Opinion
No. 15–P–420.
12-01-2016
COMMONWEALTH v. Hector Samuel PEDROZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals after a jury verdict in the Superior Court finding him guilty of one count of child rape by digital penetration, G.L. c. 265, § 23. He assigns error to the exclusion of prior inconsistent statements attributed to the victim, to the testimony of a substitute first complaint witness, and to portions of the prosecutor's closing that he characterizes as vouching and misstating the evidence. We refer to the facts as the jury could have found them and as they pertain to the issues on appeal.
The defendant was acquitted of two additional counts of child rape.
Prior inconsistent statements. In advance of trial the defendant, an uncle of the victim, filed a motion in limine to admit evidence of claims the victim had made that she had been sexually abused by another uncle. The defendant's theory was that these allegations were similar in nature, frequency, and time of occurrence, indicating the victim's inclination to make such accusations and possibly her conflation of the defendant with the actual perpetrator. However, the defendant's claim that the judge ruled the evidence inadmissible is inaccurate. The judge ruled that the elicitation of the requested evidence would entitle the Commonwealth to introduce additional statements by the victim that she had been sexually abused by both individuals. The judge's balanced decision to allow consistent as well as inconsistent statements in evidence on an issue of witness credibility was not error.
The defendant did not seek to elicit the evidence of prior inconsistent statements after the judge made her ruling. This was a rational strategic approach.
First complaint testimony. The judge permitted the Commonwealth to introduce testimony from a substitute first complaint witness, the victim's brother Ben. The victim asserted that she had first complained more or less simultaneously about the abuse at issue to her friends Chloe and Jill. At the time of trial neither friend had any memory of the conversation. The judge took voir dire testimony from all three witnesses and determined that Ben's testimony satisfied the first complaint doctrine. Her decision was reinforced by her determination that Chloe and Jill also claimed they had been subjected to abuse and that their testimony would require careful editing to avoid prejudicial references to uncharged conduct. The judge, who was "in the best position to determine the scope of admissible evidence," did not abuse her considerable discretion in evaluating the circumstances underlying the victim's conversations with Chloe, Jill, and Ben. Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). Our cases explicitly recognize that circumstances may justify the substitution of "a later complaint witness as the first complaint witness." Commonwealth v. Murungu, 450 Mass. 441, 446 (2008).
A pseudonym.
Both are pseudonyms.
The Commonwealth represented that Jill had no memory from the outset of the investigation into the victim's claims, and that while Chloe had demonstrated recollection at the time of the police investigation, she no longer had any recollection by the time the case got to trial.
Finally, the judge properly instructed the jury on the limited purpose of first complaint testimony. There was no error.
"You may consider this evidence only for specific limited purposes: to establish the circumstances in which the complainant first reported the alleged offense, and then to determine whether that first complaint either supports or fails to support the complainant's own testimony about the crime. You may not consider this testimony as evidence that the assault, in fact, occurred. The purpose of this first complaint evidence is to assist you in your assessment of the credibility and reliability of the complainant's testimony here in court."
Closing remarks. The defendant complains of errors in the prosecutor's closing, asserting first that the following language in the prosecutor's closing constitutes vouching:
"Let's look at [the victim]. What motive does [she] have to lie? What has she gained? What does she gain by coming in here and telling you about what this defendant did to her? I suggest to you that she has gained nothing. She told you that she has lost the most important relationships in her life. The relationships that she holds most dear. She told you specifically about her cousins, and one cousin in particular ... who she was very close with, who doesn't speak to her anymore ever since she disclosed this. She hasn't gained anything."
"[T]here is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie." Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008), citing Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). Indeed, the observation is a "fair response to an attack on the credibility of a government witness." Commonwealth v. Helberg, supra, quoting from Commonwealth v. Smith, supra. The defendant's theory of the case was that the victim had a motive to lie because she was not invited to a family party. In attacking the victim's credibility, counsel also highlighted the lack of physical evidence, the absence of witnesses, and inconsistencies in the victim's testimony. The prosecutor's remarks were "a fair response" in rebuttal.
The defendant characterizes several statements by the prosecutor as misstating the evidence. He asserts the prosecutor's statements that the victim "never wavered" in her account of the abuse, and that "she has been consistent ever since she was 12 years old," are untrue because she also attributed abuse to another uncle. While the defendant is entitled to argue that the victim's statements may demonstrate confusion about the identity of her abuser, the reference to a possible second abuser does not negate their consistency.
The prosecutor's references were precise and carefully focused on the acts of the defendant: "She never wavered, though. She remembers exactly what happened. She remembers the material facts, the thing that is the most important.... She has never wavered from her truth and from the truth. From the truth that this defendant raped her over and over and over again, and she has been consistent ever since she was 12 years old." (Emphases supplied.)
The defendant also complains that the prosecutor referred to evidence that had been excluded, namely a letter that the victim wrote to her parents when she was fourteen years old. However, the judge's actual ruling did not preclude testimony that the victim gave her parents a letter informing them of her abuse; the judge ruled that the transmission of the letter was admissible, but that the contents could not be recited or shown to the jury. The judge also allowed reference to the letter in connection with the defendant's moving out of the victim's residence. Accordingly, the prosecutor's statement that the victim "wrote a letter," and that the father testified "he received a letter the night he found out what had happened" did not misstate the evidence.
Finally, the defendant points to the prosecutor's statement that the victim has never wavered "from her truth and from the truth ... the truth that this defendant raped her over and over and over" as expressing a personal belief about the victim's credibility. We agree that the equation of "her truth" with "the truth" was not an appropriate phrasing and was, to borrow a phrase from the Commonwealth's brief, "better left unsaid."
We are required to use this phrase in connection with closing arguments too frequently. It should be considered synonymous to "provided the opposing party with an entirely avoidable issue on appeal."
In the absence of any objection at trial we review for a substantial risk of a miscarriage of justice. Commonwealth v. Joyner, 467 Mass. 176, 188 (2014). We conclude that this single remark did not create such a risk, especially when we consider the closing argument in its entirety, and also in the context of the judge's instructions to the jury. Commonwealth v. Nelson, 468 Mass. 1, 10 (2014). And we are able to conclude in the absence of any objection that "the tone [and] manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Carriere, 470 Mass. 1, 19 (2014), quoting from Commonwealth v. Mello, 420 Mass. 375, 380 (1995).
In this context it is also pertinent, as the Commonwealth has pointed out, that the jury acquitted the defendant on two of the three charges.
Judgment affirmed.