Opinion
No. 11–P–1098.
2012-10-3
COMMONWEALTH v. Phonekeo SISOMBATH.
By the Court (KAFKER, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Phonekeo Sisombath, was convicted of multiple counts of indecent assault and battery and rape of his stepdaughter. The sexual assaults began when she was nine years of age and escalated in frequency thereafter. The victim did not report them until she was fourteen years of age. The Commonwealth presented evidence from the victim as well as expert testimony explaining the reasons for the delayed disclosure.
The defendant claims that the judge erred by excluding evidence in two reports by the victim's family physician in September, 2004, and April, 2005, that note that the victim had been sexually assaulted once by an adult male when she was seven years of age. (The victim did not meet the defendant until she was eight years old.) The defendant claims the report is a prior inconsistent statement by the victim or otherwise admissible to rebut the Commonwealth's case on delayed disclosure. We conclude that the judge did not err in excluding the report. The rape-shield statute, G.L. c. 233, § 21B, as amended by St.2010, c. 267, §§ 46–48, provides in part that “[e]vidence of specific instances of a victim's sexual conduct” in a sexual assault case may be admitted only if “the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim.” The judge found that, in light of “exhaustive cross-examination by defendant's counsel” concerning the victim's delayed reporting of the defendant's abuse, there was “no substantial overriding purpose” justifying the admission of the contested evidence. It was not an abuse of discretion to find that the probative value of these statements did not outweigh their prejudicial impact. Cf. Commonwealth v. Harris, 443 Mass. 714, 722–723, 728 (2005); Commonwealth v. Noj, 76 Mass.App.Ct. 194, 198–199 (2010).
The victim acknowledged that she denied reporting the defendant's sexual assaults and rape despite numerous opportunities to do so, including during medical check-ups and treatment where she was expressly asked if she had been “touched inappropriately” or “been sexually active.” As she explained, she did not report the assaults and rape because she did not want to hurt her mother, the defendant's wife. In these circumstances, where the defendant was the victim's stepfather, the judge properly focused the extensive cross-examination regarding the delayed disclosure on the defendant. Cf. Commonwealth v. Sa, 58 Mass.App.Ct. 420, 423 (2003), quoting from Commonwealth v. Joyce, 382 Mass. 222, 231 (1981) (“In exercising her broad discretion to control the scope of cross-examination, ‘a trial judge should consider the important policies underlying the rape-shield statute’ ”).
The defendant's second claim of error arises out of questioning by the prosecutor of the defendant related to the defendant's belated disclosure at trial that he had a scar on his penis and photographs of his penis showing the scar. He claimed the scar was caused by his falling into a fire during the civil war in Laos in the early 1960s and burning only this part of his body. The victim had testified to observing the defendant's penis and described it as normal. The defendant claims error arising out of the prosecutor's questioning of the defendant regarding his failure to inform his counsel of the scar or the photographs as they met and reviewed various documents. There was no objection to this testimony. As the defendant was allowed to introduce in evidence the belatedly produced photographs, and their last minute production was a fair subject for cross-examination, we conclude that there was no error and therefore no substantial risk of a miscarriage of justice in this line of questioning. Cf. Commonwealth v. Goldman, 395 Mass. 495, 499–500 & n. 6, cert. denied, 474 U.S. 906 (1985) (distinguishing testimony “as to events which happen to have been a topic of a privileged communication” from testimony “as to the specific content of an identified privileged communication”).
Finally, the defendant objects to various comments made by the prosecutor in closing argument. In the absence of expert testimony, he contends that the prosecutor erred in arguing that it is incredible that the defendant would burn only his penis when he fell into the fire and that the scar did not look like a fifty year old injury. The unlikelihood of burning only his penis was a fair inference. See Commonwealth v. Good, 409 Mass. 612, 623 (1991). As for the comments about the age and nature of the scar, even if error, they were a harmless distraction.
The defendant also contends that the prosecutor engaged in improper burden shifting when she pointed out the absence of any medical records to document the injury to his penis and his failure to provide employment records to support his claim of working such long hours that he was never home alone with the victim. As the defendant testified and raised both issues, and this was fairly explored during cross-examination, there was no improper argument or burden shifting. See Commonwealth v. Matthews, 45 Mass.App.Ct. 444, 447 (1998), cert. denied, 526 U.S. 1101 (1999); Commonwealth v. Ivy, 55 Mass.App.Ct. 851, 859–860 (2002). In addition, the judge gave the standard instructions on the burden of proof.
Judgments affirmed.