*1
Suffolk. 2010. 2010. February May Spina, Marshall, C.J., Ireland, Present: & Gants, JJ. Cowin, Botsford, Evidence, Rape. Kidnapping. Battery. Jury Assault and and Jurors. First com- Error, Practice, Criminal, plaint, Cumulative evidence. Jury Harmless. dire, jurors, Challenge jurors, jurors, Examination of Voir Harmless er- ror, offense, Lesser included Duplicative convictions. At the trial charging of indictments the defendant with kidnapping, rape, and (crimes life), battery by assault and punishable imprisonment not for judge did denying not abuse his discretion in request defendant’s peremptory challenges permitted addition to four Mass. R. Crim. (c) (1), P. 20 where the defendant did not show a concrete need for addi- challenges, particularly tional he peremp- where did not exercise his final tory challenge juror judge until the last was seated and did not inform the challenge that he would have a peremptory juror exercised on a seated [841-842]; further, he challenges been afforded additional there was no judge merit to the question- claims that the conducted insufficient voir dire ing specific of six venire members or the verdicts were the result of [842-844], jury compromise bias charging At the trial of indictments the defendant with kidnapping, rape, and battery, assault and in which a officer testified as the first witness, testimony from three additional witnesses about the error, victim acted as cumulative first witness and was but the did miscarriage justice, error not create a substantial risk of a where the inconsistencies contained in the cumulative Commonwealth; important were more to the defense than the where, trial, in the context of the entire it was reasonable to conclude that verdicts; materially did not influence the errors and where it was object reasonable to infer that defense failure to counsel’s C.J., concurring, was a tactical decision. with whom [844-853] Marshall, JJ., joined. and Gants, Botsford trial, sentencing indepen- At a criminal did not err in the defendant dently following battery, kidnapping, rape, convictions of and assault and battery kidnapping where the convictions of and assault and were not lesser rape. included offenses of the conviction of [853-854] found and returned in the Court Depart- Superior
Indictments ment on 2002. September were tried before Patrick F. Brady, J. cases Court,
After review the Judicial Court Appeals Supreme *2 leave to obtain further review. granted appellate J. Joseph Mazza for the defendant. Noble,
Janis DiLoreto S. Attorney (Cory Assistant District Flashner, her) Assistant District with for the Attorney, Com- monwealth. J. The defendant was convicted jury kidnap-
Spina, and assault and In a ping, rape, battery.1 memorandum and 1:28, order to its rule pursuant Court reversed the Appeals defendant’s convictions on all charges, holding of the victim’s mother and the sexual assault nurse examiner (SANE) constituted that cre- improper complaint testimony ated a substantial risk of a justice. miscarriage McCoy, Mass. Ct. 1127 We granted Com- monwealth’s for further application review. appellate
The defendant contends his convictions should be reversed (1) because the trial judge denied his improperly for addi- request tional peremptory challenges, (2) in a biased resulting after jury; witness, designated first the errone- ous allowance of cumulative first without complaint testimony limiting instructions created a substantial risk of a miscarriage of and justice; and assault kidnap convictions are lesser included offenses and should be rape charge dismissed. follow, For the reasons that we affirm the convictions.
1. Facts. We found, recite facts that the could have reserving of other development facts to the discussion of specific issues. 26, 1996,
On February the victim at a spent evening house, friend’s where both women used “crack” cocaine. Between and she left that friend’s house and went p.m., friend, across the street where, to the apartment of another prior to at 2 or 3 she leaving consumed two “shots” of alcohol a.m., that, time, and four beers. She testified at that neither the crack cocaine nor the alcohol affected her “ability perceive things.” She intended to walk to her home in the section of Roxbury Boston, However, where lived she with her mother and children. jury acquitted 1The battery by the defendant of assault and means of a dangerous weapon and assault with intent rape. a red after the victim left her friend’s apartment, pickup
shortly name, The driver called out her truck over in front of her. pulled a ride She her where she was and offered her home. going, asked of the truck as an she knew the driver recognized acquaintance friend, trial, At the offer for a ride. her through boy accepted the driver of that truck. she identified the defendant as entered the truck and that the defendant agreed The victim friend before her home. How- taking could first his girl pick up Park, ever, turned he drove down a dead-end street near Franklin around, At that and turned off the ignition lights. the truck reached the door in an out attempt get the victim point, truck, the defendant the collar of shirt grabbed but He her head toward her from leaving. pulled jacket, preventing *3 of his through open zipper his which penis, exposed at- him to take her home. As she She resisted and asked pants. resist, and left side of her he her on lip tempted slapped face, the truck. her down onto the seat of pushing her down. then told the victim to pull pants
The defendant refused, con- he hit her and she lost again briefly When she of her removed and She awoke with one leg pants sciousness. her, He in sexual intercourse. the defendant on top engaging he had a knife or gun, have killed her if said that he would boots. When she her out of the truck with his kicked forcibly truck, drove the defendant on the outside ground landed the main and crawled toward her back on She away. put pants street, until an unidentified man down in the road where she lay her to a station. and drove police picked up arrived around 4:30 a.m. at the station police The victim officer. She who was the desk Officer Bernard Doyle, with spoke and his described her assailant from the assault and related details He sum- was swollen. noticed that her lower lip vehicle. Doyle Center, ambulance, Medical took her to Boston an which moned a SANE and interview with kit examination a rape complete examination, her mother. home with she returned nurse. After the initial commenced Keeley Detective Thomas That day, interview included an This investigation of the rape. investigation The initial area the attack. a visit to the the victim and with leads, eventually and the victim not yield any did investigation the case. her desire to drop indicated an Alcoholics Anonymous In the victim was leaving the defendant in an elevator. They when she meeting recognized he introduced himself as “Ron” and had brief exchange; truck, a red which belonged confirmed that he drove occasionally told her to call to his She contacted who employer. police, if she saw him again. June, 2001, In the Boston crime notified laboratory (DNA) acid from Keeley deoxyribonucleic profile kit matched the known DNA of the defend- profile 1, 2002, ant. He a blood on and the victim gave sample July a blood on 2002. Further confirmed gave July testing sample the link.
2. The Juror selection. defendant’s first argument appeal is that the erred in to four judge limiting parties peremptory seated, challenges, biased to be allowing jurors conducting insufficient and limited voir dire questioning, thereby preclud- fair trial ing fundamentally These impartial jury. argu- ments are without merit. selection,
During jury defense counsel moved for two addi- tional for a challenges, total of six. He claimed that peremptory because more than thirty raised their hands when people asked whether they anyone their families had ever been crime, assault, victim of a violent sexual addi- including tional strikes were needed in order to choose an peremptory denied the impartial jury. request.
A defendant indicted for a crime not punishable by imprison ment for life entitled is to four challenges, although peremptory discretion, the as a matter of allow addi judge may, motions for tional (c) (1), See Mass. R. Crim. P. 20 challenges. 378 Mass. Burden, 666, (1979); 889 Commonwealth v. 15 Mass. Here, (1983). 674-675 did not judge abuse his discretion in the defendant’s as the defendant did denying not show request, a concrete need for additional where he challenges, particularly did not exercise his final until the last challenge peremptory was seated and did not inform the that he juror being judge would have exercised a on a seated challenge juror peremptory had he been afforded additional See Commonwealth challenges. 481, (2005) (no v. 445 Mass. error where defendant Leahy, 497 did not his last until final seat on challenge exercise peremptory
842 filled, was jury being thus to show that he was forced to failing he would have accept juror challenged). peremptorily The defendant next that the conducted insuf- judge members, ficient voir dire of six venire questioning specific “The dire resulting voir rests in the sound prejudice. scope discretion of the trial and a determination judge, judge that a are will not be overturned on impartial appeal a absence of clear of abuse of discretion or that the showing was erroneous.” finding clearly Commonwealth 440 Lopes, 731, Seabrooks, (2004). Mass. 736 See Commonwealth v. 433 (2001) (“we Mass. 443 will not conclude that the judge abused his discretion unless by empanelling juror juror manifest”). is Where a defendant fails to prejudice challenge cause, of that juror juror questions impartiality and the of voir dire are waived. Cf. adequacy Zakas, (1992); 414 Mass. Commonwealth v. Auguste, (1970). If the been issue has preserved, is shown the use of a chal- generally prejudice peremptory ex- to remove who should have been lenge juror allegedly cause evidence that the defendant later together cused for with was forced to he would have juror challenged accept peremp- but unable to his torily challenges was because peremptory 58; been exhausted. See Commonwealth v. Auguste, supra Susi, Mass. First, the defendant into Juror judge inquire requested A’s bias because the brother was a offi- juror’s potential cer. The declined to do so because the did not indicate judge juror of the entire venire. A any partiality questioning pro- who does not come forward in to a juror spective response of the full venire is judge’s “[impliedly represent- questioning that he or she is not biased.” Commonwealth v. Duddie ing] Ford, Inc., (1991). The defendant did not Juror A for cause. challenge familiar,
Next, B indicated that the defendant looked Juror him at a check establishment cashing she have seen may found where After questioning, she employed. and the defendant did not challenge this to be juror impartial, *5 hand, that Juror B had raised her indicat- her for cause. He argues crime, member had been a victim of violent she or a ing family However, error. the juror and failure to her on this was question the voir dire that had else to indicate nothing stated she to the court and that had her hand she not raised other reason.
