Com. v. Dargon

• Decision Date: 29 May 2009
• Docket Number: No. 07-P-409.,07-P-409.
• Citation: 906 N.E.2d 1002,74 Mass. App. Ct. 330
• Parties: COMMONWEALTH v. Joshua DARGON (No. 1).
• Court: Appeals Court of Massachusetts

906 N.E.2d 1002

74 Mass. App. Ct. 330

COMMONWEALTH v. Joshua DARGON (No. 1).

No. 07-P-409.

Appeals Court of Massachusetts, Plymouth.

Argued October 7, 2008.

Decided May 29, 2009.

Edward J. O'Brien, Chelmsford, for the defendant.

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

Present: DUFFLY, BROWN, & WOLOHOJIAN, JJ.

DUFFLY, J.

Following an attack on the victim in the lobby of her condominium building the defendant was charged and ultimately convicted by a Superior Court jury of aggravated rape, G.L. c. 265, § 22(a); indecent assault and battery on a person over fourteen years, G.L. c. 265, § 13H; assault and battery, G.L. c. 265, § 13A; and assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A(b). The defendant appeals, arguing reversal is warranted due to the improper admission of evidence, improper closing argument and ineffective assistance of counsel.¹

Identification was not a live issue at trial, nor did the defense suggest that the defendant had not committed the assault and battery offenses. Rather, the defense sought to portray the defendant as a young man who had acted impulsively in grabbing the victim's purse in an effort to take her money (because he wanted to buy a present for his mother with whom he had recently argued), but who had not committed the acts constituting indecent assault or rape.² In support of the theory that no sexual attacks occurred, defense counsel argued at trial that the victim delayed reporting that she had been sexually assaulted despite having had communications with numerous individuals following the incident.

On appeal, the defendant claims that 1) a hospital form completed by a sexual assault nurse examiner (SANE or SANE nurse) that recorded the victim's responses to questions should not have been admitted in evidence because it included prejudicial hearsay statements of the victim which violated the restriction against multiple complaints in a sexual assault case; 2) defense counsel rendered ineffective assistance; and 3) the prosecutor's closing was improper in various respects. We affirm.

Facts. We summarize the facts as the jury could have found beyond a reasonable doubt, viewed in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Additional facts have been reserved for discussion where relevant.

The victim, a grade school teacher, returned to her condominium from work on February 13, 2004, a Friday evening, carrying a bag and her pocketbook. She entered the lobby area of the building, which contained mailboxes, callboxes, and a locked interior door leading to the condominium units. The only other person in the lobby was the defendant, who was standing with his back to the victim, but turned and greeted her when she entered. She was inserting her key in the door leading to the condominium units when the defendant grabbed her from behind, putting his arm around her neck and his hand over her mouth. He hit the victim several times about her head, forced her to the ground and hit her head against the floor. As the victim screamed, the defendant kicked her in the head with his shod foot; he then knelt on the victim's abdomen and arm, pinning her to the floor, and with his hand under her shirt and brassiere he fondled her breast. He then put his hand down the front of her pants, tearing her underwear into two pieces, and digitally penetrated her vagina; he also put his hand down the back of her pants and touched her anus without penetration. During the attack the victim scratched the defendant's neck and pulled off a necklace he was wearing. At some point, the defendant picked up the victim's pocketbook and looked inside.

A neighbor, hearing noises from her second-floor apartment in the building, left her apartment to see what was happening in the lobby. As she came down the stairs she first heard a women's fearful sounding voice; as she continued to descend the stairs she arrived at a point where she could see "[s]omeone was punching, kicking whoever was on the floor." She yelled out, "What the fuck are you doing to her?" The defendant dropped the victim's purse and fled; the neighbor followed him to the door to see in which direction he went. The neighbor's fiancé had by this time also come upon the scene and used his cellular telephone to call the police. In a 911 call to the Wareham police department, the dazed-sounding victim stated to the dispatcher: "He went up my shirt. He stole my purse.... He took my purse.... He beat me."³ The victim was then taken to the hospital where she received treatment and was examined by a SANE.

