Com. v. Avalos

• Decision Date: 28 May 2009
• Docket Number: SJC-10254.
• Citation: 454 Mass. 1,906 N.E.2d 987
• Parties: COMMONWEALTH v. Salvatore AVALOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

906 N.E.2d 987

454 Mass. 1

COMMONWEALTH v. Salvatore AVALOS.

SJC-10254.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 2, 2009.

Decided May 28, 2009.

Theodore F. Riordan, Quincy (Deborah Bates Riordan with him) for the defendant.

Macy Lee, Assistant District Attorney (Leora Joseph, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

After a jury trial, the defendant, Salvatore Avalos, was convicted on three indictments charging rape of a child in violation of G.L. c. 265, § 23, and three counts of indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B. On appeal, Avalos claims that the trial judge erroneously restricted defense counsel's cross-examinations of Commonwealth witnesses, preventing Avalos from exposing their bias, prejudice, and motives to lie. We transferred the case from the Appeals Court on our own motion. We affirm the convictions.

1. Background. The victim in this case is Natasha,¹ the stepgranddaughter of Avalos. The criminal investigation preceding the defendant's indictment originated after Natasha's mother, Diane, discovered and read a "diary"² belonging to Natasha. Natasha received the diary, and wrote in it, when she was in the eighth grade. Diane found the diary in 2004, when Natasha was in the ninth grade, while unpacking from a move they made.

In the diary, Natasha answered several questions posed by the book; after one question, "Have you ever been sexually abused?" she wrote, "Yes." On other pages, Natasha had written "unflattering" descriptions of Diane.³ Natasha also wrote that she would "flirt" with boys; that she wanted a boy friend; that she "cuddled" with a boy; that she "need[ed] to forgive [her]self for keeping so many secrets, and lying"; that she had forged her mother's name, causing Diane to beat her; and that she could tell her grandmother "everything."

After discovering the diary, Diane confronted Natasha, angered primarily by what Natasha had written about her rather than by what she had written about being sexually abused. Natasha appeared nervous and upset, and later became ill. The two went to the Chelsea police station where Natasha filed a report of sexual abuse.

Before trial, the Commonwealth filed a motion in limine to exclude the contents of the diary. At the hearing on the motion, defense counsel stated that he intended to use the diary in his defense of the case. In particular, he intended to ask Natasha whether she had ever "characterized herself or thought of herself as a flirt," and, if she answered, "No," to introduce a portion of the diary in which she described herself as "flirtatious." He also stated that he intended to introduce statements in the diary showing Natasha's "wanting to have a boyfriend" in support of his theory that some of the abuse that she blamed on Avalos had actually occurred, consensually, with a boy friend. He further intended to introduce the portion of the diary describing Diane as, in his words, "a big pain in the ass." Finally, he argued that Natasha's writings in the diary were "directly relevant to her credibility and her lifestyle," especially the writings describing herself as a flirt, as a liar, and as someone who wished she had a boy friend.

The judge ruled that in opening statements, the attorneys could mention only the question and answer from the diary regarding sexual abuse. She reasoned that "whether [Natasha] thinks of herself as a flirt or as a liar or what she wants with respect to her boyfriend and her position with respect to her mother that it's in the diary is not germane to any issue before the jury."⁴ The judge reserved ruling on the Commonwealth's motion in limine beyond the opening statements, asking each attorney to "approach the sidebar before he seeks to offer any of that during trial."

The Commonwealth's first witness was Natasha, who was sixteen at the time of trial. She testified that Avalos sexually molested her over the course of several years, beginning when she was six or seven years old, and ending when she was about twelve. She testified that on different dates, Avalos indecently touched her, and made her engage in specific sexual acts with him. Natasha also testified that her first oral report of the abuse occurred in a conversation with a classmate, when Natasha was in the ninth grade.⁵ The report occurred at the high school she was attending before Natasha and Diane moved, and before Diane discovered the diary.

