Commonwealth v. Aviles.

• Decision Date: 16 August 2010
• Docket Number: No. 08-P-1678.,08-P-1678.
• Citation: 77 Mass.App.Ct. 389,931 N.E.2d 500
• Parties: COMMONWEALTH v. Angel AVILES.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 389

931 N.E.2d 500

COMMONWEALTH

v.Angel AVILES.

No. 08-P-1678.

Appeals Court of Massachusetts,Hampden.

Argued Jan. 6, 2010.

Decided Aug. 16, 2010.

Further Appellate Review Granted Oct. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

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

Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, MILLS, & VUONO, JJ.

VUONO, J.

Following a jury trial in the Superior Court, the defendant was convicted of rape of a child, G.L. c. 265, § 23, and indecent assault and battery on a child, G.L. c. 265, § 13B. On appeal, he contends that the erroneous admission of multiple first complaint testimony requires reversal of his convictions. He also argues that the judge erred by allowing the Commonwealth to bolster the victim's credibility with a prior consistent statement. We affirm.

Background. 1. Facts. We summarize the facts the jury reasonably could have found, reserving certain details of the trial for later discussion. The victim, whom we call Marie, ¹ was eight years old when she, her younger sister, and their mother moved in with the defendant, who had offered them a place to stay in exchange for providing assistance to his mother, who was recovering from heart surgery.

The girls slept on an air mattress on the floor of the defendant's bedroom, and their mother slept either on the air mattress or in the bed with the defendant. On four to five occasions, when Marie and the defendant were alone in the bedroom, the defendant moved onto the air mattress next to her, touched her vaginal and buttocks areas over her pants, rubbed against her, and put his legs over her legs. The sexual assaults continued over a period of months. One night, while her mother and sister were asleep beside her on the air mattress, Marie awoke to the defendant attempting to pull her pants down. Marie left the bed and went to the bathroom across the hall, locking the door behind her. The defendant managed to unlock the door and entered the bathroom. Once inside, he pulled down Marie's jeans and underpants, grabbed her by the waist, and turned her around so that her back was to him. Then, as Marie testified, the defendant put his penis into her “butt.” Marie was crying, and the defendant told her not to reveal the rape to anyone and threatened to hurt her mother if she did so.

Marie believed the defendant's threat and for three years did not disclose that the defendant had raped her. Several nights after the rape, however, she protested when her mother told her that it was time to go to bed. She began to cry and resisted going into the bedroom because the defendant had already retired for the night. When her mother insisted, Marie revealed that the defendant “touched me.”

Marie's mother and the defendant's mother, who had overheard the conversation, confronted the defendant, who denied touching Marie. One or two days later, the family moved out of the defendant's apartment and returned to Marie's maternal grandmother's home, where the family had lived previously. 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 that the defendant had raped her. The grandmother informed her daughter, Marie's mother, who contacted the police.

The defendant did not testify at trial. His trial strategy was to undermine Marie's testimony through cross-examination, suggesting that she had fabricated the allegations because she wanted to move out of the defendant's home and return to live with her grandmother. He also cross-examined Marie with prior inconsistent statements from her testimony before the grand jury.

2. First complaint evidence. At the beginning of the trial, the judge held multiple hearings on the defendant's motion in limine, which sought to exclude evidence that Marie told her grandmother (or anyone else) about the rape. The defendant argued that because the testimony did not relate to the indecent assault and battery, it was not admissible under the first complaint doctrine. An additional basis for excluding testimony about Marie's conversation with her grandmother, the defendant claimed, was to avoid any risk that the jury would learn that the reason his photograph had appeared on television was because he was a registered sex offender. ²

The judge denied the motion on two grounds. First, she reasoned that the challenged testimony related to a wholly different offense from the indecent assault and battery and, therefore, did not constitute first (or fresh) complaint evidence. Second, she concluded that the Commonwealth was entitled to explain the three-year delay in reporting the rape. Ultimately, the judge ruled that Marie could be asked whether she had a conversation with her mother or grandmother “as a result of seeing the defendant on television,” but the content of those conversations was excluded. The judge explained her ruling by stating, “I think the Commonwealth does have a right to explain to the jury that this young girl did not just regurgitate this information in a vacuum, so I think it puts things into perspective, and so that is my ruling.”

