Commonwealth v Santiago, 00p115

• Citation: 52 Mass. App. Ct. 667
• Decision Date: 02 October 2001
• Docket Number: 00p115
• Parties: COMMONWEALTH vs. PLACIDO SANTIAGO 00-Massachusetts Court of Appeals
• Court: Appeals Court of Massachusetts

COMMONWEALTH vs PLACIDO SANTIAGO

00-P-115

Massachusetts Court of Appeals

June 6, 2001

October 2, 2001

County: Middlesex.

Present: Lenk, Doerfer, & Cohen, JJ.

Indecent Assault and Battery. Evidence, Spontaneous utterance, Subsequent misconduct, Fresh complaint

Indictment found and returned in the Superior Court Department on April 15, 1998.

The case was tried before Maria I. Lopez, J.

Ronald J. Ranta for the defendant.

Rua M. Kelly, Special Assistant District Attorney (Mary G. Leary, Assistant District Attorney, with her) for the Commonwealth.

LENK, J.

After trial by jury, the defendant Placido Santiago, also known as Jose Martinez or Angel Burgos, was convicted of indecent assault and battery of a child under the age of fourteen by virtue of having touched her breast with his hand on or about December 13, 1990. The child was the thirteen year old daughter of the defendant's then live-in girlfriend and, later, wife. The defendant was acquitted of the more serious charge of rape of a child. On appeal, the defendant asserts as error that (a) a statement made by the complainant's mother to the police at the time of the defendant's arrest was improperly admitted as an excited utterance; (b) subsequent bad acts of the defendant were improperly admitted in evidence; and (c) there was an excessive "piling on" of fresh complaint testimony.

Background. We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for discussion of the specific issues raised. See Commonwealth v. Fisher, 433 Mass. 340, 341 (2001).

The complainant came to Massachusetts from Puerto Rico with her mother and two younger brothers when she was eight or nine years old. They lived in a multi-family house in Lawrence. Around October, 1990, when the complainant was thirteen years old, the mother's new boyfriend, the defendant, moved in with them. During that month, the defendant made a sexual advance toward the complainant, by kissing her and touching her breasts. She immediately reported the incident to an uncle who lived upstairs. The uncle told the complainant's mother of this and confronted the defendant, who thereafter moved out. The complainant's mother soon followed him, moving with the complainant and her brothers to live with the defendant in Lowell.

The complainant testified that, at approximately 2:00 A.M. on December 13, 1990, she awoke to find the defendant lying next to her in the bedroom that she shared with her two young brothers. He put his hand over her mouth, threatened to kill her if she screamed, stripped off his bottom clothing and her shorts, touched her breasts, and inserted his penis into her vagina, but it "didn't [go] all the way in." He left the room when finished. After he did, the complainant testified, she felt wetness all over her vagina, and she cried, tried to sleep, and, upon arising, took a shower and went to school.

Although she did not immediately tell her mother of the assault or confront the defendant about it, the complainant did go that day to see her school guidance counselor, and she told the counselor, in Spanish, what had taken place. The guidance counselor called the complainant's mother and the police. The defendant was present when the mother received the call concerning her daughter's reported rape. After the mother and the police came to the school, the complainant recounted to them the details of the sexual assault, the counselor acting as translator for the police. The counselor later accompanied the complainant and her mother to the hospital.

The defendant came to the hospital while the complainant was undergoing medical examination. Using the school guidance counselor as a translator, a police officer approached the defendant and indicated a desire to speak with him. The defendant was read his Miranda rights in Spanish, and he then told the officer that the complainant had a long-standing crush on him, and had asked him to come to her bedroom that night. He told the police officer that at 2:00 A.M. he had gone as far as the doorway to her bedroom but had not gone in. The defendant was placed in handcuffs and arrested. As the police officer was escorting the defendant out of the hospital, the complainant's mother, who had been watching, ran over to the officer and yelled out in Spanish (which the guidance counselor translated for the police) that the defendant had told her that he "went into [the complainant's] bedroom and kissed her, but . . . only put his finger into her vagina, but did not have intercourse [with the complainant]."

