462 Mass. 398 | Mass. | 2012
In 2001, an Essex County grand jury returned six indictments charging the defendant, Randy Roby, with rape of a child under the age of sixteen by force, G. L. c. 265, § 22A. At the defendant’s first trial in November, 2003, the trial judge entered a required finding of not guilty on one of the indictments.
In December, 2008, the case proceeded to a new jury trial, before a different Superior Court judge, on the remaining five indictments. Although the indictments did not specify, the first three involved the child victim, Nancy, and the remaining two involved her half-sister, Toria.
1. Background. We summarize the relevant facts as the jury could have found them, reserving certain details for later discussion. In January, 2000, Nancy was six years of age and her half-sister, Toria, was ten years of age. The girls lived in Peabody with their mother, Paula,
Nancy testified that her relationship with the defendant changed when he began “touching her.” During the period between January, 2000, and September, 2001, the defendant, in various rooms of the house, would reach his hand under Nancy’s underwear, or pull down her pants and underwear, and touch the outside of her vagina with his fingers. This touching occurred once in the dining room, once in the exercise room, and more than ten times in the living room. When the touching occurred, others were often in the house, but not in the same room as Nancy and the defendant. In addition to the sexual touchings, the defendant once showed Nancy images of “half-naked” women on his computer and asked her if she could keep it a secret.
Toria testified that her relationship with the defendant changed around the same time period as her sister reported, starting when Toria was ten years of age. The defendant would have Toria sit on his lap to play computer games. On one occasion
Once, in the basement, Toria was sitting on the defendant’s lap at his workbench. The defendant started tickling Toria, then pushed up her shirt over her head. Linda walked in and saw them, started yelling, and told Toria to get off of the defendant. Linda then went back upstairs.
Toria also testified that on more than one occasion, the defendant showed her computer images of naked or “semi-dressed” women. The defendant showed her images of women grabbing their breasts and women who were spreading their legs “wide open.” Neither girl observed the defendant touching the other girl in a sexual manner.
After Paula learned from the girls that the defendant had shown them computer images of undressed and partially undressed women, she went to Linda’s house and had Linda enter his password on his computer. Paula found recently viewed Web sites, which were “triple-x sites.” She “clicked on” one Web site that revealed images of naked women and advertised other Web sites to visit for illicit sex. Linda did not remember this, but did recall one instance where she found the defendant at his computer watching a young (but adult) woman “stripping.”
After Paula learned about the defendant’s having inappropriately
The defendant was the sole defense witness. He denied all the allegations. He claimed that he did not purposefully visit Web sites with images of naked women, but rather received such images because of then inadequate “spam” filtering. He acknowledged the incident in the basement with Toria that Linda observed, but maintained that Toria took off her shirt on her own initiative and then asked him to rub her back, which he did. He admitted to having borrowed money from Linda. He denied telling Paula over the telephone that he wanted to be the one to show the girls how to be with a man.
The theory of the defense was that none of the sexual touchings had ever occurred. The defendant’s trial counsel suggested that they could not have occurred without having been observed because of the open floor plan of the house. He also argued that Paula had always resented him and had fabricated the events. Further, he claimed that the accusations were false because the girls did not disclose the abuse to a disinterested party for a long time.
