Opinion
No. 15–P–652.
10-19-2016
COMMONWEALTH v. Felicito RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a jury in Superior Court of one count of rape of a child under G.L. c. 265, § 23. The defendant argues that he was deprived of a fair trial by the admission of evidence of his prior bad acts and by the prosecutor's closing argument, which contained a statement that impermissibly bolstered the credibility of the complaining witness. After examining each of the defendant's contentions, we conclude there was no error and, accordingly, affirm.
During a pretrial hearing, the trial judge granted the Commonwealth's motion in limine to allow testimony regarding certain bad acts in evidence for limited purposes. Specifically, the prosecution was allowed to elicit testimony that the defendant requested sexual favors from the victim, K.M., including asking her to touch the defendant's penis and the defendant touching her penis and buttocks; that K.M. witnessed the defendant verbally and physically abuse K.M.'s mother on numerous occasions prior to K.M.'s first complaint of rape, including an incident where the defendant put a knife to K.M.'s mother's belly; and that the defendant punished K.M. by making her kneel on rice and on a punctured metal can lid. This evidence was proffered for the purposes of demonstrating the hostile nature of the relationship between the defendant and K.M. and to explain K.M.'s delay in reporting the rape. The defendant's motions to exclude this evidence and his subsequent motion to reconsider were denied. The defendant was convicted of one count of rape of a child for anal penetration that occurred in a shower in December, 1991. At trial, K.M.'s testimony as to the events of that date was corroborated by the testimony of K.M.'s brother, who came into the bathroom and saw K.M. in the shower with the defendant, whose penis was erect.
A pseudonym.
K.M. is transgender. At the time of trial K.M. identified as female. Accordingly, we will refer to K.M. with female pronouns.
The proffer of evidence was that the defendant touched K.M.'s buttocks. K.M.'s testimony was that the defendant had K.M. put her hand on his buttocks.
Discussion. The decision whether to admit prior bad act evidence is “committed to the sound discretion of the judge who also must consider whether the probative value of the evidence is outweighed by its prejudicial effect.” Commonwealth v. Leonard, 428 Mass. 782, 786 (1999). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (citation omitted). Where there is error, and where the issue has been preserved for appellate review by objection, we review for prejudice. An error is nonprejudicial only “[i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect, [such that] the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445 (1983), quoting from Kotteakos v. United States, 328 U.S. 750, 764–765 (1946).
1. Testimony about conduct of which defendant had been acquitted. The defendant argues that he was deprived of a fair trial because of testimony given at trial concerning conduct of which he was previously acquitted. The defendant points to two pieces of testimony he contends impermissibly referred to rapes of K .M. of which he had been acquitted. We will assume without deciding that the testimony in fact referred to the conduct subject to the prior acquittals, and that its admission at the 2014 trial was barred by principles of collateral estoppel announced in Commonwealth v. Dorazio, 472 Mass. 535, 547 (2015). In both instances the testimony in question was immediately objected to by defense counsel and stricken from the record. “Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony.” Commonwealth v. Williams, 450 Mass. 645, 651 (2008). These references were unanticipated testimony that came in the context of the judge's proper exercise of discretion in allowing the jury to hear testimony of other sexual abuse for the limited, permissible purposes of explaining K.M.'s delayed report of the rape and the nature of the relationship between K.M. and the defendant (see part 2, infra). Given the fleeting nature of the testimony in question and the immediate steps taken to mitigate any possible prejudice, we find the trial judge committed no error and did not abuse his discretion in declining to order a mistrial.
First, in response to a question from the prosecutor about the defendant's conduct while he babysat for K.M. and her brother, K.M. testified that the defendant “would put his penis in [her] mouth.” In a previous trial, the defendant had been acquitted of other charges of rape of K.M. involving oral penetration. Second, after describing the incident for which the defendant was currently on trial, K.M. was asked, “And how long did this go on for?” She responded, “That day? ... All night, I believe.” The defendant argues that K.M.'s question “That day?” implied that there were other days when the defendant raped her, and that K.M.'s answer “All night” referred to conduct later the same day of which the defendant had been acquitted.
After the first piece of testimony, the jury were specifically instructed to disregard the testimony, and the judge also issued a limiting instruction as to the uses of other, properly admitted bad acts evidence (see part 2, infra). The latter instruction was repeated during the final jury charge, during which the judge also reminded the jury that stricken testimony is not evidence in the case.
2. Testimony about uncharged physical and sexual abuse. The defendant also argues that it was error for the judge to admit testimony relating to the defendant's acts of physical abuse toward K.M.'s mother and physical and sexual abuse toward K.M. K.M. testified that the defendant was physically abusive toward K.M.'s mother, including holding a knife to her face and neck. K.M. also testified that the defendant “[would] have us do like sexual, like with me sexual like contact with him, watch porno with him and my brother,” and would have K.M. put her hand on his penis and buttocks and would put his hand on K.M.'s penis.
As a preliminary issue, the Commonwealth argues that defense counsel did not object to this testimony when it was given at trial and thus waived the issue on appeal. The defense moved in limine to exclude this evidence but did not object at the time the testimony was given. Where the trial judge repeatedly stated that defense counsel's objection was preserved, we conclude that those objections were preserved.
Defense counsel objected at trial only to the mention of “weapons,” and was overruled.
A recent decision by the Supreme Judicial Court, Commonwealth v. Grady, 474 Mass. 715, 718–719 (2016), held that an objection made in a motion in limine, regardless of its basis, will preserve a defendant's appellate rights regardless whether the defendant objects at trial (with the significant limitation that if a defendant fails to object to the admission of certain evidence at trial, his or her appellate rights are only “preserved” if the specific issue at trial was the same issue at the motion in limine stage). There was some discussion at oral argument about whether Grady applied to this case, which was pending on appeal at the time Grady was decided. We conclude that the defendant's objection was preserved on appeal by the statements of the trial judge, and we do not take up the question whether Grady should be applied retroactively or prospectively.
There was extensive sidebar discussion about K.M.'s testimony and the judge's intention to give a limiting instruction regarding all prior bad acts testimony. The judge mentioned anticipated testimony from K.M. regarding kneeling on rice and cans and stated to defense counsel, “I understand that you are moving to keep of all [sic] this out, and that objection is preserved.” In discussing the use of leading questions on direct examination by the prosecution to prevent further unanticipated references to acquitted conduct, defense counsel stated, “I'm satisfied with that under the blanket of my objections, that they will be preserved.” The judge again stated, “Your objection is preserved....” Counsel could take the judge at his word. See Commonwealth v. Aviles, 461 Mass. 60, 66 (2011).
But see now Commonwealth v. Grady, 474 Mass. 715, 721 (2016) (cautioning against practice of judges at the motion in limine stage preserving or saving appellate rights).
This evidence was admitted, at the trial judge's discretion, for the limited purposes of demonstrating the hostile nature of the relationship between K.M. and the defendant and to explain K.M.'s delay in reporting the rape. See Commonwealth v. McKinnon, 35 Mass.App.Ct. 398, 404–405 (1993) (finding no error in admission of bad acts to show victim's fear of defendant in order to explain long delay in reporting rape where unexplained delay would have barred admission of victim's report under then-extant fresh complaint doctrine); Commonwealth v. Hall, 66 Mass.App.Ct. 390, 394–396 (2006) (finding no error in admission of bad acts to explain delay in reporting rape and rebut defendant's suggestion of fabrication); Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 54 (2009) (finding no abuse of discretion where defendant's prior crimes involving his former wife were relevant to show hostile nature of his relationship with her and motive to commit the crime). Admission of this evidence was not an abuse of discretion, especially where the trial judge gave proper limiting instructions soon after the testimony was admitted and repeated the instruction before deliberation.
The judge's limiting instruction was as follows:
“Now, the Defendant, Mr. Rivera, is not charged with committing any crime other than the charge of rape contained in the indictment which as you understood from opening statements was an incident that was alleged to have occurred in a shower. You are going to hear mention of other acts allegedly committed by the Defendant with respect to the complainant or the alleged victim, [K.M.], or her mother....
“It is for you to determine if the acts described actually occurred. If you believe that testimony, you may not give that as a substitute to prove that the Defendant committed the crime for which he is charged. You may give that evidence such weight as you feel it deserves and such knowledge as you think it bears upon such as the victim, alleged victim's relationship with the Defendant or whether or not such alleged conduct was a factor in any delayed disclosure of it.
“However, you may not consider this evidence as bearing on the Defendant's character or that he has a propensity or a tendency to commit the act for which he is on trial. You may not take this testimony as a substitute for proof that the Defendant committed any crime with which he is charged. Specifically, you may not consider this testimony in order to conclude that the Defendant, if the Defendant committed the acts upon which, of which you have heard testimony, that he must have also committed the charge before you.”
3. Prosecution's closing argument. The defendant's final argument is that the prosecution's closing argument contained impermissible bolstering of K.M.'s credibility. The prosecutor said, “And, ladies and gentlemen, I know that you just heard also that it is easy for someone to make up an allegation of rape. Is it? [K.M.] had to get up on the stand and basically put most of her life in the hands of strangers. Who would want to do that?” This was in response to a statement by defense counsel in his closing argument: “And by the way, that is all it takes for a case to get here to Superior Court, is just that one word ‘rape.’ ... Even if it is twenty-two years ago, that is all it takes for a case to get here....” The defendant did not object to the prosecutor's statement. Accordingly, we review only to determine whether there was error creating a “substantial risk of a miscarriage of justice.” Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). There is a substantial risk of a miscarriage of justice “if the evidence and the case as a whole [leave] us with a serious doubt that the defendant['s] guilt [has] been fairly adjudicated.” Commonwealth v. Amirault, 424 Mass. 618, 646–647 (1997) (citation omitted).
Our courts have repeatedly cautioned prosecutors that it is impermissible to “suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify.” Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826–827 (2009) (quotation omitted) (reversing conviction where error was preserved through objection). However, “[w]here ... defense counsel in his closing argument challenged the credibility of the alleged victim, a prosecutor acts properly in inviting the jury to consider whether the victim has a motive to lie, and identifying evidence that demonstrates that the victim's testimony is accurate and reliable.” Commonwealth v. Polk, 462 Mass. 23, 3940 (2012).
We find this case unlike Commonwealth v. Dirgo, where the prosecutor's statement “was not a single, offhanded remark. Rather, the prosecutor established throughout the argument an overarching theme that the complainant was credible because of her willingness to testify.” 474 Mass. 1012, 1013 (2016). Here, the prosecutor's remark was very brief and in direct response to the defendant's closing argument. In the context of the entire closing argument, we conclude that the prosecutor's isolated statement did not create a substantial risk of a miscarriage of justice.