Commonwealth v. Aviles

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation958 N.E.2d 37,461 Mass. 60
Decision Date06 December 2011

461 Mass. 60
958 N.E.2d 37


Supreme Judicial Court of Massachusetts, Hampden.

Submitted Sept. 7, 2011.Decided Dec. 6, 2011.

[958 N.E.2d 40]

Eric S. Brandt, Boston, Committee for Public Counsel Services, for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

William F. Sheehan, Peabody, of the District of Columbia, & Colby Bruno, Brenda R. Sharton, & Katherine A. Borden, Boston, for Victim Rights Law Center & others, amici curiae, submitted a brief.


[958 N.E.2d 41]


[461 Mass. 61] A jury in the Superior Court found the defendant, Angel Aviles, guilty of rape of a child, pursuant to G.L. c. 265, § 23, and indecent assault and battery on a child under the age of fourteen, pursuant to G.L. c. 265, § 13B. The defendant appealed. A divided panel of the Appeals Court affirmed the convictions, see Commonwealth v. Aviles, 77 Mass.App.Ct. 389, 931 N.E.2d 500 (2010), and we granted the defendant's application for further appellate review. The defendant challenges the admission of testimony concerning a “second complaint” made by the victim, whom we shall call Marie, 1 and the admission, under the doctrine of verbal completeness, of a prior consistent statement made by Marie during her grand jury testimony. For the reasons that follow, we affirm the convictions. We also take this opportunity to modify the scope of judicial review of decisions on the admissibility of testimony pursuant to the “first complaint” doctrine as 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 ), and its progeny.2

1. Factual background. We summarize the facts as the jury could have found them, reserving certain details for later discussion.

Sometime during 2002, Marie, her mother, and her younger sister moved into an apartment shared by the defendant and his mother. The defendant had offered them a place to stay in exchange for assistance with his mother, who had health problems. Marie was eight years old at this time. The apartment consisted of a living room, a kitchen, two bedrooms, and a bathroom. The defendant slept in one bedroom, and his mother slept in the other bedroom. When Marie and her family moved into the apartment, the girls slept on an air mattress on the floor [461 Mass. 62] of the defendant's bedroom, and their mother slept either on the air mattress or in the defendant's bed. Due to the defendant's work schedule, he generally went to bed before Marie.

On four or five occasions over the course of several months, when Marie and the defendant were alone in his bedroom at night, the defendant got onto the air mattress with Marie, used his legs to pin her down, and touched her buttocks over her clothes. On one occasion, he rubbed Marie's “vagina area” over her clothes. When Marie told the defendant to leave her alone, he returned to his bed. She did not mention these incidents to her mother.

One night, Marie, her mother, and her sister were sleeping on the air mattress when Marie awoke to find the defendant kneeling next to her, attempting to remove her jeans. She got up, walked to the bathroom, which was across the hall, and locked herself inside. The defendant managed to unlock the door, and he entered the bathroom. Once inside, he pulled down Marie's jeans and underpants, put his hands on her waist, pulled her close to him, and turned her around so that her back was to him. As Marie was crying, she heard the defendant pull down his own jeans. Then, as Marie testified, the defendant “put his penis into [her] butt,” which

[958 N.E.2d 42]

hurt. When the defendant finished, he told Marie not to tell her mother, or he “would do something to her [mother].” Marie returned to the bedroom, whereupon her mother woke up and asked what was wrong, to which Marie replied, “[N]othing.” Marie did not mention the incident in the bathroom to her mother because of the defendant's warning.

Several nights later, Marie became upset when her mother told her that it was time to go to bed. Marie began to cry and resisted going into the bedroom. She then revealed to her mother for the first time that the defendant had “touched” her, although Marie did not provide any details. Marie's mother and the defendant's mother, who had overheard the conversation, immediately confronted the defendant, who denied touching Marie. A few days later, Marie and her family moved out of the apartment and returned to Marie's maternal grandmother's home, where the family had lived before moving in with the defendant. None of the sexual abuse was reported to the police until 2005 when, after seeing the defendant's photograph on television, Marie told her grandmother about the incident in the bathroom. The grandmother informed [461 Mass. 63] Marie's mother, who then contacted the police. The defendant was arrested and indicted on charges of rape of a child, and indecent assault and battery on a child under the age of fourteen.