Juror C informed the that had been a of a judge she victim sexual assault in and the her on her college, judge questioned to be as a result. The defendant that ability argues impartial Juror C should have been further on the outcome of questioned case, and that the judge’s questioning regarding potential bias served the woman into that she “cajole” responding dire, could be fair and voir asked impartial. During judge bias, to consider her own juror and then asked her possible whether she could be fair and impartial. Reading question- whole, of Juror C a ing there was no cajoling of juror. Furthermore, the defendant did not Juror C for challenge cause. is entitled judge on a rely juror’s demeanor and answers questions determining bias. Commonwealth v. Gregory,
Next, E, the defendant D and challenges Jurors each of whom had a family member who had been assaulted. While sexually he that the argues jurors did not understand the Commonwealth’s burden of each proof, judge to ascertain questioned juror their potential biases acted within his discretion in finding these jurors unbiased. Id. The defendant did not either challenge for cause.2 F
Finally, Juror
stated that
had
she
been a victim of
five
earlier,
years
but that she could decide the case
a
fairly. Despite
defendant,
from the
request
declined to ask
judge
any further
after
questions
determining
was unbiased. Com-
juror
at 736. The defendant
Lopes, supra
exercised one
F,
of his
to strike Juror
peremptory challenges
that
argues
this
resulted in
“prejudicial diminution” of his peremptory
challenges.
argument
This
is
as the defendant never
misplaced,
articulated at trial that he would have struck a
sitting juror
he been allotted additional
and the
challenges,
peremptory
judge
2The defendant
improperly prevented
exercising
he was
from
However,
peremptory
against
strike
Juror D.
previous
because he had had a
so,
opportunity
juror,
to strike that
subsequently
and had not done
ad
seated,
jurors
ditional
had been
Rule 6 of the
Superior
Rules of the
Court
(2010) prevented
going
him from
striking
juror.
back and later
Accord
ingly,
correctly
refusing
ruled
to allow him to later strike Juror D.
*6
(2010)
844
While factual between verdicts does not inconsistency prej- and, therefore, a set udice a defendant is not sufficient reason to verdict, it not clear in this case that this verdict was aside is Nascimento, at all. See Commonwealth v. 421 Mass. inconsistent Ct. (1996); 684 Commonwealth v. Elliffe, App. (1999). There is in the record from which to nothing a result of conclude that the verdict was jury compromise bias; fact, indicate an on two indictments jury acquittals Lumley, unbiased See Commonwealth v. jury. (1975) on sexual with conviction charges, (acquittal paired of jury indicated robbery, impartiality appropriateness Crowder, Mass. dire);
voir Commonwealth v. indictment that not verdict on (holding guilty 722 n.3 means of dangerous assault and charging battery by weapon, that indicated aggravated charge, with conviction on paired rape of error biased). we the claims Accordingly, reject was not selection. surrounding jury The defendant testimony.
3. Cumulative complaint first three addi- reversible error in allowing committed victim, thereby about the testify tional witnesses witnesses. We agree as cumulative first acting error, a substantial hold that the error did not create there was but of justice. risk of a miscarriage doctrine of “fresh with complaint”
In
we
replaced
in cases of sexual assault.
of “first complaint”
the doctrine
cert, denied,
(2005),
Accordingly,
testimony
complaint
prohibits
witnesses,
Commonwealth v.
on” of
“piling
multiple complaint
441,
Murungu,
(2008),
450 Mass.
442-443
it does not exclude
that “is otherwise
admissible” and
independently
serves a
“other than to
the fact of a
purpose
repeat
complaint
accusations.” Com-
and
corroborate the
thereby
complainant’s
Arana,
214, 220-221,
monwealth v.
