Opinion
18-P-684
05-30-2019
COMMONWEALTH v. FELIX RONDON.
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
The defendant appeals from his conviction of indecent assault and battery, G. L. c. 265, § 13H. We vacate the conviction.
Sufficiency of the evidence. The defendant first argues that the Commonwealth presented insufficient evidence, viewed in the light most favorable to the Commonwealth, for a rational finder of fact to find each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). The complainant testified that she felt a man, who smelled like alcohol but did not have trouble walking, "grab or squeeze" her buttocks from behind for up to fifteen seconds. The complainant also testified that she yelled at the man for "sexually assaulting" her. The man then walked away but remained in the area until police arrived. Another witness for the Commonwealth testified that she observed the whole incident and that the man "sexually assaulted" the complainant by grabbing her buttocks. According to this witness, he appeared intoxicated and was unsteady on his feet, but was not stumbling or falling down. The man was identified as the defendant by a police officer witness who responded to the scene.
The defendant called a witness who had been present at the scene, and she testified that she did not see any of the incident. She also testified that she had never told either the defendant's private investigator or defense counsel's supervisor that she had observed the incident and thought that it looked like an accident. The defendant then called his investigator and defense counsel's supervisor, both of whom testified that this witness had told them that she had observed the incident and that it looked like an accident. The judge instructed the jury that the investigator's and the supervisor's testimony could only be used for impeachment purposes.
"To prove indecent assault and battery on a person age fourteen or older, the Commonwealth is required to establish that the defendant committed 'an intentional, unprivileged, and indecent touching of the victim.'" Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018), quoting Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010). The defendant argues that the evidence did not establish the element of intent because it does not disprove accident beyond a reasonable doubt. We disagree. A rational juror could have found that a "grab or squeeze" of the complainant's buttocks by the defendant lasting up to fifteen seconds was not accidental despite his apparent drunkenness.
The defendant also argues that the Commonwealth's case deteriorated to the point of insufficiency because of evidence that the first defense witness had at some point told the defendant's other two witnesses that she thought the incident looked like an accident. Even assuming, counterfactually, that the jury were permitted to consider this evidence substantively, it would at best show a witness's characterization of the series of the events that the jury were free to reject, especially where, as here, the witness denied ever making those statements. See Commonwealth v. Valentin, 420 Mass. 263, 267 n.4 (1995) (mere conflict in evidence does not constitute deterioration). There was sufficient evidence.
Improper testimony. Although we conclude that there was sufficient evidence to convict, the conviction must be vacated because the percipient witness's testimony, given over the defendant's objection, that the defendant "sexually assaulted" the complainant invaded the province of the jury.
"It is fundamental that '[n]o witness should be permitted to give his opinion directly that a person is guilty or innocent . . . . [S]uch matters are not subjects of opinion testimony.'" Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982), quoting Grismore v. Consolidated Prods. Co., 232 Iowa 328, 361 (1942). The witness's statement that the defendant sexually assaulted the complainant was in effect a statement that the defendant was guilty of indecent assault and battery. See Commonwealth v. Mendrala, 20 Mass. App. Ct. 398, 402, 404 (1985) (doctor's opinion that patient "was a victim of a sexual assault" constituted "direct opinion . . . beyond the witness's appropriate province as an expert witness," where defendant was convicted of indecent assault and battery and attempted rape), quoting Commonwealth v. Montmeny, 360 Mass. 526, 528 (1971). As Mendrala makes clear, "sexual assault" is a vernacular term for an assaultive sex crime, including indecent assault and battery. See Commonwealth v. Aitahmedlamara, 63 Mass. App. Ct. 76, 76 (2005) (describing victim of indecent assault and battery under G. L. c. 265, § 13F, as "sexual assault victim"). Indeed, the statute criminalizing kidnapping aggravated by sexual assault refers to indecent assault and battery as a crime that constitutes "sexual assault." G. L. c. 265, § 26. And, of course, a witness need not use the precise name of the crime to express an opinion that the defendant is guilty of it. See Commonwealth v. Woods, 419 Mass. 366, 375 (1995) (police officer's testimony that defendant "was involved in a drug sale" impermissibly expressed opinion on defendant's guilt of two charges, including distribution of cocaine within 1,000 feet of building).