2. Discussion, a. Amendment of the indictments. As relevant here, the indictments involving Toria alleged two offenses (rape of a child under the age of sixteen by force) that took place on “divers dates between January 1, 2000 and September 30, 2001” in Peabody, but otherwise did not specify where in Peabody. The grand jury heard testimony that the defendant had digitally penetrated Toria “at least three times,” including once in the dining room of Linda’s house, once in the defendant’s automobile, and once in Danvers, but the trial judge entered a finding of not guilty on that indictment, see note 1, supra, and accompanying text. At the second trial, however, Toria testified that the defendant digitally penetrated her in the dining room about ten times and once in her grandmother’s bedroom. After modifying the indictment to reflect two charges of statutory rape, the judge instructed the jury that a guilty verdict on each indictment required they unanimously find at least one occasion of the offense on Toria in the dining room and one occasion in
“Under Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979), a judge has discretion to allow an amendment of an indictment if the amendment is one of form, not substance, and if the amendment will ‘not result in prejudice.’ ” Commonwealth v. Miranda, 441 Mass. 783, 787 (2004), quoting Commonwealth v. Knight, 437 Mass. 487, 491-492 (2002). “Article 12 . . . adds the requirement that the amendment not ‘materially change[] the work of the grand jury.’ ” Commonwealth v. Miranda, supra, quoting Commonwealth v. Knight, supra at 492. Here, we assume without deciding that with his instructions to the jury, the judge effectively amended the last indictment (as specified in the grand jury evidence, see Commonwealth v. American News Co., 333 Mass. 74, 77 [1955]) by changing the location of the offense from the defendant’s automobile to Linda’s bedroom. We conclude that this so-called variance in location was not material and was one of form only. “The time and place of the commission of the crime need not be alleged [in the indictment] unless it is an essential element thereof.” G. L. c. 277, § 20. See Commonwealth v. Megna, 59 Mass. App. Ct. 511, 514-515 (2003). The location of the offense is not an element of either statutory or forcible rape. See Commonwealth v. King, 445
The variance did not prejudice the defendant. The purpose of an indictment is “to furnish the accused with such a description of the charge against him as will enable him to make his defence. ” Commonwealth v. Montanino, 409 Mass. 500, 512 (1991), quoting United States v. Cruikshank, 92 U.S. 542, 558 (1875). At the defendant’s second trial, he had the benefit of the Commonwealth’s evidence from the first trial, which included Toria’s testimony that the defendant had digitally penetrated her in Linda’s bedroom. Thus, the defendant had reasonable notice of the Commonwealth’s position that the offenses occurred not only in the dining room, but also in Linda’s bedroom. Any ambiguity as to the location of the offenses did not impact his defense that he never committed the offenses or that the allegations were fabricated because Paula did not like him. Although the defendant maintains that his defense could have been altered insofar as he suggested that the open floor plan of the first floor of the house bolstered his denial of the allegations, he could not have relied on such a claim before the variance. Nevertheless, in view of Toria’s testimony at the first trial, no matter how arguably “unreliable,” the defendant had full notice that his “open floor plan” defense would not necessarily be responsive to the allegation of penetration in the bedroom. In the cir
Last, the variance did not materially change the work of the grand jury. See Commonwealth v. Miranda, supra at 790. The grand jury were told that the incidents involving Toria alleged offenses (rape of a child under sixteen years of age by force) that happened “at least three times.” Although the prosecutor had identified three locations where such offenses had occurred, the location of the offense is not an element of the offense and was not set out in the indictments (except identifying the town). Rather, the grand jury returned indictments involving Toria and alleging rape of a child by force “on divers dates between January 1, 2000 and September 30, 2001,” and did not limit the offenses in number or to any specific location other than the town. Thus, the charge with the location “change” was never precluded by the grand jury.
b. First complaint testimony. Prior to trial, the Commonwealth moved to introduce the testimony of Paula as the first complaint witness for both Nancy and Toria, even though the girls had talked first to each other. The judge allowed the motion, determining that in view of the facts that the girls were very young and both were complainants, it was appropriate to admit Paula’s testimony because she was the first adult and first noncomplain-ant who had been told about the sexual assaults.
At trial, Nancy testified that on one occasion she told her sister “what was happening” and “all [that Toria] did was say that it was happening to [her] too.” The defendant did not object to this testimony. Toria also testified that she had spoken once to Nancy about what was happening.
Nancy also testified that in September, 2001, while in a supermarket, she first told her mother about the defendant touching her. Nancy recalled that earlier that day, while in her grandmother’s dining room, she had told her mother that the defendant had shown her images of “half-naked women” on his computer.
Toria testified that one day in September, 2001, at her grandmother’s house, she asked her mother for permission to use the Internet. Paula said no because there might be pornography.
