Com. v. Arana, SJC-10219.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBotsford
Citation901 N.E.2d 99,453 Mass. 214
Docket NumberSJC-10219.
Decision Date13 February 2009
901 N.E.2d 99
453 Mass. 214
Jose M. ARANA.
Supreme Judicial Court of Massachusetts, Plymouth.
Argued November 3, 2008.
Decided February 13, 2009.

[901 N.E.2d 101]

Robert F. Shaw, Jr., Brighton, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Anthony D. Mirenda, Boston, Ara B. Gershengorn, Jennifer A. Cardello, Boston & Lydia Watts, for Victim Rights Law Center & others, amici curiae, submitted a brief.

Julieann Hernon, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.



453 Mass. 215

A jury in the Superior Court convicted the defendant on seven indictments: one charging rape of a child with force, G.L. c. 265, § 22A; one charging assault with attempt to commit rape, G.L. c. 265, § 24; two charging the lesser offense of indecent assault and battery on a person who has attained the age of fourteen years, G.L. c. 265, § 13H; and three charging delivering of liquor to a person under twenty-one years of age, G.L. c. 138, § 34.1 On appeal, the defendant asserts that a repetitive pattern of evidentiary errors, in violation of the "first complaint" doctrine set forth in Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006) (King), infected his trial with unfair prejudice. He also asserts that the judge abused his discretion in allowing excessive and irrelevant testimony from the Commonwealth's experts and in dismissing one juror in the middle of trial. We granted the defendant's application for direct appellate review.

453 Mass. 216

For reasons that will be explained in this opinion, we conclude that errors were made throughout the trial that could have influenced the jury's verdicts on the charges of rape, assault with attempt to rape, and indecent assault and battery.

901 N.E.2d 102

Accordingly, we reverse those judgments of conviction. We find no basis for reversing the defendant's convictions on charges of delivering liquor to a person under twenty-one years of age and affirm those judgments.2

We set forth the facts that could have been found by the jury, based on the Commonwealth's evidence and consistent with the jury's verdicts. We reserve additional details of the trial for discussion in the context of the issues raised by the defendant's appeal. On July 28, 2004, the complainants, Betty and Marie,3 stayed overnight at the home of one of Betty's friends, Ruth,4 the daughter of the defendant. At the time, Betty was fifteen years of age and Marie, who is Betty's sister, was fourteen years of age. Ruth's friend, Michelle, who was fifteen years of age, also was at the Arana home. The defendant was the coach of a soccer team on which Betty, and occasionally Marie, played. The defendant's wife was estranged from the defendant. Because she was in France at the time, the defendant was staying in the home to care for Ruth and her four siblings.5

Early in the evening, the defendant left the house and returned with a bag that contained Mike's Hard Lemonade and Smirnoff's liquor. The defendant gave the liquor to Betty, Marie, and Michelle, and the three girls began drinking. Later that evening, the defendant joined the girls in the basement of the home for a drinking game called Beirut, in which ping pong balls are thrown into plastic cups of beer. When a ball lands in a player's cup, the player must drink the beer. Betty and Michelle were on one team and the defendant and Marie were on the other. Betty drank most of the beers6 for her team, and Betty and Marie

453 Mass. 217

became drunk. Marie observed her sister being clumsy, falling, and acting "obnoxiously loud." She observed the defendant acting "childish, like us, just kind of laughing like it was normal [and] okay." Ruth and Michelle went upstairs to bed, leaving Betty and Marie to finish the game with the defendant. When the game ended, Betty went up to the main floor of the home. Marie and the defendant followed.

Marie "had no control over her speech" and was "clumsy." She became upset, and the defendant advised her to calm down and eat something. She sat down on a couch in a small living area that was part of the kitchen, ate a cheeseburger that the defendant had prepared, and watched television. The defendant sat down on the couch next to Marie, who was "tired" and "dizzy." The defendant, who was acting casually and not "like an adult at all," suggested that they should get Betty upstairs to bed. The defendant then left the room.

