Opinion
No. 09–P–676.
2012-08-27
COMMONWEALTH v. Zolton MARTIN.
By the Court (BERRY, COHEN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of five counts of statutory rape of a child in violation of G.L. c. 265, § 23; one count of assault with intent to rape a child in violation of G.L. c. 265, § 24B; and one count of incest in violation of G.L. c. 272, § 17. This is a consolidated appeal from the judgments of conviction, joined with the appeal from the denial of the defendant's motion for a new trial.
Based on the evidence presented, the jury could reasonably have been persuaded beyond a reasonable doubt that, over approximately four to five years, as charged in the indictments relating to each victim, the defendant serially sexually molested and/or raped both his daughter, N.M., and his stepdaughter, S.C. The sexual abuse of the stepdaughter occurred during the years she was in middle and high school. The sexual abuse of N.M. also spanned her middle and high school years and only ended when she left the family home to live with her boyfriend.
The defendant's theory of the case was that S.C. and N.M. fabricated the claims of sexual abuse because the girls resented the defendant's strict discipline and because the defendant disapproved of their boyfriends. Consistent with this theory, at trial, defense counsel sought to highlight, through cross-examination of the witnesses, that the victims had not disclosed the sexual abuse earlier. It was suggested to the jury that this was indicative of recent fabrication.
In response, the Commonwealth sought to elicit—beyond the limited description of molestation provided by the two designated first complaint witnesses—greater detail in other descriptions by the victims of the escalating sexual abuse and rapes.
Defense counsel also highlighted this theory in his closing argument. See note 8, infra.
In a principal challenge in this appeal, the defendant claims that the additional references to the victims' reports of sexual abuse and the rapes—including most particularly the victims' statements to the mother and an aunt—were violations of the first complaint rule. The Commonwealth counters that the testimony of these witnesses was justified under the rationale of Commonwealth v. Kebreau, 454 Mass. 287, 294 (2009), in that “the disclosures involved multiple and increasingly more serious assaults during a lengthy period”—in this case, a period spanning several years. In addition, the Commonwealth argues that certain of the disclosures, as described herein, had independent evidentiary significance beyond implication of the first complaint doctrine. See Commonwealth v. Dargon, 457 Mass. 387, 399–400 (2010).
For the reasons stated herein, and applying the standard of Commonwealth v. Aviles, 461 Mass. 60, 73 (2011), we determine there was neither any abuse of discretion in the trial judge's rulings nor a prospect that a substantial risk of a miscarriage of justice occurred. Accordingly, we reject the defendant's contention that reversal is warranted because of alleged violations of the first complaint doctrine.
In addition to the first complaint issue, the defendant also contends in this appeal that reversal is required despite the absence of objection because the prosecutor's closing included improper phrases which described the evidence as “uncontroverted” and referred to the “humiliat [ion]” the victims would feel in testifying (see part 3, infra ). The defendant also argues that negative comments about him by several witnesses constituted inadmissible opinion evidence (see part 2, infra ). We conclude that neither claim provides any basis for reversing the defendant's convictions.
1. Analysis concerning first complaint. The trial evidence reflects that the victims only gradually disclosed all of what had happened to them, first disclosing only that each had been molested and sexually touched by the defendant. It was as time passed that the two victims began to disclose more of what the defendant had done to each of them, including his oral, digital, penile, and anal rapes.
There were two designated first complaint witnesses, one for S.C.,
As to S.C., the designated first complaint witness was a friend. That friend's testimony was limited to disclosure of molestation, not rape. Specifically, the friend testified that S.C., who was nervous, told her over the phone that “her stepfather molested her and she was scared to tell her mother.” S.C. did not disclose anything about sexual intercourse or rape.
Following the testimony of each of these designated first complaint witnesses, the trial judge gave an instruction in accord with Commonwealth v. King, 445 Mass. 217, 247–248 (2005), cert. denied, 546 U.S. 1216 (2006).
As to N.M., the first complaint witness was her boyfriend, Casimir, who testified that N.M. was having nightmares and was awakening during the night. When Casimir initially asked N.M. what was wrong, she told him that her father had molested her, and only after further questioning by Casimir did she disclose the rapes. According to N.M.'s testimony, it was when she was pregnant that she finally disclosed to Casimir that her “daddy [had] raped [her] and [she was] having dreams of it happening again and again and again.”
The defendant contends that it was error—in violation of the first complaint rule—to allow the mother and an aunt (in addition to the two designated first complaint witnesses) to refer to other reports of sexual abuse, including the disclosures of rape.
Having reviewed the record, we conclude the defendant's contentions that such alleged first complaint violations require reversal of his convictions are unavailing for several reasons.
The defendant, in a cursory manner, without detail, also mentions another aunt (second aunt), as having testified in violation of the first complaint doctrine. There was no objection. Nor do we discern a first complaint issue in the second aunt's testimony that S.C. appeared “really drawn” and that the two had a conversation, the substance of which was not referenced.