Paula testified that, on September 23, 2001, she brought the girls to her mother’s house. The defendant was not there. The girls asked to use the Internet and Paula told them no, explaining to them that it was “unfiltered” and they “could find things that [they] aren’t supposed to see.” Nancy told Paula that the defendant had already shown her “pictures of women with shirts and no pants,” and Toria added that she had seen “pictures of women with no clothes on.” Paula left, but soon returned to
Before Paula testified about learning from the girls that the defendant had shown them computer images of undressed or partially undressed women and that the defendant had touched them in a sexual manner, the judge gave proper limiting first complaint instructions in accordance with King, supra at 247-248. He also instructed the jury on the subject in his final charge.
i. First complaint doctrine. In Commonwealth v. Aviles, 461 Mass. 60, 71 (2011) (Aviles), we affirmed the continued vitality of the first complaint doctrine as set forth in King, supra, and its progeny, and set forth a brief overview:
“In King, we replaced the doctrine of ‘fresh complaint’ with the doctrine of ‘first complaint’ to reflect ‘a contemporary understanding of information that will permit jurors to make a fair assessment of a sexual assault complainant’s credibility.’ King, [supra] at 237. See generally Mass. G. Evid. § 413 (2011). Pursuant to the first complaint doctrine, we ‘no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of one witness’ who, where feasible, will be the first person told of the sexual assault. King, supra at 242-243. Such witness ‘may 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.’ Id. at 243. Where a first complaint witness testifies at trial regarding the complaint, the complainant also may testify about the details of the first complaint and the reasons why it was made at that*408 particular time. See id. at 245. What the complainant may not do, however, is testify to the fact that she ‘told’ others, apart from the first complaint witness, about the sexual assault, even where the details of the conversation have been omitted. See Commonwealth v. Arana, 453 Mass. 214, 223 (2009)[;] Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 493 (2009). See also Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008)[.] Such testimony ‘is the equivalent of saying that [the complainant] repeated her account of the incident, i.e., it allows fresh complaint testimony through the back door. Repetition of the narrative tends to enhance the credibility of the complainant to the prejudice of the defendant.’ Id. at 457.” (Footnotes omitted.)
Aviles, supra at 67-68. First complaint testimony is admissible only where “the fact of the assault or the issue of consent is contested.” King, supra at 247.
In Aviles, supra at 73, we modified the scope of appellate review of decisions on the admissibility of first complaint evidence. We explained:
“The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence. . . . Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.”
Id.
ii. Cumulative first complaint testimony. Where the judge permitted Paula to testify as the first complaint witness,
iii. Scope of the first complaint evidence. The defendant argues that he was prejudiced by the admission of testimony regarding the computer images of women he allegedly showed to the girls. He asserts that, because this evidence did not allege a sexual assault, it did not qualify as a complaint but amounted to the improper admission of bad act evidence. We conclude that the judge did not abuse his discretion in admitting this evidence. See Aviles, supra at 73. The evidence was properly admitted to provide context to Paula’s first complaint testimony. See King, supra at 246 (under first complaint doctrine, witness may testify to “the events or conversation that culminated in the complaint”). The evidence explained why Paula would ask the girls if the defendant had touched them or why they suddenly would come forward with the allegations that he had done so. The testimony furthered the goal of the first complaint doctrine “to give the jury as complete a picture as possible of how the accusation of sexual assault first arose.” Id. at 247. “That complete picture . . . allow[ed] them to make a fairer and more accurate assessment of the validity of that accusation, based on specific information about the people involved rather than on outdated stereotypes and generalities.” Id. Finally, the judge instructed the jury that it is “not a crime” to look at images “of naked or semi-naked women on the computer” and that no proclivity to commit crimes, sexual or otherwise, could be inferred from such conduct.
c. Restriction of cross-examination of Toria and refusal to grant mistrial. In December, 2007, Toria was charged in Middle-sex County with murder. Before the opening statements at the defendant’s second trial in December, 2008, the Commonwealth moved to preclude the defendant from impeaching Toria with the murder indictment. Defense counsel argued, however, that Toria might be biased in testifying at the second trial because, on information and belief, her defense to the murder indictment was based on posttraumatic stress disorder resulting from having been sexually assaulted by the defendant. The judge stated that, in accordance with Commonwealth v. Haywood, 377 Mass. 755, 762-763 (1979), he would not allow the impeachment absent a material change in Toria’s forthcoming trial testimony.
