Commonwealth v. McCue

Full title: COMMONWEALTH v. RICHARD McCUE.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 18, 2012

11-P-123 (Mass. Apr. 18, 2012)

Opinion

11-P-123

04-18-2012

COMMONWEALTH v. RICHARD McCUE.

Mills

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

Read in context and in light of the instructions given by the judge, even if the unobjected-to aspects of the prosecutor's closing could have been interpreted either to include a comment on the defendant's failure to testify, see Commonwealth v. Pena, 455 Mass. 1, 19 (2009), or as a suggestion that the jury credit the victim for her courage in coming to court, see Commonwealth v. Beaudry, 445 Mass. 577, 586-587 (2005), the defendant has not met his burden of demonstrating that the comments created a substantial risk of a miscarriage of justice.

Under the prior 'fresh complaint' regime, as under the current 'first complaint' doctrine, the victim's full complaint was admissible. See Commonwealth v. King, 445 Mass. 217, 244 (2005), cert. denied, 546 U.S. 1216 (2006) ('We retain that aspect of our current doctrine that permits the first complaint witness to testify to the details of the complaint itself. . . . [W]e continue to be persuaded that by allowing in evidence all of [sic] the details, the doctrine gives the fact finder the maximum amount of information with which to assess the credibility of the . . . complaint evidence as well as the overall credibility of the victim'). Therefore there was no error in the admission of that portion of the victim's therapist's statement that related that the victim stated that she was in fear of the defendant.¹

1 To the extent the defendant raises, for the first time on appeal, the judge's failure to provide a limiting instruction -- something the defendant did not request at trial -- he does so only in support of his argument, which we have rejected, that the admission of this portion of the therapist's testimony was error.

Judgments affirmed.

By the Court (Mills, Meade & Rubin, JJ.),