Opinion
13-P-498
03-23-2015
COMMONWEALTH v. EDWARD PACHECO, JR.
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 Superior Court, the defendant was convicted of two counts of rape of a child, rape of a child by force, rape, intimidation of a witness, and violation of a restraining order. On appeal, he raises several issues related to the trial and sentencing. We vacate the community parole supervision for life (CPSL) portions of the defendant's sentences, but otherwise affirm the judgments.
Facts. The victim testified at length about the history and nature of her contact with the defendant. According to the victim, the defendant began touching her breasts and vagina under her clothing when she was thirteen or fourteen. She testified that he would rub and penetrate her vagina with his fingers, and that he made her stroke his penis to the point of ejaculation and perform oral sex on him. If she refused, he would make her kneel in the corner for hours on end. She also testified that he videotaped her engaging in sexual acts. A compilation of clips collected from the defendant's camera was published to the jury. The defendant admitted that he had sex with the victim but claimed it was consensual, and did not begin until after she turned eighteen.
Discussion. a. Hospital forms. Defense counsel filed a pretrial motion arguing that certified hospital records from the victim's examination by a sexual assault nurse examiner (SANE) were inadmissible pursuant to G. L. c. 233, § 79. The judge ruled that they were generally admissible and accepted the prosecutor's suggestion that the parties try to reach an agreement on proposed redactions of the records. The parties agreed on redactions except as to "Section D" of "Form 2A" (titled "Acts Described by the Patient") and it was only on this basis that counsel objected at trial. The defendant otherwise waived any objection to the records' admissibility, and -- except as to Section D -- our inquiry is limited to whether any error gave rise to a substantial risk of a miscarriage of justice. Commonwealth v. Pires, 453 Mass. 66, 74 (2009).
Records show that when the victim arrived at the emergency room, she denied having any injuries. The defendant argues that this shows that the subsequent SANE records were not generated in connection with medical treatment as required by the statute. See Commonwealth v. Dargon, 457 Mass. 387, 396 (2010) (Dargon). We disagree. The SANE nurse testified that she evaluated the victim both to provide medical treatment and collect evidence, and that is further supported by the record. Thus, "[u]nder our traditionally expansive reading of G. L. c. 233, § 79, the dual purpose of Form 2 does not preclude its admission." Id. at 395-396, citing Commonwealth v. Franks, 359 Mass 577, 579 (1971).
The nurse prescribed three antibiotics, an antiemetic medication, and an emergency contraceptive; she administered a pregnancy test, and she recommended follow-up testing for HIV.
For the first time on appeal, the defendant also argues that the hospital records should have been excluded as violating the first complaint doctrine. Commonwealth v. King, 445 Mass. 217, 237-248 (2005). The records were admissible under G. L. c. 233, § 79, and "served the independent purpose of establishing [one of the] essential elements of the Commonwealth's . . . rape case," namely proof of sexual intercourse. Dargon, supra at 400.
As the records are generally admissible, the defendant is left to challenge the judge's failure to redact from Section D the nurse's handwritten notes, as well as the words "assault," "assailant," and "victim" (which appear on the underlying preprinted form). We review for prejudicial error. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
These notes recorded the victim's statements regarding sexual conduct that took place between her and the defendant. They also referenced vaginal bleeding that the victim experienced for three weeks after her first vaginal intercourse with the defendant.
At trial, the victim testified in graphic detail about the nature, duration, and frequency of the sexual assaults, and the defendant has raised no appellate issues regarding that testimony. She also testified about vaginal bleeding she experienced after she first had vaginal intercourse with the defendant. In this context, the few terse notations in the SANE records regarding the victim's allegations added no appreciable force to the Commonwealth's case. Even if these references should have been redacted, any error "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, supra.
The preprinted words "assailant," "assault," and "victim" should have been redacted. See Dargon, 457 Mass. at 396. However, this error was plainly harmless. The SANE nurse used such language throughout her testimony, without objection. In fact, defense counsel highlighted the nurse's use of these words on cross-examination:
"Now, through your testimony this morning you used the words, 'assault,' 'assailant.' When you're called in on a case, do you do any discovery work? In other words, do you do any fact finding as to what the patient tells you, any verification of the alleged assault?"In this manner, counsel was able to elicit acknowledgments from the SANE nurse that she neither verified the victim's allegations nor observed any physical injuries. Especially with such clarifications in place, we discern no appreciable prejudice to the defendant to the jury seeing the preprinted language on the form. Moreover, the defendant admitted to having had sex with the victim, further diminishing any potential impact of these errors. See Dargon, supra at 398. There was no prejudicial error.
The defendant's unpreserved claims regarding language other than that contained in Section D fail for similar reasons.
b. Restraining order. The victim obtained an abuse prevention order against the defendant pursuant to G. L. c. 209A. While awaiting trial, he called the victim to apologize and to exhort her not to testify. Witness intimidation and violation of a restraining order indictments issued thereafter and were joined with the rape charges for trial. The restraining order, which was admitted in evidence without objection, included language that the defendant posed an "immediate danger of abuse" and an "imminent threat of bodily injury" to the victim. Although such language should have been redacted, Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 108-109 (2014), the inclusion of it did not create a substantial risk of a miscarriage of justice. In contrast to Commonwealth v. Reddy, supra at 110, the language was not highlighted by the prosecutor. Nor did it give rise to the sort of potentially powerful propensity inference with which the cases are concerned, since the other charged conduct took place before the restraining order issued. Contrast ibid.
c. Joinder. The defendant argues that the witness intimidation and restraining order indictments should not have been joined with the rape indictments. A defendant seeking to prove improper joinder must show the offenses were unrelated, and prejudice so compelling that it prevented him from obtaining a fair trial. Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). The offenses were plainly related. In addition, evidence of the rape charges would have been admissible at a separate trial on the witness intimidation and restraining order charges in order to prove motive, and evidence of the witness intimidation and restraining order violation charges would have been admissible at a separate trial on the rape charges as evidence of consciousness of guilt. See Commonwealth v. Vital, 83 Mass. App. Ct. 669, 675 & n.5 (2013). We see little merit in the defendant's argument that the restraining order could have led the jury to conclude that a court had already found merit to the rape allegations. In fact, the restraining order makes no mention of any alleged sexual abuse or threat of sexual abuse. The judge did not abuse his discretion in allowing joinder. See Commonwealth v. Pillai, 445 Mass. 175, 179-180 (2005).
d. Admission of photographs. At trial, the Commonwealth offered four photographs of the victim between the ages of thirteen and fifteen in evidence, and these were admitted over defense counsel's objection. The photographs did nothing more than depict the victim as she appeared during the pertinent time period. The relative size and maturity of the victim compared to the defendant is highly relevant in constructive force cases, which often involve exploitation of differences in physical size, age, and authority. Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255 (2008). There was no error.
e. Closing argument. At issue are four remarks during the prosecutor's closing argument that the defendant claims constituted improper appeals to the jurors' emotions. Defense counsel did not object to any of these statements at trial. In our view, the language complained of did not exceed the bounds of acceptable argument based on inferences from the evidence presented. The "Geisha girl" reference, for example, supra note 5, sought to portray the victim as defeated by a chronic pattern of psychological coercion that overpowered her resistance. This was supported by the evidence at trial. Similarly, it was not unfair to refer to the defendant's practice of videotaping a young girl engaging in sexual acts as "degrading," supra note 5. Moreover, any prejudice flowing from these statements was mitigated by the judge's instruction to the jury that they were not to be influenced by prejudice or sympathy for either side. In any event, these isolated remarks in the prosecutor's closing statement did not give rise to a substantial risk of a miscarriage of justice.
Specifically, the defendant points to the prosecutor's statement that the defendant "molded his own Geisha girl over the course of multiple years and chronic abuse," her characterization of the videotapes as "degrading," and her suggestions that the defendant sought to date the victim's mother because she had a young daughter and the defendant could not "control his urges."
The particular word choice was ill-considered. We have repeatedly stated that "ethnic characterizations have no place in criminal trials." Commonwealth v. Berrio, 43 Mass. App. Ct. 836, 840 (1997). Although the term at issue here was used in reference to the victim, rather than the defendant, prosecutors should avoid gratuitous invocations of ethnically or racially laden terminology.
f. Alleged improper sentencing. The defendant received a lengthy prison sentence for his crimes. During the sentencing hearing, the judge expressed concern about the incidence of child sex abuse cases:
The defendant was sentenced to State prison for twenty-five to thirty-five years for rape of a child, a concurrent twenty-five to thirty-five year sentence for rape of a child with force, CPSL for the rape of a child and rape of a child with force convictions, two and one-half years in the house of correction for intimidation of a witness and the same sentence for violation of a restraining order (both to be served concurrently with the State prison sentences), and forty years' probation with special conditions for the statutory rape and rape convictions (to be served concurrently with the incarceration).
"And it's a depressing -- a truly depressing aspect of sitting in a criminal courtroom . . . the number of cases of gross exploitation by adults of vulnerable children, and . . . the sorry circumstance that there are a significant number of people out there who, but for the threat of severe punishment, are ready to victimize children . . ."The defendant argues that these comments evinced an improper desire to send a "targeted message" to child molesters. However, the judge clearly articulated the theories of punishment relied on for the defendant's sentence, which were proper: "straight punishment" (i.e., retribution), and "general deterrence." While the remarks that the defendant highlights would have been better left unsaid, we find no basis for his contention that the judge considered improper factors in sentencing.
g. CPSL. The Commonwealth concedes that, under Commonwealth v. Cole, 468 Mass. 294 (2014), the CPSL portions of the defendant's sentences must be vacated. In addition, however, the defendant argues that this error warrants resentencing. In Cole, the Supreme Judicial Court held that "[t]he vacating of CPSL sentences permits the possibility of resentencing." Id. at 310 (emphasis supplied). Resentencing is appropriate where the imposition of CPSL was part of an "integrated package," since in such cases the judge's belief that CPSL could be imposed may have influenced the other pieces of the sentencing scheme. Commonwealth v. Cumming, 466 Mass. 467, 472 (2013) (citation omitted).
In this case, the defendant has made no showing that the judge's sentencing decision was dependent on the availability of CPSL. In addition to a lengthy prison sentence, the judge imposed a forty-year term of probation with special conditions "for a very specific reason," namely, to make sure that the defendant did not "reach out to [the victim]" to seek to resume a relationship with her. In fact, it appears that the judge imposed CPSL only because he considered it mandatory. In the particular circumstances of this case, resentencing would not be appropriate.
Conclusion. The CPSL portions of the sentences are vacated, and the judgments are otherwise affirmed.
So ordered.
By the Court (Grainger, Brown & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 23, 2015.