Opinion
11-P-479
02-15-2012
COMMONWEALTH v. STEVEN A. GARGONE.
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, Steven A. Gargone, appeals from his conviction, after a jury trial, of indecent assault and battery on a person fourteen years of age or older, in violation of G. L. c. 265, § 13H. He contends that a substantial risk of a miscarriage of justice was created by the erroneous admission of evidence that he committed a similar assault on his fourteen year old daughter, of multiple complaints by the victim in violation of the first complaint doctrine, and of his postarrest letter to his family and suicidal state of mind. We affirm.
See generally Commonwealth v. King, 445 Mass. 217, 241-248 (2005).
The defendant also asserts that his trial counsel was ineffective for failing to object or to move to strike all of this evidence. Because the evidence was admissible, any objection or motion to strike would have been futile and cannot constitute ineffective assistance of counsel. See Commonwealth v. Carroll, 439 Mass. 547, 557 (2003), citing Commonwealth v. Cohen, 412 Mass. 375, 392 (1992).
Testimony of assault on daughter. The victim, Etta, testified that the defendant's daughter, her best friend, 'knew what happened' to Etta because she (the daughter) said the same thing had happened to her. This damaging statement was elicited on cross-examination after repeated attempts by defense counsel to get Etta to admit that she had not told her friend of the assault. Part of the defense strategy, which was clear from the cross-examination and reinforced in closing, was to highlight the number of people Etta could have reported the assault to, but, as far as the evidence showed, did not. Because the Commonwealth generally is limited to evidence of a victim's first complaint, this tactic seeks to manipulate the first complaint doctrine into an unfair inference that the victim did not tell various people because the accusation was fabricated later. See Commonwealth v. Dargon (No. 1), 74 Mass. App. Ct. 330, 335-337 (2009), S. C., 457 Mass. 387 (2010). Etta's response was therefore appropriate to the questioning by defense counsel. Furthermore, in response to the questioning, the Commonwealth would have been entitled to inquire on redirect why Etta had not told the defendant's daughter what happened. See id. at 337-338. See also Commonwealth v. Aviles, 461 Mass. 60, 70 (2011) (testimony was 'a significant part of the Commonwealth's response to the defendant's theory of fabrication' and would have been admissible on redirect). There was therefore no error in allowing Etta's testimony to stand.
A pseudonym.
First complaint. The defendant argues that, contrary to the first complaint doctrine, evidence of three different complaints by Etta were admitted: (1) a telephone call to her boyfriend during which she was crying and incoherent; (2) an immediately subsequent text message to her boyfriend stating that the defendant had touched her; and (3) a nonverbal communication to the defendant's daughter after which the daughter 'figured' why Etta was upset and 'knew what happened.' The first two of these, contrary to the defendant's suggestion, are appropriately considered a single complaint. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010) ('Rather, the victim's first complaint . . . consisted of a single, tightly intertwined oral and written communication. The letter was written . . . after the victim was initially unable to verbally articulate her complaint'). As to the third, as stated, supra, the testimony in question was elicited on cross-examination and was admissible for a purpose other than first complaint, i.e., to rebut the defendant's suggestions that Etta's accusations were fabricated by showing why she did not report the assault to the defendant's daughter. See Commonwealth v. Aviles, supra at 69- 71. There is thus no merit to the defendant's contentions regarding first complaint.
Defendant's letter and suicidal state of mind. The defendant argues that an inculpatory letter he wrote to his family while in the police station was not properly the subject of cross-examination, that it, along with evidence that he was suicidal, were statements that were made in violation of his Miranda rights, and were also irrelevant and unduly prejudicial. However, cross-examination is not limited to the scope of direct examination. Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 175 (2011). The letter was a volunteered statement rather than a product of interrogation, and therefore not subject to suppression under Miranda v. Arizona, 384 U.S. 436, 478 (1966). See Commonwealth v. Diaz, 422 Mass. 269, 270-271 (1996). And both the letter, which the defendant admitted was meant as a last will and testament, and the fact that he intended to commit suicide, were admissible to show the defendant's consciousness of guilt, because suicide 'may indicate the efforts of a guilty person to avoid punishment for his crime.' Commonwealth v. Goldenberg, 315 Mass. 26, 33 (1943). See Commonwealth v. Sheriff, 425 Mass. 186, 199 (1997) (suicide attempt relevant as consciousness of guilt); Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 309 (2010) (bequests of property in context of possible suicide were incriminating). The judge gave an appropriate consciousness of guilt instruction in the final jury charge, stating that the letter and the defendant's conduct might indicate feelings of guilt but that there might be numerous reasons for an innocent person to take the same actions. Given the relevance of this evidence, the question of undue prejudice was 'entrusted to the trial judge's broad discretion and [is] not [to be] disturbed absent palpable error.' Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). We discern no abuse of discretion.
Judgment affirmed.
By the Court (Berry, Kafker & Mills, JJ.),