Following this, the complainant lived for a time in foster care and then with her maternal grandmother. The defendant, later joined by the complainant's mother and her sons, defaulted on the pending criminal matter and fled the Commonwealth, using an alias and living first in New York, then Connecticut. At some point, the complainant's mother married the defendant. The grandmother told the complainant of her mother's living arrangements and that the police had dropped the case. Life went on for the complainant, who later moved to New York, married, and had two daughters, one with a medical problem requiring considerable attention. The complainant visited her mother and brothers on occasion, tolerating the defendant's presence in order to see them. In 1996, the complainant and her husband accepted the mother's offer of a separate apartment in the multi-family home that the mother and the defendant had purchased in Bridgeport, Connecticut. They moved there with their two young daughters for financial reasons and in order to provide better care for the children.

The complainant testified that, on January 8, 1998, the defendant knocked on the door to her apartment when she was alone. He put his foot in the doorway when she tried to shut it, and pushed his way in, telling her that he was still in love with her and had been since the first time he saw her, and that he did not want her mother. He touched the complainant's breasts and tried to touch her genitals. The angry complainant successfully rebuffed him and he left. She told her husband, and they reported the incident to the local police. As the defendant was being taken into custody, he said to the complainant in Spanish, "I will hurt you." Thereafter, the complainant made further inquiries in Lowell as to the 1990 assault. The police located the outstanding warrant from the 1990 case on which the defendant had defaulted, and the defendant was returned to Massachusetts to face trial.

Excited utterance. The defendant contends that the mother's statement to the police (made as her boyfriend, the defendant, was being arrested) as to what he had told her he had and had not done sexually to her daughter, was improperly admitted in evidence under the spontaneous utterance exception to the hearsay rule. The Commonwealth suggests that the mother's statement was not hearsay because it was not admitted or used for its truth, i.e., it was intended to show only the defendant's consciousness of guilt. At trial, the Commonwealth argued in this regard that the statement suggested that the defendant felt it necessary to make something up to tell his girlfriend, albeit something different from what he later told the police, in order to provide some explanation to her of what had happened. We are not persuaded by this argument, because the statement was not admitted for a limited purpose, but instead was expressly admitted "substantively." No limiting instructions were requested or given. Moreover, the mother's statement in any event was surely hearsay because it was introduced to prove as true that the defendant had in fact told the complainant's mother something about what he had done, even if not to show that what he told her was itself true.

The trial judge did not reach her decision to admit the statement hastily or without due consideration. The matter was raised by a motion in limine and again at trial, and the judge heard extensive argument over several days. The evidentiary issue was made all the more complex by uncertainty as to whether the complainant's mother would testify at trial. Initially, she was listed as a defense witness and, for some period, had apparently accompanied her husband, the defendant, to court, but when the defense indicated a change of mind in this regard, it emerged that the Commonwealth had failed to make proper service of process on her. Defense counsel profferred, however, that were she called, the complainant's mother would deny having made the statement at issue. Further developments also suggested that the complainant's mother might assert her Fifth Amendment rights, either because of her exposure as a potential accessory to the defendant's acts of sexual abuse or due to false statements she had made on an immigration document. The matter was resolved only to the extent that the complainant's mother was not called to testify and the judge, deeming the mother's statement to the police "sufficiently reliable . . . I think that she wouldn't have made that statement unless he had made that statement to her," ostensibly admitted it as a spontaneous utterance.

Under that exception to the hearsay rule, "'a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.' . . . Such statements are admissible because they are made in circumstances rendering them 'particularly trustworthy.' . . . '[T]he statements need not be strictly contemporaneous with the exciting cause.'" Commonwealth v. Marshall, 434 Mass. 358, 363 (2001) (citations omitted). A statement may be deemed spontaneous, even if not made at a time strictly contemporaneous with the exciting cause, if "made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus...