Opinion
No. 15–P–867.
10-07-2016
COMMONWEALTH v. Eli GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Eli Gonzalez, was convicted of two counts each of aggravated rape of a child, rape of a child by force, and indecent assault and battery on a child under the age of fourteen. On appeal, the defendant primarily contends that the judge: (1) abused her discretion in admitting some of the defendant's statements made to the police and excluding others, and (2) erred in limiting his cross-examination of the victim's sister (sister). We affirm.
1. Motion in limine. The Commonwealth filed a motion in limine prior to trial seeking to admit certain statements the defendant made to two police detectives about his relationship with the victim and the sister, which the judge allowed in part. By excluding some of his statements, the defendant claims the judge denied him the right to present a defense and to confront the “evidence” against him. More specifically, he claims that, in violation of the doctrine of verbal completeness, the judge improperly admitted inculpatory statements, but omitted other statements that would have cured or explained the admitted statements. We are not persuaded.
The statements the defendant contends should have been admitted are that he was “shocked” and “speechless” when he learned that the victim said that he had touched her; that he thought there was something “wrong” with the sister; that he thought the sister might be behind the victim's accusations; that the sister stated the defendant ruined the sister's relationship with her mother, hated the defendant, and would do “whatever it takes” for him to leave the house; and his vigorous denial after his arrest of being a child rapist or having inappropriately touched the victim.
“Evidentiary rulings on a motion in limine are ‘left to the sound discretion of the trial judge, and we review only for an abuse of that discretion.’ “ Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting from Commonwealth v. Arrington, 455 Mass. 437, 441 n. 6 (2009). Determinations of relevancy and “whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's discretion and are not disturbed absent palpable error.” Spencer, supra, quoting from Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).
Under the doctrine of verbal completeness, “ ‘[w]hen a party introduces a portion of a statement or writing in evidence,’ a judge has the discretion to ‘allow[ ] admission of other relevant portions of the same statement or writing which serve to “clarify the context” of the admitted portion.’ “ Commonwealth v. Crayton, 470 Mass. 228, 246 (2014), quoting from Commonwealth v. Aviles, 461 Mass. 60, 75 (2011). The doctrine does not open the door for the admission of the entire statement or document even if relevant, Aviles, supra, rather, statements may be admitted if they “qualify, explain, contradict, or put into context any of the segments introduced by the Commonwealth.” Commonwealth v. Leftwich, 430 Mass. 865, 872 (2000).
Here, the admitted statements were relevant to the defendant's access to the victim and his opportunity to commit the crimes charged. They also corroborated certain witness statements. However, the admitted statements were not so incriminatory as to leave the jury with the impression that the defendant was admitting guilt. As for the excluded statements, some were related to alleged witness bias and not even an assertion of innocence. Many were also cumulative. For those reasons, none fall within the doctrine of verbal completeness, as they were not required to clarify or better contextualize the statements introduced by the Commonwealth. Other portions of the excluded statements were layered hearsay. In sum, the statements were properly excluded as inadmissible, self-serving hearsay, not offered by a party opponent. See Commonwealth v. Eugene, 438 Mass. 343, 350 (2003) (“The defendant's statement, when offered by [him] to prove the truth of the statement's contents, is inadmissible hearsay”).
For example, in his statements to the police detectives, the defendant corroborates an incident, testified to by the victim, wherein the victim got into an argument with her mother about whether she could wear shorts to school on a certain day.
The facts of Crayton distinguish it from the present case. Unlike in Crayton, here there was no “significant risk that a reasonable jury might have understood the [admitted] statements the defendant made to the [police] as an implied admission to having [committed the crime].” Crayton, supra at 247.
The defendant also contends that, under the doctrine of curative admissibility, he should have been permitted to present testimony that he denied the accusations. This doctrine “allows a party harmed by incompetent evidence to rebut that evidence only if the original evidence created significant prejudice.” Commonwealth v. Ruffen, 399 Mass. 811, 813–814 (1987). As no incompetent evidence was admitted, the doctrine does not apply here.
2. Limit of cross-examination. The defendant sought to introduce evidence of an alleged false accusation of sexual abuse made by the sister—not the victim in this case. After a voir dire, the judge determined that there was no evidence that the allegation was false and accordingly ruled it inadmissible. “To open the gate to cross-examination, the evidence of falsity of an accusation must be solid, as when the accusing witness has recanted the other allegation.” Commonwealth v. Wise, 39 Mass.App.Ct. 922, 923 (1995). See Commonwealth v. Hicks, 23 Mass.App.Ct. 487, 490–492 (1987). There is no reason why the same principle would not apply with equal force to a witness who is not the victim.
The defendant sought to use that allegation to impeach the sister and to rehabilitate the victim's mother's credibility. As the evidence was inadmissible, and the defendant was provided the opportunity to otherwise fully cross-examine both of those witnesses, there was no error.
The defendant further claims that the prosecutor improperly exploited the absence of that excluded evidence in her closing argument. In closing argument, prosecutors may “marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Pimental, 454 Mass. 475, 483 (2009), quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). That unpreserved claim fails as the prosecutor's closing was amply supported by the evidence and the inferences drawn therefrom.
To the extent that we do not address the defendant's other contentions, in them that R., 62 Mass. “they ‘have not been overlooked. We find nothing requires discussion.’ “ Department of Rev. v. Ryan App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).