Betty, meanwhile, after playing the drinking game, also felt dizzy and found it

901 N.E.2d 103

hard to stand up.7 She lay down on the living room couch. The defendant came into the living room and began to kiss her on the lips. He lay on top of her and put his hand up her shorts. His finger went inside her vagina.8 He carried her upstairs and put her down on the bed in the master bedroom and again began to kiss her on the lips.9 Betty could not remember many details. She testified, "[E]verything was kind of blurry

453 Mass. 218

and I was still really drunk." The defendant reached his hand up Betty's shorts, put his fingers in her vagina and asked her whether "it felt good." She did not respond because she was "scared" and "didn't know what to do." The defendant then put his mouth on Betty's genitalia. He quietly asked her whether she "wanted to have sex with him" and began to remove her shorts. Betty said, "No." She grabbed her shorts to pull them up. She then remembers falling asleep.

When the defendant returned downstairs, he suggested that he and Marie go to the basement "because there's a bed downstairs that I can pull out." Marie agreed. After falling down some of the basement stairs (which made him laugh), the defendant pulled out the basement couch into a bed and told Marie to lie down. The defendant removed Marie's shorts and underwear and began to coax her to have sex. He took his shorts partially off and knelt on the bed so that Marie could see his penis. He began to lie on top of Marie so that his penis touched her thighs. Marie said "no." At that point, the defendant suddenly stopped and pulled up his shorts. He stated, "This is weird, I'm your soccer coach, I'm a dad, but I'm also human." The conversation then turned to soccer, and Marie felt relieved. Hearing a thump and her sister's voice from upstairs, she put on her shorts and underwear and went upstairs.

Betty had come down from upstairs and was sitting on the stairway. She wanted to clean up the basement, because she was worried that the defendant's wife would be upset on her return from France if there was a mess and evidence of drinking in her house. The defendant got a trash bag and helped Betty clean the basement. After a little while, he stated that "we should just go to bed; it's really late and you have to get up early." The defendant helped Betty upstairs and then helped Marie upstairs. They all slept in the bed in the master bedroom: Betty on one side, Marie

901 N.E.2d 104

on the other, and the defendant in the middle.10

453 Mass. 219

The alarm went off at 6 A.M. Marie went downstairs first. She was thirsty, "exhausted," and "had a pounding headache." Betty woke up and found the defendant in the room with her. He kissed her and asked whether she would like to shower. Betty declined and went into Ruth's room to find fresh clothes to put on. Downstairs in the kitchen, the defendant asked Betty whether she was "mad," and she responded, "No." He then asked whether they could "keep it between the two of them," and she responded, "Yes." The defendant handed Marie a brace that she had been wearing on her arm, and gave her a hug and a kiss. He said, "I had a good night."

Betty and Marie's mother picked up her daughters and took Betty to summer school. Later that day, Betty received a voice message from the defendant on her cellular telephone stating that he had had a good time and that he wanted to make sure she had gotten home and to school. One or two days later, Ruth sent a voice mail message to her father in which she stated: "I know what you did and I don't want to talk to you again." The defendant responded in a voice mail message, "I'm sorry, I made a mistake." The defendant's message further indicated to his daughter that he had been drunk and he did not know what he was doing.

In August of 2004, Betty and Marie's parents filed a civil lawsuit on behalf of their daughters and themselves against the defendant and his wife in the Superior Court, claiming damages.

With the above outline of facts (that the jury could have found) in place, we consider the defendant's claims of error.

