Opinion
10-P-1637
03-13-2012
COMMONWEALTH v. WILLIAM E. HENDERSON.
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 appeals from jury verdicts of guilty on two counts of indecent assault and battery on a person fourteen years old or older. His principal argument is that the trial judge abused his discretion in allowing the testimony of a substitute first complaint witness and that, in addition to that witness's testimony, the Commonwealth offered other inadmissible complaint evidence, essentially 'piling on' to the first complaint. The defendant also contends that the Commonwealth 'elicit[ed] testimony and . . . argue[d] that the Defendant's homosexuality predisposed him to commit the crimes for which he was charged,' thereby violating his State and Federal constitutional rights. We affirm.
At a pretrial voir dire hearing, the victim, who was fifteen years old at the time of the assault, testified that the first person he told that the defendant had assaulted him was Gamble Wiseman, his mentor; he knew that conversation took place at a Christian rock festival, although he could not remember the date. When asked if he remembered telling a police officer that the person he told was [a young friend], he responded, 'Not until you just said that I remembered. . . Something is telling me Gamble, but I mean if I said four years ago it was [the friend], then it was probably [the friend].' In answer to a question from the judge, the victim responded that he had no independent memory of which person he told first. However, he also testified that he told both of them essentially the same thing. Citing Commonwealth v. Murungu, 450 Mass. 441 (2008), the judge ruled that Wiseman could testify as the Commonwealth's first complaint witness and noted the defendant's objection 'for the record.'
The judge held a full hearing; his thoughtful findings show that he carefully considered the evidence and relevant case law. There was doubt about which person was actually the first complaint witness, although the evidence showed that the testifying witness was either first or second. The victim believed that he told the same version to each person, although he had a better memory of what he told the witness who testified. In addition only one witness was permitted to testify. We perceive no abuse of discretion. See Commonwealth v. Murungu, 450 Mass. at 446 (In an appropriate circumstance 'a judge . . . may substitute a later complaint witness as the first complaint witness. The substituted witness should in most cases be the next complaint witness, absent compelling circumstances justifying further substitution').
In Commowealth v. Aviles, 461 Mass. 60 (2011), the court recently articulated the standard we are to follow in reviewing a trial judge's decision to allow first complaint evidence. 'The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence. . . Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.' Id. at 73.
The defendant next argues that, in addition to submitting a first complaint witness who was not first, the Commonwealth offered other evidence of additional complaints, 'piling on' in violation of the parameters established for first complaint evidence. This evidence falls into several different categories.
First, the victim testified to a series of conversations that followed his disclosure to Gamble: Gamble spoke to Jeremy Cali, a youth leader at a church attended by the defendant and the victim, then the victim spoke to Cali, then the victim spoke to his father. There was no testimony about the substance of any of the conversations, although the jury reasonably could have inferred that each conversation involved repeating the victim's allegations against the defendant. Defense counsel's initial two objections were overruled. No reason was given for the objections; they appear to have been made on hearsay grounds. If, in fact, counsel intended the objections to raise the issue of first complaint, in order to preserve the issue for appeal, it would have been necessary to bring that issue to the judge's attention. See Mass.R.Crim.P. 22, 378 Mass. 892 (1979); Commonwealth v. Lenane, 80 Mass. App. Ct. 14, 19 (2011) (''The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence which has no place in the trial.' Abraham v. Woburn, 383 Mass. 724, 726 n.6 (1981). 'When objecting, counsel should state the specific ground of the objection unless it is apparent from the context.' Commonwealth v. Marshall, 434 Mass. 358, 365 [2001]'). Thereafter, the judge encouraged the prosecutor to skip intervening steps and, eventually, the victim testified, without objection, that he and his father had gone to the police after Cali and the victim spoke with his father.
None of this additional testimony was brought to the judge's attention in the pretrial hearing and therefore, the judge's statement that the objection was noted and the defendant's rights were saved is not applicable to this testimony. Compare Aviles, supra at 67.
In addition, Wiseman, the first complaint witness, testified, without objection and without elaboration, that he related the victim's allegation to another friend. He also testified, without objection, that he spoke to Jeremy Cali, 'breaking down' after he heard a speaker encouraging the audience to report sexual abuse. Similarly, Cali testified, without objection, that he informed the victim's father and the church pastor about the victim's allegations; he also described Wiseman's demeanor as 'visibly upset and crying' when he spoke with him.
