Com. v. Vallejo

• Decision Date: 30 September 2009
• Docket Number: SJC-10364.
• Citation: 914 N.E.2d 22,455 Mass. 72
• Parties: COMMONWEALTH v. Edy VALLEJO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

914 N.E.2d 22

455 Mass. 72

COMMONWEALTH v. Edy VALLEJO.

SJC-10364.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 2009.

Decided September 30, 2009.

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

Susanne R. Bines, Assistant District Attorney (Kevin J. Curtin, Assistant District Attorney, with her) for the Commonwealth.

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

CORDY, J.

Edy Vallejo and Gustavo Gomez were indicted for aggravated rape in violation of G.L. c. 265, § 22 (a). After a joint trial in the Superior Court, Vallejo was convicted of the lesser included offense of indecent assault and battery on a person over the age of fourteen in violation of G.L. c. 265, § 13H, and was sentenced to three years' probation with mandatory global positioning system (GPS) monitoring pursuant to G.L. c. 265, § 47. Gomez was convicted of the lesser included offense of assault and battery in violation of G.L. c. 265, § 13A. Vallejo appealed, and we transferred his appeal to this court on our own motion.

On appeal, Vallejo challenges his conviction on two grounds: first, that during the trial Gomez's counsel improperly commented on Vallejo's right to remain silent; and second, that the trial judge abused her discretion in denying Vallejo's motions for severance. Vallejo also argues that, in the event his conviction is affirmed, the GPS monitoring condition of his probationary sentence should be vacated because it violates the prohibition against ex post facto laws under the Federal and State Constitutions. We affirm Vallejo's conviction but remand the case for resentencing in light of our decision in Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187 (2009).

Trial. The jury heard the following evidence. On October 26, 2004, the victim¹ was walking to the Boys and Girls Club in Waltham to attend hockey practice when she saw her friend, Arturo Montoya, driving his Honda Civic automobile. She waived Montoya down and accepted a ride to the Boys and Girls Club. Three passengers, whom the victim described as her friends, were also in the vehicle. The victim got in the back seat of the vehicle between Vallejo, who was on her right, and Gomez, who was on her left, and put the bag she was carrying on her lap. Vallejo's brother, Freddy Vallejo,² sat in the front passenger seat. The victim and Montoya decided to stop at Wendy's to eat before driving to the Boys and Girls Club.

The victim testified that as Montoya started driving, Vallejo and Gomez began talking about her body. She initially interpreted this talk as "joking," as everyone in the car was joking and laughing at first. She further testified that at some point Gomez grabbed both of her hands and held them at her side while wrapping his right arm around her neck and covering her mouth with his right hand. The victim testified that Vallejo then "shov[ed] his hands down [her] pants" and "shoved two of his fingers in [her] vagina." The digital penetration lasted for about ten seconds and caused the victim to feel pain. After Gomez let her go and Vallejo removed his fingers from the victim's vagina, the victim testified that she hit both Gomez and Vallejo. Montoya and Freddy were apparently unaware of what happened because they were looking ahead as Montoya was driving. The victim did not say anything because she was scared and did not know what to do. The victim also testified that she was "mad" and "paranoid." The group then stopped at Wendy's and continued on to the Boys and Girls Club, where the victim was dropped off. At the Boys and Girls Club, the victim spoke to her hockey coach, Kelly McAvoy, about the incident. The victim testified that she told McAvoy that two of her good friends just sexually harassed her and that she described the incident for McAvoy.

McAvoy testified as a first complaint witness. She was working at the Boys and Girls Club when the victim arrived. She described the victim's demeanor as "out of character" in that she appeared more quiet and reserved and "a little more antsy" than usual. After about ten minutes passed, McAvoy asked the victim if she would like to talk, and eventually the two spoke in a private room, where the victim told McAvoy that she was joking around with Vallejo and Gomez in Montoya's automobile, but then things "got a little aggressive" and she became "uncomfortable." McAvoy testified further that the victim told her that one of the young men in the back seat was restraining her and another man took off her pants and put his fingers into her vagina. McAvoy then called the Waltham police department.