1. In King, 445 Mass. at 241-247, 834 N.E.2d 1175, we announced a new doctrine to govern the admission of out-of-court statements of a sexual assault complainant. This doctrine, known as "first complaint," "reflects a contemporary understanding of information that will permit jurors to make a fair assessment of a sexual assault complainant's credibility." Id. at 237, 834 N.E.2d 1175.11

453 Mass. 220

We articulated in King the following principles of the first complaint doctrine: First, there is no requirement of "promptness" or "freshness." "[T]he timing of a complaint is simply one factor the jury may consider in weighing the complainant's testimony." Id. at 242, 834 N.E.2d 1175. Second, only one complaint witness, where feasible the first told, is permitted.12 "Permitting a single first complaint witness to testify will accomplish the primary

901 N.E.2d 105

goal of the doctrine, which is to refute any false inference that silence is evidence of a lack of credibility on the part of rape complainants." Id. at 243, 834 N.E.2d 1175. Third, under the first complaint doctrine, the complainant, as well as the first complaint witness, may testify to the details of the...

To continue reading

Request your trial
143 practice notes
  • Commonwealth v. Mccoy, SJC-10530.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 20, 2010
    ...a purpose “other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations.” Commonwealth v. Arana, 453 Mass. 214, 220-221, 229, 901 N.E.2d 99 (2009). The Commonwealth first presented Officer Doyle as the designated first complaint witness, and the judge g......
  • Commonwealth v. Aviles
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 6, 2011
    ...complaint witness, about the sexual assault, even where the details of the conversation have been omitted. See Commonwealth v. Arana, 453 Mass. 214, 223, 901 N.E.2d 99 (2009) ( Arana ); Commonwealth v. Monteiro, 75 Mass.App.Ct. 489, 493, 914 N.E.2d 981 (2009). See also Commonwealth v. Stuck......
  • Com. v. Niels N., No. 07-P-476.
    • United States
    • Appeals Court of Massachusetts
    • February 23, 2009
    ...after the mother had spoken to several people, not just to Norma. Compare Commonwealth v. Cordle, supra. Contrast Commonwealth v. Arana, 453 Mass. 214, 227 n. 21 (2009). 73 Mass. App. Ct. 702 c. The nurse. On the morning following the assault, Norma's parents took her to her pediatrician an......
  • State v. Martinez, No. 97496-9
    • United States
    • United States State Supreme Court of Washington
    • November 19, 2020
    ..., where the Massachusetts Supreme Court found error in admitting testimony by three witnesses under the fact of the complaint doctrine. 453 Mass. 214, 223, 901 N.E.2d 99 (2009). But Massachusetts's fact of the complaint doctrine differs from ours—under Massachusetts law, only one witness is......
  • Request a trial to view additional results
147 cases
  • Commonwealth v. Hoime, 20-P-50
    • United States
    • Appeals Court of Massachusetts
    • September 23, 2021 independently admissible. See Commonwealth v. Santos, 465 Mass. 689, 700, 991 N.E.2d 1049 (2013), quoting Commonwealth v. Arana, 453 Mass. 214, 220-221, 901 N.E.2d 99 (2009) ("The first complaint doctrine ... does not ‘prohibit the admissibility of evidence that, while barred by that doc......
  • Commonwealth v. Mitchell, 12–P–719.
    • United States
    • Appeals Court of Massachusetts
    • January 28, 2016
    ...vigorously attacked the adequacy of the police investigation, placing the investigation clearly at issue. See Commonwealth v. Arana, 453 Mass. 214, 226–227, 901 N.E.2d 99 (2009). In addition, the court's concern in Stuckich, a rape and indecent assault and battery case, was that “[t]he fact......
  • Commonwealth v. Santos, SJC–11235.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 10, 2013
    ...[and in] a defendant ... receiv[ing] a trial that is free from irrelevant and potentially prejudicial testimony.” Commonwealth v. Arana, 453 Mass. 214, 228, 901 N.E.2d 99 (2009). Generally, it is for the first complaint witness to describe the circumstances surrounding the [465 Mass. 700]co......
  • Commonwealth v. Mccoy, SJC-10530.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 20, 2010
    ...a purpose “other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations.” Commonwealth v. Arana, 453 Mass. 214, 220-221, 229, 901 N.E.2d 99 (2009). The Commonwealth first presented Officer Doyle as the designated first complaint witness, and the judge g......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT