Opinion
15-P-1737
02-22-2017
COMMONWEALTH v. Camilo VELEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Camilo Velez, was convicted of two counts of rape and one count of indecent assault and battery. On appeal, he contends that (1) the judge improperly allowed the defendant's recorded statement in evidence, (2) the judge improperly excluded evidence of the victim's prior sexual contact with the codefendant, (3) the prosecutor's opening statement created prejudicial error, and (4) his trial attorney was ineffective. We affirm.
Background . We summarize the relevant facts, reserving more detailed discussion in some instances for our analysis. On February 25, 2011, the victim received a telephone call from the codefendant, Jacob Barjolo, who asked her to pick him up at the Mid-Town Mall. The victim was twenty-one years old and lived out of her car; her mother did not want her living in her home because the victim was "doing Percocets." When she arrived at the mall, Barjolo and the defendant, whom she had never met, entered the back seat of her vehicle. The victim drove the two men to a friend's home, then to the Big Y, where she observed them purchase marijuana in the parking lot. The defendant told the victim to drive toward his house near June Street. She complied and parked in an alleyway so that the defendant and Barjolo could "get some wraps" at 7-Eleven to smoke the marijuana. The victim testified that the three of them entered the store, which was corroborated by surveillance video entered in evidence at trial. After leaving the store, the defendant said that he had to go to his house "to grab something," and invited the victim to come along. She agreed and entered the apartment with the defendant and Barjolo.
The codefendant was tried separately and convicted of two offenses stemming from the conduct in the instant case.
The victim's mother testified that the victim had learning disabilities most of her life and suffered from mental health issues including posttraumatic stress disorder and severe anxiety.
Inside the apartment, the defendant and Barjolo asked the victim if she wanted to smoke a marijuana blunt with them. She initially refused, but subsequently joined them. The defendant briefly exited the room and then returned and locked the door. He sat next to the victim and put his hand on her leg, but she pushed it away. He then pulled out his penis, placed her hand on his penis, pulled her by the hair, twisted her onto the floor, and forced her to perform oral sex. Barjolo positioned himself behind the victim, pulled down her pants, put on a condom, and tried to penetrate her vagina, but was unable to do so because she "was closing [her] legs." Barjolo handed a condom to the defendant, who put it on. The defendant grabbed the victim "from behind" and forced his penis into her vagina. At this time, Barjolo was across the room laughing and masturbating. The victim told the defendant to stop, but he pulled her towards him. She did not yell or scream because she was afraid.
After the incident, the victim left the apartment and drove to a Walgreens in Worcester. She met her friend Eric who gave her twenty dollars for gas. She did not disclose the rape to him because she was scared. She then texted her ex-boyfriend who was also her "best friend at the time." He called her back, and she told him that she had been raped. The disclosure occurred "a couple hours" after she left the defendant's apartment. The ex-boyfriend met with the victim and accompanied her to the police station. She was upset, confused, and scared for her safety. She disclosed the rape to the police, and provided information about Barjolo and a general description of the defendant. She later drove around Worcester with Detective Richard Boulette of the Worcester police department and identified the defendant's apartment. Detective Boulette then drove the victim to the hospital where she was examined and had "a rape kit done."
Subsequently, while serving a summons near the defendant's apartment, Detective Boulette observed a male that fit the description of the defendant that was provided by the victim. He stopped the individual, who identified himself as the defendant. Detective Boulette then viewed surveillance video from the 7-Eleven and identified the defendant from the video. The defendant was later arrested and transported to the Worcester police station. After being advised of his Miranda rights, and waiving them, the defendant spoke to the police.
Discussion . 1. Admission of videotaped statement . The defendant contends that the judge abused his discretion in allowing in evidence a redacted digital video disc (DVD) of his interview at the Worcester police station. Citing Commonwealth v. Nawn , 394 Mass. 1, 4 (1985), he primarily claims that the admission of his unequivocal denials of guilt constituted prejudicial error. We disagree. During the interview, the defendant initially denied knowing the victim, subsequently claimed that she merely gave him a ride, then admitted to having oral sex with her, but insisted that their interaction was consensual. The defendant's statements generally constituted admissions. See Commonwealth v. McNulty , 458 Mass. 305, 329 n.23 (2010) ("[T]he defendant's statement set out a version of events that attempted to minimize his responsibility for the injuries that the victims sustained; it was not an unequivocal denial of guilt responding to police accusations"). To the extent that the DVD included the defendant's claims that he did not rape the victim, there was no prejudicial error. "The defendant's denials actually supported and were consistent with his defense...." Commonwealth v. Barbosa , 457 Mass. 773, 799 (2010). See Commonwealth v. Womack , 457 Mass. 268, 276 (2010) ("The jury were able to hear evidence of his prompt, clear, and emphatic denials without his having to testify, something generally of great value to defendants").
