Opinion
No. 11–P–1621.
2013-03-4
COMMONWEALTH v. Elvin RODRIGUEZ.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, the defendant was convicted of two counts of rape of a child, and four counts of indecent assault and battery of a child under the age of fourteen. The victims were the two daughters of his long-term girlfriend. On appeal, the defendant argues that the judge erred in two respects: (1) by allowing testimony that the defendant had committed various uncharged prior “bad acts,” and (2) by allowing, and instructing the jury with regard to, the testimony of a first complaint witness. We affirm.
Prior bad acts. The testimony that the defendant argues should have been excluded went to sexual assaults that the defendant allegedly committed on the same victims before the incidents for which he was charged. After the defendant's pretrial motion in limine to exclude such evidence was denied, the defendant did not renew any objection to such evidence at trial. His claim of error is therefore waived. See Commonwealth v. Kee, 449 Mass. 550, 553 n .5 (2007). Nor can the defendant demonstrate a substantial risk of a miscarriage of justice. “In sexual assault cases, evidence of similar illicit sexual contacts involving the same parties may be used to show a pattern of conduct, intent, and the relationship between a defendant and a complainant.” Commonwealth v. Santiago, 52 Mass.App.Ct. 667, 679 (2001), S. C., 437 Mass. 620 (2002). See Commonwealth v. Frank, 51 Mass.App.Ct. 19, 23–24 (2001). Even had the defendant timely objected, we would “defer to the trial judge's exercise of [his sound] discretion absent ‘palpable error.’ “ Commonwealth v. Santiago, 52 Mass.App.Ct. at 679, quoting from Commonwealth v. Loach, 46 Mass.App.Ct. 313, 317 (1999). The defendant has not shown any abuse of discretion here, and hence there could not be a substantial risk of a miscarriage of justice. In addition, the jury were instructed properly about the limited use of such evidence both before the evidence came in, and at the close of trial. First complaint witness. Prior to trial, the defendant pressed for the Commonwealth to identify whom it intended to call as first complaint witnesses. For the older of the two sisters, the Commonwealth identified the victim's best friend, Jane Smith (a pseudonym). The defendant not only declined to object to Smith's testifying as a first complaint witness, he affirmatively assented to this, with his counsel stating, “I think it's reasonable and given the case, I think it's within the bounds of case law.” Our review is therefore limited to whether there was error that caused a substantial risk of a miscarriage of justice. See Commonwealth v. Morris, 82 Mass.App.Ct. 427, 440 (2012).
Most of the earlier uncharged conduct allegedly occurred before the defendant and the victims moved to Massachusetts.
Moreover, this case hinged on whether the jury believed the victims' testimony, especially in the face of the claim by a defense witness (the defendant's former wife) that one of the victims had admitted to her that she had fabricated all of her accusations. In this context, whether the victims were alleging that the defendant had committed sexual assaults on them prior to the ones for which he was charged was of limited import.
The older sister served as the first complaint witness for the younger sister. The defendant raises no issue with respect to this.
The older sister's trial testimony as to what she first told Smith was extremely limited. She stated that “some time after” the defendant had abruptly cut short a birthday party of hers, she told Smith “some of what happened.” No details were provided. Smith provided slightly more detail. According to her, about a week after the party incident, the older sister at school told her “something about what happened,” specifically that the defendant “would make her do stuff that she didn't want to do, but she had to do it[, a]nd she said that, well, she didn't give me a lot of detail because she just couldn't say because she would start crying.” Smith added that the older sister “said that she was afraid of telling somebody and I told her to tell someone, and she said no because she was afraid.” No additional detail was provided.
The most salient aspect of the first complaint testimony here was how little substance it supplied. The defendant seeks to characterize this as error. Viewed in its best light, the defendant's argument is that Smith's testimony was so devoid of substance regarding what the older sister told her that Smith should never have been allowed to testify as a first complaint witness. Compare Commonwealth v. Murungu, 450 Mass. 441, 446 (2008) (conversation does not rise to the level of a complaint “when, for example, the victim expresses to that person unhappiness, upset or other such feelings, but does not actually state that she has been sexually assaulted”). He also claims that by providing an otherwise proper first complaint instruction, the judge suggested to the jury that the older sister must have told Smith more about the defendant's conduct than Smith's testimony actually substantiated. The Commonwealth counters that the older sister's comments to Smith did rise to the level of a complaint, because taken in context, they implicitly communicated that the defendant was sexually abusing her. We need not resolve whether what the older sister told Smith rose to the level of a “complaint,” because Smith's first complaint testimony was, in any event, so slight that it could not have caused a substantial risk of a miscarriage of justice. Compare Commonwealth v. McCoy, 456 Mass. 838, 852 (2010) (where “[t]he victim's mother did not testify about any details of the assault and did not testify as to her belief in victim's account ... [t]he defendant was not prejudiced by the error in allowing the victim's mother's testimony”).
There is no merit to the defendant's argument that, faced with defense counsel's assenting to Smith's serving as a first complaint witness, the judge nevertheless had a sua sponte obligation to conduct a voir dire of Smith.
The older sister's statement to Smith that the defendant would “make her do stuff that she didn't want to do,” followed Smith's observation that the defendant had acted like a jealous boyfriend toward the older sister.
Judgments affirmed.