At trial, Marie testified in accordance with the judge's ruling. She described the indecent touchings that occurred on the air mattress, recounted the details of the rape, and responded affirmatively to questions posed by the prosecutor that she disclosed the rape in 2005. She provided no details of her conversations about the rape, confining herself only to the fact that such conversations had occurred after she saw the defendant's photograph on television.

On cross-examination, defense counsel led Marie through a time line of her disclosures to her mother, her grandmother, and the police. The prosecutor had not asked Marie a single question about the content of her statement to the police. Defense counsel, on the other hand, had Marie read her statement to herself and then questioned her extensively about it, pointing out discrepancies between the statement and her testimony at trial.

Marie's mother also testified within the parameters set by the judge. As the designated first complaint witness, she recounted what Marie told her about the indecent touchings. With respect to the rape, however, she testified only that in 2005, she had a conversation with Marie in which she learned “additional information,” and that “as a result” of that conversation, they went to the police.

Discussion. 1. Standard of review. The defendant contends that the testimony of Marie and her mother about Marie's report that she had been raped violated 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) See also Mass. G. Evid. § 413 (2010). The defendant did not object to the additional complaint evidence at trial. Nonetheless, he asserts that his objection was preserved because he asked the judge to preserve his rights when she delivered her ruling. ³ The problem with this argument is that the judge did not respond to the request or otherwise indicate that the defendant's rights were preserved at that time. At a later point, defense counsel sought reconsideration of that portion of the ruling relating to Marie's testimony that she had seen the defendant on television. ⁴ After the judge indicated that she would not change her ruling, defense counsel objected and asked if his rights were preserved. The judge responded, “Very much so. Anything else?” to which defense counsel answered, “No.” Contrary to the defendant's contention, this exchange was not sufficient to preserve an objection to the entire ruling. See Commonwealth v. Whelton, 428 Mass. 24, 25-26, 696 N.E.2d 540 (1998); Commonwealth v. Dargon, 457 Mass. 387, 393-394, 930 N.E.2d 707 (2010); Mass. G. Evid. § 103(a)(1) (2010). Contrast Commonwealth v. Kee, 449 Mass. 550, 553 n. 5, 870 N.E.2d 57 (2007). Accordingly, we must decide if the challenged testimony was properly admitted and, if not, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002).

2. Marie's testimony. Relying primarily on Commonwealth v. Stuckich, a case decided after the defendant's trial, the defendant argues that the admission of testimony regarding whom Marie told about the rape “is essentially the same as permitting those other witnesses to testify.” 450 Mass. 449, 457, 879 N.E.2d 105 (2008). The defendant's reliance on Stuckich as requiring reversal is misplaced. Here, the testimony was properly admitted “as evidence relevant to a highly contested issue, namely whether [Marie's] accusations were fabricated” to prompt the family's move back to the grandmother's home. Commonwealth v. Arana, 453 Mass. 214, 226, 901 N.E.2d 99 (2009). ⁵

As we have noted, the defendant's trial strategy was to undermine Marie's credibility by suggesting that she contrived the allegations of abuse so that she and her family would move out of the defendant's home and back to her grandmother's house. Consistent with this strategy, trial counsel vigorously cross-examined Marie and her mother on this point. Marie's testimony that she told her grandmother that the defendant raped her-three years after the fact and while she was living with the grandmother-directly rebutted the defendant's theory of the case. It was, therefore, relevant and admissible to establish her credibility. See Commonwealth v. Kebreau, 454 Mass. 287, 294-295, 909 N.E.2d 1146 (2009) (multiple complaint witness testimony admissible in response to “contentions raised” by the defense). See also Mass. G. Evid. §§ 401-403 (2010).

The question whether testimony concerning multiple complaints is permissible “is fact-specific and requires, in the first analysis, a careful evaluation of the circumstances by the trial judge.” Id. at 296...