The defendant further claims that the police officers' questions, which incorporated the victim's accusations, as well as comments that the defendant should not lie, amounted to constitutional violations that were not harmless beyond a reasonable doubt. Because the defendant did not object on these bases at trial, review is limited to whether any alleged error created a substantial risk of a miscarriage of justice. Here, the victim's accusations were cumulative of properly admitted evidence. See Barbosa , supra . Likewise, the officer's statements that the defendant should not lie did not refer to the defendant's denials or the officer's opinion as to whether or not the defendant had raped the victim. Rather, those statements were made in reference to the defendant's claim that he entered the 7-Eleven alone, despite surveillance video showing him enter the store with Barjolo and the victim. The officer's comments did not cut to the heart of the case and were not "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the [alleged] error." Commonwealth v. Alphas , 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda , 22 Mass. App. Ct. 10, 21 (1986). Thus, even assuming the statements should not have been admitted, they did not create a substantial risk of a miscarriage of justice.
The defendant objected to entering the DVD in evidence on grounds that his statements were not admissions. Specifically, the judge asked defense counsel, "You object to the entry of your client's statement on the basis that it doesn't constitute an admission." Defense counsel replied, "That's exactly correct."
2. Victim's prior sexual conduct . The defendant claims the judge abused his discretion in excluding evidence that the victim had had a prior consensual sexual encounter with Barjolo. We disagree. The defendant concedes that the codefendant's alleged prior sexual involvement with the victim did not fall under either exception to the rape shield statute, G. L. c. 233, § 21B. Citing Mass. G. Evid. § 412 (2015), however, he contends that the evidence was admissible because its exclusion would violate his constitutional "right to due process and a fair trial and his right of confrontation." At trial, the defendant did not object based on the specific constitutional concerns he now raises. Rather, he maintained that the victim's prior sexual encounter with Barjolo, and the defendant's knowledge thereof, were admissible on the issue of consent. Accordingly, the issue was not properly preserved for appeal, and review is again limited to the substantial risk standard. Regardless of the standard of review, there was no error. The defendant's argument amounts to a claim that, because the victim had prior sexual contact with Barjolo on one occasion, she consented to sexual activity with a different man, the defendant, on a later date. The judge had broad discretion to deny the admission of such evidence, and thus there was no error. See Commonwealth v. Joyce , 382 Mass. 222, 227 (1981) ; Commonwealth v. Houston , 430 Mass. 616, 621-622 (2000).
3. Opening statement . The defendant claims that in the prosecutor's opening statement, she erroneously referenced a photographic array procedure identifying the defendant, and improperly stated that Barjolo forced the victim to perform oral sex. The claims are unavailing. We agree with the judge's determination that the prosecutor's references to a photo array procedure were not "across the line," and that the prosecutor "strayed into it on a good-faith basis." Similarly, the reference to Barjolo's interactions with the victim were based on the victim's testimony from Barjolo's separate trial. The judge found that such statements were "part of the continuum of actions on the scene" and were "not impermissible." Although the victim ultimately did not testify that Barjolo forced her to engage in oral sex, the prosecutor's statements were made in good faith, and nothing in the record suggests otherwise. See Commonwealth v. Jones , 439 Mass. 249, 260 (2003). Moreover, the judge instructed the jury, five times, that opening statements are not evidence. This included a cautionary instruction, provided immediately after the prosecutor's opening statement, that "the opening statement of each attorney is nothing more than a commentary on what they expect the evidence will be. The evidence still has yet to be played out before you by way of witness testimony, documents, whatever else—whatever other forms the evidence takes." The judge's instructions were thorough and accurate, and we presume the jury followed them. See Commonwealth v. Cortez , 438 Mass. 123, 130 (2002).
4. Ineffective assistance of counsel . The defendant asserts that trial counsel was ineffective for failing to object to portions of Detective Boulette's alleged hearsay testimony, and failing to renew his objection and request for a mistrial made after the prosecutor's opening statement. The defendant raises this issue for the first time on appeal and does so based purely on the trial record. "[A]bsent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal." Commonwealth v. Zinser 446 Mass 807, 810 (2006), quoting from Commonwealth v. Cosme , 398 Mass. 1008, 1009 (1986). The record before us does not present the type of exceptional circumstances warranting appellate relief. The hearsay testimony of which the defendant now complains consisted of information that was cumulative of evidence properly admitted at trial. Similarly, for the reasons delineated in section 3, supra , the failure to renew a motion for mistrial on an issue having minimal chance of success did not deprive the defendant of an otherwise available, substantial ground of defense or create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Saferian , 366 Mass. 89, 96 (1974) ; Commonwealth v. Millien , 474 Mass. 417, 432 (2016).
To the extent that we have not specifically addressed subsidiary arguments in the defendant's brief, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
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Judgments affirmed .