Detective John Quaranto of the Waltham police department testified about his investigation into the incident and the substance of his interview of Gomez at the Waltham police station. In that interview, Gomez stated that he was riding in the back seat of Montoya's automobile with Vallejo when they encountered the victim, who entered the automobile and sat between Vallejo and Gomez. Gomez stated that the victim asked to stop at Wendy's before going to the Boys and Girls Club.

Gomez further stated that Vallejo was tickling the victim and they were all joking around. Gomez also said that he never held the victim down or covered her mouth with his hand. Finally, Gomez described the victim as "mad" when she was dropped off at the Boys and Girls Club but said that he did not know why.

Vallejo testified in his defense.³ According to Vallejo, after the victim entered the automobile she started talking to Gomez, and Vallejo joined in the conversation. The group then began "fooling around and joking." Vallejo was tickling the victim, who was laughing and moving as a result of her laughter. At that time, according to Vallejo's testimony, Gomez had his arm around the victim's shoulders in a manner that Vallejo described as "like hugging her." Vallejo testified that Gomez did not restrain the victim, and Vallejo denied saying anything about the victim's body. Vallejo testified that while he was tickling the victim, his fingers "just went like that around her pants" and he "felt her pants over [his] fingers" but he "pulled them out quickly." Vallejo testified that the victim stopped laughing and hit him after he pulled his fingers out. Nothing was said between Vallejo and the victim after that incident. Vallejo testified that when the victim was dropped off, she said to the group: "Wait the police are going to come looking for [you]." Finally, Vallejo denied unbuttoning or unzipping the victim's pants and denied touching the victim's vagina.

We refer to additional facts and evidence as they become relevant to the issues raised on appeal.

Discussion. 1. Comments of codefendant's counsel. Vallejo claims that he was prejudiced when, at several points during the trial, Gomez's counsel made direct or implied comment on his failure to speak to police, in violation of his constitutional right to remain silent. We examine each of the instances claimed by Vallejo as improper.

Each defendant separately made a statement to the police regarding the October, 2004, incident; Vallejo made his statement after he was arrested, and Gomez made his before his arrest. Vallejo moved to suppress his statement and, after a hearing, his motion was allowed. As explained above, Gomez's statement was admitted in evidence at trial through Detective Quaranto's testimony.

During her opening statement, Gomez's trial counsel made the following remarks about what she expected the evidence would be:

"A few days [after the incident Gomez] was contacted by the Waltham Police Department, they wanted to ask him about that night. So, he went in and told them what he saw, what he did, and what he knew. The officer told him he didn't have to talk to him, he could refuse to answer any question at any time, and he had the right to have a lawyer there if he wanted, but he chose to talk to them. He was cooperative, he answered all of their questions, and he answered them without hesitation. He had nothing to hide."

At a sidebar conference immediately after counsel for Gomez finished her opening statement, Vallejo's attorney expressed concern about the quoted portion of Gomez's opening statement, stating, "My sister made a big deal of her client's giving his statement to the police, and of course my client's statement has been suppressed, also it leaves the jury with the impression that if someone doesn't give their statement to the police there's a question of guilt there; that was the argument." Vallejo's attorney then asked the judge to instruct the jury "[n]ot to draw any conclusions for or against [Vallejo]" on the basis that he did not make a statement to police. The judge denied the request for an instruction, concluding that it would be inappropriate at this time because "there's no evidence before the jury that anyone tried to speak to [Vallejo]."⁴ Vallejo's counsel agreed and responded "That's fine," and made no further objections to Gomez's opening or requested any further limiting instructions.

When Detective Quaranto was testifying on direct examination about his interview of Montoya, the judge called for a sidebar conference, at which time she instructed the Commonwealth to avoid asking about statements made to police by anyone other than Gomez to avoid "highlighting the fact that by implication ... Vallejo refused to speak with" the police. Later, immediately before cross-examining Detective Quaranto, Gomez's counsel notified the judge at sidebar that she would be asking about the voluntary and cooperative nature of Gomez's statement to police. There was no objection. Then, through questioning, Gomez's counsel elicited testimony from Detective Quaranto that Gomez agreed to go to the police station for an interview; was read his Miranda rights at the police station; and decided to speak with the police officers. Detective Quaranto agreed that Gomez was "entirely cooperative," made eye contact with the...