Opinion
14-P-956
12-18-2015
COMMONWEALTH v. VANNY MEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, Vanny Men, following a trial by jury which resulted in his conviction of several crimes, including aggravated rape of a child and rape of a child. For the reasons that follow, we affirm.
Background. The defendant was the boyfriend of the victim's mother. We summarize the facts as the jury could have found them, reserving some details for discussion, infra.
The defendant lived with the victim's mother. He also served as the mother's caretaker, because she had suffered a stroke that rendered her unable to function independently. On September 22, 2012, while the victim and her brother were visiting their mother, the defendant touched the victim's breasts, digitally penetrated her, and held a knife to her neck, threatening to kill her and her mother if she reported the abuse.
Discussion. Because the defendant failed to object at trial to the asserted errors, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). See also Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 493-494 (2012).
1. First complaint evidence. The defendant argues that the judge impermissibly admitted evidence of the victim's complaints of abuse beyond her brother's first complaint testimony. The first person to whom a victim discloses sexual abuse may testify about the disclosure "to refute any false inference that silence is evidence of a lack of credibility on the part of rape" victims. Commonwealth v. King, 445 Mass. 217, 243 (2005). See Mass. G. Evid. § 413 (2015). Additional evidence relating to the crime against the victim is admissible if it has an alternative basis for admission, serves a separate function, and does not unfairly prejudice the defendant. See Commonwealth v. Arana, 453 Mass. 214, 229 (2009).
The testimony of which the defendant now complains served a probative function apart from corroboration. For example, the father's testimony regarding the demeanor of the victim and her brother upon returning from their mother's apartment provided evidence of their states of mind following the incident. Such evidence is relevant where, as here, the defendant claimed that the victim's testimony was a fabrication. See id. at 225.
The victim's father testified that when the victim and her brother returned from their mother's house, "they [were] sad . . . and they [said] something to me," which caused him to "call someone," resulting in the arrival of a police officer.
Also, in testifying to what they told the defendant about the victim's complaint, Lowell police Detective Marshall and Kathleen Michaud of the Department of Children and Families were not testifying to the fact or the substance of the victim's complaint. Rather, their testimony provided context for subsequent testimony regarding their interviews with the defendant. See Commonwealth v. Carmona, 428 Mass. 268, 272 (1998) (where party introduces part of statement, other portions are admissible to clarify context of admitted portion and to prevent fragmented and misleading narrative). See also Commonwealth v. Place, 81 Mass. App. Ct. 229, 232 (2012) (testimony of ten additional disclosures of defendant's abuse was excessive for context purposes). Furthermore, defense counsel cross-examined the victim regarding the substance of her complaints to Marshall before the Commonwealth called Marshall as a witness. We find no error and therefore no substantial risk of a miscarriage of justice with regard to the testimony of these witnesses.
Marshall testified that prior to interviewing the defendant, Marshall informed the defendant that the victim alleged that he touched "her boobs and her private part," and "threatened her with a pocket knife to hurt her and her mother, [to] kill her and her mother." Michaud affirmatively responded to the prosecutor's question, "Did you tell Mr. Men what the allegations were?"
The witnesses' testimony is not the type of "back door" additional complaint evidence proscribed in Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008), that unfairly prejudices a defendant by repeating details of alleged abuse and enhancing the victim's credibility.
2. The defendant's apology. The defendant next argues that the judge should have excluded evidence of his apology to the victim on hearsay grounds. The defendant's apology, offered against him by the Commonwealth, is nonhearsay. Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998). See Mass. G. Evid. § 801(d)(2)(A) (2015). Even if the defendant is correct in describing the statement as ambiguous in terms of its character as an apology, it would still be admissible because it was for the jury to resolve its character and to decide what weight should be given to the evidence. See Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 344 (1999).
The defendant's reliance upon Commonwealth v. Irene, 462 Mass. 600 (2012), is misplaced because the identity of the declarant in the instant case was not at issue.
3. Vouching. The defendant next alleges error in the admission of the defendant's statements regarding the truthfulness of the victim and the first complaint witness.
At trial, Marshall testified that during the investigation, the defendant stated that the brother "wouldn't lie" and that he (the defendant) did not know why the victim would fabricate allegations of sexual assault. Michaud testified that during her interview with the defendant, he stated that the victim "is not a liar."
"Whether a witness believes that another witness was either 'truthful' or 'lying' is irrelevant." Commonwealth v. Ward, 15 Mass. App. Ct. 400, 402 (1983). The jury, not the witness, determines the weight and the credibility of a witness's testimony. Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). We therefore conclude that Michaud's testimony to the effect that the defendant stated that neither the victim nor her brother would make up stories was improper. However, both exchanges the defendant complains of were brief. The testimony was not a direct comment on the truthfulness of any of the details of the crime. There was no objection. When we examine this error in light of the entirety of the evidence against the defendant, particularly the testimony and the circumstances surrounding the defendant's apology to the victim, we conclude that the error did not materially influence the verdict.
4. Closing argument. The defendant argues that the prosecutor deprived the defendant of a fair trial when, during her closing argument, she improperly vouched for the victim and her brother. Although a prosecutor may not argue that "a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify," there is no "categorical prohibition" against a prosecutor's argument that a witness has no motive to lie. Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). Where the defendant has attacked the credibility of a witness, a prosecutor is entitled to respond. Commonwealth v. Chavis, 415 Mass. 703, 713 (1993).
During the trial, the defendant suggested that the victim and her brother fabricated the allegations against the defendant because they were unhappy about the defendant's relationship with their mother. With witness credibility clearly in issue, the prosecutor was entitled to respond as she did. The prosecutor's statement, "[T]hese children had so much to lose and nothing to gain by telling the truth," did not, as the defendant argues, suggest to the jury that the witnesses were credible merely because they testified. It did not express the prosecutor's personal opinion that the witnesses were truthful. Contrast Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005). Read in context of the prosecutor's entire closing argument, this statement clearly refers to the caretaker services the defendant provided to the mother, and the gifts the defendant offered the victim, which the children and their mother were to lose if the defendant were convicted. See Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 542 (2012). See also Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 325 (2001). In addition, the trial judge instructed the jury, both at the beginning and the end of trial, that the closing arguments of counsel were not to be considered evidence. The jury are presumed to have followed the judge's instructions. Commonwealth v. Degro, 432 Mass. 319, 328 (2000). We see no error, and therefore no substantial risk of a miscarriage of justice.
5. Ineffective assistance of counsel. Lastly, the defendant argues that trial counsel's failure to object to the defendant's claimed errors constituted ineffective assistance of counsel. "[O]ur case law strongly disfavors raising ineffective assistance claims on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). Because we conclude that with regard to all but one of the unpreserved issues a timely objection would not have been successful, and that the evidence admitted in error did not materially contribute to the verdict, we cannot conclude that his counsel performed deficiently, depriving the defendant of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 18, 2015.