Opinion
17-P-1201 18-P-2
05-31-2019
COMMONWEALTH v. LUISA OSORIO-SANCHEZ (and a companion case).
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
After a jury trial in the Superior Court, defendant Oscar Sanchez was convicted of four counts of rape of a child aggravated by an age difference of ten or more years, G. L. c. 265, § 23A (b); four counts of forcible rape of a child, G. L. c. 265, § 22A; two counts of rape, G. L. c. 265, § 22 (b); one count of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; one count of indecent assault and battery on a person fourteen or older, G. L. c. 265, § 13H; and one count of reckless endangerment of a child, G. L. c. 265, § 13L. Sanchez was tried together with codefendant Luisa Osorio-Sanchez, who was convicted of reckless endangerment of a child, G. L. c. 265, § 13L; and assault and battery, G. L. c. 265, § 13A. Sanchez and Osorio-Sanchez are husband and wife; the victim was Osorio-Sanchez's daughter, Sanchez's stepdaughter.
The judge entered a required finding of not guilty as to the charge of attempted murder against Sanchez. The jury acquitted Sanchez of one count of rape and acquitted Osorio-Sanchez of the charge of assault with intent to murder.
On appeal, both defendants argue (1) that the judge erroneously limited their ability to cross-examine the victim and interfered with their right to present a defense by excluding certain evidence and (2) that the prosecutor's closing argument was improper. Osorio-Sanchez additionally claims (3) that the judge did not adequately instruct the jury on parental privilege. We affirm.
Discussion. 1. Rights to cross-examine and to present a defense. a. Limitations on cross-examination. Criminal defendants have the constitutional right to cross-examine witnesses for bias and prejudice. See Commonwealth v. Chicas, 481 Mass. 316, 320 (2019); Mass. G. Evid. § 611(b)(2) (2019) ("Reasonable cross-examination to show bias and prejudice is a matter of right which cannot be unreasonably restricted"). A judge may not "foreclose[e] inquiry into a subject that could show bias or prejudice on the part of the witness." Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987). That is, "[a] judge may not 'bar all inquiry into the subject' if the defendant demonstrates 'a possibility' of bias." Chicas, supra, quoting Commonwealth v. Magadini, 474 Mass. 593, 604 (2016).
The right to cross-examine is not absolute, however, and is subject to reasonable limitations. "Those limits are 'based on concerns about . . . harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." Chicas, 481 Mass. at 320, quoting Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). "Moreover, a judge has discretion to limit questions that involve collateral issues and questions where the connection to the evidence of bias is too speculative." Chicas, supra. A judge's decisions to restrict cross-examination are reviewed for abuse of discretion. See id.
On the first day of trial, during a conference regarding juror voir dire, the judge indicated that he was open-minded with respect to evidence of the victim's state of mind and would "take it witness by witness and condition by condition." On the third day of trial, in a conference in which the judge attempted to establish "a broad fault line" of "what is fair game and what's not fair game" for opening statements, the judge again made it clear that he would not preclude questions regarding the victim's motive or bias. The judge did indicate that evidence that the victim lied or made threats to harm herself or others to "manipulate" her service providers was presumptively inadmissible, "whether you call it a lie or a manipulation." See Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979) ("In general, evidence of prior false allegations has been excluded as a consequence of the rule that evidence of prior bad acts may not be used to impeach a witness's credibility").
During cross-examination, the judge allowed defense counsel substantial leeway in questioning the victim about her history of commitments, hospitalizations, and placements; her failure to report that Sanchez sexually abused her despite many opportunities to do so, and her failure to identify Sanchez as the abuser once she did make a report; the defendants' forcing her to break up with her boyfriend; and her verbal and physical altercations with Osorio-Sanchez -- including an incident in which the police were called after the victim attempted to strangle Osorio-Sanchez.