Discussion. 1. Admission of Form 2. The victim's medical records were admitted under G.L. c. 233, § 79.⁴ A form included in these records, entitled "Commonwealth of Massachusetts Sexual Assault Evidence Collection Kit, Information Pertaining to Assault" (Form 2), was the subject of the defendant's pretrial motion in limine that sought to redact the "patient's statements to SANE nurse as recorded in [the SANE] kit."⁵ Noting the defendant's objection, the judge ordered that certain information provided by the victim and recorded on Form 2 be redacted but that the remaining recorded responses were admissible as "germane to treatment and history."

On appeal, the defendant argues that it was error to admit the form because 1) it contained unfairly prejudicial hearsay statements of the victim, and 2) it was evidence of multiple complaint admitted in violation of Commonwealth v. King, 445 Mass. 217, 219, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006) a. Form 2 statements as hearsay. Mary Griffin testified that she was a nurse employed by the Department of Public Health as an adult SANE.⁶ In that capacity, Griffin examined the victim (referred to by Griffin as "the patient") at the hospital and completed Form 2 as part of the sexual assault evidence collection kit. She testified that a patient's responses to the Form 2 questionnaire provide information regarding the location of injuries, as well as guidance as to where on a patient's body the SANE will perform a swab for semen or saliva, as well as a control swab. On the evening of February 13, 2004, Griffin responded to a call from the hospital where the victim had been brought. Once there, she obtained the victim's consent to conduct an examination, asked her questions contained on Form 2, and completed the form based on her responses.

The defendant focuses specifically on the victim's response as recorded on the Form 2 that her assailant "covered her mouth with his hands, put his hand in the vagina area, put his finger in her vagina, hand between buttocks, hands up her shirt and `groped' breasts."

We need not decide whether, under cases relied on by the parties and decided before Commonwealth v. Stuckich, 450 Mass. 449, 456-457, 879 N.E.2d 105 (2008), and Commonwealth v. Arana, 453 Mass. 214, 231-232, 901 N.E.2d 99 (2009), Form 2 containing the victim's statements was properly admitted as a record relating to treatment and medical history of the victim "even though the statements `bearing on criminal culpability ... seem to relate at most only incidentally to medical treatment.'" Commonwealth v. McCready, 50 Mass.App.Ct. 521, 524, 739 N.E.2d 270 (2000), quoting from Commonwealth v. Dube, 413 Mass. 570, 573, 601 N.E.2d 467 (1992). Here, the trial judge determined that the victim's statements recorded on Form 2 related to the victim's treatment and medical history and were thus indepen dently admissible pursuant to G.L. c. 233, § 79. We agree that the form was admissible, but on a different ground, as we discuss in the next section.

b. Form 2 as multiple complaint. The defendant further contends that the victim's allegations of sexual assault recorded on Form 2 constituted multiple complaint testimony prohibited by Commonwealth v. King, 445 Mass. at 219, 834 N.E.2d 1175.

"The scope of the first complaint doctrine is not without limits. It does not, of course, prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible." Commonwealth v. Arana, 453 Mass. at 220-221, 901 N.E.2d 99, citing Commonwealth v. Montanez, 439 Mass. 441, 456, 788 N.E.2d 954 (2003) (Sosman, J., concurring) ("Obsession with the strictures imposed on [first] complaint testimony should not blind us to the fact that [first] complaint is not the only basis for admitting such evidence"). See Commonwealth v. Lyons, 71 Mass.App.Ct. 671, 674 n. 4, 885 N.E.2d 848 (2008). Compare Commonwealth v. Stuckich, 450 Mass. at 456-457, 879 N.E.2d 105.

The thrust of the defense, as made clear in opening and closing arguments and the conduct of the trial, was that the victim had had numerous opportunities to tell her neighbors, family members, police, and hospital personnel that she had been digitally raped, but that she had not done so. In opening argument, counsel told the jury they would see how the victim's story changed from the description she gave to the dispatcher in the 911 tape, where she repeats that he stole her purse but mentions no rape or indecent assault:

"She passes one, two, three, four, please count, the number of people that she passes that she has an opportunity to tell that she was raped. She never says, I was raped. She doesn't say it to her neighbor. She doesn't say it to the dispatcher. She doesn't say it to the two police officers that arrive. She doesn't say it to a male and female nurse paramedic. The nurse paramedic is in back with her. She doesn't say it to the triage nurse. She doesn't say it to the treatment nurse. She doesn't say it to the doctor.

"All these people over the course of hours have treated her, have been with her, have had her in their safety. And she complains that he took my bag."

The Commonwealth could well have anticipated from this that the victim's credibility would be...