Commonwealth v. Soto, 20-P-1056

• Decision Date: 09 March 2022
• Docket Number: 20-P-1056
• Parties: COMMONWEALTH v. IMER SOTO.
• Court: Appeals Court of Massachusetts

COMMONWEALTH v. IMER SOTO.

No. 20-P-1056

Appeals Court of Massachusetts

March 9, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of rape and kidnapping. On appeal, he raises a variety of issues. We conclude that none of his claims entitle him to relief. Accordingly, we affirm the judgments.

1. Redirect testimony.

The defendant claims that Officer Michael Szegda should have been prohibited, over the defendant's objection, from testifying on redirect examination that the victim described the unprotected sex as nonconsensual. We disagree. On cross-examination, defense counsel asked Szegda whether the victim indicated to him that she had unprotected sex with a male, and the officer answered, "Correct." Without the clarification on redirect, the jury would have been left with an unfair impression of the victim's account. Defense counsel opened the door, the clarification was not hearsay, it was on the same subject matter of the prior cross-examination, and it was necessary to the understanding of the victim's statement. These elements made the clarification proper under the doctrine of verbal completeness. See Commonwealth v. Aviles, 461 Mass. 60, 75 (2011). It was also not improper for Szegda to explain that given the victim's account, the Sexual Assault Unit was brought to the scene. See Commonwealth v. King, 445 Mass. 217, 226 (2005). Therefore, the judge did not abuse her discretion by permitting the redirect examination, and the first complaint doctrine was not violated.^[1]

2. Nurse's examination.

The defendant also claims that the testimony of Alison Griffin, a registered nurse, ^[2] regarding the victim's hospital examination and evidence collection was irrelevant and improperly admitted. We disagree.

"It is not improper, as a general matter, to introduce testimony explaining the SANE process, either to provide background for testimony of a SANE nurse . . . or to lay a foundation for the admission of physical evidence in a SANE kit." Commonwealth v. Dargon, 457 Mass. 387, 398 n.13 (2010). See Commonwealth v. McCoy, 456 Mass. 838, 847 (2010). Here, without objection, Griffin testified in detail regarding her examination of the victim based on the allegations of oral, vaginal, and anal penetration. She explained the medical reasons for each test, the steps she took to perform the exam, and explained the condition of the victim's body, including that what she observed could have occurred in the course of ordinary sexual intercourse. This was proper.^[3] See Commonwealth v. Niels N., 73 Mass.App.Ct. 689, 702 (2009).^[4] 3. Limitation on cross-examination.

The defendant also claims the judge improperly restricted his cross-examination of Paul Daniels, the bar manager, who had viewed the surveillance video, which was later accidentally lost. Daniels testified that he did not recall the contents of the video. The judge then allowed the defendant to refresh Daniels's recollection with a police report written by a detective to whom Daniels had given a statement. After reviewing the report, Daniels maintained that his memory had been refreshed "to some extent." Daniels then testified that he remembered seeing a black car and attempting to zoom in on the car's license plate, but he could not remember "much more than that." With this background, the defendant asked Daniels if it was "fair to say that you did not see anyone get pulled into a --," at which point the prosecutor lodged an objection, which the judge sustained. Now, for the first time on appeal, the defendant claims that by sustaining the Commonwealth's objection, the judge unfairly restricted his right to cross-examination in violation of the Sixth Amendment to the United States Constitution.^[5]

The Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights provide defendants with an opportunity for cross-examination; they do not guarantee a "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Commonwealth v. Cong Due Le, 444 Mass. 431, 438 (2005), quoting United States v. Owens, 484 U.S. 554, 559 (1988). See Commonwealth v. Edwards, 444 Mass. 526, 535 (2005) ("the right to cross-examine adverse witnesses under art. 12 is not absolute"). At bottom, the right to cross-examination "is subject to the judge's broad discretion." Commonwealth v. Lucien, 440 Mass. 658, 663 (2004). See Mass. G. Evid. § 611(b) (1) (2021) .

"A witness whose memory has been exhausted may have that memory refreshed in the presence of the jury by any means that permits the witness to testify from his or her own memory." Commonwealth v. Woodbine, 461 Mass. 720, 731 (2012). Where a writing has been used to refresh a witness's memory, "the testimony which the witness then gives must be the product of present recollection." Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978) . See Mass. G. Evid. § 612(a) (1) .

Here, Daniels's memory had been refreshed "to some extent." What he remembered was attempting to read the license plate number on the black car, and that he could not remember "much more than that." The defendant's excluded question sought information from a well that had run dry. Indeed, the judge could have reasonably understood that by stating he could not remember "much more than that," that Daniels's memory was exhausted. To avoid any uncertainty, the judge asked, "Is that what you remember seeing at this point after reading the report," to which Daniels replied, "Yes."

While there must be a good faith basis for questions asked on cross-examination, Commonwealth v. McGann, 484 Mass. 312, 321 (2020), here it would not have been outside the range of reasonable alternatives for the judge to have concluded that Daniels's memory had been exhausted. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Implicit in the judge's exercise of discretion was her concern that the focus of the inquiry was what Daniels remembered, after reviewing the report, that he saw. See Hoffer, 375 Mass. at 376 (when witness's recollection is refreshed, "the testimony which the witness then gives must be the product of present recollection"). Based on Daniels's testimony on this point, there was an affirmative basis in fact to believe that he could not answer the question the judge excluded. Because the video had been lost and Daniels's memory had been exhausted, the defendant had no evidence to support the innuendo in the question. See Commonwealth v. Knowles, 92 Mass.App.Ct. 617, 623-624 (2018) . In other words, the defendant did not have "a reasonable belief that the facts implied by the questions could be established by admissible evidence." Commonwealth v. Peck, 86 Mass.App.Ct. 34, 39 (2014). There was no abuse of discretion.^[6] 4. The hospital records.

The defendant also claims that certain entries on the victim's hospital records were improperly before the jury. Prior to trial, the parties agreed to redact the records, but nonetheless, portions of the records admitted in evidence remained unredacted. The defendant objected to the admission of the records on relevance grounds, but he did not seek additional redactions. In this posture, the claim is unpreserved.

To determine whether the unredacted records created a substantial risk of a miscarriage of justice, and keeping in mind that "[e]rrors of this magnitude are extraordinary events and relief is seldom granted," Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions: "(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?" (Citations omitted.) Id. at 298. "Only if the answer to all four questions is 'yes,' may we grant relief." Id. See Dargon, 457 Mass. at 397.

Here, the victim's medical records admitted in evidence contained six references to the word "assault" and the abbreviation "SA." Portions of these notations included labels of "diagnosis," which the Commonwealth properly agrees should have been redacted. However, when we apply the Randolph factors, 438 Mass. at 298, we also agree with the Commonwealth (for several reasons) that the answer to question factor (3) is "no," i.e., it would not be reasonable to conclude that the error materially influenced the verdict. The prosecutor made no mention of the inadmissible portions of the records in her closing argument. See Dargon, 457 Mass. at 398. Also, four of the entries stated that the victim was merely reporting a sexual assault, which was entirely consistent with the defense theory that the victim sought medical treatment because she had had unprotected sex that was consensual, but then claimed it was nonconsensual once her father learned of it.

Relative to the references to "diagnosis," Griffin, the examining nurse, testified that the...