The defendant does not argue that trial counsel was ineffective for failing to object to this testimony; rather he maintains that the initial objections that he raised during the victim's testimony were sufficient to preserve the issue in each other instance. We disagree. Nowhere in this record did the defendant, the trial judge, or the prosecutor address the issue of whether any of this testimony about these various conversations, elicited either without or with very little elaboration or detail, amounted to a violation of the first complaint doctrine.
As the case law on first complaint has developed, it appears that even the fact of a conversation subsequent to the first complaint, without any of its substance, now implicates that doctrine, at least in the context of the report of a sexual assault. See Commonwealth v. Aviles, 461 Mass. at 68; Commonwealth v. Arana, 453 Mass. 214, 223 (2009); Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008). Under that analysis, had there been a proper objection on first complaint grounds, much of this testimony likely would have been excluded.
However, the sole issue at this two-day trial was the credibility of the alleged victim. The issue of whom he told and when and how was explored in painstaking detail by both sides. During his opening statement, defense counsel pointed out to the jury that the victim was in the defendant's youth group and 'There are people at this youth group to talk to about these instances. [The victim] didn't tell a soul.' In his cross-examination of the victim, counsel asked him who else he told and then asked him what he told his friend (the person he now argues was the actual first complaint witness). He also asked the victim what the friend's reaction was to his disclosure. Defense counsel then asked the victim if he spoke with his father about the incident. Cross-examining Wiseman, the first complaint witness, defense counsel asked him if he believed the victim and when he believed him, prompting the answer 'I started to believe him after I started to cry when I told Jeremy and after Bill didn't respond to my text message.'
The judge sustained the Commonwealth's objection to the question.
The judge then interrupted and instructed the jury that the witness's belief was irrelevant; he reminded them that it was the Commonwealth's burden to prove the defendant's guilt.
Overall, defense counsel focused a significant part of his cross-examination on the uncertainty in the victim's testimony regarding the person to whom he first reported the incident, the contradictions in the timing of the first complaint and the discrepancy between the victim's trial testimony and statements made by the victim contained in the police report. 'Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant.' Commonwealth v. Revells, 78 Mass. App. Ct. 492, 499 (2010), quoting from Commonwealth v. McCoy, 456 Mass. 438, 851 (2010). Evaluating the evidence offered by the Commonwealth in the context of the entire trial, we do not see a substantial risk of a miscarriage of justice.
Jeremy Cali testified that he repeated the victim's allegations in a conversation with the defendant. The defendant objected to this testimony, on hearsay grounds, but the objection was properly overruled. See Commonwealth v. Kebreau, 454 Mass. 287, 300 (2009), ('The testimony was not offered as first complaint testimony, but rather to provide context for the defendant's admissions at the meeting').
Cali also testified, without objection that he sent two text messages to the defendant, asking to meet with him and with the victim. The defendant now argues that this testimony was part of the 'piling on' of additional complaint evidence. We are not persuaded.
Finally, the defendant complains that the trial judge allowed testimony that the defendant's homosexuality predisposed him to commit the sexual assault on the victim. During opening statements, the prosecutor informed the jury that they would hear testimony that the defendant inappropriately told the victim of his struggles with gay pornography.
In fact, the victim testified that the defendant told him that he struggled with gay pornography; the defendant admitted to Jeremy Cali that he made such a statement, and defense counsel explored the issue when he cross-examined Cali. In addition, the defendant testified that he had discussed pornography with the fifteen-year-old victim. In her closing argument, the prosecutor suggested that the testimony relating to the defendant's conversation with the victim about his addiction to pornography illustrated the 'defendant's intentions' toward the victim.
The defendant now contends that the Commonwealth was arguing that the crime committed was 'intimately linked with [the defendant's] emerging gay identity and his acknowledged struggles with homosexual feelings.' Rather, as the Commonwealth argues, the record supports the admissibility of this evidence that the defendant discussed pornography with the victim to illustrate the inappropriate relationship between this twenty-two-year-old church mentor and the fifteen-year-old victim, a relationship that culminated in the defendant's unwanted sexual assault on the victim.
The page cited in the defendant's brief refers to a discussion between defense counsel and the court pertaining to the defendant's argument to exclude testimony of his 'confession' made to Cali regarding defendant's addiction to pornography based on the priest-penitent privilege (G. L. c. 233, § 20A).
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Judgments affirmed.
By the Court (Green, Hanlon & Carhart, JJ.),