Opinion
20-P-919
01-05-2022
COMMONWEALTH v. Jovanny RIVAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of indecent assault and battery on a child under fourteen. See G. L. c. 265, § 13B. On appeal, the defendant claims the judge abused her discretion when she allowed the jury to hear substituted first complaint evidence and then allowed the victim to testify about an earlier disclosure of sexual abuse. The defendant also takes issue with several comments made during the prosecutor's opening and closing statements. Because we discern no abuse of discretion or error on either claim, we affirm.
Background. The Commonwealth's evidence at trial established the following. The victim was about three years old when the victim's mother and the defendant began to date, and about ten or eleven years old when they were married. By all accounts, the defendant acted like a father figure to the victim throughout her childhood.
The victim, her mother, and the defendant enjoyed family movie nights. They would put a mattress on the floor in the living room and watch movies or television together. Often on these occasions, the victim's mother and the defendant would consume alcohol and attempt to conceal it by using plastic cups. The victim consequently became familiar with the smell of alcohol.
The victim also became familiar with the smell due to the regular parties the defendant and her mother hosted at which "they'd get drunk a lot."
On one family movie night, when the victim was seven years old, she fell asleep on the mattress and awoke to the defendant touching her vaginal area. The defendant was touching and fondling her vaginal area for several minutes and had his hand under her clothing and underwear. The victim turned and saw the defendant's face staring at her without emotion. She also noticed the smell of alcohol. She was scared and confused and shut her eyes. The victim's mother was asleep in her own bedroom. The victim told no one about the abuse at that time.
Three or four years later, the victim overheard her mother and the defendant arguing about their youngest child. This argument "triggered something" in the victim and she then disclosed the earlier sexual assault to her mother. The next day the defendant apologized to the victim and told her that he did not have any memory of the event, but if it did happen, he never intended to hurt her. Law enforcement was not contacted, and the victim was not taken to any medical providers or provided counseling.
The victim's mother and the defendant had two biological children together.
A few more years passed, and the victim, who was now about thirteen years old, applied to a private high school. One of the application requirements was to write an essay about the most inspiring advice she had ever been given. The victim wrote an essay in which she disclosed that at "age seven I was sexually abused until I turned 11 years old." As a result of this disclosure, police investigated the allegation. They interviewed the defendant at the police station, who was provided an interpreter and given Miranda warnings. The interview was both audio and video recorded. In response to questions, the defendant claimed that he had no memory of the incident because he was drunk; that the victim said he touched her "private" parts; that she said it happened one time; that if he was in his "right mind" he never would have done it; and that "if it happened, as I do not remember, I did it because I was not in my right state of mind." When asked, he told police that he believed the victim that it did happen.
At trial, the victim clarified that there was one incident of sexual abuse when she was seven but that she felt the pain of the assault until she disclosed it to her mother when she was eleven.
A trial was held in October of 2019. On the day of trial, the victim's mother, the intended first complaint witness, invoked her Fifth Amendment privilege. The trial judge conducted a hearing outside of the purview of the jury. Having invoked her Fifth Amendment rights, the mother was unavailable to testify and the victim's next-in-time disclosure was to the defendant, who also could not serve as the first complaint witness. Therefore, the trial judge allowed the prosecutor to introduce a redacted version of the victim's high school application essay as the substituted first complaint "witness."
The prosecutor argued that admission of only the victim's essay would unfairly make it appear that the victim's initial disclosure, in fact made to her mother three to four years after the abuse, had been delayed for an additional several years. The judge therefore also allowed the victim to testify that she disclosed the sexual abuse to her mother when she was approximately ten years old and that no one from law enforcement spoke to her afterward. The defendant objected. The judge instructed the jury that these particular statements of the victim were not offered for the truth of the matter but rather to give the jury an accurate progression of events that led to the disclosure in her essay several years after her initial disclosure.
In addition to the first complaint evidence, the jury also heard from Detective Sherburne, who interviewed the defendant. A redacted portion of the interview was introduced into evidence and was played for the jury.
The jury returned a verdict of guilty. The defendant timely appealed.