(2009).
453 Mass.
229
The Commonwealth first
Officer
as the
presented
Doyle
witness, and the
designated
gave
first complaint
appropri-
ate
instructions in advance of his
testi-
limiting
testimony. Doyle
fied that the victim said she had been
after an at-
vaginally raped
oral
and that
kicked out of
forcibly
she
been
tempted
rape,
truck. He
that he did not recall
defendant’s
also testified
sober,
had a
The defendant
whether she was
but
she
swollen lip.
admitted.
concedes that
was
Doyle’s testimony
properly
The defendant
that the
subsequent
mother,
and the SANE nurse violated
Keeley,
victim’s
Detective
However,
doctrine.
he did not
object
first complaint
(2010)
G. Evid.
the first
doctrine set
3Section 413 Mass.
reflects
cert,
218-219, 241-248,
denied,
217,
King,
out in Commonwealth v.
445 Mass.
(2006) (King).
of this we review his claim of error for a substantial risk of See Com- miscarriage justice. (2002); Mass. Randolph, 438 Com- LeFave, monwealth
a. Testimony mother. The victim’s mother testified her in the hours of police telephoned early morning February and told her that her had been She daughter raped. also testified to her daughter’s demeanor condition physical at the Most hospital night. she testified that importantly, assault, she and her had a about the daughter conversation she did not to the although substance of the con- testify At versation. no did defense counsel to the object mother’s point testimony.
While mother’s the victim’s demeanor testimony regarding condition at the is neither inadmissible physical hospital evidence, nor first hearsay see Commonwealth v. Bianchi, concerning Mass. (testimony demeanor and hearsay was not injuries properly *8 admitted), admission of the mother’s other was error. The mother’s with the and conversation police hearsay, does not fall into any hearsay showing exception. Testimony that the Commonwealth its to bear on the brought resources victim’s assault to the alleged guilt, is irrelevant defendant’s and creates the of in the official belief victim. Com- imprimatur Stuckich, Here, the the victim’s mother that the told her that testimony by police the that been have indicated to daughter raped may account, and introduction of believed police this evidence was error. The Commonwealth that argues with the for another legiti- conversation was admissible police information, mate no cases in background citing purpose, We do not find this argument persuasive. support. Likewise, that admission of the mother’s she assault, about the even without the victim had a conversation conversation, of the was error. The testi- details conveying any not be used to enhance may solely of witnesses mony multiple additional evidentiary a victim’s without credibility, serving any Arana, 229; Com- See Commonwealth v. supra purpose. Stuckich, does not Even where witness supra. monwealth victim, the fact the details of the conversation with relay “is the the details to the witness that the victim reported incident, her account of the of that she saying repeated equivalent door,” i.e., the back testimony through it allows fresh complaint Stuckich, of supra and is error. Commonwealth v. (description doctrine). first investigative complaint process prohibited defendant Keeley. argues b. Detective Testimony of under were introduced error Keeley’s portions examination, Keeley, the first doctrine. On direct detective, conducted detailed having testified investigating interview of the victim which she during provided description the role of the SANE of her assailant. also described Keeley nurse in the and described the kit examination. investigation The defendant did not to this object testimony. The allowance of of his interview with the Keeley’s testimony — —
victim even without substantive details4 is error under the doctrine, enhances victim’s cred- unfairly (“Evidence at 243 that a ibility. King, supra of a sexual complainant assault several repeatedly complained different in most will do no instances more to persons likely refute an inference of fabrication than one first com- permitting Stuckich, witness to See plaint testify”). supra. The Commonwealth Keeley’s description role of the SANE nurse was offered for limited purpose context to the between the providing SANE nurse relationship and the a foundation for the admission providing evidence collected the SANE examination. physical Because the that the defendant Keeley’s testimony portion is indeed limited in that we While testi- challenges way, agree. is not allowed unless mony detailing investigation generally it is from the first witness or in to a defense response *9 here, the limited served the theory, testimony independent pur- information and a founda- poses providing background laying tion in the admission of evidence included physical Arana, sexual assault examination kit. See Commonwealth v. 226-227; Stuckich, at Accord- Commonwealth v. supra supra. there was no error in this ingly, Keeley’s testimony. portion examination, Keeley testify 4On redirect did to details of his interview with However, regarding questions the victim. because the defendant asked cross-examination, proper prosecutor interview it for the to address the interview on redirect. c. SANE The Testimony nurse. defendant that the argues SANE nurse’s testimony the role of the regarding training, interviewer, SANE and the content of her interview with the victim was error. The Commonwealth that the nurse’s argues is admissible not as first but testimony, the victim’s utterances or as of identifi- spontaneous statements cation. There was no at trial to the objection testimony. nurse’s
The SANE nurse testified as to her SANE training regarding evidence collection and the role of the SANE interviewer. She also described the evidence collected physical sexual assault examination. Most importantly, response “What did tell prosecutor’s question, exactly you?” [the victim] she detailed her conversation with victim. She also described note the victim’s facial physician’s describing injuries described the victim’s at the demeanor while hospital.
