to the emergency room visit. See Commonwealth v. Sosnowski, 43 Mass.App.Ct. 367, 372 (1997) ("difficult to find that the admission of the evidence caused prejudice where the jury returned not guilty verdicts on two of the three indictments").
The Commonwealth points out that because the doctor expressly referred to the hospital records during his testimony, the proposed redactions might have served unfairly to undercut his testimony.
2. Closing argument.
The defendant also claims that the prosecutor improperly appealed to the jury's sympathy and drew unfair inferences from the victim's demeanor and willingness to testify to "inflame the jury's passion" and bolster the victim's credibility. Because the defendant did not object to the closing argument, "we review to determine whether the . . . argument [was] improper and, if so, whether [it] created a substantial risk of a miscarriage of justice." Commonwealth v. Espinal, 482 Mass. 190, 204 (2019). We discern no error, much less one creating a substantial risk of a miscarriage of justice.
A prosecutor is allowed to "argue strenuously from the evidence that the Commonwealth's witnesses [are] credible" where "the case revolve[s] entirely around [] credibility" and the defendant claims that a witness has "motives to lie." Commonwealth v. Kebreau, 454 Mass. 287, 304-305 (2009). Moreover, a prosecutor "can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it" (quotation and citation omitted). Commonwealth v. Mitchell, 89 Mass.App.Ct. 13, 28 (2016) . In the context of the defendant's repeated attacks on the victim's credibility, there plainly was no error in the prosecutor's passing references to the victim's struggles in testifying about the abuse and the potential consequences of describing these "embarrassing details" in public.
Judgments affirmed.
The panelists are listed in order of seniority.