Opinion
11-P-2142
10-02-2015
COMMONWEALTH v. TIMOTHY GARCIA.
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
After a jury trial, the defendant was convicted on four counts of rape of a child and five counts of procuring alcohol for a person under the age of twenty-one. His subsequent motion for a new trial was denied. In this consolidated appeal, the defendant argues, inter alia, that he was deprived of effective assistance of counsel; that the prosecutor improperly shifted the burden of proof regarding certain expert evidence; that the judge erred in admitting prejudicial prior bad acts evidence; and that his motion for a new trial was improperly denied.
The judge allowed the defendant's motion to revise and revoke two of the four counts of rape, dismissing so much of the charges as alleged that the rape was forcible rape, leaving instead convictions for statutory rape.
Background. The jury heard the following evidence. On August 1, 2009, the thirty year old defendant attended his niece's thirteenth birthday party at the home of his sister; the thirteen year old victim, a friend of the defendant's niece, was also present, as were several other young friends of the niece and the victim. During the day, the young girls took part in various birthday party activities, including a cookout. The party continued into the evening, with the girls, two boys from the neighborhood, and the defendant, sitting around a backyard fire pit; the other adults still at the party were inside the house.
At some point, the defendant and his niece walked about ten to fifteen feet away from the fire pit over to the corner of the yard; they were having a conversation, but could not be heard from where the others were seated at the fire pit. The niece then called the victim over to join the conversation. The defendant said that, since his niece was "not leaving the house and it's her birthday, she should have fun and [the defendant] figured [he] would get [the girls who were staying overnight] alcohol."
The defendant told the victim that his niece had told him that the victim liked to have fun, and the victim responded, "Yes, I do, I'm pretty sure every teenager does."
A short time later, the defendant left the party and then returned with some small bottles of alcohol (described as "nips") for the teenagers; the girls were in the front yard playing "manhunt" when the defendant called them over to his car to give them the alcohol. Most of the other girls did not want to drink the alcohol, but the victim drank "two and a half, three [nips] . . . good enough to get her drunk." After the victim became "out of it," the defendant suggested that the group of girls, including the victim, take a walk around the block. During the walk, the victim vomited, and then laid down on the street. Toward the end of the walk, the defendant gave the victim a "piggyback" ride back to the house.
The group returned to the house at approximately one or two o'clock in the morning, entering through the back sliding doors; the victim went into the family room and laid down on one of the couches. She woke up later, nauseated and confused, and in a different room (the "second living room") at the front of the house. Her head was in the defendant's lap. The defendant told her that the other girls were in the "other room" and his niece was in her bedroom.
This part of her testimony was corroborated by the defendant's brother-in-law, who testified that, when he woke up to tend to his baby at 4:30 A.M., he saw the defendant seated on a loveseat with the victim in the "front family room."
The defendant then sexually assaulted the victim on the couch in the front living room, kissing her, touching her body over her clothes, penetrating her vagina with his fingers, then performing oral sex on her. The victim was nervous and confused when this happened, especially because she had earlier told the defendant she was only thirteen and, by implication, too young for him.
The defendant twice had said to the victim, "Baby, will you go out with me?" and she had responded, "no, because I am 13 years old."
The defendant then "guided" the victim into the bathroom, where he removed her clothing, forced her to perform oral sex on him, then laid her on the bathroom floor, and using his hands to hold her down by her shoulders, had vaginal intercourse; he ejaculated on the right side of the victim's chest and stomach. The victim then returned to the same couch and fell asleep. When her mother picked her up from the house around noontime the next day, she went directly to St. Luke's hospital.
Another girl at the sleepover testified that, when she got up to go to the bathroom during the night, the bathroom door was closed, but "shaking"; she was unable to open the door with the handle. She then saw the defendant leave the bathroom, and saw the victim "crawl from the bathroom" and onto the couch in the front living room.
The medical examination and resulting laboratory work confirmed the presence of sperm cells from the victim's vaginal and rectal swabs and on her body in the area of her right chest. The defendant's deoxyribonucleic acid (DNA) was consistent with the profile generated from the sperm cells in the vaginal swab.
Discussion. Ineffective assistance. The defendant first argues that trial counsel was ineffective, creating a substantial risk of a miscarriage of justice. Specifically, he contends counsel failed to file a motion to suppress pictures seized from the defendant's home pursuant to what he describes as an overly broad search warrant; counsel should not have agreed to amend four of the five indictments relating to the procuring alcohol for minors charges; and counsel failed to object to the admission of unredacted medical records from the physical examination performed on the victim.
a. Motion to suppress. "[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Because the defendant challenges the motion to suppress on appeal, rather than prior to trial, he "also must prove that, had such a motion been timely filed the Commonwealth would not have been able to prove that" the pictures seized from a briefcase in the defendant's room were covered under the specifics of the warrant. Id. at 93.
The defendant first argues that the search warrant was overbroad; specifically, in his view, allowing the police to search for "evidence pertaining to July 2, 2009[,] and August 2, 2009[,]" gave them too much discretion and permitted a "general" search of the defendant's home, which he shared with his parents. This argument was not made to the motion judge and is therefore waived.
