Opinion
No. 12–P–321.
2013-01-23
COMMONWEALTH v. Ronald M. HARRIS.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This an unusual case. At trial, detailed testimony was given by a police officer of the complaining witness's complaint to him and of his immediate reaction to it, which included an aggressive search for the defendant in the middle of the night. The complaining witness also testified that, before speaking to the police officer, she told her husband of the alleged indecent assault and battery, which the Commonwealth asserts was a surprise to the prosecutor.
In any event, neither the parties nor the judge made any reference to the first complaint doctrine, notwithstanding the fact that Commonwealth v. King, 445 Mass. 217 (2005), was decided more than four years prior to trial. The Commonwealth did not designate a first complaint witness. See Commonwealth v. Arana, 453 Mass. 214, 229 (2009) (stating that testimony repeating the fact of a complaint is inadmissible when it is not “specifically and properly designated as first complaint testimony” and not independently admissible). The defendant did not object to the complaint testimony, nor did the defendant seek a limiting instruction. Nor did the experienced trial judge raise sua sponte any issue with respect to the testimony or the need for an instruction. There was no objection below. We thus must review the alleged errors—allowance of second complaint testimony, and a failure to give any limiting instruction—to see whether they created a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967). The defendant also brings an alternative claim alleging ineffective assistance of counsel, which is essentially what this claim boils down to. The familiar Saferian standard requires both that trial counsel's failures fell measurably below what might be expected from an ordinary fallible lawyer, and that his failures denied the defendant a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If there is no substantial risk of a miscarriage of justice, the ineffective assistance claim also fails. See Commonwealth v. Randolph, 438 Mass. 290, 295–296 (2002).
The defendant has not brought a motion for a new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006) (stating our preference that claims for ineffective assistance of counsel be brought in the first instance in the trial court). Consequently, we have before us no affidavit of trial counsel nor any other evidence indicating a reason for the failure of the parties to address the first complaint doctrine. Likewise, we have no evidence that might illuminate the transcript of the somewhat confused testimony of the defendant, who has a brain injury, some of which appears to be quite damning, but some of which might indicate confusion or suggestibility. On the basis of the record before us, we do not think the defendant has met his burden to demonstrate a substantial risk of a miscarriage of justice (or by the same token, that he was deprived of a substantial ground of defense).
Judgment affirmed.