Opinion
No. 15–P–1045.
05-26-2016
COMMONWEALTH v. Stephen J. WILLIS, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Stephen J. Willis, Jr., was convicted of indecent assault and battery on a child under the age of fourteen, and assault and battery. On appeal, the defendant argues that: (1) the judge impermissibly allowed testimony in violation of the first complaint doctrine; (2) the judge erroneously allowed inadmissible prior bad acts into evidence; and (3) he received ineffective assistance of counsel. We affirm.
Discussion. 1. “Other” complaint testimony. The defendant argues that the judge impermissibly allowed the victim and her mother, the first complaint witness, to testify regarding the victim's subsequent disclosure to her school guidance counselor—who did not testify—in violation of the first complaint doctrine. We disagree.
See Commonwealth v. King, 445 Mass. 217, 218–219 (2005).
Before trial, the judge allowed the defendant's motions in limine regarding first complaint testimony, which was limited to the victim's mother, and the exclusion of prior bad acts evidence.
At trial, beginning in his opening statement, the defendant argued that the victim's “story is not going to make sense.” Defense counsel highlighted that after the inappropriate touching, the victim did not immediately seek help from others in the home and that there was a delay in going to the police. Additionally, during the defendant's cross-examination of the victim, counsel elicited testimony that the victim went to school on a Monday and did not disclose anything to her five teachers. Defense counsel also elicited that the victim went to cheerleading after school on Tuesday and did not tell her coach “what was going on.”
On redirect examination, the prosecutor elicited testimony from the victim regarding her disclosure to the school guidance counselor. This line of questioning was proper to rehabilitate the witness. Commonwealth v. Parreira, 72 Mass.App.Ct. 308, 318 (2008) (“Where, as here, the defendant's strategy entailed highlighting who the [victim] told and did not tell about the incident and when [she] did so, there was no error in permitting the Commonwealth to later elicit testimony on the same topic”). The victim testified that on Tuesday, two days after the assault, her school guidance counselor saw her at school and commented that the victim was not acting like herself—happy, jumpy, and bubbly—and inquired whether there was something wrong. The victim testified that she disclosed to her guidance counselor that she was having issues at home; and that her counselor said that she would get the victim out of class so that they could talk. The victim also testified that she disclosed the assault to her guidance counselor that day; the victim did not testify to the details of her disclosure. The defendant did not object to this testimony. Additionally, the prosecutor elicited testimony from the victim's mother on direct examination regarding her daughter's disclosure to her school guidance counselor, specifically that she gave her daughter permission to speak with her counselor about the assault before the family reported the assault to the police. The defendant did not object to this testimony.
“Where a defendant does not preserve a claim of error at trial, we review the alleged error to determine whether there is a substantial risk of a miscarriage of justice.” Commonwealth v. Jones, 464 Mass. 16, 18 (2012). “It is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial.” Ibid., quoting from Commonwealth v. Whelton, 428 Mass. 24, 25 (1998). See Mass. G. Evid. § 103(b) (2016).
Here, the disputed testimony was admissible because “[o]nce the defendant opened the door on cross-examination, the Commonwealth was entitled to attempt to rehabilitate the witness.” Commonwealth v.. Kebreau, 454 Mass. 287, 299 (2009). The testimony served to rebut the assertion that the victim did not disclose the assault to anyone at school. See ibid. See also Commonwealth v. Parreira, supra. We discern no error and, thus, no substantial risk of a miscarriage of justice.
2. Prior bad acts. The Commonwealth played portions of a videotape of the police interrogation of the defendant at trial. The defendant argues that the jury were allowed to hear and view the detective ask the defendant whether he had taken any drugs on the evening of the assault, but they were not allowed to hear the defendant's negative answer to the question, leaving the jury with the unmistakable message that the defendant had admitted to using drugs. Because the defendant did not object to the videotape at trial, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Jones, 464 Mass. at 18. The Commonwealth asserts that the jury did hear the defendant deny using drugs on the night in question.
The trial transcript reflects that the video was stopped at five minutes-thirty seconds and resumed at six minutes-thirty-five seconds.
Having reviewed the videotape, we disagree with the defendant's assertion. The videotape depicted both the defendant's denial of drug use, and the defendant's shaking his head “no” when the detective asked whether he used prescription or nonprescription drugs that night. Specifically the defendant said, in response to the question, “I didn't, no.” There was no error nor a substantial risk of a miscarriage of justice.
Additionally, in an earlier portion of the videotape, the defendant adamantly denied marijuana use that night. Moreover, when viewed in context of the defendant's admission that he had consumed at least ten alcoholic beverages that night and that he did not know what was in six of those beverages, we see no error and no substantial risk of a miscarriage of justice.
3. Ineffective assistance of counsel. The defendant argues that he received ineffective assistance of counsel because trial counsel failed to object to any of the Commonwealth's evidence, allowing the jury to hear “patently inadmissible and prejudicial hearsay.” He further argues that these omissions struck at the heart of the defense. “Because the defendant raises [this] claim[ ] for the first time on direct appeal, [its] factual basis must appear ‘indisputably on the trial record’ for us to resolve [it].” Commonwealth v. Dargon, 457 Mass. 387, 403 (2010), quoting from Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). “We keep in mind that an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Norris, 462 Mass. 131, 142 (2012), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
The defendant suggests that defense counsel's subsequent suspension from the Board of Bar Overseers is evidence of ineffective assistance of counsel in this case. However, the defendant had the benefit of a full colloquy regarding defense counsel's involvement with the Board of Bar Overseers prior to trial and indicated he wanted to proceed with that attorney. Moreover, the conduct for which defense counsel was suspended occurred prior to the defendant's trial.
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At trial, the defense was that the assault did not occur and that the victim and her family were not credible because they delayed disclosing the assault to anyone outside of the family for days, including the police. Defense counsel thoroughly cross-examined the victim regarding whether or not she cried out for help during assault, or whether she disclosed the assault to anyone outside of her family immediately after it occurred or the next day at school. Defense counsel specifically asked the victim whether or not she disclosed the assault to her teachers or her cheerleading coach, but avoided asking whether the victim told her counselor. Additionally, on recross-examination, defense counsel established that the victim participated in cheerleading practice after disclosing the assault to her guidance counselor. The record does not indisputably establish a “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” such that the defendant was deprived of “an otherwise available, substantial ground of defen[s]e.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Dargon, 457 Mass. at 403.
Judgments affirmed.