Commonwealth v. Cruz

• Citation: 154 N.E.3d 958,98 Mass.App.Ct. 383
• Decision Date: 10 September 2020
• Docket Number: No. 19-P-918,19-P-918
• Parties: COMMONWEALTH v. Carlos CRUZ.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 383

154 N.E.3d 958

COMMONWEALTH

v.Carlos CRUZ.

No. 19-P-918

Appeals Court of Massachusetts, Suffolk..

Argued May 14, 2020

Decided September 10, 2020

Joshua M. Daniels, for the defendant.

Kathryn Sherman, Assistant District Attorney, for the Commonwealth.

Present: Sacks, Wendlandt, & McDonough, JJ.¹

SACKS, J.

The defendant, Carlos Cruz, appeals from his convictions, after a jury trial in the Dorchester Division of the Boston Municipal Court, of indecent assault and battery of a child under the age of fourteen, G. L. c. 265, § 13B, and enticing a child under the age of sixteen, G. L. c. 265, § 26C. He was acquitted of a second charge of indecent assault and battery of a child under the age of fourteen arising out of the same incident.² On appeal, the defendant asserts three errors in admitting first complaint evidence: no first complaint witness testified, evidence of multiple complaints was admitted, and no limiting instruction regarding the use of that evidence was given. We agree that these errors, together with several improper statements in the prosecutor's closing argument, created a substantial risk of a miscarriage of justice. We reject, however, the defendant's argument that the evidence against him was legally insufficient. We therefore conclude that the judgments must be reversed and the verdicts set aside.

Background. We summarize the key evidence at trial, reserving certain points for later discussion. On a Sunday afternoon in August 2017, the victim, a thirteen year old girl for whom we shall use the pseudonym Jan, accompanied her mother, a home-care worker, on a visit to a client who lived in an apartment building in the Dorchester section of Boston. Jan waited in the first-floor lobby while her mother worked upstairs in the client's apartment. The lobby contained two almost identical couches, to which we shall refer as couch A and couch B, situated perpendicular to each other. A wall-mounted surveillance camera captured video footage (video) of couch A and of the building's elevators and front door, but not of couch B, which was located underneath the camera, just out of its field of view. Because Jan's testimony did not correspond precisely with what the video captured, and because the discrepancy forms the basis of the defendant's sufficiency argument, we describe the testimony and the video in some detail.

1. Jan's testimony. Jan testified that as she sat on couch A (the couch captured in the video), the defendant, an elderly man with whom she had exchanged greetings during her prior visits to the building, got off of the elevator. Because Jan spoke only English and the defendant spoke almost exclusively Spanish, they communicated using hand gestures and a few English words. On this occasion, the defendant sat down next to her and proceeded to touch her breast, making a circular motion with his right hand, and then touched her vaginal area. Both touchings were over her clothes.

Jan testified that she then stood and moved to sit on couch B. The defendant followed her and stood next to couch B. He grabbed her jaw, pulled her toward him, and tried to kiss her, but she pushed him away. The defendant took money out of his pocket, including ten-, fifty-, and hundred-dollar bills, and pointed upstairs, which Jan interpreted as him "try[ing] to have sex with [her] or something." Jan told him to get away from her and put her head down.

A minute later, as the defendant began to walk toward the building's front door, the elevator door opened. Jan's mother emerged, looked at her, and angrily asked the defendant what he had done to her daughter. After further conversation (facilitated by a passerby who translated), the defendant left the building. Police were summoned; emergency medical personnel also arrived and took Jan and her mother via ambulance to a hospital. Jan was "not physically injured in any way."

Jan, who had turned fourteen by the time of trial, testified that she had not seen the video. When the prosecutor asked her to watch it at trial, she answered, "Do I have to watch it? 'Cause if I watch it, I'm going to cry. I don't want to do that." The Commonwealth did not press her further to watch the video or ask her about any discrepancies between her testimony and the video. Jan had already become upset when first asked to describe the assault, saying, "I can't do this." She later expressed irritation when challenged on cross-examination, asked for a break, and began to cry, leading the judge to suspend her testimony for one-half hour, and to instruct the jury, "Sometimes things get heated in these cases ... please don't draw any adverse inference against either side."³

