Opinion
09-P-1429
04-13-2012
COMMONWEALTH v. CESAR VILLALOBOS.
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
A jury in the District Court convicted the defendant of indecent assault and battery in violation of G. L.c. 265, § 13H. The defendant moved for a new trial, claiming that trial counsel was ineffective. The trial judge denied the motion and the defendant appealed. We consolidated his appeal from that motion with his direct appeal, in which the defendant claims that the erroneous admission of multiple first complaint testimony, to which there was no objection, requires reversal of his conviction.
Background. We summarize the facts the jury could have found. The defendant is a musician/singer and had become friendly with the victim's parents after they saw him perform at a school function. After a lengthy interval (about seven years) during which the parties had no contact, the defendant saw the parents at a shopping mall, and their friendship resumed. At that time the victim, whom we shall call Carla, was seventeen years old. On the evening of December 11, 2007, the defendant stopped by Carla's house for a visit. Carla's father was out of town, and only Carla and her mother were home. At one point during the visit, the defendant asked if he could check his email, and Carla took him upstairs to the computer room. Once the defendant was alone with Carla, he kissed and hugged her, touched her breasts, and kissed her nipples. He also took Carla's hand and placed it on his 'crotch.'
A week or so later, Carla told her boyfriend what had happened. Carla then told her mother, who, knowing that the defendant's band was playing at the mall, immediately went there and confronted him. Initially, the defendant denied the mother's allegations and stated that he had only kissed Carla, but he subsequently acknowledged that he had been 'carried away' by Carla's beauty. The defendant cried and begged Carla's mother to forgive him. That same night, the sexual assault was reported to the police.
1. First complaint. Prior to trial, the Commonwealth filed a motion in limine seeking to introduce additional first complaint testimony from Carla's mother. The prosecutor argued that the evidence was admissible because it provided necessary context to the mother's confrontation with the defendant. Over the defendant's objection, the judge ruled that the mother could testify that she received information about a sexual assault but was not permitted to provide any details of what she had been told. At trial, however, the mother testified that Carla told her that the defendant 'had sexually assaulted her,' and in response she confronted the defendant at the mall. The mother also described her confrontation with the defendant. Additionally, a police detective testified that Carla and her mother 'came into the police station to report a[n] indecent assault and battery.' Because the defendant neither renewed his objection with respect to the mother's first complaint testimony, see Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998), nor objected to the detective's testimony, we review the defendant's claim to determine whether the evidence was properly admitted and, if not, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. McCoy, 456 Mass. 838, 850 (2010).
The mother testified that in response to the defendant's claim that he had only kissed Carla, she said, 'you did more than French kiss her.' She also told the jury that after the defendant stated that he treated Carla no differently from the way he treats his family, she said, 'oh, you kiss, you know, your mother or your sister French kiss, and you kiss their nipples as a greeting. Is that how it's done?'
To the extent that the defendant claims the mother's testimony about her confrontation with the defendant violated the first complaint rule because it included details that only could have been provided by Carla, he is incorrect. That testimony served the legitimate purpose of providing context for the defendant's statements. See Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009) (first complaint doctrine 'not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth's case-in-chief'). However, we agree with the defendant that the mother should not have been allowed to testify about what Carla told her. There was also error in the admission of the detective's testimony. Nonetheless, because the erroneously admitted testimony did not include any pertinent details, and the jury could have reasonably inferred that Carla told her mother what had occurred before her mother rushed to the mall, and that the incident was reported to the police, we conclude that the defendant was not prejudiced and that the errors did not materially influence the verdict. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 498-499 (2010).
2. Motion for a new trial. At the time of the assault, Carla was attending a high school for adolescent students who have experienced 'depression, withdrawal, low self esteem, socialization problems, learning disabilities, post traumatic stress disorder or self-injurious behaviors.' The defendant claims that trial counsel was ineffective by not seeking production of Carla's school records, which he claims likely included treatment records. He also faults trial counsel for not seeking access to records from the Department of Children and Families and University of Massachusetts Memorial Medical Center Emergency Mental Health Services. The latter records apparently pertained to Carla's mother. The defendant claims that the records were discoverable under Commonwealth v. Dwyer, 448 Mass. 122 (2006), because it was 'likely' that Carla discussed the sexual assault with her counselors at the school. The defendant also contends that there was a 'real possible concern' that Carla had been raped by her uncle, a convicted pedophile, which could 'lead to various kinds of psychological tendencies toward confabulation . . . or possibly to a certain kind of over sexualization or over receptivity.'