Before the testimony of the next witness, defense counsel moved to recall Toria so that he could impeach her with the murder indictment, arguing that Toria’s testimony concerning the painting of her nipple was a material deviation from her previous testimony. The prosecutor objected, asserting that the testimony did not pertain to a charged offense and noted that Toria never wavered from her assertions of digital penetration. The prosecutor stated that she had no knowledge of this allegation and would not refer to it during her closing argument. The judge acknowledged that the new testimony, if believed, might add credence to Toria’s other claims due to what the jurors may perceive as a kind of “kinkiness,” but expressed his view that any potential impact was limited by the collateral nature of the testimony and the prosecutor’s representation that she would not reference this evidence during her closing argument. The judge concluded that the probative value of the evidence was minimal and that the prejudicial impact of the murder charge would be “very substantial,” and excluded the evidence over the objection of defense counsel.
The next day before any testimony was taken, defense counsel moved for a mistrial, arguing that Toria’s testimony concerning the painting of her nipple amounted to a prior bad act of the defendant of which he was not given notice. He suggested that the evidence was very damaging, likely having a “cumulative effect down the line,” and expressed doubts that any curative instruction could mitigate the prejudice. The judge determined that granting a mistrial would be harsh and instead struck the testimony, providing the following cautionary instruction to the jury:
“Members of the jury, you heard testimony yesterday from [Toria] that there was an episode in the shed where*412 [the defendant] allegedly painted a flower on one of her nipples. That testimony is going to be stricken, and by that, I mean deleted, from the record. And you should delete it from your mind for this reason: up until the time that testimony was provided on the witness stand, no information to that effect was in the hands of either the prosecutor or the defense attorney, so there was no opportunity to deal with it or to verify it. So you must disregard that testimony. It’s really important. I know it’s hard to, sort of, put the paste back in the tube, but you really must disregard that testimony. If you have a note on it, scratch the note out.[14] And do not let it play any role in your deliberations.”
The defendant argues that the judge abused his discretion by failing to allow defense counsel to impeach Toña with the murder indictment and by failing to declare a mistrial. We first address the exclusion of the impeachment evidence.
“Arrest or indictment alone is insufficient for general impeachment purposes.” Commonwealth v. Haywood, supra at 759, citing G. L. c. 233, § 21. However, “a criminal defendant is ‘entitled, as of right, to reasonable cross-examination of a witness for the purpose of showing bias, particularly where that witness may have a motivation to seek favor with the government.’ ” Commonwealth v. Haywood, supra at 760, quoting Commonwealth v. Dougan, 377 Mass. 303, 310 (1979). This right is not limitless. Where a witness has made statements or given testimony that predates the charge at issue, there typically must be a “material” change of the witness’s testimony postdating the charge to render it subject to impeachment. See Commonwealth v. Haywood, supra at 762-763. See also Commonwealth v. Santiago, 54 Mass. App. Ct. 656, 663 (2002). Absent such a material change in testimony, cross-examination on the pending charge may properly be denied “because there is no basis for arguing that the criminal charge[] caused the witness to be biased in favor of the Commonwealth.” Commonwealth v. Purcell, 423 Mass. 880, 884 (1996). The decision whether to allow such impeachment testimony is reviewed for an abuse of discretion. See id.; Commonwealth v. Haywood, supra at 763.
The judge did not abuse his discretion in declining to grant a mistrial. See Cruz v. Commonwealth, 461 Mass. 664, 669-670 (2012) (decision to declare mistrial within sound discretion of trial judge). Toria’s testimony came as a surprise to both parties and was not occasioned by any wrongful conduct by the prosecutor. Her testimony did not bear on the charged conduct. As mentioned, the judge instructed the jury to disregard the testimony and the jurors _are presumed to follow such instructions, see Commonwealth v. Williams, supra. In instructing the jury, the judge somewhat impugned Toria’s credibility because he told the jury that neither the defense nor the prosecution was told of the incident, which contradicted Toria’s testimony that she had disclosed the incident to a victim witness advocate.
d. Bad act evidence. The defendant argues that the judge abused his discretion in admitting “numerous incidences of non-charged criminal behavior and prior bad act[]” evidence amounting to prejudicial propensity evidence that created a substantial risk of a miscarriage of justice. He points to the evidence of images of naked or semi-nalced women on his computer, an issue we have already addressed and determined to be properly admitted to show context of the first complaint testimony. He also points to the incident in which Toria testified
Judgments affirmed.