1. First complaint evidence. We review a judge's application of the first complaint doctrine for an abuse of discretion. Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). In sexual abuse cases, the first complaint doctrine limits the testimony surrounding a witness's disclosure of the abuse to others. Only one witness may testify in the prosecution's case-in-chief as to the details of the sexual abuse and the circumstances surrounding the first complaint. Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied, 546 U.S. 1216 (2006). The alleged victim is also allowed to testify about the details of the first complaint, including the reasons why it was made at the time. Id. at 244. However, to prevent the harm from multiple witnesses "piling on," the alleged victim cannot testify that, other than the first complaint, he or she told others of the sexual assault even when no details about the conversation are elicited. Id. at 245. See Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009).
Generally, the first complaint witness is the individual to whom the complainant first disclosed the alleged sexual abuse, including the details of the abuse. Commonwealth v. Thibeault, 77 Mass. App. Ct. 419, 421-422 (2010), citing King, 445 Mass. at 243-244. Their testimony serves the narrow purpose of helping the jury decide whether to credit the complainant's testimony about the alleged incident. Thibeault, supra at 422. It is not used to prove the truth of the matter. Id. at 421. In limited circumstances, substituting first complaint evidence is permissible and within the trial judge's authority, for instance, when the first complaint witness is unavailable. Commonwealth v. Murungu, 450 Mass. 441, 445 (2008). Further, the first complaint need not be an actual witness: a written communication can also serve as first complaint evidence. A letter disclosing the sexual abuse, therefore, will suffice. See Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008).
The landscape of the first complaint doctrine was decidedly changed when the Supreme Judicial Court announced its decision in Aviles, 461 Mass. at 67-73. There, the Court acknowledged that, given the number of unique factual circumstances in sexual assault cases, trial judges needed more flexibility when considering the admission of evidence from a first complaint witness. Id. at 72-73. The Supreme Judicial Court also instructed that the first complaint doctrine should be considered a "body of governing principles to guide a trial judge" instead of a hard and fast "evidentiary ‘rule.’ " Id. at 73. The Court opined:
"The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence.... Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard." Id.
Considering the principles of Aviles, the trial judge did not abuse her discretion in allowing the Commonwealth to substitute the high school essay as the first complaint evidence. Having invoked her Fifth Amendment rights, the mother, the person to whom the victim first disclosed the abuse, was rendered unavailable to testify. See Commonwealth v. Hesketh, 386 Mass. 153, 158 n.4 (1982). See also Murungu, 450 Mass. at 445. The next person the victim told of the abuse, and thus the next first complaint witness, would have been the defendant, who also could not be compelled to testify under the Fifth Amendment. See Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 338 (1995). Because the high school essay was the next instance of disclosure, the trial judge correctly allowed it to be partially admitted as the substituted first complaint evidence. See Stuckich, 450 Mass. at 456 ; Murungu, supra.
The judge also properly allowed the victim to tell the jury that she disclosed the sexual abuse to her mother when she was about ten or eleven years old and that no one from law enforcement contacted her in the aftermath. The judge correctly limited the victim's testimony to the fact that she told her mother of the abuse but did not allow the victim to testify to the specific details of the disclosure. If the judge did not allow this testimony, the jury would have been given the wrong impression that the victim did not disclose that she was abused by the defendant until she was approximately thirteen, when she wrote the essay. Allowing this limited testimony furthered the goal of the first complaint doctrine, which is "to give the jury as complete a picture as possible of how the accusation of sexual assault first arose." Commonwealth v. Roby, 462 Mass. 398, 410 (2012), quoting King, 445 Mass. at 247. These unique factual circumstances create exactly the type of decisions the Aviles court indicated should be left to the trial judge's sound discretion. See Aviles, 461 Mass. at 72-73. There was no error.
"The fact finder should not be left to speculate on the evidence or to draw erroneous inferences due to incomplete information." Aviles, 461 Mass. at 72.
2. The prosecutor's opening statement and closing argument. The defendant contends that various improprieties in the prosecutor's opening statement and closing argument require reversal. "In determining whether an argument was improper we examine the remarks ‘in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.’ " Commonwealth v. Kolenovic, 478 Mass. 189, 199 (2017), quoting Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005).
