Opinion
10-P-1161
09-14-2011
COMMONWEALTH v. RAYMOND RUIZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court on August 5, 2009, the defendant, Raymond Ruiz, was convicted of one count of indecent assault and battery on a person fourteen years of age or older in violation of G. L. c. 265, § 13H. On appeal, the defendant claims that the trial judge erred by admitting testimony in violation of the first complaint doctrine, see Commonwealth v. King, 445 Mass. 217, 237-248 (2005), cert. denied, 546 U.S. 1216 (2006), and that his trial counsel was ineffective for failure to act on a passing reference to photographs of the victim's injury. We affirm.
Discussion. The defendant assigns error to the admission of certain testimony of the victim and of Brockton police Officer Michael Bunker. He first argues that the victim's testimony that she told her building manager 'what had happened,' leading the manager to call the police, served only to 'repeat the fact of [the] complaint and thereby corroborate the complainant's accusations.' Commonwealth v. Arana, 453 Mass. 214, 229 (2009). Because the defendant did not object to this testimony, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 497 (2010). While it was error to admit the fact of the complaint to the building manager, who was not called as a witness, the defendant was not prejudiced because it was only a brief mention of the complaint and no specifics were discussed. See Revells, supra at 498 (victim's statement to doctor). See also Commonwealth v. Kebreau, 454 Mass. 287, 298 (2009) (victim's advisor's call to DSS).
Next, the defendant argues that Officer Bunker's testimony concerning the victim's complaint to him created a substantial risk of a miscarriage of justice. Officer Bunker was not designated as a first complaint witness, and it was therefore appropriate that he testified on direct examination only that he had a conversation with the victim, without describing the nature or substance of that conversation. Indeed, Officer Bunker only described the victim's complaint in response to cross-examination by defense counsel. His testimony therefore did not run afoul of the first complaint rule. See King, supra at 243 (rule applies to testimony by first complaint witness in prosecution's case-in-chief); Kebreau, supra at 298 (testimony introduced in rebuttal to cross-examination 'was not first complaint testimony').
Finally, the defendant claims that his trial counsel was ineffective for failure to take forceful action regarding photographs of the victim's injury. He makes this argument without having first presented the issue to the trial court on a motion for a new trial, where a record could have been developed regarding trial counsel's strategies and motivations. Raising the issue for the first time on direct appeal is 'strongly disfavor[ed].' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Unless the basis of such a claim appears clearly on the trial record, 'the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.' Id. at 810.
On cross-examination, the victim testified that the police had taken photographs of her bruised breast. Neither the prosecutor nor the defense had apparently been aware that any photographs had been taken. The parties and the judge discussed several alternatives for dealing with this unexpected testimony, including a stipulation that no photographs were available, a curative instruction, and permission for defense counsel to argue to the jury based on the absence of any photographs in evidence. Eventually, defense counsel decided simply to have no further reference made to the photographs.
In these circumstances, where the record demonstrates that defense counsel considered seeking a mistrial or a curative instruction before asking the judge to 'remain silent' on the matter, we cannot conclude that he did not make a reasonable strategic decision. Compare Commonwealth v. Bell, 455 Mass. 408, 422 (2009). Seeking a mistrial posed the obvious risk of a new trial in which the photographs could have been introduced. Photographs of the victim's injuries, which apparently revealed bruising to her breast, might have provided objective corroboration of her testimony. Although it is conceivable that other tactics would have been more successful, it was reasonable for defense counsel not to draw further attention to the testimony regarding the photographs. Photographs were only mentioned briefly in the middle of cross-examination. Highlighting the testimony about the photographs, even through an instruction or stipulation that no photographs were available, would have ensured that all the jurors were focused on the possibility that photographs had been taken. See Commonwealth v. Delp, 41 Mass. App. Ct. 435, 442 (1996) ('Counsel's decision not to request a limiting instruction may have been a tactical move not to highlight the evidence'). Under the circumstances, the decision to drop the issue appears not manifestly unreasonable, and thus the defendant did not receive ineffective assistance of counsel.
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),