Opinion
10-P-3
09-06-2011
COMMONWEALTH v. MICHAEL JOHN LATINO.
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
Michael John Latino, the defendant, was convicted of five counts of statutory rape of a child, rape of a child with force, two counts of indecent assault and battery of a child under age fourteen, and dissemination of matter harmful to children. He was acquitted of five other counts of similar tenor. All counts involved allegations of sexual intercourse and other sexual activity with the young daughter of the defendant's former girlfriend.
At trial, the victim, her mother, and an investigating police officer were the Commonwealth's primary witnesses. Nine other Commonwealth witnesses were called to buttress their testimony. The Commonwealth presented a robust case, arguing that the defendant engaged in a series of sexual acts with the victim over approximately a two year period. Here, the defendant's claims of error fall into three categories. None of the claims is persuasive and we affirm.
First of all, the defendant argues that the trial judge erroneously permitted the victim's mother, who was the first complaint witness, to testify about the information she related to others after her daughter told her of the defendant's abuse. The defendant claims that the mother's testimony about what she told others violates strictures the Supreme Judicial Court placed on use of first complaint testimony in Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006), and Commonwealth v. Stuckich, 450 Mass. 449, 445-457 (2008). But those cases prevent admission of multiple reports by the victim. In this case, the mother was the only witness who testified about a report by the victim, and her testimony involved only a single report. That testimony lay well within the boundaries the cited cases establish.
The mother's summary testimony about what she told the police did not include substantive details and was admissible to show how the police became involved in the investigation. See Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 495-496 (2009). Her testimony about what she told her coworkers and the defendant's father should not have been admitted but, given the enormous strength of the Commonwealth's case and the jury's manifestly careful consideration of the evidence, we are convinced that the error was harmless. See Commonwealth v. Gonzales, 59 Mass. App. Ct. 622, 629-630 (2003); Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 806 (2009).
Second, the defendant argues that the trial judge erroneously permitted the mother and an investigating officer to testify about a statement the victim made approximately two years after her initial disclosures. The statement concerned the defendant's use of a particular blanket during one of the assaults. Later, forensic evidence was recovered from the blanket. The victim's statement, which was made before she learned the results of forensic testing, was offered on redirect examination to rebut defense counsel's claim on cross-examination that she had made up a story about the blanket after learning of the forensic results. The victim's claimed lack of credibility was the centerpiece of the defense, so the judge did not abuse his discretion by concluding that the statement was material. See Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 495-496 (2009); Commonwealth v. Aviles, 77 Mass. App. Ct. 389, 393-94 (2010) (evidence relevant to whether a victim fabricated accusations is properly admissible). While defense counsel could have sought a restriction limiting the jury's use of the statement, he did not do so.
Third and finally, the defendant argues that the prosecutor committed reversible error during his summation. There was no objection to the summation, so reversal would be appropriate only if any overreaching created a substantial risk of a miscarriage of justice. See Commonwealth v. Christian, 430 Mass. 552, 564 (2000); Commonwealth v. Bedland, 436 Mass. 273, 289 (2002). Here, the verdicts add to the difficulty the defendant faces in establishing such a risk, for he was acquitted of five serious charges, including two counts of statutory rape of a child. See Gonzales, 59 Mass. App. Ct. at 629-630; Grinkley, 75 Mass. App. Ct. at 806.
That said, the prosecutor did not impermissibly proffer his own personal opinion when he 'suggested' to the jury that the victim was credible or when he 'suggested' that the defendant was not. See Commonwealth v. West, 44 Mass. App. Ct. 150, 151 (1998) (impermissible for an attorney to interject his personal opinion into his closing argument). The prosecutor's argument would have been beyond question had he used the traditional word 'submit,' but, in this context, there is little difference between 'submit' and 'suggest.' See Commonwealth v. Silva, 401 Mass. 318, 329 (1987).
The prosecutor's statements that the victim and her mother had 'no motive to lie' is closer to the line, but it is fair for a prosecutor to argue that a witness has 'no motive to lie' when the argument emerges from the evidence, and in so arguing, he does not shift the burden of proof. Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). Viewed in context, the comments did not shift the burden and were a legitimate response to the blistering attack on the victim's credibility the defendant had presented from the outset.
The prosecutor's comments about the defense strategy and the defense counsel were error, however. See Commonwealth v. Weaver, 400 Mass. 612, 615-616 (1987); Commonwealth v. Awad, 47 Mass. App. Ct. 139, 141-142 (1999). The prosecutor could have made the same substantive point without impugning defense counsel's motives and he should have done so. Nonetheless, the substantive points the prosecutor made -- that the inferences defense counsel sought to have the jury draw through questions he asked and evidence he stressed were both unwarranted and disproved by the Commonwealth's evidence -- were firmly anchored in the record and the prosecutor's overreaching did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Grasso, McHugh & Wolohojian, JJ.).