The Commonwealth argues that the rule against expressing opinions on a defendant's guilt does not "foreclose the use of words of summary description." Commonwealth v. Canty, 466 Mass. 535, 544 (2013), quoting Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961). But "sexual assault" is not a summary description of the act that the witness observed, namely the defendant grabbing the victim's buttocks. It is an opinion about the legal significance of that act. Contrast Canty, supra (police officer's statement that defendant was "probably impaired" was summary description of his observation that defendant was modestly inebriated). The Commonwealth is also wrong that the fact that this statement was made by a lay witness as opposed to an expert affects the analysis whether the statement expressed an opinion on the defendant's guilt. The identity of the speaker might be relevant in determining the admissibility of evidence that, while not expressing an opinion about the defendant's guilt, comes close to it. In those cases, "where an opinion comes close to an opinion on the ultimate issue of guilt or innocence, the probative value of the opinion must be weighed against the danger of unfair prejudice," id. at 543-544, and it is possible that an expert opinion might be more unfairly prejudicial than a lay opinion. But, when a witness in fact expresses an opinion on the defendant's guilt or innocence, as in this case, it is categorically inadmissible, and the witness's lay or expert status is irrelevant.
A possible exception to this rule, inapplicable here, relates to child sexual assault victims. See Mendrala, 20 Mass. App. Ct. at 404 n.7.
Because the claim of error was preserved, vacatur is required unless the error was not prejudicial. "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect'" (citation omitted). Id. at 545.
Here, the defendant's only argument to the jury was that he drunkenly stumbled into the complainant by accident, and he therefore contested only the element of intent: he did not dispute that he touched the complainant on the buttocks, and did not argue that the touching was consensual. Because it would be unnatural to describe a sexual assault as unintentional, the witness's inadmissible statement thus went directly to the only contested issue in the case. And the evidence of intent was not overwhelming, as the police officer that testified for the Commonwealth provided evidence that could have supported the defendant's accident theory: the police officer testified that the defendant was "visibly drunk[,] was unsteady on his feet, had bloodshot and glassy eyes, was swaying while standing, and was slurring his speech. The [defendant] had a bottle of alcohol by his feet as well." This evidence is far weaker than the evidence in Mendrala, where we reversed convictions of indecent assault and battery and attempted rape based solely on the prejudicial effect of inadmissible sexual assault opinion testimony even though the complaining witness testified that the defendants took turns poking and touching her vagina with their fingers near a car in which they had been driving, a police witness who happened to be nearby testified that he saw "a young woman with her pants down coming out of the darkness near the rear of the . . . car," and a doctor testified for the Commonwealth that there was "increased redness" in the complaining witness's vaginal area. Mendrala, 20 Mass. App. Ct. at 399, 402, 406. Finally, the Commonwealth argued in closing that the complainant was "sexually assaulted" by the defendant. Though the defendant objected to the trial prosecutor's use of the term "sexually assaulted," this objection was overruled. In light of this, we cannot say our "conviction is sure that the error did not influence the jury, or had but very slight effect" (citation omitted). Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). See Commonwealth v. Montanino, 409 Mass. 500, 504 (1991) (police officer's testimony, "be he considered as a lay witness or as an expert witness," that bolstered complaining witness's credibility constituted prejudicial error); Commonwealth v. Pleasant, 366 Mass. 100, 101-103 (1974) (witness's testimony that she said to defendant, "I heard that you . . . killed . . . [the victim]" was prejudicial error even though defendant responded, "I didn't do anything," and even though defendant had been seen pointing shotgun at victim, who was found dead later that evening of shotgun wounds); Commonwealth v. Duff, 245 Mass. 81, 85 (1923) (admission of opinion evidence that defendant's wife believed him to have had "improper relations" with complainant required reversal).
We disagree with the Commonwealth's argument that the error was not prejudicial because the witness also testified that the defendant grabbed the complainant's buttocks. Prejudice is not vitiated by the fact that the witness also described the crime she testified the defendant committed. Nor do we agree with the Commonwealth's argument that the witness's lay status rendered her statement nonprejudicial. While similar testimony by someone qualified as an expert might have been even more prejudicial, see Canty, 466 Mass. at 545, the lay witness's characterization of the incident as a sexual assault sufficed to invade the province of the jury. See Montanino, 409 Mass. at 504; Pleasant, 366 Mass. at 103; Duff, 245 Mass. at 85.