2. Motion in limine concerning proposed first complaint testimony. Marie's mother was designated as the first complaint witness. Before the start of trial in May, 2007, the defendant filed a motion in limine, seeking to limit the scope of admissible evidence to that disclosed in Marie's first complaint to her mother, namely such evidence as pertained to the indecent “touchings,” thereby excluding any evidence relating to Marie's disclosure to her grandmother about the alleged rape. The defendant also sought to exclude any evidence that went beyond the scope of Marie's testimony at trial, such as reports to the police. The defendant's motion in limine was the subject of three colloquies before the judge.

During the first colloquy, the prosecutor acknowledged that Marie's disclosure to her grandmother about the rape, which had been precipitated by Marie's observation of the defendant's photograph on television, went beyond the scope of the first complaint doctrine. As such, the Commonwealth would not “get into details” about the issue, but the prosecutor stated that Marie properly could testify to the fact that she had made a complaint to her grandmother. Defense counsel objected to any testimony concerning a conversation between Marie and her grandmother, as well as an “ensuing police report,” because it was not first complaint evidence. The judge reserved decision on the matter pending review of Commonwealth v. Buelterman, 68 Mass.App.Ct. 829, 865 N.E.2d 809 (2007).3

During the second colloquy, which occurred the following morning, the prosecutor revisited the defendant's motion in

[958 N.E.2d 43]

[461 Mass. 64] limine and clarified that she intended to elicit from Marie testimony that she had seen the defendant on television, but not why he was there. Defense counsel objected on the grounds that testimony regarding the defendant's appearance on television was neither part of Marie's first complaint to her mother nor relevant evidence. The judge pointed out that the first complaint testimony was limited to the indecent assault and battery charge. Defense counsel again asserted that testimony elicited from Marie that she had a conversation with her grandmother after seeing the defendant on television, and that her mother then brought her to the police station, was irrelevant and prejudicial. The judge ruled that although Marie could not disclose the substance of what she had said to her mother or grandmother about the alleged rape, Marie could testify that “as a result of seeing the [d]efendant on television, she made a disclosure to her mother or grandmother.” In the judge's view, the Commonwealth was entitled to explain Marie's three-year delay in reporting the alleged rape. Defense counsel objected to this ruling and asked the judge to preserve his objection. The judge did not respond.

During the third colloquy, which occurred very soon after the second, defense counsel sought to revisit the issue of Marie's observation of the defendant's photograph on television. In response to the judge's earlier ruling on the scope of Marie's testimony, defense counsel argued that cross-examination would be “almost impossible” given the circumstances surrounding the defendant's appearance on television (namely, that he was a registered sex offender). After indicating that she would not change her ruling, the judge stated that defense counsel's “objection [was] noted.” When defense counsel then asked whether his rights were preserved, the judge responded, “Very much so.”

3. Trial testimony. The Commonwealth's only witnesses were Marie and her mother. Marie described the manner in which the defendant had touched her on the air mattress, recounted the details of the incident in the bathroom, and testified that she had disclosed the alleged rape to her grandmother in 2005. Marie gave no details about her conversation with her grandmother, limiting her testimony to the fact that such a conversation had occurred after she saw the defendant's picture on [461 Mass. 65] television. Marie also testified that after her grandmother told her mother about the rape, Marie and her mother went to the police. On cross-examination, defense counsel led Marie through a time line of her disclosures to her mother, her grandmother, and the police. He questioned her extensively about her statement to the police, pointing out discrepancies between the statement and her trial testimony, most notably the fact that Marie did not mention in her statement that the defendant had threatened to hurt her mother if Marie told her about the alleged rape. Defense counsel also elicited testimony from Marie that she wanted to live with her grandmother.

Prior to the first complaint testimony from Marie's mother, the judge instructed the jury on the purpose and limitations of such testimony in accordance with King, 445 Mass. at 219, 247–248, 834 N.E.2d 1175. Marie's...

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