Opinion
10-P-1365
03-07-2012
COMMONWEALTH v. OSCAR ORTIZ.
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
The defendant, Oscar Ortiz, was convicted of one count of indecent assault and battery on a person aged fourteen years or older, in violation of G. L. c. 265, § 13H; one count of threats to commit a crime, in violation of G. L. c. 275, § 2; and two counts of assault and battery, in violation of G. L. c. 265, § 13A. He argues that the trial judge erroneously admitted testimony by the first complaint witness regarding subsequent conversations with Betty, the victim, and that his trial counsel was ineffective for failing to object to the admission of his post-Miranda denials of guilt and failing to request a curative instruction at the close of evidence. As the subsequent conversations with the first complaint witness were admissible on other grounds, and there is no indication in the record that allowing the admission of Ortiz's prior consistent statements was not a reasonable tactical decision by trial counsel, we affirm.
Ortiz was acquitted of two additional counts of indecent assault and battery.
See generally Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006).
A pseudonym.
Ortiz also takes exception to the judge's failure to give a limiting instruction contemporaneously with the first complaint testimony. As it was not requested, and the judge correctly instructed on first complaint in her final instructions, we discern no substantial risk of a miscarriage of justice arising out of the failure to give sua sponte a contemporaneous instruction. Cf. Commonwealth v. Edward, 75 Mass. App. Ct. 162, 166 (2009).
First complaint. In assessing Ortiz's challenge to the first complaint testimony, we determine whether the admission of the evidence was an abuse of the judge's discretion, and if so, whether it gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011) (standard for judicial review of decisions on admissibility of first complaint testimony is abuse of discretion). In this case, Betty stated to the first complaint witness, Joanne Aguiar, that the defendant was sexually harassing her, and then had a longer conversation that day or the next day in which she complained that he would corner her, grab her arm, hug her, and touch her 'below the waist.' This seems to be the extent of Aguiar's report to the police. Subsequently, over a period of days, Betty described at least three distinct incidents to Aguiar in which the defendant allegedly touched her buttocks, her breast, and her vagina. Both Betty and Aguiar testified as to all of these discussions.
The defendant concedes that he did not object to this testimony at trial.
The defendant concedes that these conversations together constitute the first complaint testimony. He contends that the subsequent conversations in the days that followed, where more details were provided, were not part of the first complaint.
The police report was not in evidence, but Aguiar was confronted with it on cross-examination and testified regarding its contents.
On appeal, Ortiz argues that the first complaint testimony should have been limited to Betty's disclosures up to and including Aguiar's police report. '[I]n circumstances where a complainant makes successive complaints to the first complaint witness, the initial complaint is the only evidence admissible as first complaint.' Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009), citing Commonwealth v. Murungu, 450 Mass. 441, 447 n.9 (2008), and Commonwealth v. Stuckich, 450 Mass. 449, 456-457 & n.9 (2008). We agree that Betty's disclosures to Aguiar up to the police report constituted a first complaint of sexual assault, and their discussions thereafter would not be admissible under the rubric of first complaint. See Commonwealth v. Murungu, supra at 446 (noting that a 'complaint' must state that the victim has been sexually assaulted and not merely express 'unhappiness, upset or other such feelings').
However, the contested testimony of Aguiar was independently admissible on grounds other than first complaint. See Commonwealth v. Arana, supra at 225-226. The defendant in his opening specifically encouraged the jury to examine the testimony of Betty and Aguiar and note any discrepancies in assessing Betty's credibility. The defendant's cross-examination of Betty pursued the same strategy. In response to the suggestion that inconsistencies between Betty's and the first complaint witness's testimony demonstrated that Betty fabricated her complaint after the police report was filed, the Commonwealth was entitled to disclose fully Betty's complaints to Aguiar. See ibid.; Commonwealth v. Aviles, 461 Mass. at 70-71 (evidence not admissible as first complaint nonetheless appropriate to rebut allegations of fabrication). Restricting Aguiar's testimony to the conversations before the police report would have created an unfair inference that Betty gave only a vague and general complaint, whereas she and Aguiar testified that she gave Aguiar all the details once she was no longer too upset or embarrassed to do so. A defendant cannot manipulate the first complaint doctrine by seeking to exclude part of the first complaint witness's testimony and then arguing that its absence casts doubt on the complainant's credibility. See Commonwealth v. Dargon (No. 1), 457 Mass. 387, 400 n.14 (2010). Aguiar's testimony was also relevant to Betty's demeanor during her complaint. See Commonwealth v. Arana, supra at 226; Commonwealth v. McCoy, 456 Mass. 838, 846 (2010). The fact that she was at first so upset and embarrassed as to be unable to describe fully the details of the assault ran counter to the defense theory that the more detailed allegations were contrived.