First, there was a valid basis for the introduction of the testimony of these witnesses, under the same rationale recognized in Aviles, 461 Mass. at 67–71, that is, this testimony “was properly admitted to rebut the defendant's suggestion that [the victims] had fabricated [their] accusations against him.” Id. at 67. So viewed, this evidence “was properly admitted for the independent purpose of rebutting the inferences raised by defense counsel's inquiries—inquiries designed to suggest that [the victims] fabricated [their] allegations against the defendant,” id. at 70–71, because he was an overly strict disciplinarian and/or did not like their boyfriends. This principle applies to both the disclosures to the mother and to the aunt. Moreover, as in Aviles, such evidence was “necessary for a fair and accurate understanding of the Commonwealth's case.” Id. at 71. See Dargon, 457 Mass. at 399–400, and cases cited. The mother's testimony describing what the victims had said to her must be considered in the context of the ensuing confrontations between her and the defendant after the disclosures. While these confrontations yielded, at certain points, partial denials by the defendant, they also produced incriminating admissions by the defendant.
Second, the disclosures in this case fall within the confines of Commonwealth v. Kebreau, supra. The trial record reflects a pattern that “involved multiple and increasingly more serious assaults during a lengthy period,” with the victims S.C. and N.M. only gradually disclosing the escalation in the defendant's sexual abuse up to the serial rapes. 454 Mass. at 294. The pattern of gradual disclosures applies to the victims' statements to both the mother and the aunt.
Third, in certain instances, e.g., the testimony of the aunt, the additional disclosures followed the defendant's opening the door in cross-examination. Thus, as in Aviles, “although the challenged testimony about [S.C.'s] disclosure to her [aunt] was not admissible as first complaint evidence, it became relevant and independently admissible evidence during her cross-examination.” 461 Mass. at 69.
In sum, considering all of these factors and applying the Aviles abuse of discretion standard, the judge's rulings on the admission of the testimony of these witnesses was not an abuse of discretion. To the contrary, the judge carefully evaluated the facts both at the original motion in limine hearing and during trial, as the testimony at issue was being presented. The record reflects that the judge was well aware of, and well informed concerning the confines of the first complaint doctrine and the need for balancing of probative versus prejudicial value in determining the admissibility of the subject evidence. Under Kebreau, 454 Mass. at 296, “Any determination concerning first complaint testimony is fact-specific and requires, in the first analysis, a careful evaluation of the circumstances by the trial judge,” and such an analysis was done in this case. With full review of the record, we see no abuse of discretion in the judge's rulings on the admissibility of this evidence.
Indeed, even under the preAviles standard, this case would present neither prejudicial error, had there been objection, nor, with respect to those parts of the testimony not objected to, a substantial risk of a miscarriage of justice. Thus, we need not resolve the varying perspectives of the defendant and the Commonwealth on which of the references may or may not have been the subject of an objection. However, from all that appears in the record, in very many instances, there was no objection interposed.
2. The purported opinion evidence. The defendant contends that the judge erred in allowing the mother, the two aunts, and N.M.'s boyfriend, Casimir, to express their ill feelings toward the defendant. There was no objection to the testimony. Thus, we review under the substantial risk of a miscarriage of justice standard.
We discern no error. Virtually none of the testimony was offered as opinion testimony or as commentary on the credibility of the victims or the defendant. Rather, the testimony was embedded in the context of conversations between the victims and the defendant, in the confrontations with the defendant, and in admissions that he had engaged in sexual activity. The judge so found in denying the new trial motion. As the judge found, “[T]estimony regarding witnesses' feelings toward the defendant was admissible for purposes, inter alia, of providing context for conversations with defendant, and to rebut reliance by defendant on adult inaction over time as evidence that the victims were not credible.”
3. The prosecutor's closing. We have reviewed the prosecutor's closing. In the main, the closing was well stated
and was structured as a fair response to the defense closing.
We note that, as marshaled in the prosecutor's closing, the statement of evidence was strong and was accurately based on the trial evidence. The closing referenced the defendant's various admissions of inappropriate sexual activities (but yet denials concerning the rapes) with S.C. and N.M. as well as his threats to kill others and himself, if his sexual exploitation of the victims were to be reported to law enforcement. The prosecutor's closing noted the implicit corroboration in the trial evidence based on the similarity of the sexual assaults committed on the two girls—coupled with corroboration concerning the defendant's use of lubricants and his request that the two girls erotically touch his chest and nipples—a practice his wife corroborated.
There was no objection. The two isolated phrases cited by the defendant, out of twenty-two pages of transcript—that the evidence was “uncontroverted” and how “humiliating” it must have been for the victims to testify and reveal the particulars of what had happened in the many sexual assaults by the defendant—although better left unspoken did not give rise to a substantial risk of a miscarriage of justice. In these respects, we agree with the trial judge, who, in reviewing the prosecutor's closing in connection with the defendant's new trial motion, noted that the closing neither vouched for the victims nor invited undue sympathy for them.
In closing, defense counsel argued that the victims wanted to get back at the defendant, and that both S.C. and N.M. had a motive to “sink their father, get him out of their lives and do whatever they have to do to get him in jail.” Defense counsel reiterated that S.C. did not like the defendant, and argued that she therefore lodged a “false accusation” against him; counsel also argued that the mother did not contact authorities after S.C. had disclosed the abuse because the mother did not believe S.C.
4. Motion for new trial. The essential claims in the defendant's new trial motion are directed at the same issues addressed above, i.e., alleged violations of the first complaint rule, improper opinion evidence, and a challenge to the prosecutor's closing. Further, the defendant raises an overarching claim of ineffective assistance of counsel in the new trial motion.
The trial judge issued a decision addressing each claim of error. The judge's analysis in denying the new trial motion is fully sustainable and is in accord with what we have determined in this decision.
Judgments affirmed.
Order denying motion for new trial affirmed.