Commonwealth v. Encarnacion
| Decision Date | 14 June 2017 |
| Docket Number | 13-P-90 |
| Citation | 86 N.E.3d 511 (Table),91 Mass.App.Ct. 1127 |
| Parties | COMMONWEALTH v. Manuel ENCARNACION. |
| Court | Appeals Court of Massachusetts |
The defendant, Manuel Encarnacion, was convicted of indecent assault and battery on a child2 under the age of fourteen, in violation of G. L. c. 265, § 13B, and of assault and battery, in violation of G. L. c. 265, § 13A. The defendant appeals from his convictions and from the denial of his motion for a new trial. We affirm.
Motion for new trial.3 We review the denial of a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
1. Affidavit of trial counsel. The defendant contends that the motion judge, who was also the trial judge, erred in granting trial counsel's motion to file an affidavit in opposition to the defendant's motion for a new trial on the grounds of ineffective assistance of counsel. The defendant maintains that trial counsel "intervened" in the pending motion and elevated his own self-interest over his duty to the defendant.
Counsel did not attempt to intervene as a party. He did volunteer evidence in opposition to the defendant's motion. It is this act which the defendant claims is improper, and in this sense the defendant's claim is more akin to a claim of ineffective assistance with respect to the postconviction proceedings than intervention.4
We need not decide whether volunteering the affidavit was improper because even if it were, the defendant has not demonstrated prejudice. A well-pleaded motion for a new trial would include an affidavit from counsel, because such an affidavit is necessary to establish the existence of a substantial issue meriting an evidentiary hearing.5 See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 545-546, 551 (2014). An exception to this requirement exists where trial counsel withholds his or her cooperation. Id. at 551. Had such a predicate showing been made, trial counsel would have been permitted (if not required) to testify at an evidentiary hearing. Ibid. The judge did not err in accepting the affidavit.
2. Trial errors. The defendant claims that the prosecutor improperly: (1) elicited testimony from Carol's brother, who has Asperger's Syndrome, and elicited false testimony from Carol regarding the extent of the defendant's touching; (2) presented Carol's sister as the first complaint witness; (3) elicited false testimony from Carol regarding prior sexual assaults committed by the defendant; and (4) appealed to the jury's sympathy during closing arguments and vouched for the brother's credibility.
a. False testimony. The defendant contends that the prosecutor impermissibly elicited false testimony from Carol's brother, whom the defendant claims could not fully understand the nature of the allegations because he has Asperger's Syndrome. In support of this contention, he argues that the brother's testimony at trial was materially different from the statement he gave before trial to investigators for the Department of Children and Families (DCF).
"The Commonwealth may not present testimony at trial ‘which [it] knows or should know is false.’ " Commonwealth v. Forte, 469 Mass. 469, 490 (2014), quoting from Commonwealth v. Sullivan, 410 Mass. 521, 532 (1991). "However, the Commonwealth need not ‘make an independent credibility determination as to each witness prior to presenting that witness.’ " Forte, supra, quoting from Sullivan, supra. "As long as the Commonwealth has not acted improperly in procuring or presenting evidence, it may leave for the jury the determination whether a witness is telling the truth." Forte, supra.
The record belies the claim of false testimony. The brother's statements before trial were consistent with his testimony at trial. Five days after the assault, the brother told DCF investigators that on the day of the assault, he was home and he heard his sister screaming. He then saw the defendant run out of the house. During the SAIN6 interview, the brother told investigators that on the morning of the assault, he was on the couch watching television when he suddenly heard his sister screaming. He then saw the defendant, and the defendant told him to "go check on [his] sister." The defendant then ran out the door. When the brother went to check, he saw his sister with her underwear and pants down, going towards the bathroom. At trial, the brother testified that he was on the couch watching television when he heard his sister scream. He then testified that the defendant ran to the hallway and told him that something was wrong with his sister. He then ran out the door. The statements before trial and the testimony at trial were similar. "Minor inconsistencies do not constitute falsities." Forte, supra at 491.
The defendant also contends that the prosecutor elicited false testimony from Carol regarding the extent of the defendant's touching. The testimony the defendant claims is false was elicited during cross-examination of Carol. The defendant cannot fault the prosecution for Carol's testimony, given that the testimony was elicited during cross-examination. See generally Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509-510 (2009) (). Moreover, given Carol's immediate retraction,7 we are not convinced the evidence was objectively false. See Forte, supra.
b. First complaint. The defendant contends that Carol's sister was presented as the first complaint witness in error. The defendant claims that Carol disclosed the sexual assault to her father first, rather than to her sister.
Under the first complaint doctrine, the "first person told of the sexual assault" is permitted to testify "to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief." Commonwealth v. Aviles, 461 Mass. 60, 67-68 (2011), quoting from Commonwealth v. King, 445 Mass. 217, 242-243 (2005), cert. denied, 546 U.S. 1216 (2006). We review the admission of first complaint testimony for an abuse of discretion. Aviles, 461 Mass. at 73.
The evidence at trial showed that Carol's sister was the first complaint witness. Carol testified that after the assault, she started screaming, and got up and ran to the hallway. She saw her father and her sister standing in the doorway, and they were asking her what had happened. Carol testified that her father left, while her sister stayed with her. Carol then told her sister what happened.8
c. Prior sexual assault. The defendant maintains that the prosecutor elicited false testimony from Carol, claiming that Carol lied about prior incidents of sexual assault involving the defendant. From the prosecutor's discussion with the judge and from her direct examination of Carol, it is apparent that the prosecutor "did not anticipate the change in testimony." Commonwealth v. Smith, 450 Mass. 395, 409 (2008).9 The defendant did not object to the testimony. "As long as the Commonwealth has not acted improperly in procuring or presenting evidence, it may leave for the jury the determination whether a witness is telling the truth." Commonwealth v. Forte, 469 Mass. at 490.10
d. Closing argument. The defendant contends that the prosecutor impermissibly appealed to the jury's sympathy during closing argument, and vouched for the witnesses. Defense counsel did not object to the closing argument, and therefore we review these claims for error, and if there is error, for a substantial risk of a miscarriage of justice. Commonwealth v. Jones, 471 Mass. 138, 148 (2015).
Closing arguments are restricted to the evidence and inferences that can be drawn from it. Commonwealth v. Jones, 432 Mass. 623, 628 (2000). "We consider the remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Francis, 450 Mass. 132, 140 (2007).
The defendant claims that the prosecutor erred in appealing to the sympathy of the jury by (1) asking the jury to imagine how upset the father was after discovering Carol the day of the alleged assault; and (2) asking the jury to imagine how the mother felt when she received the telephone call regarding the alleged assault.11
The prosecutor's statements did not explicitly ask the jury to consider how they would have felt, but they hewed close to the line. Even if a poorly phrased effort to have the jurors "put themselves in the shoes of the two witnesses," see Commonwealth v. Valentin, 420 Mass. 263, 274 (1995), was error, the error, if any, was cured by the trial judge's instructions that "[e]motion or sympathy [have] no place in [their] deliberation." See Commonwealth v. Mitchell, 428 Mass. 852, 857-858 (1999). The "jury are presumed to follow [the judge's] instructions." Commonwealth v. Gonzalez, 465 Mass. 672, 681-682 (2013).
The defendant claims that the prosecutor vouched for the credibility of the brother by stating that the brother had "no grudge ... no motive to lie." "[T]here is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie," Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008), particularly where the statement was made in response to the defendant's argument that "every witness for the Commonwealth ha[d] been impeached and made inconsistent statements." There was no error.
3. Ineffective assistance of counsel. The defendant contends that trial counsel was ineffective because he (1) did not call the aunt as a witness; (2) did not impeach the father after the father testified that he went out searching for the defendant; (3) failed to impeach the prosecution's witnesses with their prior inconsistent statements; (4) elicited irrelevant and...
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