Opinion
11-P-208
03-29-2012
COMMONWEALTH v. BUDDY SMITH.
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
After a jury trial, the defendant was convicted of rape, G. L. c. 265, § 22(b), indecent assault and battery on a mentally retarded person, G. L. c. 265, § 13F, and intimidation of a witness, G. L. c. 268, § 13B. On appeal, the defendant claims that the admission of first complaint testimony created a substantial risk of a miscarriage of justice. He also claims that the judge abused her discretion by declining to ask certain voir dire questions, by denying a mistrial, and by denying his motion for new trial. We affirm.
1. First complaint. For the first time on appeal, the defendant claims that the victim's mother's first complaint testimony should have been excluded because the victim's statements were not voluntary. Specifically, the defendant claims that the victim's statements to his mother were coerced by his mother as they came in response to a number of 'pointed questions.' We disagree.
In support of his claim, the defendant relies on case law from the fresh complaint era, and cites no authority for a voluntariness requirement being engrafted onto the first complaint doctrine that was created in Commonwealth v. King, 445 Mass. 217 (2005). We need not determine if such a requirement remains, because in this case, the defendant fails to demonstrate that the victim's complaint was involuntary.
Under the fresh complaint doctrine, a jury could consider complaint testimony if they found that it was made reasonably promptly after the assault, and that it was voluntary under all the circumstances. Commonwealth v. Davids, 33 Mass. App. Ct. 421, 425-426 (1992). See Commonwealth v. Amirault, 404 Mass. 221, 230 (1989). Pursuant to the first complaint doctrine, juries are instructed, in part, that when they assess whether the first complaint evidence supports or detracts from the victim's credibility or reliability, the jury 'may consider all the circumstances in which the first complaint was made.' King, 445 Mass. at 248. There is no longer an explicit voluntariness requirement.
Here, the defendant told the victim his name was 'Charlie.' The victim's first complaint to his mother was prompted by her question regarding who 'Charlie' was. The victim was reluctant to identify 'Charlie' because he did 'mean' or 'bad' things to the victim. When asked what he meant, the victim told his mother that 'Charlie' and his friends had been sodomizing him and forcing him to fellate them. The mother asked a series of open-ended questions in an effort to clarify what her mentally retarded son, who was clearly upset, was reporting. The victim's responses in no way indicated that he was simply acquiescing to suggestions made by his mother. See Commonwealth v. Hanger, 357 Mass. 464, 467 (1970); Commonwealth v. Tingley, 32 Mass. App. Ct. 706, 709 (1992).
2. Voir dire questions. The defendant claims the judge abused her discretion by declining to ask potential jurors three questions related to their thoughts on the necessity of corroborating scientific or medical evidence. We disagree. The questions were intended to ferret out potential juror bias regarding the so-called 'CSI effect.' See Commonwealth v. Perez, 460 Mass. 683, 689 (2011). Although it would not have been error to ask these questions, the judge was not required to do so as the scope of juror voir dire rests in the judge's sound discretion. Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). In exercising her discretion, the judge could very well have concluded that asking the questions ran the risk of unnecessarily bringing the absence of scientific evidence in this case to the jury's attention. This, in turn, might generate an unrealistic skepticism of testimony that is not corroborated by physical evidence. There was no abuse of discretion.
3. Denied mistrial. The defendant claims that the judge abused her discretion by denying a mistrial based on a Rhode Island police report that was not provided to the defendant until the first day of trial. We disagree. Neither the Commonwealth nor the defendant was aware of the report prior to trial, and it arrived after the Commonwealth's direct examination of the victim, but before the defendant's cross-examination of him. The judge properly determined that the defendant was not prejudiced by the late disclosure of the report. The defendant was still able to call an alibi witness, and he neither requested to amend his witness list nor asked for extra time to obtain additional alibi witnesses. The late-arriving report also did not prejudice the defendant's claim that the police failed to properly investigate the crime even though certain telephone records had been sought. Finally, the defendant had more than an adequate amount of time to prepare for his cross-examination of the victim, which continued into the next day and thereby gave him an entire evening to consider how to further use the report. There was no abuse of discretion.
4. New trial motion. The defendant also claims the judge abused her discretion by denying his motion for a new trial based on newly discovered evidence. We disagree. The defense at trial was misidentification. The newly discovered evidence was the arrival of Charles Waddington at the victim's doorstep in 2009, seven months after the defendant's conviction, looking for the victim. According to Waddington, he knew the victim from the Fall River chat line, which is the same way the victim met the defendant, who identified himself as 'Charlie.' Waddington claimed that he would visit the victim, and would take the victim to several apartments in Fall River.
In light of the victim's identification of the defendant, his aunt, his uncle, and their apartment, as well as the victim's memory of the names and addresses, telephone numbers (even if partial), and other names associated with the defendant, the discovery of Waddington would not have cast any real doubt in the jury's mind regarding the defendant's guilt. This conclusion is buttressed by the fact that the victim did not recognize Waddington, and that the victim's mother identified the defendant as the man who came to the door in 2006, not Waddington. Given the 'special deference' we owe the motion judge, who was also the trial judge, Commonwealth v. Grace, 397 Mass. 303, 307 (1986), we cannot say she abused her discretion in denying the motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Mills, Meade & Rubin, JJ.),