Speedy trial. The defendant argues that retrial should not be permitted because the violation of his constitutional right to a speedy trial requires dismissal of the indictment with prejudice. See Commonwealth v. Balliro, 385 Mass. 618, 624 (1982). We disagree, because we hold that his constitutional speedy trial right was not violated.
In his reply brief, the defendant clarified that his speedy trial argument was only under the Massachusetts and United States Constitutions, not Mass. R. Crim. P. 36, 378 Mass. 909 (1979).
As an initial matter, the Commonwealth is incorrect that constitutional speedy trial claims can be waived by mere failure to raise the claim below. See Commonwealth v. Horne, 362 Mass. 738, 742 (1973). A constitutional speedy trial claim can be waived only if the waiver "was knowingly and voluntarily made," id., quoting Barker v. Wingo, 407 U.S. 514, 529 (1972), and there is no suggestion in the record that the defendant knowingly and voluntarily waived his constitutional speedy trial claim.
The defendant was arraigned on June 24, 2015, and the one-day trial occurred on October 11, 2016. We will assume without deciding that this delay of approximately one year and four months was sufficient to constitute a "'presumptively prejudicial' delay" that suffices to trigger a constitutional speedy trial analysis. Commonwealth v. Butler, 464 Mass. 706, 710 (2013), quoting Doggett v. United States, 505 U.S. 647, 652 (1992). This analysis requires us to consider four factors: "the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant." Commonwealth v. Dirico, 480 Mass. 491, 506 (2018).
Although a delay of one year and four months is not ideal, it is one-half of the length of the delay in Dirico, which the Supreme Judicial Court held was not sufficient to violate the defendant's speedy trial rights. Next, although several reasons account for the delay, the defendant complains only about a three-week continuance of the trial. The docket shows four scheduled discovery compliance and jury selection (DCE) dates, one of which was continued, accounting for 149 days. (The docket shows that one of the four DCE dates was held, but is unclear whether the other two were held or continued.) The defendant also filed a motion to suppress on March 1, 2016. A hearing on that motion was originally scheduled to be heard on April 12, but was continued to June 21 because there was no interpreter available. The judge denied the motion that same day. The motion to suppress thus took 112 days to resolve, seventy of which were due to the interpreter issue. The trial was scheduled for September 21, 2016. The defendant appears to have acquiesced in all these delays.
The defendant appeared ready for trial on the scheduled date, at which point the prosecutor represented that a police witness whose testimony was essential to identify the defendant had not received a summons because, while the district attorney's office had sent the summons to the police department, the officer had not received it. The prosecutor offered at the hearing to attempt to establish identification through another witness who was present, but the judge ruled that that witness's in-court identification would be inadmissible. It is therefore clear that in seeking a continuance the prosecution was not "deliberately attempting to delay the trial for the purpose of hindering the defense," id., and that this three-week delay resulted from the Commonwealth's negligence. "[O]ur toleration of . . . negligence varies inversely with its protractedness" (citation omitted), id., and here the Commonwealth's negligence caused only a three-week delay.
The third factor, the defendant's assertion of his rights, weighs strongly against the defendant, for, although he objected to the three-week continuance, he did not raise a speedy trial claim below. There is also no indication that he objected to any other parts of the delay. The fourth factor, that of prejudice, also weighs against the defendant. The defendant asserts that the delay caused his own witness, whom he had to impeach as described above, to testify that she did not observe the incident. While impairment of the defense is the "'most serious' concern when evaluating whether the defendant was prejudiced," id. at 508, quoting Barker, 407 U.S. at 532, the defendant's assertion that the delay impaired his defense is pure speculation -- there is no suggestion in the record that it was the delay that caused the witness to testify this way. The defendant also points out that the delay caused him to be subject to three weeks of global positioning system monitoring. This does constitute prejudice, but it cannot suffice to turn a three-week delay into a speedy trial violation. See id. (eight days of pretrial incarceration does not create a speedy trial violation).
The judgment is vacated and the verdict is set aside.
In light of our disposition, we need not address the defendant's arguments regarding purported errors in jury instructions and the inadequacy of the reconstructed record.
So ordered.
By the Court (Rubin, Kinder & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 30, 2019.