The defendants argue that the judge precluded them from questioning the victim about her use of drugs, threats she made to harm others, threats she made to harm herself, and various other matters. The transcript shows, however, that the judge restricted cross-examination exactly twice: the judge precluded counsel for Sanchez from questioning the victim about specific episodes of cutting herself or attempting suicide, and the judge did not allow counsel for Osorio-Sanchez to establish that the victim's boyfriend was arrested on charges of rape.
The defendants offer us no persuasive argument that the victim's attempts to harm herself demonstrate bias against them, but more importantly, they failed to make any such showing to the judge. "A defendant must make a 'plausible showing' of alleged bias, with a factual basis for support." Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), quoting Commonwealth v. Tam Bui, 419 Mass. 392, 401, cert. denied, 516 U.S. 861 (1995). "[O]therwise, the judge may restrict or entirely exclude the inquiry." Chicas, 481 Mass. at 320. Here, defense counsel failed to make such a showing; to the contrary, counsel for Sanchez said, "I don't have to go into the suicide," and moved on. The defendants have not shown any abuse of discretion.
The defendants also argue that the judge restricted them from questioning the victim about her history of substance abuse. The judge could properly restrict cross-examination on this topic: the victim had no criminal convictions for controlled substances, so the general rule precluding impeachment by prior bad acts applied. See Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993); Commonwealth v. Bohannon, 376 Mass. 90, 93 (1978); Mass. G. Evid. § 608(b) (2019). To be entitled to cross-examine the victim on this topic, the defendants had to make a plausible showing that the victim's drug use gave her a motive to lie or suggested bias against the defendants. Ultimately, however, the judge did not have occasion to restrict the defendant from questioning the victim about her drug use, because the defendants did not engage in this line of questioning or offer any argument that it would be relevant.
When counsel for Osorio-Sanchez questioned the victim about her break up with her boyfriend, the judge permitted counsel to establish that the boyfriend had been arrested, but not that he had been arrested for the rape of a thirteen year old girl. The judge reasoned that that question would "interject sexuality into the trial in a gratuitous way." We discern no abuse of discretion. While the fact that the victim's boyfriend was arrested may have been remotely relevant to the defense, the precise reason for his arrest was even less so. The judge reasonably restricted cross-examination on this prejudicial, confusing, and only marginally relevant topic. See Chicas, 481 Mass. at 320; Johnson, 431 Mass. at 540.
b. Restrictions on other witnesses. The judge did not abuse his discretion by precluding the defendants from establishing, through a Department of Children and Families social worker, that the department had at one point "screened out" the victim's claims of abuse by the defendants as "unsupported" because the victim was "not a reliable reporter" and "was not truthful in the past." Evaluations of a witness's credibility are the exclusive province of the jury, and "witnesses may not offer their opinions regarding the credibility of another witness." Commonwealth v. Montanino, 409 Mass. 500, 504 (1991). See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986); Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282-283 (2014).
Nor was it an abuse of discretion to preclude David Polk from testifying that he saw the victim sneaking boys into the house when her parents were not at home. The judge agreed that the victim's comings and goings through the windows were relevant, but that evidence of bringing boys into the house was inadmissible as "veiled evidence of promiscuity." Evidence suggestive of a victim's promiscuity may not be used to attack her credibility. See G. L. c. 233, § 21B; Commonwealth v. Mountry, 463 Mass. 80, 86 (2012). Such attacks unfairly place the victim on trial. See Commonwealth v. Houston, 430 Mass. 616, 621 (2000). We discern no abuse of discretion.
We do not accept the Commonwealth's contention that the judge never ruled on the admissibility of this evidence; his instruction to defense counsel on this point was definitive.
