Opinion
No. 12–P–275.
2013-03-25
COMMONWEALTH v. Michael SYLVESTER.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in District Court, the defendant was convicted of two counts of indecent assault and battery on a person over fourteen years of age (his stepdaughter). According to the amended bill of particulars, these charges were based on allegations that the defendant had pulled down the victim's shirt and touched her breasts. On appeal, the defendant principally argues that the testimony of the first complaint witness was improper in various respects. We affirm.
He was found not guilty of two counts of indecent assault and battery on a person under fourteen years of age, charges that also involved his stepdaughter.
First complaint witness. The Commonwealth called Tanya Sullivan as its first complaint witness. Sullivan was a teacher at the victim's school to whom the victim first revealed the allegations that the defendant had sexually assaulted her. The defendant does not contest that Sullivan was the proper first complaint witness. Instead, he argues that Sullivan's testimony was improper in three respects, which we address in turn. The defendant argues that Sullivan's testimony went beyond the scope of the victim's testimony by addressing specifics to which the victim herself had not testified. He lists eight specific ways that he claims Sullivan's testimony went beyond that of the victim. None of these involves allegations of additional sexual assaults, and most involve inconsequential details that merit no discussion. The only additional detail of any appreciable force that Sullivan provided involves an allegation that the defendant had referred to the victim as “daddy's little whore.” However, even if the judge erred in allowing that statement in evidence, the error was not unfairly prejudicial. As noted, the only charges for which the defendant was convicted were based on allegations that he pulled down the victim's shirt (in one case a tube top, in the other, a shirt with “spaghetti straps”) and touched her breasts. According to the testimony of an investigator from the agency then known as the Department of Social Services (DSS), when the defendant was confronted with the specific allegation that he had pulled the victim's tube top away from her body, the defendant's response was that “everyone else was doing it.” Thus, the jury had before them testimony from a seemingly disinterested third party that the defendant effectively had admitted to the practice on which his only convictions were based. The fact that the jury acquitted the defendant of the other charges (notwithstanding that Sullivan's testimony repeated the victim's allegations on which those charges were based) strongly suggests that the first complaint testimony was not the fulcrum on which this case turned. Under these circumstances, we can say, with fair assurance, that any error in Sullivan's being allowed to testify to the “daddy's little whore” statement “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Of the three arguments that the defendant makes with respect to Sullivan's testimony, this is the only one that was preserved.
For example, while the victim testified that the defendant said that he wanted to see her developing breasts, Sullivan testified that the victim told her the defendant had provided this explanation on several occasions.
There was independent evidence that the victim's mother also had referred to the victim in this manner.
The victim testified that the defendant had a similar response when her mother stopped him from pulling down her tank top: “why can't [I] do—all the boys do it.”
We acknowledge—as the defendant highlighted at oral argument—that he did not explicitly admit to exposing the victim's breasts, or to touching them.
The defendant also argues that Sullivan revealed things that the victim told her at meetings that took place after the initial one at which the victim first raised her allegations of sexual assault. See Commonwealth v. Arana, 453 Mass. 214, 222–223 (2009) (“in circumstances where a complainant makes successive complaints to the first complaint witness, the initial complaint is the only evidence admissible as first complaint”). Although Sullivan did testify that she had many meetings with the victim, the record strongly suggests that the initial meeting was a lengthy one and that the key allegations were revealed at that time. To be sure, Sullivan did volunteer on direct examination that she had some difficulty in pinpointing at which particular meeting the victim raised specific allegations. However, the defendant neither objected on this basis below, nor otherwise raised such timing issues. The mere possibility that Sullivan's testimony might have touched on conversations that occurred after her initial meeting with the victim is not enough to demonstrate a substantial risk of a miscarriage of justice (especially in light of the defendant's admission to the DSS investigator discussed above).
The defendant requested a voir dire of the victim, which was held, but he never requested a voir dire of Sullivan.
Finally, the defendant argues that Sullivan's testimony crossed into improper vouching for the victim. The defendant raised the vouching issue below only after Sullivan had left the stand. This was too late to preserve the objection. See Commonwealth v. Howell, 49 Mass.App.Ct. 42, 48 n. 7 (2000). In any event, there was no overt vouching here. To the extent that any phrasings that Sullivan used could be taken to suggest that Sullivan may have believed the victim's allegations to be true, this did not create any substantial risk of a miscarriage of justice. In this regard, we note that the judge properly instructed the jury about the limited purpose for which Sullivan's testimony could be used, and he instructed the jury that they were the sole determiners of the facts, including “which witnesses to believe.”
Other issues. The defendant argues that the judge erred in refusing to allow him to cross-examine the victim on whether she ever told anyone that the defendant had made her stand on a street corner holding a sign advertising oral sex for a fee. According to DSS reports that were never introduced at trial, a classmate of the victim's many years earlier had recounted that the victim had told her such a story. DSS investigated the underlying allegations, which the victim denied ever making, and determined them to be “unsupported.” When the defendant attempted to cross-examine the victim about whether she had ever told her classmate such a story, the judge refused to allow the defendant to do so. The defendant argues that this was an abuse of discretion that requires reversal. We disagree. “The well-established rule in Massachusetts is that ‘[s]pecific acts of prior misconduct of the witness ... not material to the case in which [s]he testifies cannot be shown by the testimony of impeaching witnesses or other extrinsic evidence to affect [the witness's] credibility.’ “ Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993), quoting from Liacos, Massachusetts Evidence 149 (5th ed.1981). The circumstances of this case do not meet the narrow exception recognized in Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978), S. C., 385 Mass. 733 (1982). See Commonwealth v. Talbot, 444 Mass. 586, 590–591 (2005). Moreover, with the victim's having denied making such a statement, and in the absence of admitted evidence that she had done so, the defendant had no basis for cross-examining her on a prior inconsistent statement. We discern no abuse of discretion here. Finally, we note that the judge did allow the defendant to cross-examine the victim about whether she had raised other false allegations about the defendant in the past. The defendant had a constitutionally adequate opportunity to test the victim's credibility before the jury.
The defendant has not argued that the alleged prior accusation was admissible for any purpose other than impeachment.
Prior to trial, the defendant filed a motion in limine regarding the introduction of the DSS records. The judge denied the motion, while indicating that the defendant might be able to question the victim about information in the records if he presented “the right witness.” At trial, the defendant never sought to introduce the DSS records, and he called neither any of the DSS investigators involved in generating the relevant DSS reports, nor the classmate who had reported what the victim allegedly had said.
For example, the defendant was able to explore whether the victim had alleged to DSS that the defendant had once cut her brother's penis and that he had slept naked with one of her sisters, and presented the testimony of the brother and sister as proof that these acts never happened.
Judgments affirmed.