Opinion
No. 11–P–1056.
2013-03-20
COMMONWEALTH v. Sopheap OK.
Id. at 73.
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a Superior Court jury trial, the defendant was convicted of three counts of rape and one count of stalking.
The jury also convicted the defendant of threatening to commit a crime. However, the trial judge dismissed the conviction as duplicative of the stalking conviction.
Discussion. 1. First complaint testimony. On appeal, the defendant argues that three of the Commonwealth's witnesses provided impermissible complaint testimony in violation of the first complaint doctrine. See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010) (“Under the first complaint doctrine, only one complaint witness, generally the first told, is permitted”). In Commonwealth v. Aviles, 461 Mass. 60, 71 (2011), the Supreme Judicial Court revisited the first complaint doctrine and concluded that “the scope of appellate review of decisions on the admissibility of first complaint evidence should be modified.” The court held:
“Rather than considering the first complaint doctrine as an evidentiary ‘rule,’ it makes greater sense to view the doctrine as a body of governing principles to guide a trial judge.... The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence.... [A]n appellate court shall review that determination under an abuse of discretion standard.”
Id. at 73.
In this case, the Commonwealth designated the victim's friend and coworker, Rany Nath, as the first complaint witness. On appeal, the defendant argues that the following three witnesses provided impermissible complaint testimony in violation of the first complaint doctrine: (1) Robert Langlois (the victim's coworker), (2) Sara Khun Leng (the director of victim services at the Lowell police department), and (3) Dawn Beauchesne (Lowell police officer). At trial, in an effort to discredit the victim, defense counsel sought to expose inconsistencies between the victim's reports to the aforementioned witnesses and the victim's trial testimony. For example, in his opening statement, defense counsel told the jury that they would “hear that [the victim] made statements to a large number of police officers and civilian witnesses.... [W]hat you will see is that every single time she told her story, she would leave one part out, or she'd add another part.”
“Where, as here, the defendant's strategy entailed highlighting who the [victim] told and did not tell about the incident and when [she] did so, there was no error in permitting the Commonwealth to later elicit testimony on the same topic.” Commonwealth v. Parreira, 72 Mass.App.Ct. 308, 318 (2008). “In each instance ... the testimony was properly received not as first complaint, but as a fair response to the defendant's cross-examination of the victim and his over-all defense strategy.” Commonwealth v. Saunders, 75 Mass.App.Ct. 505, 509 (2009). The first complaint doctrine “is not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth's case-in-chief.” Id. at 510, quoting from Commonwealth v. Arana, 453 Mass. 214, 228–229 (2009). In this case, through his extensive cross-examination of the victim on the nature and timing of her various reports, defense counsel effectively “opened the door” to this now contested testimony; accordingly, we conclude that the judge did not abuse her discretion in allowing this testimony in evidence.
We note that at trial, defense counsel did not object to the testimony from these three witnesses.
2. Sufficiency of the evidence. We next turn to whether the evidence was sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant committed the crime of stalking.
Under the familiar standard, we review in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
In his appellate brief, the defendant also challenged the sufficiency of the evidence to support the three counts of rape. However, at oral argument, the defendant withdrew this argument. Accordingly, we do not consider this question.
To prove the crime of stalking, the Commonwealth must demonstrate that the defendant “(1) wilfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) also [made] a threat with the intent to place the person in imminent fear of death or bodily injury.” Commonwealth v. Jenkins, 47 Mass.App.Ct. 286, 289 (1999), quoting from Commonwealth v. Kwiatkowski, 418 Mass. 543, 547–548 (1994). G.L. c. 265, § 43.
The defendant challenges the sufficiency of the evidence with regard to the first prong of the stalking charge. Under G.L. c. 265, § 43( a ), three or more separate incidents are required to establish a pattern or series of acts. Commonwealth v. Cullen, 79 Mass.App.Ct. 618, 620 (2011). Here, the separate incidents consisted of (1) the 169 telephone calls that the defendant made to the victim on June 8, 2008; (2) the 151 telephone calls that the defendant made to the victim from the morning of July 16, 2008, until the defendant received notice of the restraining order on July 17, 2008; and (3) a telephone call that the defendant made to the victim after he received the restraining order.
The defendant contends that each act must have independently alarmed the victim. He argues that the telephone calls on June 8 could not have seriously alarmed or annoyed the victim because the victim did not answer any of the calls. However, this argument misses the mark. To begin, it would have been reasonable for the jury to infer that the victim felt alarmed or annoyed, because after the victim received so many telephone calls (169 in total) from the defendant, she eventually shut off her telephone, at which point the defendant called the victim's friend, with whom she was spending the day, forty-four times. Additionally, the defendant mischaracterizes the law. The Commonwealth is only required to prove that the victim was alarmed or annoyed by the entire pattern or series of acts underlying the stalking charge. See id. at 621. The Commonwealth presented the jury with sufficient evidence to conclude that the victim was seriously alarmed or annoyed by the defendant's conduct.
In the alternative, the defendant argues that his repeated attempts to contact the victim were protected speech under the First Amendment to the United States Constitution. This argument fails because the communications were not protected expressive conduct. Cf. Virginia v. Black, 538 U.S. 343, 360–363 (2003).
Judgments affirmed.