2. Video. The video, played for the jury, corroborated many details of Jan's account, but with a significant difference: the video showed that, while Jan sat on couch A, the defendant touched only her thigh, not her breast or vaginal area. Three minutes later, Jan stood up, walked toward couch B, and seated herself. Although couch B itself was not visible, Jan's feet could be seen at the bottom edge of the screen. The defendant, after briefly stepping outside, returned and resumed his position on couch A. He then reached toward Jan and, using his left hand to grasp her right hand, pulled her toward him, at one point bringing her hand, arm, and the top of her head into view. As he did so, the defendant briefly held his right hand to his lips. He then reached toward her body with his right arm and could be seen moving that arm -- first higher, then lower -- for about eight seconds before withdrawing it. Neither his right hand nor her body could be seen in this segment of the video. The video then showed the defendant standing in front of couch B, taking money out of his pocket, showing it to Jan, and gesturing upstairs. The defendant then moved to the side of couch B and leaned over Jan for more than ten seconds, sometimes bending low enough to move completely out of the video. The defendant then stood upright but continued to reach down toward Jan with his right arm. The elevator door then opened, the defendant walked quickly away from Jan, and Jan's mother stepped out of the elevator and began speaking to the defendant.

3. Other evidence. Although the judge had allowed the Commonwealth's motion in limine to allow Jan's mother to testify as the first complaint witness, and Jan described the accounts of the assault she had related to her mother in the building lobby and in the ambulance, her mother did not testify.⁴ Records of Jan's hospital visit, which included accounts of the incident related by Jan and her mother, were admitted in evidence.

The defendant did not testify or offer other evidence. His defense, presented through cross-examination and argument, was that he had not touched Jan's breast or vaginal area or offered her money to go upstairs with him, and that she had asked him for money. The defendant argued that, although Jan was firm in her testimony that the alleged assaults had occurred on couch A, the video proved that no assaults occurred there.

The jury returned verdicts of guilty on the indecent assault and battery charge based on the breast touching and the enticement charge, but they found the defendant not guilty on the indecent assault and battery charge involving touching of the vaginal area.

Discussion. 1. First complaint issues. a. Lack of first complaint witness. A victim of a sexual assault is permitted to testify about her first complaint to another person, including the details of the complaint. See Commonwealth v. King, 445 Mass. 217, 240-244, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006). The victim may do so, however, only if the person to whom she complained is also "produced at trial [and] testifies regarding the complaint." Id. at 245 n.24, 834 N.E.2d 1175. See Commonwealth v. Aviles, 461 Mass. 60, 68 & n.6, 958 N.E.2d 37 (2011) ; Commonwealth v. Peters, 429 Mass. 22, 30 n.8, 705 N.E.2d 1118 (1999) (victim may not "bootstrap her testimony solely with her own account of statements made to others"); Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 171, 944 N.E.2d 601 (2011). Here, although Jan's mother was intended to be the first complaint witness, the mother did not testify, and thus Jan's two accounts of what she told her mother were inadmissible. The Commonwealth concedes this point.

b. Evidence of multiple complaints. Under King, only the very "first" complaint is admissible.⁵ King, 445 Mass. at 243, 834 N.E.2d 1175. "The testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime." Id. See Aviles, 461 Mass. at 73, 958 N.E.2d 37. Limiting the Commonwealth to a single first complaint witness prevents "any prejudicial ‘piling on’ of such witnesses." King, supra at 245, 834 N.E.2d 1175.

Importantly, the same limitation applies to evidence offered by the victim. See Commonwealth v. Stuckich, 450 Mass. 449, 455-456, 879 N.E.2d 105 (2008). In Stuckich, the victim's testimony "regarding whom she told (in addition to the first complaint witness) [was] essentially the same as permitting those other witnesses to testify" and was held inadmissible. Id. at 457, 879 N.E.2d 105. The Commonwealth had "sought admission of multiple items as the first complaint evidence, namely [the victim's] letter to [her guidance counsellor], [her] initial conversation with [the counsellor], an earlier journal entry, and [her] later conversation with [the counsellor] and the school's principal." Id. at 455-456, 879 N.E.2d 105. The court ruled that "[i]f, in fact, the letter was the first complaint, that is the end of the matter. The letter would be the first complaint evidence and the further disclosures [were] not admissible as first complaint evidence." Id. at 456, 879...