Opinion
12-P-1057
06-16-2015
COMMONWEALTH v. ANTONIO RESENDE.
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
A Superior Court jury convicted the defendant of two counts of rape of a child. Before us is his consolidated appeal from the judgments of conviction and from the denial, after an evidentiary hearing, of his motion for a new trial. We affirm.
This was the defendant's second trial on these charges, the first having ended in a mistrial when the jury was unable to reach a verdict.
Background. From June, 2006, to April, 2007, when the victim, S.N., was four years old, her mother used a neighbor, Nania, as the daycare provider for S.N. and her two older siblings. Nania lived in a small apartment with her father, husband, and three sons, including the defendant, who was then eighteen years old. Although Nania was the children's primary caretaker, she occasionally left them with her husband or sons.
S.N. was six years old at the time of trial.
Because their school schedules differed, it was not unusual for S.N. to be at Nania's house when her siblings were not.
The acts in question took place during two separate incidents on a single day, when Nania went to the store and left her husband and the defendant in charge of S.N. S.N. went into the kitchen to eat the lunch she had brought; Nania's husband was in his bedroom, where he generally stayed. The defendant came out of his room, entered the kitchen, and unzipped his pants so that S.N. could see his penis. He then told S.N., "There's milk in there," and made her suck on his penis. Later, when S.N. went into the living room, the defendant followed her and made her suck on his penis again. The defendant told S.N. that if she told anyone what happened he would "throw [her] out the window." When Nania returned, S.N. did not tell her what occurred, because she did not want Nania to be mad at her.
Over the defendant's objection, S.N.'s mother was permitted to testify to S.N.'s demeanor. When the family began using Nania as a daycare provider, S.N. was "okay" and "didn't complain," but in the few months preceding April, 2007, S.N. would cry and tell her mother "I'm not going there," referring to Nania's apartment. However, as soon as S.N.'s mother stopped bringing S.N. to Nania's house, S.N. was "back to herself."
On August 15, 2007, shortly after S.N.'s mother stopped using Nania for daycare, S.N. "barged" into the bathroom while her brother was using the toilet. The brother, who was the first complaint witness, testified that S.N. pointed to his penis and said, "Tony made me suck that." The brother told his other sister about this conversation, and she spoke with their mother. Over the defendant's objection, the judge permitted the mother to testify without further detail that she then called 911. The judge also permitted the police officer who came to the house to testify without further detail that she responded and later filed a report.
The defense was that these events did not happen. The defendant introduced evidence that the apartment was small, the defendant's father and grandfather were regularly present in close proximity to the kitchen and living room, and S.N.'s testimony was unreliable and inconsistent with prior testimony.
Discussion. 1. Closing argument. During her closing argument, the prosecutor made the remarks set out in the margin, without objection from the defendant. The defendant now contends that these comments improperly shifted the burden of proof; however, especially when considered in the context of the defendant's own closing argument, which invited such a response,and the judge's instructions, which thoroughly and accurately explained the role of closing argument and the Commonwealth's burden, the argument fails.
"Did you hear anything, ladies and gentlemen, about a possible motive for [S.N.] to make this up? Did you hear about some sort of financial gain through any of the Commonwealth's witnesses? Did you hear that maybe this was about money? I suggest that wasn't brought up. Did you hear anything about a big blowout fight between the families? I suggest you didn't hear anything about that. Did you hear about any reason why [S.N.] would target that man over there? That's something else you should think about."
Defense counsel argued that the jury should consider what they "didn't hear," emphasized that there was no corroboration, and suggested that other unknown incidents or facts may have caused the change in S.N.'s demeanor and prompted her to fabricate her accusation.
The judge explained that the closing arguments were not evidence, that the Commonwealth must prove each element of the crime beyond a reasonable doubt, and that the defendant has an absolute right not to testify or offer evidence.
"[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). Furthermore, a prosecutor may highlight the strengths of the Commonwealth's case and the weaknesses of the defendant's case even though doing so could "prompt some collateral or passing reflection on the fact that the defendant declined to testify" or offer evidence. Commonwealth v. Nelson, 468 Mass. 1, 12 (2014) (quotation omitted). Whether we view the issue through the lens of unpreserved error or the lens of ineffective assistance of counsel, we discern no error giving rise to a substantial risk of a miscarriage of justice.
2. Additional complaint evidence. The defendant also argues that his objection to the testimony about the mother's 911 call and the officer's response should have been sustained, because it was impermissible additional complaint evidence. Unlike the evidence in Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008), the testimony here was narrowly cabined. Furthermore, it was essentially no more than a reiteration of remarks made in the defendant's opening statement about S.N.'s disclosure to her brother and the resulting charges. The judge's ruling was not an abuse of discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
"[M]onths go by and there's no allegation until apparently sometime in August there's an allegation [S.N.] said something to the effect of, 'Tony made me suck it,' we're told, or something like that, and that's it, and now we have these charges."
3. Demeanor evidence. Finally, the defendant argues that the trial judge erroneously admitted, over objection, the mother's testimony about S.N.'s changed demeanor. However, "[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case." Commonwealth v. Arana, 453 Mass. 214, 225 (2009). "Demeanor evidence may be of particular importance in a case such as this, where the trial devolves to a contest of credibility concerning whether the charged offense, here rape, occurred." Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 801 (2011). There was no error.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Rapoza, CJ, Cohen & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 16, 2015.