First, the defendant claims that the use of the word "molest" in the prosecutor's opening statement and closing argument was improper. At trial, the defendant objected to this term, and the trial judge gave the jury a curative instruction in her final charge, telling the jury to disregard the term. Because counsel did not object to this curative instruction, we review it under the familiar substantial risk of a miscarriage of justice standard. Commonwealth v. Cooper, 100 Mass. App. Ct. 345, 354 (2021). But even if we were to accept the defendant's argument that our review should be for prejudicial error, his claims still must fail because we conclude that the prosecutor did not err.
At the beginning of the instructions, the trial judge instructed the jury that closing arguments are not evidence and that: "the term ‘molested’ was used during the course of the closing arguments, and that's not what the defendant is charged with. He's charged with indecent assault and battery on a child under the age of 14, so those are the elements the Commonwealth has to meet. So, relative to that term, that is not a charge. It's a term of art, but I would ask you essentially to disregard that term and focus on what the charge itself is. And with that I'm going to give you the rest of the instructions."
There was no error in the prosecutor recounting the victim's experience by using the word "molest." The prosecutor's argument and choice of one word was not an improper appeal to sympathy or emotions. See Kolenovic, 478 Mass. at 201. As properly noted by the Commonwealth, the use of the word "molest" to describe allegations of sexual abuse is commonplace. In fact, had the prosecutor used more detailed and descriptive words to describe the actions of the defendant, it would have been more harmful to the defendant. While we see no error in the trial judge exercising her discretion by striking the word "molest" and instructing the jury to disregard it, it should be noted that the term "molest" has been used in many appellate cases to describe the crime of indecent assault and battery. See, e.g., Commonwealth v. LaPointe, 435 Mass. 455, 456-457, 460 (2011) ; Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 712 (2009). Where, as here, upon objection the trial judge took great care to ensure that the jury consider the elements of indecent assault and battery instead of some lesser standard or crime of being molested, there was no error.
The defendant also challenges the prosecutor's commentary that the defendant had an unhealthy relationship with the victim. He stated that instead of being a "protector, [the defendant] turned out to be a criminal" and that he gained trust from the family and then "targeted" and "isolated" the victim. Because there was evidence admitted at trial to support this interpretation of the events, the argument was proper. See Commonwealth v. Roy, 464 Mass. 818, 829 (2013) (prosecutors may "marshal the evidence and suggest inferences that the jury may draw from it. Those inferences need only be reasonable and possible" [quotation and citation omitted]); Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutor should not "refer to facts not in evidence").
Defense counsel did not object to this commentary, so we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001).
The defendant next contends that the prosecutor's statements surrounding the defendant's failure to deny the allegations against him violated his Fifth Amendment rights. The Fifth Amendment is not implicated in a case such as this where the defendant did not remain silent; the jury was free to consider his statements, asking for forgiveness and explaining that he must have been drunk because he had no memory of the events and would not have done this in his right mind, as admissions. See Commonwealth v. McClary, 33 Mass. App. Ct. 678, 685-686 (1992), cert. denied, 510 U.S. 975 (1993). The prosecutor was free to use these comments in his closing and to ask the jury to rely on their common sense and life experience in evaluating them.
Defense counsel lodged an objection on this point after the prosecutor's opening, but not closing, statements. Here again, regardless of the standard of review we apply, the outcome is the same because there was no error.
Finally, the defendant claims error in the prosecutor's request that the jury listen to the victim's voice and her testimony and determine if she sounded like "a child who has an axe to grind against [the defendant] ... who made it all up so she can get into" a particular school. It is impermissible for a prosecutor to argue that a witness is credible simply because they testified at trial. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). A prosecutor may, however, "address the witness's lack of motive to lie and do so by asking rhetorical questions relying on the evidence presented." Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). Here, the prosecutor did the latter. It was entirely appropriate for the prosecutor to ask the jury to consider the victim's motive to lie because the defendant suggested that the victim had fabricated the sexual abuse to gain entry into a prestigious private high school. Again, there was no error.
Our review on this issue is also for a substantial risk of a miscarriage of justice as defense counsel did not object to this argument. See Grandison, 433 Mass. at 141-142.
Judgment affirmed.