On cross-examination, defense counsel spent much of his time highlighting inconsistencies in Natasha's account. He asked how she could remember so many details from events that occurred years earlier, why she did not "call out" for her grandmother when Avalos touched her at his house, and why she chose, in the ninth grade, to tell the classmate about incidents that occurred much earlier. He also elicited testimony from Natasha that her mother was angry with her after reading the diary, and that at the time Natasha was writing in the diary, she did not consider herself to be a completely truthful person.⁶

Defense counsel also asked if the diary contained a question about people Natasha felt she could "tell anything at all to." The judge sustained an objection by the Commonwealth, ruling that defense counsel could ask about the content of the diary only if Natasha testified in a manner that was inconsistent with those writings. Defense counsel proceeded accordingly, and Natasha testified that she felt she could tell her grandmother "anything," but had not told her grandmother about the sexual abuse. The judge later sustained objections when defense counsel asked whether Natasha had trouble with lying during that period; whether she had ever forged her mother's signature; and whether her mother had ever struck her.

The Commonwealth then called Diane to the stand. She explained that she met Avalos when she was about thirteen, and that Avalos later married her mother, Lucilla. She also testified that Avalos was alone with Natasha on several occasions over many years. Finally, she described finding Natasha's diary, reading it, becoming upset and angry, and taking Natasha to the police station.

On cross-examination, defense counsel asked Diane about a period around 2001 when Avalos moved to Florida for a few months, and Lucilla later joined him. He asked whether Avalos moved without Lucilla because "[t]hey weren't getting along." Diane testified that to her knowledge, that was not the reason, and that she was "under the impression that he was going to buy a house and they were going to move in there." On further questioning about the marriage between Lucilla and Avalos during that period, Diane testified that it was doing both fine and not fine "[o]n occasion." She also denied that Avalos chose to move to Florida because Diane prevented his daughter from a prior marriage from visiting him.

The judge sustained objections to a series of questions posed to Diane about statements written by Natasha in her diary: whether Natasha had described herself as a liar; whether Natasha had described Diane as "rude and crude"; and what Diane read that caused her to be angry.

On the third day of trial, Avalos took the stand. He denied touching Natasha inappropriately in any way. He also testified that at one time, a boy friend of Diane lived with Diane and Natasha. Avalos then testified that he eventually moved to Florida to "put an end to" problems he was having with Diane. The problems arose, he said, when Diane attempted to prevent his daughter from staying with him for a week.

Defense counsel asked if Avalos was also having marital difficulties with Lucilla at the time, and the Commonwealth objected on relevance grounds. At sidebar, defense counsel argued that he wished to show that Lucilla believed Avalos was seeing another woman, that Lucilla may have told Natasha the same, and that Natasha may have then become biased against Avalos. The judge sustained the objection, saying, "You need something that's a little bit more concrete and not totally speculative." Defense counsel did not pursue this line of inquiry further, but later elicited testimony from Avalos that Diane had told him (in 2001) that, "I was going to be sorry I left her mother in the future."

In closing, defense counsel argued that Natasha and Diane were not credible witnesses, noting that they cried during direct testimony but not during cross-examination. He attacked details of Natasha's testimony; for example, he argued that it would make little sense for Avalos to commit a sexual assault while his wife (Lucilla) was somewhere in the house. He also gave his broader theory of the case, arguing that when Diane angrily confronted Natasha about the contents of the diary, Natasha blamed Avalos for a sexual assault to appease Diane.

The jury returned a verdict of guilty on all the indictments.

2. Discussion. Avalos argues that the judge impermissibly restricted his ability to cross-examine Commonwealth witnesses to demonstrate bias, prejudice, and a motive to lie. He contends that at several junctures, the judge prevented him from exploring Avalos's marital problems with Diane's mother, Lucilla; Natasha's and Diane's knowledge of these marital problems; Natasha's relationship with Diane; the details of the confrontation between Diane and Natasha about the diary; Diane's relationships with men; Natasha's truthfulness; and Natasha's "dreams ... of having a relationship."

If he had been allowed to explore those avenues, Avalos argues, he would have been able to prove his theory of the case: that when Diane angrily confronted Natasha about the diary, Natasha blamed Avalos for a sexual assault to diffuse Diane's anger. Blaming Avalos would have effectively shifted Diane's attention, he contends, because Diane was angry at Avalos for causing problems in his marriage...