Opinion
11-P-51
04-25-2012
COMMONWEALTH v. CEFERINO MONZON.
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
In the defendant's direct appeal, we vacated the defendant's convictions on indictments for indecent assault and battery against the middle of his three daughters. See Commonwealth v. Monzon, 51 Mass. App. Ct. 245 (2001). Thereafter, the defendant asserted additional claims of error in a postappeal motion for a new trial. As the defendant raised none of the claims in his direct appeal, they are waived; we accordingly assess whether any error gives rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
We affirmed the defendant's convictions on indictments for rape and indecent assault and battery against his oldest daughter, and on an indictment for indecent assault and battery against his youngest daughter. For the sake of both privacy and convenience, we shall employ the same pseudonyms for the three daughters as employed in our opinion in the defendant's direct appeal.
1. Fresh complaint. There is no merit to the defendant's contention that the evidence at trial included impermissible fresh complaint testimony, for substantially the reasons explained in the Commonwealth's brief at pages eighteen to thirty-four. Eliza's testimony concerning the audiotape she recorded in her grandmother's presence was not impermissible fresh complaint, as her grandmother could have testified (as part of her fresh complaint testimony) to the disclosures Eliza made in the grandmother's presence for the purpose of recording them on tape. Eliza's testimony concerning the fact that she made complaints to others, without details of the abuse complained of, was not inadmissible. See Commonwealth v. Peters, 429 Mass. 22, 28 (1999); Commonwealth v. Edward, 75 Mass. App. Ct. 162, 167 (2009). 2. Expert vouching. As the Commonwealth explains in its brief at pages thirty-seven to forty-three, the testimony offered by Dr. Brandt did not paint a portrait of hypothetical victims of abuse that so closely resembled the victims as to invite the jury to find an identity between them. Contrast Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 57-59 (2003). In any event, as we shall discuss below, the evidence of the defendant's abuse of Eliza was sufficiently strong as to limit any potential concern for prejudice; it certainly creates no substantial risk of a miscarriage of justice.
There is likewise no merit to the defendant's claim of error in other testimony he characterizes as impermissible hearsay, for the reasons explained in the Commonwealth's brief at pages thirty-four to thirty-seven. Eliza's statement that her mother 'said that she seen white stuff inside my vagina' was not offered for its truth, but instead served to explain why her mother took her to a clinic for medical attention. In any event, the testimony was cumulative of the mother's testimony concerning her observations, to the same effect, and of the testimony of the medical professionals who examined Eliza. Detective Correa's testimony concerning certain statements made by Eliza's mother likewise was not admitted for the truth of such statements, and accordingly was not hearsay.
3. Influence of Carol's incompetent testimony. In the defendant's direct appeal, we concluded that the trial judge should have ruled Carol incompetent to testify, and reversed the defendant's convictions on the indictments alleging abuse of her. The defendant now contends that Carol's improperly admitted testimony must have influenced the jury's consideration of the evidence on the indictments alleging abuse of Eliza and Pamela. For the reasons that follow, we conclude that Carol's testimony creates no substantial risk of a miscarriage of justice with regard to the indictments alleging rapes and abuse of Eliza, or the indictment alleging indecent assault and battery of Pamela.
As a threshold matter, we are not entirely convinced by the Commonwealth's suggestion that the issue was adjudicated in the defendant's direct appeal, and hence is barred from reconsideration in the present appeal. We have examined the parties' briefs from the direct appeal, and find no indication that the issue was raised in that appeal. Nor does this court's opinion in that appeal address the issue. The fact that this court considered the entire record of the trial in assessing the disposition of the appeal does not mean that the court weighed the potential influence of Carol's testimony (and the other evidence concerning the defendant's alleged abuse of her) on the jury's consideration of the defendant's guilt as to the alleged abuse of Eliza and Pamela. In an abundance of caution, we assume for purposes of this decision that the defendant is correct in his assertion that this court did not consider the potential impact of Carol's testimony on the jury's assessment of the defendant's guilt as to the charges involving Eliza and Pamela. (We note, however, that the court did consider at least one issue in the prior appeal that the defendant did not raise [as to sentencing]. See Commonwealth v. Monzon, supra at 255-256.)
As the Commonwealth observes, the substance of Carol's testimony did not overlap in any way with the testimony or other evidence relating to the charges involving the rapes and abuse of Eliza. In its entirety, Carol's testimony comprised only eleven pages of transcript, compared with 118 pages of testimony by Eliza and an additional seventy pages of testimony of medical testimony in support of Eliza's allegations. The medical evidence in particular furnished powerful and independent forensic corroboration of Eliza's allegations. The overwhelming focus of the argument at trial was directed at the evidence of the rapes and abuse of Eliza; if anything, the prosecutor's closing sought to suggest similarities between the pattern of the defendant's abuse of Eliza and the onset of his abuse of Carol and Pamela, rather than making any suggestion that the testimony given by either Carol or Pamela furnished any corroboration for the truthfulness of Eliza's testimony. On the basis of the record of the trial, we are satisfied that the effect of Carol's testimony on the jury's evaluation of the defendant's guilt on the charges involving Eliza was not 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error.' Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).
In addition to the medical testimony, there was additional fresh complaint testimony that served to corroborate Eliza's allegations.
Contrary to the defendant's attempts to minimize the import of the medical evidence at trial, the evidence showed that the defendant was diagnosed with type 2 (genital) herpes on July 23, 1993, based on the presence of clusters of dried crusts on his penis. Eliza was diagnosed with type 2 herpes on May 7, 1994, based on cultures taken from active papules on her vagina. Thereafter, on May 18, 1994, the defendant tested positively for herpes, though he had no active lesions at the time. Though the blood test administered to the defendant in May of 1994 could not conclusively establish whether the defendant had type 1 or type 2 herpes, his diagnosis with type 2 herpes in mid-1993, coupled with Eliza's testimony that his abuse of her progressed from fondling to penile-vaginal rape shortly after she turned nine in February of 1993 and her diagnosis with genital herpes in May of 1994, served as exceptionally strong corroborative support for her allegations of rape. Moreover, though the defendant sought at trial to impeach Eliza's testimony by pointing to her initial descriptions of anal (rather than vaginal) rapes, Eliza was consistent throughout both her trial testimony and her out-of-court statements in identifying the defendant, and no one else, as her assailant.
We reach the same conclusion as it relates to the potential effect of Carol's testimony on the jury's consideration of the charges involving Pamela. As we have observed, the overwhelming focus of the trial, both in the presentation of evidence and the emphasis of the parties' closing arguments, was on the more serious charges involving Eliza. The evidence concerning the defendant's abuse of Eliza described a pattern that began with fondling and later (when she reached the age of nine) progressed to penile-vaginal rape. Though the prosecutor argued that there was a pattern in the defendant's behavior, and his argument implicitly included Carol's testimony concerning her abuse by the defendant, the point was brief in the context of the entire argument. The bulk of the argument, in fact, was directed to the defendant's credibility (focusing on specific lies in which he had been caught), Eliza's credibility, the medical evidence, and the defense theory that the social workers had prompted the children to lie. Reference to Carol's testimony in support of the defendant's pattern of abusive behavior was minimal in context.
'A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result of the trial might have been different had the error not been made.' Commonwealth v. Randolph, supra at 297 (internal quotation marks and citation omitted). 'Errors of this magnitude are extraordinary events and relief is seldom granted.' Ibid. In the present case, in light of Eliza's and Pamela's testimony, and the evidence in the entire case considered as a whole, we consider it unlikely that Carol's testimony materially influenced the jury's verdict with regard to the indecent assault and battery charge involving Pamela on which the defendant was convicted.
We note that the jury acquitted the defendant of one of the two charges of indecent assault and battery involving Pamela, illustrating that they were able to and did discriminate among the various elements of the evidence and charges. See Commonwealth v. Richardson, 423 Mass. 180, 186-187 (1996).
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Order denying motion for new trial affirmed.
By the Court (Cypher, Green & Trainor, JJ.),