2. Prosecutor's closing argument. The defendants contend that in closing argument the prosecutor improperly vouched for the victim's credibility, appealed to the jury's sympathies, exploited excluded evidence, misstated the evidence, and suggested that the jurors had the duty to convict. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). We conclude that the prosecutor's summation was fair comment on the evidence and the inferences that could be drawn from it. In two instances where the prosecutor slightly misstated the evidence, we discern no prejudice.
a. Vouching. Sanchez contends that the prosecutor impermissibly vouched for the victim's credibility. Improper vouching "occurs when a prosecutor expresses his or her own belief in the credibility of witnesses or implies that he or she has knowledge independent of the evidence presented at trial." Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009). This did not occur here. The prosecutor never stated or implied personal knowledge that the victim was telling the truth. Instead, responding to the defense that the victim was "perpetuat[ing] a cold calculating fabrication," the prosecutor used the evidence and rhetorical questions to argue that the victim's testimony was credible. See Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999) ("A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs"). The prosecutor's passing comments that Zachary Gagnon and Iris Contreras had no motive to lie were similarly based on the evidence and did not inject the prosecutor's personal opinion into the case.
b. Emotional appeals. Sanchez also contends that the prosecutor improperly appealed to the jurors' sympathies when she discussed the victim's hope for a "perfect family," said that Sanchez used her for his "own sexual gratification," and characterized the family home as a "house of horrors." While the prosecutor's language was strong, it was based on the evidence. A prosecutor may "argu[e] forcefully for a conviction," and "[a] certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).
c. Excluded evidence. Both defendants argue that the prosecutor exploited excluded evidence of manipulation when she argued that the victim was not "some kind of mastermind who orchestrated this entire thing" and was not "some kind of diabolical teen conspirator." See Commonwealth v. Harris, 443 Mass. 714, 732 (2005), quoting Commonwealth v. Carroll, 439 Mass. 547, 555 (2003) ("Counsel may not, in closing, 'exploit[] the absence of evidence that had been excluded at his request'"). We disagree. The prosecutor was not taking advantage of the absence of excluded evidence; rather, she was fairly responding to the closing arguments of defense counsel based on admitted evidence. See Commonwealth v. Lopez, 474 Mass. 690, 699-700 (2016).
Counsel for Sanchez argued that the victim was "a very manipulative young lady, . . . a young lady who controls, a young lady who was going to get her own way no matter what"; that "she was going to manipulate the system and manipulate the process any way she could; and that she was "cold" and "calculating" on the witness stand. Counsel for Osorio-Sanchez argued that the trial was the result of a plan the victim set in motion when she was in seventh grade because she "want[ed] to be emancipated, want[ed] out"; she wanted to be able "to basically do whatever she wanted to do and she was willing to do anything to get it."
d. Misstatements of the evidence. "Closing arguments must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). Sanchez asserts that the prosecutor misstated the evidence when she argued that Jean Barrile's notes referred to two different men, and that the defendant was the man in the gray sweatpants. Taken in context, however, the prosecutor's argument was an attempt to synthesize both the victim's and Barrile's testimony; the inference the prosecutor asked the jury to draw from the evidence as a whole was reasonable.
The victim testified that the defendants boarded up "all the first-floor windows" to keep her from going out. Gagnon testified on direct that "[t]he windows had been barred shut so [the victim] couldn't get out," specifically, "the first floor bathroom window." On cross-examination he clarified that he was referring to one window. Counsel for both defendants argued in summation that the jurors should disbelieve the victim's testimony, pointing to Polk's testimony that he never saw boards on the windows and Gagnon's testimony that only the bathroom window was boarded up. The prosecutor argued that Gagnon corroborated the victim's testimony because he remembered "two by fours on the windows," and "[h]e saw the windows boarded up." The use of the plural to describe Gagnon's testimony was a minor misstatement.
The victim also testified about an incident in the car when Osorio-Sanchez called her names, such as "a dirty whore and, like, a bitch, and whatnot," and "then started punching [the victim] in the face." Contreras, who was in the car, corroborated this incident. Contreras also testified, during cross-examination, that Osorio-Sanchez and the victim had been arguing about something. The prosecutor erred when she said during summation, "[Contreras] even said there wasn't an argument, there wasn't anything that [the victim] wasn't happy about in that moment."
In determining whether the misstatements of Gagnon's and Contreras's testimony require reversal, "we consider '(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion.'" Commonwealth v. Wood, 469 Mass. 266, 285 (2014), quoting Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013).
The judge prefaced the closing arguments by instructing that "they are not evidence" and that "if [the jurors'] collective recollection of the evidence differs from [the lawyers'] best recollection of the evidence, then it's [the jurors'] collective recollection of the evidence that should govern, not the lawyers' recollection." When the defendants objected to the prosecutor's misstatements of Gagnon's and Contreras's testimony, the judge ruled that "[t]hey don't rise to a level of my giving any additional curative instruction to what I did before the closings, which was to say that their collective recollection governs." He promised to "give that further emphasis" in his final charge, which he did, instructing, "If your memory of the testimony differs from a description of the evidence given by one of the attorneys, you are to follow your own collective recollection." In the circumstances of this case, we agree that the general instruction was sufficient.
The use of the plural "windows" was a minor error concerning a minor evidentiary point. The prosecutor's inaccurate reference to Contreras's testimony was a more serious error, but "[i]t was a single statement made in the course of a lengthy closing argument," Wood, 469 Mass. at 286, and it did not go to the heart of the case. The case boiled down to an assessment of the victim's credibility, and we are confident that, mitigated by the judge's instructions, these isolated references to the testimony of corroborating witnesses did not make a difference in the outcome of the case.
e. Duty to convict. The prosecutor concluded her closing by arguing that the victim was credible and that her testimony proved the charges beyond a reasonable doubt, then by asking the jury "to return the only true and just verdicts and find the defendants . . . guilty as charged." This argument was neither a personal opinion nor an impermissible injunction to return a guilty verdict, as Sanchez argues. "[T]he prosecutor's statement regarding 'one true and just verdict' amounted to a fair comment on the strength of the Commonwealth's case and constituted appropriate advocacy." Commonwealth v. Cole, 473 Mass. 317, 333 (2015).
3. Instruction on parental privilege. Osorio-Sanchez argues that the judge erred by failing to give the instruction on parental privilege from Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015). Instead, in a conference just before closing arguments, the judge offered to instruct that "reasonable parental discipline is justified," but that "corporal punishment or other unreasonable parental discipline is not" a legal justification. Because counsel agreed to this instruction, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).
During the final charge, after explaining the elements of assault and battery, the judge added that "reasonable parental discipline may be a justification for a touching but corporal punishment or unreasonable parental discipline is not a justification." Osorio-Sanchez did not object.
The evidence, viewed in the light most favorable to Osorio-Sanchez, was that she and the victim were arguing about the victim's behavior when Osorio-Sanchez turned to "smack" the victim in the face. Assuming without deciding that this view of the evidence, if believed, would warrant a Dorvil instruction, we are confident that the compromise instruction given by the judge did not materially influence the guilty verdict. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The judge's instruction allowed the jury to consider whether the defendant struck the victim for the purpose of reasonable parental discipline. We think it unlikely that the jury understood the distinction between "touching" and "corporal punishment" to mean that slapping or hitting a child could never amount to reasonable discipline. More importantly, Osorio-Sanchez did not actively pursue the parental discipline defense at trial. See Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986). Even though defense counsel knew that the judge would be instructing on parental privilege, she did not argue to the jury that Osorio-Sanchez struck the victim for "the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's conduct." Dorvil, 472 Mass. at 12. Rather, defense counsel argued that the hitting never occurred, or if it did, "this was something that happened randomly." Based on the evidence and the defense, we think it highly unlikely that a jury instructed according to Dorvil would have found that the Commonwealth did not disprove any of the Dorvil factors.
Judgments affirmed.
By the Court (Meade, Massing & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 31, 2019.