Opinion
12-P-1028
12-28-2012
COMMONWEALTH v. MICHAEL GODFREY
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 was convicted by a District Court jury of indecent assault and battery in violation of G. L. c. 265, § 13H. On appeal, the defendant argues that because a first complaint witness did not testify that the victim specifically complained of an assault, the judge committed reversible error by giving the approved first complaint jury instruction. We affirm.
The jury could have found the following: On December 19, 2007, the defendant approached the victim (who was bagging groceries) and asked her about her Christmas holiday. After the victim responded that Christmas had not taken place, the defendant thrust his pelvis into the center of her buttocks and said, 'Well, here's your Christmas present.'
After a voir dire, the trial judge allowed the Commonwealth's request that the victim's coworker, Wendy Palma, be treated as the first complaint witness. Palma testified that the victim, who was crying and hysterical, had 'said that something had happened and that she was going home.' Palma did not recall anything further about what the victim said. The defendant argues that the trial judge erred by permitting Palma to testify as the first complaint witness, and then compounded that error by labeling Palma's testimony as 'first complaint evidence' in his instruction, because Palma mentioned no specific complaint by the victim. We disagree. The trial judge did not abuse his discretion in allowing Palma to testify as a first complaint witness. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). After conducting a voir dire of the victim, who testified that Palma was the first person she spoke to after the assault, the trial judge 'carefully and thoroughly analyzed' the circumstances and determined that Palma could testify as a first complaint witness. See ibid.
Even though Palma's testimony turned out to be a weaker form of corroboration than is sometimes seen in other cases, that does not mean that the judge erred when he gave the approved and required first complaint jury instruction. The jury was instructed 'to determine whether [Palma's testimony] either supports or fails to support the complainant's own testimony about the crime.' That Palma was unable to recall a specific complaint by the victim was simply one factor for the jury to weigh; it did not disqualify her from being considered the first complaint witness. Nor did it render inapposite the standard first complaint jury instruction.
The judge's instruction followed the model approved by the Supreme Judicial Court in Commonwealth v. King, 445 Mass. 217, 247-248 (2005).
The defendant argues that his trial counsel was ineffective for failing to object to the judge's first complaint instruction. Because it would have been futile to object to a proper jury instruction, the failure to object did not constitute ineffective assistance of counsel. See Commonwealth v. Carroll, 439 Mass. 547, 557 (2003).
The defendant also argues that his trial counsel was ineffective for failing to object to the admission of the victim's 911 call. This argument fails because trial counsel stipulated to the call's admission and then used it strategically in closing argument. See Commonwealth v. Dwyer, 448 Mass. 122, 137 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ('Counsel's decisions will not be viewed as constituting ineffective assistance unless they are 'manifestly unreasonable'').
Trial counsel asked the jury to pay attention to the lack of emotion in the victim's voice during the 911 call.
--------
For the reasons set out above, the conviction is affirmed.
Judgment affirmed.
By the Court (Vuono, Grainger & Wolohojian, JJ.),