The nurse interviewed the victim two hours approximately assault, after the and described the demeanor of the reported victim as “from to not to talk ranging being really angry wanting at times.” She also described the victim as “distraught,” “upset,” “tearful,” “labile,” which she defined as someone going “from calm and to excited and being usually agitated.” quiet
The nurse’s of her with the conversation victim was not admissible under the first doctrine. Commonwealth at 242-243. The first doctrine does not King, supra the admission of additional that are in- prohibit complaints admissible, Arana, at 220- dependently supra 221; however, the here statements issue were not admissible under other hearsay exceptions. Commonwealth first SANE nurse’s testi was admissible as utterances5 made
mony
spontaneous
6 A
victim
the SANE examination.
utterance
spontaneous
is admissible if the “utterance was
to a degree
spontaneous
which
fabrication
reasonably negated premeditation
possible
the underly
and if it tended to
characterize and explain
qualify,
Fuller,
(1987),
event.” Commonwealthv.
ing
and “excited utterance”
“spontaneous
5We use the terms
utterance”
(2) (2010).
interchangeably. See Mass. G. Evid.
§
during a
prosecutor
6The
informed the
and defense counsel
sidebar
that he intended to offer the nurse’s
as an excited
conference
However,
testimony.
object
did
to the SANE nurse’s
utterance.
the defendant
not
*10
quoting App. (1978). The Commonwealth show that “there an must event that would to the and that exciting rise give exception” “the declarant a of degree excitement sufficient to displayed conclude that her statement was a reaction to the spontaneous event, rather than the exciting reflective product thought.” 620, v. (2002). Commonwealth 437 Mass. 624-625 Santiago, event, While the victim did her experience exciting exam- ination with the nurse at the did not hospital display requisite “indicia of for a reliability” utterance. required spontaneous Whelton, Commonwealthv. 428 Mass. The SANE nurse’s revealed that the description assault was aby format. developed question-and-answer While utterance spontaneous occur as the may result of questioning, the victim’s of her recounting allegations to the SANE nurse utterances, this case were not spontaneous level requisite was not spontaneity The victim had present.7 earlier recounted to the desk experiences officer at the station. She had been to the transported and was in the hospital, of a process three- to five-hour examination SANE nurse. While the nurse did testify that the victim’s demeanor “from ranged being really times,” to not angry to talk at wanting the evidence does not suggest that the victim “displayed degree excitement sufficient to conclude that her statement was a spontaneous event, reaction to the exciting rather than the of reflec- product tive thought,” Santiago, or that supra the victim’s statement to nurse “was to a spontaneous degree which reasonably negated premeditation fabrica- possible tion,” Fuller, Commonwealth v. supra.
