Commonwealth v. Montanez
| Decision Date | 22 May 2003 |
| Citation | 788 NE 2d 954,439 Mass. 441 |
| Parties | COMMONWEALTH v. GUILLERMO MONTANEZ. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Robert F. Shaw, Jr., for the defendant.
Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.
After a jury-waived trial in the Superior Court, the defendant was found guilty on ten indictments charging sexual assault.1 The charges arose after the victim reported that she had been sexually assaulted by her mother's live-in boy friend from the time the victim was nine and one-half years old until she was fifteen years old. During this period the defendant was living with the victim, her siblings, and her mother at their various residences in Lowell.2
The defendant appealed from his convictions to the Appeals Court, and we transferred the case to this court on our own motion. Represented by new counsel, the defendant claims error from the admission of unobjected-to fresh complaint testimony; prosecutorial misconduct in the closing argument; and ineffective assistance of trial counsel. We conclude that much of the evidence admitted as fresh complaint testimony did not qualify as such but that there was no substantial risk of a miscarriage of justice in this jury-waived trial. We further determine that the prosecutor's closing argument was proper and that counsel did not render ineffective assistance. Accordingly, we affirm the convictions.
1. Fresh complaint. The defendant asserts that the testimony of the victim and other witnesses exceeded the scope of fresh complaint testimony and was otherwise inadmissible hearsay; and that this inadmissible testimony served to buttress the victim's credibility. The defendant alleges that, in a case that was essentially a contest of credibility, he was prejudiced by the admission of this testimony. Because there was no objection to this testimony,3 we review to consider whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998).
Examination of the trial testimony reveals the following. The victim testified to the details of the sexual abuse by the defendant; the general substance of a conversation with a friend concerning the abuse4; the fact that she spoke to a female guidance counsellor about the incident and the steps the guidance counsellor took as a result of that conversation; a conversation in which she told her mother a "little bit" about the situation, an interview with the police and then a representative of the district attorney's office; and, finally, a videotape interview by the district attorney's office in which she told "roughly" the same story "that [she] told [in court] today." Thereafter, her friend, the sole person denominated as a fresh complaint witness, recounted a conversation with the victim that did not contain the details of the sexual abuse that had occurred but essentially explained the victim's prolonged delay in reporting the situation: that the family was financially dependent on the defendant and that she did not want her younger brother (the child of her mother and the defendant) to be affected. The friend also stated, over objection, that the victim looked "worried" and "scared" during this conversation, and that she advised her to speak to a female guidance counsellor and that the victim did so and was "nervous" at that time. Finally, the friend testified, again over objection, that she related to her cousin what had happened and received advice from that source. Both the victim's mother and a Lowell police officer, Detective Julie McDowell, testified, but not as fresh complaint witnesses. (Their testimony will be discussed in more detail below.) There was also a stipulation regarding inconclusive DNA evidence.
The defendant denied that these assaults had taken place. He claimed he loved the victim as one of his own children, and that the story of abuse was fabricated as retribution for his allegedly harsh discipline. He stated that the mother was motivated by revenge because he had not been a good provider. He also attacked the victim's credibility by cross-examination suggesting that if the abuse had occurred she would have disclosed it earlier; her reasons for not doing so were not believable and it was unlikely that no other family member saw or heard the abuse if it had occurred mainly in the home during a period of six years.
In Commonwealth v. Peters, 429 Mass. 22, 27 (1999), we explained that our fresh complaint doctrine (footnote and citations omitted). Further, we stated that "while a complainant may testify about the fact that she made a complaint to another about a sexual assault, the person complained to, the fresh complaint witness, must be produced to testify about what the complainant said and to be available for cross-examination." Id. at 28. Finally, pursuant to our rule, the admissibility of the fact of the complaint is not dependent on an attack on the credibility of the complainant. Id. at 27- 28. The court expressed its reservations concerning the fresh complaint doctrine, nonetheless continued to believe that fresh complaint evidence should be admissible.5 Id. at 30.
Against this backdrop of the governing principles, we consider the defendant's specific claims. First, the defendant contends that Peters requires that any fresh complaint witness mentioned by the complainant at trial must testify. He discerns this mandate from the language that the fresh complaint witness "must be produced to testify about what the complainant said." Id. at 28. The Peters court intended no such requirement. That case concerned a very different situation, one in which the complainant herself was permitted to testify to numerous details regarding her conversations with fresh complaint witnesses. Our decision was designed to end this practice. It was not intended to encompass the situation here in which the victim mentions that she complained to various persons without relating the specific contents of any of these fresh complaints, but those persons do not testify. We have never held that such reference requires the production of those witnesses, and we do not adopt such a rule.
Having rejected the defendant's interpretation of the Peters case, that any mention of fresh complaint to a witness mandates calling that witness to testify, we consider his additional claims of inadmissible testimony. He contends that the victim should not have related the substance of her conversation with her friend, see note 4, supra; the guidance counsellor's actions in calling the Department of Social Services and her mother; the fact that she told her mother a "little bit" about the abuse and that she told the district attorney's office "roughly the same story" she had recited in court. The defendant argues further that the victim's friend, the fresh complaint witness, should not have been permitted to repeat the victim's reasons for delaying her report of the abuse or her own advice to the victim (to notify the guidance counsellor). The defendant claims additional error from the victim's mother's testimony that she received "[a]bsolutely shocking" and "totally devastating" information in a conversation with the guidance counsellor; her ensuing conversation with her daughter was "devastating[]" and her daughter spoke to two police officers and was "[e]mbarrassed" to speak with the male police officer, but could provide "additional details" to a female officer; and, finally that she gave a statement to the police that was "basically ... what [she] ... told ... in court ... with a little more detail." The defendant alleges impropriety in the admission of the testimony of Detective McDowell of the Lowell police department, that the victim detailed to her the allegations against the defendant and that the detective took statements from numerous witnesses who never testified.6 We consider each of these contentions in turn, recalling that no objection was lodged to any of the above testimony.
Although the victim should not have testified to the substance of her conversation with her friend under the rubric of "fresh complaint," Commonwealth v. Peters, supra at 30 (), such testimony was admissible as evidence of the victim's state of mind. Luz v. Stop & Shop, Inc. of Peabody, 348 Mass. 198, 208 (1964).7 "[S]tatements may be offered as evidence of state of mind without implicating the hearsay rule if the statements either do not contain assertions or are offered without regard to whether the assertions are true." P.J. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 8.2.6 (7th ed. 1999). The prosecution's theory was that the victim's delay in informing anyone of the abuse was the result of the family's need for the defendant's financial support and the victim's reluctance to disrupt her family. According to the Commonwealth, the victim decided to reveal the abuse at the time she did because of the defendant's imminent return to her home (he had moved out earlier and the abuse had stopped) and her fear that the abuse would resume once he moved back. In such circumstances, it was within the judge's discretion to admit the testimony as evidence of the victim's state of mind on the subject of her delay in reporting the abuse. Id.8
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