Opinion
14-P-1993
05-04-2016
COMMONWEALTH v. JOSE M. PACHECO.
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
On appeal from his conviction of indecent assault and battery on a child under fourteen, pursuant to G. L. c. 265, § 13B, the defendant assigns error to (i) the admission of multiple out-of-court statements by the victim concerning her assault, (ii) the absence of a child witness instruction, and (iii) admission of the defendant's video-recorded statement. We affirm, addressing the defendant's claims in turn.
1. First complaint. The Commonwealth concedes that many of the statements admitted in evidence fell outside the permissible bounds of the first complaint doctrine, as enunciated in Commonwealth v. King, 445 Mass. 217 (2005), and elaborated on by subsequent cases. Because the defendant did not object at trial, his claim of error is waived. See Commonwealth v. Randolph, 438 Mass. 290, 293 (2002). We nonetheless consider his claim on appeal to determine whether there was error creating a substantial risk of a miscarriage of justice. See id. at 294-295, 297-298.
It is apparent from the record that the various statements about which the defendant now complains were central to the strategy of his trial counsel. Specifically, trial counsel sought to introduce skepticism expressed by other family members in response to the victim's complaints, and inconsistencies or equivocation in the victim's various renditions, for the purpose of developing doubt about the victim's credibility or reliability. See Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 495-496 (2012). Indeed, trial counsel first invoked several of the now-challenged statements during his opening statement. It accordingly cannot be inferred from the record that counsel's failure to object was not a tactical decision. See Commonwealth v. Randolph, supra at 298. Nor are we prepared, on the existing record, without the benefit of the additional evidentiary record (including, among other elements, an affidavit of trial counsel) that would result from development of the claim by means of a motion for new trial claiming ineffective assistance of counsel, to conclude that trial counsel's evident tactical choice was "manifestly unreasonable." Commonwealth v. Medeiros, 456 Mass. 52, 62 (2010) (citation omitted). Indeed, the multiple statements offered fertile ground that trial counsel exploited extensively in an (ultimately unsuccessful) effort to discredit the victim. We discern no substantial risk that justice miscarried.
2. Child witness instruction. The defendant's claim of error concerning the absence of a so-called "child witness" instruction is likewise unpreserved, and we accordingly review for a substantial risk of a miscarriage of justice. See Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 261 (2013). As the Commonwealth observes, even had the defendant requested such an instruction, the decision whether to include it in the jury charge would have been committed to the sound discretion of the trial judge. See Commonwealth v. Avery, 14 Mass. App. Ct. 137, 141-143 (1982). The present case is quite unlike Commonwealth v. Dion, 30 Mass. App. Ct. 406 (1991), on which the defendant relies but in which the claim was preserved; in that case, the child witness was a special needs student who appeared to be minimally competent. Id. at 409. Indeed, in a case such as the present one, where the jury charge included extensive instruction on the jury's role in assessing witness credibility, a judge does not necessarily abuse discretion by refusing a request for instruction on the credibility of a child witness. See Commonwealth v. Figueroa, 413 Mass. 193, 197-198 (1992); Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 947-948 (1992). We discern no substantial risk of a miscarriage of justice.
3. Defendant's video-recorded statement. Finally, we discern no error in the admission of the defendant's video-recorded statement. The judge correctly ruled that the defendant's statement that he picked up the child victim and put her on his leg was admissible as an admission of a party opponent. See Commonwealth v. Lester, 70 Mass. App. Ct. 55, 61 (2007). Consistent with the Commonwealth's purpose in offering the statement, it corroborated the victim's description of the incident in which she was assaulted, even though it omitted an admission of the indecent touching itself. It was not an unequivocal denial of the accusations against the defendant. Contrast Commonwealth v. Womack, 457 Mass. 268, 274 (2010). Moreover, though the video recording included more than the defendant's acknowledgement that he picked the victim up and put her on his leg, the additional portions of the recording came in at the defendant's insistence, based on his suggestion that it would be "prejudicial . . . to allow [the Commonwealth] to play a [thirty]-second clip or so out of an entire interview." As a consequence, the defendant was allowed to place before the jury his own exculpatory version of events, without testifying at trial. There was no error, and no prejudice.
Judgment affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 4, 2016.