The Commonwealth also the victim’s statements 7The Commonwealth cites three cases where response an individual’s questioning has been deemed to be an excited utterance. See Commonwealth Grant, (1994) (statements 418 Mass. 80-82 at hospital shooting victim, who had been boy shot and witnessed murder of her friend one hour earlier, utterances); Fuller, were excited (1987) (three year 682-683 & n.8 old victim’s response statements in questioning utterances); mother’s minutes after incident were excited Com Burden, (1983) (victim’s state response neighbor’s question, ments in immediately made after victim was died, shortly utterances). stabbed and before victim were excited These cases distinguishable are each from the facts this case. *11 of identification. The
to the nurse were admissible as statements is not admissible as state testimony defendant argues identification, the identification of the defendant was ment of counsel, during a live at trial. Defense his opening not issue statement, that the defendant did have intercourse conceded The defendant’s willingness stipulate with the victim. apparent had intercourse with the victim at that he was the who person case, the element of the time and essential question, place the from it. Com did not preclude proving Rhoades, (1980), 820 Com citing monwealth v. 379 Mass. S.C., Nassar, (1966), 46 354 Mass. 351 Mass. cert, denied, (1969). Because the (1968), U.S. 1039 249 393 of identi available to as to her statements testify victim was prior fication, the identi to the SANE nurse regarding her statements admissible, Commonwealthv. of the defendant were see fication Le, Evid. (2005); 444 432 Mass. G. Due Mass. Cong (2010), from the SANE (d) (1) (C) testimony but other 801 § were not the actions on the night question nurse regarding identification. admissible as statements of defendant did not Because the analysis. d. Substantial risk trial, we review the the of witnesses’ object A risk of a miscarriage justice. above errors for a substantial exists when we “have risk of a miscarriage justice substantial trial have been might the result of the a serious doubt whether not been made.” Commonwealth different had the error LeFave, claim under (1999). In analyzing standard, and case review the evidence risk we the substantial . . . “(1) Was there error? four as a whole and ask questions: (3) ... Con- the error? (2) the defendant prejudiced Was trial, it be the entire would in the context of the error sidering the error influenced materially conclude that the reasonable to that counsel’s infer from the record ... weMay verdict? was at an earlier date a claim of error failure to or raise object v. Ran- tactical decision?” Commonwealth not a reasonable under this standard is (2002). Relief dolph, the answer to be where granted and may only seldom granted, is, Id. at “Yes.” 297-298. all four above questions errors, of a Here, no substantial risk numerous despite detec- of the created miscarriage justice trial mother, issue in this tive, nurse. The main the SANE Mass. 838 Commonwealth McCoy. victim,
was the of the defense credibility capitalized inconsistencies in her the cross-examination testimony during fact, the detective and the nurse. In the defendant detective, “the like why is impeachment complainant nurse, the mother and the SANE have been witnesses in should his During direct examination in defendant’s case-in-chief.” statement, to “listen to defense counsel asked opening that comes out from the and then everything will you decide who’s believable here.” closing Subsequently, during defense counsel detailed in the argument, inconsistencies such as the victim’s testimony, body position rape, *12 victim, the defendant’s as described the height weight by the exact location where he and the details of picked up, short, how he her from truck. In exactly his the incon- pushed sistencies contained in the various versions of the victim’s statements were a cornerstone of the defense. Where the incon- sistencies contained in the cumulative first testimony Commonwealth, were more the defense than the important Nardi, there is no harm to the defendant. See Commonwealth v. 452 (2008) (where Mass. 395-396 testimony erroneously more, defense, admitted was if not equally, admis- important sion did not create substantial likelihood of of miscarriage justice).
The defense counsel also stated in his that closing argument individual, the victim lied about sex with one only having imply- ing victim was a He that the victim prostitute. posited was at the angry defendant for her in the deserting after park sex, their consensual that his conduct was not stating illegal, but, it “Maybe was of the their misunderstanding terms [of which is agreement],” why she brought allegation rape. No evidence was trial the victim was a presented prostitute or that she and the defendant had any discussion about sex for a fee; fact, the victim testified that she was not a prostitute. Defense counsel’s to the implication contrary improper. evidence, Counsel not inferences the may argue by unsupported and the should the have instructed the disregard Core, statement. See Commonwealth v. Montecalvo,
(1976); 56 Mass. None the witnesses at issue enhanced the victim’s cred- believed ibility by testifying they allegations. The victim’s mother did not about any details as- testify sault and did not as to her belief in victim’s account. The testify defendant was not the error in the victim’s allowing prejudiced mother’s testimony. while that he interviewed the