The defendant also objects on first complaint grounds to one part of the testimony of Sandy (a pseudonym), who witnessed the defendant hit Betty in the face and thereby commit an assault and battery. Sandy also testified that 'she [Betty] told me that they needed more people, like, witnesses that were there, so I talked to the school resource officer.' This testimony seems to relate to the assault and battery, not the indecent assault and battery. In addition, it was elicited by defense counsel on cross-examination in what appears to be an attempt to cast doubt on Sandy's credibility. Regardless, this passing reference, even if it were improper, would not create a substantial risk of a miscarriage of justice. Compare Commonwealth v. McCoy, supra at 850-853.
Ineffective assistance. Ortiz argues that his trial counsel was ineffective for failing to object to the testimony of a police officer that he denied committing a crime against Betty. In order to demonstrate ineffective assistance, Ortiz must show that his counsel's performance was 'measurably below that which might be expected from an ordinary fallible lawyer.' Commonwealth v. Boria, 460 Mass. 249, 252 (2011), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If his counsel's actions were tactical or strategic decisions, they must have been ''manifestly unreasonable' when made' in order to constitute ineffective assistance. Commonwealth v. Boria, supra at 253, quoting from Commonwealth v. Watson, 455 Mass. 246, 256 (2009). A claim of ineffective assistance raised on direct appeal is strongly disfavored, and will only be sustained if its merit is apparent on the face of the record. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006).
Ortiz also claims that counsel should have requested a curative instruction as to this testimony. Because we hold that the defendant did not demonstrate ineffective assistance in the failure to object, the lack of a request for a curative instruction also gives him no basis for relief. See Commonwealth v. Kirwan, 448 Mass. 304, 315 (2007).
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Without the benefit of an affidavit from counsel, we cannot say that the failure to object was not a strategic choice by counsel. Allowing the detective to testify as to Ortiz's denials enabled the defendant to place his theory of the case before the jury prior to deciding whether to testify himself. Ortiz's statements to the police were also consistent with his trial testimony. See Commonwealth v. Barbosa, 457 Mass. 773, 799 (2010), cert. denied, 131 S. Ct. 2441 (2011) ('The defendant's denials actually supported and were consistent with his defense . . .'). The mere fact that this course of action was ultimately unsuccessful does not render it manifestly unreasonable when made. See Commonwealth v. Choeurn, 446 Mass. 510, 521 (2006). Ortiz therefore has not met his burden of demonstrating ineffective assistance on the current record.
Moreover, it is not clear that any objection by counsel would have 'accomplished something material for the defense.' Commonwealth v. Dargon (No. 1), 457 Mass. at 403, quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). '[I]f a defendant is charged with a crime and unequivocally denies it, that denial is not admissible in evidence.' Commonwealth v. Diaz, 453 Mass. 266, 273 (2009), quoting from Commonwealth v. Nawn, 394 Mass. 1, 4 (1985). However, the substance of Ortiz's police interview was not an unequivocal denial. See Commonwealth v. McNulty, 458 Mass. 305, 329 n.23 (2010) (defendant's statements that did not unequivocally deny guilt but 'set out a version of events that attempted to minimize his responsibility' were not inadmissible). Ortiz did initially state, 'No, I never touched her,' but then went on to admit that he was friendly with Betty and would hug her in the hallway. Contrast Commonwealth v. Trefethen, 157 Mass. 180, 197 (1892) ('If a defendant is charged with [a] crime, and unequivocally denies it, and this is the whole conversation, it cannot be introduced in evidence against him as an admission') (emphasis supplied). Counsel could not have been ineffective for failing to object when the objection would likely have been overruled.
Judgments affirmed.
By the Court (Kafker, Fecteau & Wolohojian, JJ.),