In Commonwealth v. Dwyer, the Supreme Judicial Court announced a new protocol, grounded in Mass. R. Crim. P. 17(a) (2), 378 Mass. 885 (1979), governing pretrial inspection of statutorily privileged records of any third party. 448 Mass. at 139. As the judge and the parties treated the records as privileged, we treat them as such for the purposes of this appeal and assume they fall within the Dwyer protocol.
Following an evidentiary hearing at which trial counsel testified, the judge found that there was no evidence that Carla had 'ever accused anyone of a prior sexual assault.' He also found there was no evidence that the mother 'was ever treated for a psychiatric problem,' and no evidence that Carla or her mother had 'ever been treated by a Rape counselor, psychiatric social worker and[/]or psychiatrist.' The judge further found that '[t]here is no evidence the filing and arguing a Dwyer Motion would have resulted in any exculpatory evidence admissible at trial.' Consequently, the judge concluded that because trial counsel 'did not have factual support for a 'Dwyer Motion" his failure to file one did not amount to ineffective assistance of counsel.
We review the denial of a motion for a new trial for abuse of discretion. Commonwealth v. Shanley, 455 Mass. 752, 767 (2010). As the judge correctly noted, the issue before him was whether the records would have been discoverable. If they were not, trial counsel cannot be faulted for having failed to obtain them. See Commonwealth v. Oliveira, 431 Mass. 609, 614 (2000).
Trial counsel had considered filing a Dwyer motion and with the assistance of a private investigator had prepared a draft motion, which was introduced as an exhibit at the hearing. At some point, counsel decided not to file it because he was concerned that the jury would perceive the introduction of psychiatric records as 'victimizing the victim.' It is unclear whether the defendant approved of this strategy. The defendant did not file an affidavit or testify at the hearing, and trial counsel could not recall discussing the filing (or not filing) of a Dwyer motion with the defendant. Given our determination that the records would not have been discoverable, we need not address whether trial counsel made a reasonable tactical decision.
Before allowing a motion brought under Commonwealth v. Dwyer, a judge must evaluate whether the defendant has satisfied the requirements of Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), as explicated by the Supreme Judicial Court in Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). Foremost among those requirements are that the documents be relevant and have evidentiary value. Ibid.
'[T]he standard for summonsing third-party records for inspection before trial is intended to guard against intimidation, harassment, and fishing expeditions for possibly relevant information. Rule 17(a)(2) is not a discovery tool. Before ordering that a summons issue for such records, '[a] judge hearing a rule 17(a)(2) motion must evaluate whether the Lampron requirements of relevance, admissibility, necessity, and specificity have been met." Commonwealth v. Dwyer, supra at 145, quoting from Commonwealth v. Mitchell, 444 Mass. 786, 792 (2005).
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As we have noted, the judge ruled that trial counsel failed to establish a factual basis demonstrating that the records were discoverable. There is ample support in the record for this conclusion. In his testimony at the new trial motion hearing, trial counsel acknowledged that, even with the assistance of a private investigator, he had no actual information about what might be in the school records. He could not identify Carla's counselors, and did not know which records would have been relevant, if any. Indeed, the only information upon which trial counsel could have based a request for the production of the records came from the defendant, who apparently told him (and the private investigator) that Carla had been raped by her uncle and had emotional issues.
Even if we were to assume the truth of the defendant's assertions about Carla, there is no basis for concluding that the records sought (some of which may not even exist) would have been relevant to an issue in the case. A broad claim concerning potential relevance to the victim's credibility as a result of 'likely' mental health issues is speculative and lacks the requisite specificity to justify pretrial inspection under Dwyer. See Commonwealth v. Lampron, supra at 269, and Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 437-438 (2007).
In sum, the judge did not abuse his discretion in determining that a Dwyer motion would not have been successful and, therefore, trial counsel's decision not to seek the records at issue did not constitute ineffective assistance of counsel.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Cypher, Vuono & Rubin, JJ.),