Keeley, testifying victim her, went to crime scene with did not indication any express that he believed the victim. He indicated that he did not find evidence at crime scene that the victim any suggested cross-examination, would be there. defense Importantly, counsel about details of the immediately Keeley questioned interview, out inconsistencies between the victim’s drawing Thus, her statements interview. er- ror in was overcome allowing testimony Keeley cross-examination, and the error in admit- benefits received in this did not the defendant’s case. ting prejudice utilized defense counsel cross-examination of Similarly, SANE nurse to into details about the and to highlight inquire told the and her inconsistencies between what the victim nurse at trial. Cross-examination can cure errors in the See admission of statements to be excited utterances. argued Whelton, (1998); Com 549, 555-556 (1997). monwealth Mass. Napolitano, trial, *13 to In the context of the entire it is reasonable conclude that the errors did not influence the verdict. Defense materially inconsistencies in the victim’s highlight counsel’s strategy benefit, inured to the defendant’s as evidenced his by testimony the victim’s on two of the indictments. For example, acquittal that the defendant kicked her with construc- forcibly allegation tion one of the main areas of inconsistency highlighted boots was counsel, of the numerous times defense and was basis by and means of a battery dangerous indictment assault charging by that they The on two charges suggests jury’s acquittal weapon. and were not influenced by the victim’s credibility assessed cumulative first testimony. any counsel’s failure we must consider whether defense Finally, been a tactical decision. to the could have object that defense counsel cannot be said with certainty Even if it defense, he of the call the three witnesses as part planned the defense their to maximize certainly potential prepared v. Commonwealth McCoy. witnesses. them as his calling of the
in anticipation prosecutor’s highlighting each witness thoroughly, He cross-examined and the victim’s testi- inconsistences between their argument. in closing and inconsistencies mony, emphasized inured to of the witnesses because Accordingly, benefit, infer that defense the defendant’s it is reasonable to There was no failure to was a tactical decision. object counsel’s a in this case as substantial risk of miscarriage justice testimony. result of the cumulative first complaint the kid- 4. The defendant convictions. Duplicative convictions should be dismissed battery and assault napping We disagree. included offenses of the conviction of rape. as lesser Vick, 418, (2009), 431-432 In Commonwealth the traditional elements-based to determin- we affirmed approach convictions from the same criminal arising whether ing multiple are that “a defendant holding may transaction duplicative, arising be for two crimes out of same properly punished course of conduct that each crime proof provided requires added). Id. at element that the other does not” (emphasis Valliere, (2002). A31 Mass. quoting conviction is not kidnapping duplicative rape Wilcox, conviction. Commonwealth v. case, as in this is defined charged Kidnapping, “Whoever, statute: without lawful or
by authority, forcibly confines or another within this com- secretly person imprisons . be . . . .” monwealth will . . shall against punished [her] case, G. L. c. 26. in this also is defined charged Rape, § statute: “Whoever has sexual intercourse or unnatural sexual intercourse with a such to submit by person compels person will, and against force such to submit compels person [her] threat of shall be . . . .” G. L. c. bodily injury, punished (b). Each element: of these crimes requires separate § confinement, not; which does kidnapping requires rape intercourse, sexual which does not. “As requires kidnapping of an additional element as each offense long requires proof *14 not, that the other does ‘neither crime is a lesser-included other, and convictions on both are deemed to offense of have been authorized and hence not Legislature [dupli- ” Vick, Commonwealthv. Commonwealth supra, quoting cative].’ Jones, (1981). the defendant’s that the
Similarly, force for argument required an assault and was battery force for duplicative required must fail. Assault and is defined rape battery by statute: “Whoever commits an assault or an assault and battery upon another (a). shall be .. . .” G. L. c. 13A punished Because § force, and assault and both rape battery and require “[a]ssault ais lesser included offense of . . and. battery . .is therefore rape. of a conviction susceptible being Com- duplicative rape.” Berrios, In that circumstance, and convictions sentences are “multiple permis- sible where each only conviction is on a distinct criminal premised act, unless the Legislature has authorized cumulative explicitly Vick, 435. punishments.” supra Here, the and assault conviction was based on the battery face, defendant’s action of the victim in the causing slapping laceration. force was evidence necessary proved by rape that he hit the victim a second time after demanding she consciousness, remove her her to lose with pants, causing along Moreover, the force the victim. required physically instructed the of assault and jury charge battery “refers to the claim or that the defendant struck the allegation witness . . . with his hand.” complaining Finally, prosecu- tor and described assault to evidence battery referring only that the defendant struck the victim in the face with his hand. Therefore, the verdict that the returned the indict- guilty jury ment based on a and charging battery assault separate distinct act from the force for the to return with a required verdict on the indictment guilty charging Accordingly, rape. error in the on the three judge’s sentencing there was no crimes of assault and independent kidnaping, battery, rape. reasons, 5. Conclusion. For the the convictions of foregoing and assault and are affirmed. kidnapping, rape, battery