The six indictments alleged rape of a child by force occurring on divers dates between January 1, 2000, and September 30, 2001. With the exception of the indictment on which the judge entered a required finding of not guilty, which referred to Danvers as the location of the incident or incidents, all of the alleged events took place in Peabody.
Both pseudonyms.
We use first names to ensure the privacy of the victims.
Paula initially did not like the defendant. The defendant moved into Linda’s home after they had been dating only one month. Paula felt that he was taking advantage of her mother. She also did not like the fact that he was significantly younger than Linda.
In 1996, Paula, the girls, and Paula’s then husband lived with Linda (and the defendant). In the winter of 1997, Linda evicted them because Paula owed her rent money. Later, in 1998, after Paula “came to Christ,” she reconciled with Linda and developed a “friendly” relationship with the defendant.
Linda testified that this incident occurred in October, 2000. She went into the basement and found Toria sitting on the defendant’s lap with her shirt off. The defendant was rubbing Toria’s arm. Linda pulled out a box for Toria to sit on, but did not say anything. Linda never told her daughter what she had seen. She did speak with the defendant, who told her that Toria had taken her shirt off on her own initiative. The prosecutor elicited testimony that the defendant owed Linda thousands of dollars and that she was hoping he would pay her back. The prosecutor suggested during her closing argument that this was why Linda did not inform Paula of what had happened in the basement.
The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . .” Article 12 of the Massachusetts of Declaration of Rights reads, as relevant here, that “[n]o subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him . . . .” The defendant overlooks that the “right to a grand jury, secured by the Fifth Amendment to the United States Constitution, is not binding on the States through the due process clause of the Fourteenth Amendment.” Commonwealth v. McCravy, 430 Mass. 758, 761-762 n.5 (2000), citing Hurtado v. California, 110 U.S. 516, 534-535 (1884). We thus analyze his claim only under art. 12.
The judge reasoned: “I don’t think when you have two named victims of that age and one is said to have told another one, I don’t think that qualifies as first complaint, or arguably it does, but ... it doesn’t preclude the Commonwealth from offering a later complaint to an adult. I don’t think the first complaint doctrine was meant to encompass the complaints that victims make — young, very young victims make to each other.”
The defendant objected to this testimony, but only on the basis that Toria’s answer was not responsive to the question. The judge overruled the objection.
This testimony was admitted after the defendant had objected to the lack of a time frame in, and the “overly broad” nature of, the question that solicited the testimony. The judge concluded that the testimony was helpful to give context to the jury concerning how the first complaint arose. Nancy testified that she told her mother about the images because the defendant had told her not to.
The defendant objected to Toria’s use of the word “pornography.” The judge overruled the objection because it was the word spoken, but instructed the jury that, regarding the computer images shown, all they had heard was “a particular description from the witness” and the “classification” was for them to decide.
The defendant states that the record reflects that Toria also told her grandmother about the images on the computer, but the record appears to us to be unclear on this matter.
There was conflicting evidence concerning what transpired later that day, after Paula left. Toria and Linda recounted that the girls had spent the remainder of the day with Linda and they brought lunch to the defendant.
In bis brief, the defendant states that he does not challenge Paula’s first complaint testimony, but contends that the judge failed to make the requisite findings to support Paula’s substitution as the first complaint witness. Indeed, “[i]n limited circumstances ... a judge may permit the testimony of a complaint witness other than the individual to whom the victim first disclosed the assault.” Commonwealth v. Hoyt, 461 Mass. 143, 156-157 (2011). For
14The jury were permitted to take notes at the trial.
Toria’s testimony was a proper response to a question posed during cross-examination. The testimony on the subject, as noted, was struck.