The defendant was successful in suppressing the photographs in a separate, subsequent prosecution involving another victim. The argument that the search warrant was a general warrant was not made at that time either.
The defendant also argues that seizing the photographs was beyond the scope of the warrant and therefore improper. We disagree. The affidavit described in specific detail both the victim's allegations about what the defendant had done at the birthday party, as well as additional allegations made by a second thirteen year old girl whom the defendant had assaulted in the residence that he shared with his parents. In addition, the affidavit recited that the second victim showed the police officer who applied for the warrant, an email message in "MySpace" from the defendant. As a result, the facts contained in the affidavit, and the reasonable inferences drawn therefrom, provided the necessary showing that the "chat logs and/or e-mail logs and digital images" sought in the application for a warrant were likely to provide evidence of the crimes committed by the defendant, and that they would be found in his home and on his laptop computer and cell phone. See Commonwealth v. Tapia, 463 Mass. 721, 725-726 (2012).
The challenged photos were found in a briefcase. Even though the search warrant did not expressly authorize a search of the briefcase, the police had a "lawful right to access" it in search of electronic equipment capable of securing volatile data that could have been located in the briefcase. Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306 (2010). Once the police opened the briefcase, the disputed pictures were in plain view.
The two photos at issue showed a young girl, "estimated to be between eleven and thirteen years old. She [was] not the victim. In the photos she [was] wearing a low cut tank top and short shorts." A third photo showed a "scantily clad" young woman, who was over eighteen. As the motion judge found, given the information that the police had at the time, including the fact that the defendant had denied "being interested in thirteen year old girls," it was reasonable for them to conclude that the photos were "plausibly related to criminal activity of which the police [were] already aware." Id. at 306-307. The photographs could reasonably have been considered relevant to the investigation as potential impeachment evidence. In light of all of the circumstances, we are satisfied that "any motion to suppress would have been futile." Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 237 (2011).
Finally, we are not persuaded by the defendant's argument, made in his motion for a new trial and again on appeal, that the Commonwealth is "estopped" from arguing that the photographs were lawfully seized, because a judge in the District Court allowed the defendant's motion to suppress those same photographs in a separate assault case against a different victim, determining that the seizure was illegal. The doctrine of collateral estoppel does not apply under these circumstances, because, among other reasons, as the pictures were not fundamental to the indecent assault and battery case tried in the District Court, the Commonwealth did not have a similar incentive to appeal that decision. Compare Commonwealth v. Stephens, 451 Mass. 370, 375, 378 (2008).
b. Amended indictments. When the indictments were read at the beginning of the trial, it became apparent that four of the five indictments relating to the procuring of alcohol for minors were incorrect. Although the statute was cited correctly, the wording in the body of the indictments charged the defendant with underage possession of alcohol. The judge amended the charges on those indictments and trial counsel did not object. This was error and the Commonwealth agrees.
Indictment numbers 2009-1042-5 through 2009-1042-8.
The caption and the body of the indictments were in discord; therefore, the text governs, making the indictments legally deficient. Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 458-459 (1999). Moreover, the judge lacked jurisdiction to amend the substance of the indictments. See Commonwealth v. Roby, 462 Mass. 398, 403 (2012), quoting from Commonwealth v. Miranda, 441 Mass. 783, 787 (2004) ("[A] judge has discretion to allow an amendment of an indictment if the amendment is one of form, not substance, and if the amendment will 'not result in prejudice'"). See also Mass.R.Crim.P. 4(d), 378 Mass. 894 (1979). As a result, the convictions on those indictments must be vacated.
c. Medical records. The victim's medical records from St. Luke's Hospital on the day after the assault were admitted at trial, without objection, as exhibit one. The defendant now argues that admission of the unredacted medical records was improper because the nurse's report included a statement by the victim of what she claimed had occurred during the incident.
"Section 79 of G. L. c. 233 permits the admission in evidence, in the judge's discretion, of certified hospital records 'so far as such records relate to the treatment and medical history' with the proviso that 'nothing therein contained shall be admissible as evidence which has reference to the question of liability.'" Commonwealth v. Dargon, 457 Mass. 387, 394 (2010), quoting from Commonwealth v. Dube, 413 Mass. 570, 573 (1992). Because § 79 is construed liberally, a "record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability." Dargon, supra, quoting from Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998)
The defendant contends that a notation contained on one page of the records should have been redacted. The notation consists of the victim's stated complaint for her presence in the emergency room: "had some alcohol and was raped by friend[']s uncle[;] remembers everything." In reviewing the disputed record, it appears that the notation made was a recitation of the "victim's descriptions of the acts she claims occurred constitut[ing] 'fact-specific references to the reported cause of [her] injuries' made for purposes of obtaining medical treatment." Dargon supra at 396, quoting from DiMonte, supra. The challenged statement was the victim's own account of her medical history, not a diagnosis by a third party. As such, it was admissible under § 79G to explain what prompted the medical examination. The Commonwealth had the burden of proving both the defendant's identity and penetration; the medical examination, providing as it did independent evidence of sexual activity and the defendant's DNA, was therefore relevant and admissible to counter the defendant's theory that he had no sexual contact with the victim and that he was never alone with her. We see no abuse of discretion in admitting the unredacted statement. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
Expert testimony. The defendant next claims that the prosecutor unfairly shifted the burden of proof when questioning one of the Commonwealth's expert chemists. Specifically, on redirect examination, the prosecutor asked, "Now would defense attorney have an opportunity to conduct the same type of analysis?" The defendant's objection was overruled, and the prosecutor continued, "Would there be enough left for somebody to be able to take a look at it by protocol? [The witness answered,] "Yes, I do not consume all of my sample in analysis." During cross-examination, the defendant had attempted to undermine the validity of the Commonwealth's DNA evidence by confirming with the witness that many more than fifteen alleles (the standard number utilized according to State police laboratory protocol) could be looked at to generate a more precise comparison of two DNA samples. The Commonwealth argues that the prosecutor was then properly permitted to elicit testimony that additional, untouched DNA samples remained in order to "bolster the credibility of the witness[] by showing that [the chemists] did not try to hide anything." Commonwealth v. Gaynor, 443 Mass. 245, 271 (2005).