So ordered. Gants, C.J. with whom Botsford (concurring, Marshall, JL, errors the first evidentiary regarding I join). agree did risk of a miscar- doctrine not create substantial *15 855 (2010) Commonwealth v. McCoy. to our this case. I write question of in
riage justice separately that doctrine. need for continuing in Com doctrine
When we first adopted complaint cert, denied, 546 (2005), 445 monwealth v. Mass. 217 King, tendency we to address (King), sought juror U.S. 1216 and about “inaccurate stereotypes to on rely assumptions” 240, victims, id. at while sexual assault delayed reporting from unduly that the defendant receives a fair trial free ensuring to the testifying alleged on” of witnesses’ prejudicial “piling account, In victim’s id. at 245. my judgment, experience in confusion and incon the five since has resulted years King Moreover, that casts evidentiary sistent rulings. experience doubt on the doctrine is to its necessary whether accomplish stated I would reconsider the of the first objectives. necessity confine it. doctrine either abandon it or complaint narrowly First, there been confusion over the since has King applica to, alla, tion of the first doctrine as inter who is the complaint first witness whether another witness complaint complaint witness, can be substituted as the first see Com complaint 441, (2008); 450 Mass. 445-446 whether Murungu, witnesses, there can be two “first” see Commonwealth complaint Kebreau, 287, (2009); 454 Mass. when evidence regard crosses the line into ing investigative process evidence, Commonwealth impermissible complaint compare Stuckich, (2008), 450 Mass. with Commonwealth v. Arana, (2009); 226-227 and when evidence of victim’s that is otherwise admissible should alleged complaint on, excluded due of see nonetheless be concerns piling 229; Arana, at v. Mc Commonwealth v. supra Gee, (2009).1 doctrine,
As our cases since have necessity King allowing prosecution 1Massachusetts is outside the mainstream there comprehensive alleged complaint admit details about the victim’s before Annot., credibility. on his See Restrictions has been attack or Alleging Sexual Offense Under Common- Complaint Disclosure of Contents of — Cases, Complaint” Doctrine 40 A.L.R.6th Law “Fresh Post-1950 Minnesota, (2008) (“Two jurisdictions, espouse the distinct Massachusetts a sexual of minority alleged that all details of the of view case-in-chief). majority A part prosecution’s fense are admissible” recognize some version of the “first” or “fresh” jurisdictions However, overwhelming majority only allow the limited doctrine. fact 456 Mass. 838 that, demonstrated even in the absence of the first doctrine, there are a myriad ways admitting potentially “includes, evidence that the fact that a powerful implies, made,” Arana, report which supra *16 can counterbalance Id. at juror (first stereotypes. doctrine does not of evi- complaint “prohibit admissibility that, doctrine, dence while barred that is otherwise independ- See, admissible”). Kebreau, ently e.g., supra (evidence at 297-300 not admissible under first complaint admissible). doctrine otherwise For evi- independently example, dence of a in some circumstances be complaint may admissible as a utterance. See at 241. Evidence spontaneous King, supra a while demeanor and condition complainant’s physical making a is not be admissible. See ante at complaint hearsay may 846. Admissible evidence a concerning investigation medical treatment inform the may alleged victim had made a See ante at 847-848. If a complaint. complainant’s is a account of the credibility challenged, sexual assault prior be may admissible as consistent statement to rebut the prior See, defendant’s accusation of recent contrivance or e.g., bias. Kebreau, 298-299; at Mass. G. Evid. supra be, is, (b) (2010). Such evidence and often far more may § effective in of the victim establishing than credibility alleged evidence introduced the Commonwealth. complaint —
As to the second concern addressed in King “piling on” of from about a account witnesses complainant’s — of a sexual assault too be addressed may by evidentiary in all If rules cases. evidence applicable repetitive alleged as, alla, victim’s is inter consistent admissible prior statement, utterance, record, it excited or a is within hospital the trial sound discretion to exclude such evidence. See judge’s Evid., reasons, Mass. G. 403. For all of these I supra § conclude abandonment or confinement of first complaint doctrine is now warranted. part prosecution’s a witness made a to be admitted as case-
in-chief. The details alleged are excluded unless Kendricks, See, Annot., supra. State credibility e.g., attacked. is See 597, 602, (Tenn. 1994). S.W.2d