The witness also agreed that during the analysis process DNA cells are amplified and multiplied, modifying the original DNA sample, to reach the number of alleles required.
The questions probably should not have been asked, as they implied that, if there was any flaw in the expert's analysis, it was the defendant's responsibility to find it, thereby shifting the burden of proof on that evidence. See Commonwealth v. Conkey, 430 Mass. 139, 147 (1999). Commonwealth v. Gaynor, supra, cited by the Commonwealth, is distinguishable because, as the defendant argues, in Gaynor, defense counsel had opened the door in cross-examination by eliciting testimony that some of the evidence had not been sent for testing. As a result, "the defendant did offer expert testimony as to some evidence, vitiating any effect the testimony may have had." Ibid. That was not the case here. However, this was a fleeting two-question reference in a much longer trial and the evidence against the defendant was very strong. In addition, the judge provided a cautionary instruction to the jury after the Commonwealth's opening statement, and a general instruction during his final charge that it is the defendant's burden to call witnesses or to present any evidence whatsoever. The jurors are presumed to follow the judge's instructions. See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014). We are persuaded that any error was therefore harmless.
Prior acts. The defendant argues that the judge erred in admitting, over objection, highly prejudicial materials relating to the defendant's MySpace account, specifically, a screen shot of the information contained in his account profile, and a copy of a message sent to his niece's thirteen year old friend -- the other victim described in the search warrant affidavit. He contends that the reading of his MySpace profile describing him as "overstimulated" was prejudicial, because the jury would conclude that, based on his described mood, he had likely attacked the victim.
The defendant's MySpace screen name was listed as "Timmy Go-Go," and his account profile showed his "mood" as "over-stimulated." The message sent to the thirteen year old girl read "hey babe . . . want to hangout some time (sic) soon???"
The Commonwealth "may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purpose of showing his bad character or propensity to commit the crime charged," but such evidence may be admitted for other purposes, "such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b) & note (2015). "Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.'" Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting from Commonwealth v. Fordham, 417 Mass. 10, 23 (1994).
Here, the judge ruled that the relevance of the snapshot of the defendant's MySpace page was not outweighed by its prejudicial nature, and that it was admissible for the sole purpose of impeaching the defendant's statement to the police that he was not interested in thirteen year old girls. The two photos seized from the defendant's briefcase were similarly relevant and admissible for the same reason. Further, the judge charged the jury that the only purpose for which this evidence could be used was to impeach the defendant's statement that he had no interest in thirteen year old girls. See Commonwealth v. Butler, 445 Mass. 568, 574 (2005), quoting from Commonwealth v. Barrett, 418 Mass. 788, 794 (1994) ("To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time"). While the question whether the photographs were more prejudicial than probative is a close one, falling perhaps at the outer edge of an appropriate exercise of discretion, under all of the circumstances of this case, we discern no abuse of that discretion.
The defendant made this statement during a recorded interview after his arrest, and after he was given Miranda warnings.
As to the defendant's motion for a new trial, we agree with the motion judge's conclusion that, "[g]iven the overwhelming evidence of guilt in this case, the detailed testimony of the victim, corroborated in many ways by witnesses present in the home during the incident, the defendant's own statements and testimony[,] and the DNA evidence, . . . there is no suggestion that justice may not have been done." Additionally, apart from the improper amendments to the indictments, any error was harmless. We vacate the judgments on amended indictments 2009- 1042-5, 2009-1042-6, 2009-1042-7, and 2009-1042-8, set aside the verdicts, and dismiss those indictments. The case is remanded for resentencing accordingly. The remaining judgments are affirmed, as is the order denying the defendant's motion for a new trial.
Based on the foregoing, we conclude that the judge did not abuse her broad discretion in denying the defendant's motion for new trial.
We have carefully considered all of the arguments in the defendant's brief. To the extent that any are not addressed herein, it is because we saw no error.
So ordered.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 2, 2015.