Opinion
18-P-1638
02-07-2020
COMMONWEALTH v. Roberto D. ALBERTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from a sexual assault committed by a security guard on a coworker at Gillette Stadium. The defendant, Roberto D. Alberti, was convicted of one count of indecent assault and battery on a person fourteen years of age or older in violation of G. L. c. 265, § 13H, and one count of assault and battery in violation of G. L. c. 265, § 13A (a ). On appeal, he argues that the judge improperly admitted multiple complaint testimony, and he challenges portions of the prosecutor's closing argument. He also claims that the jury instructions were improper, and that he should have been allowed to introduce certain evidence. We affirm.
Background. A jury could have found the following facts. Both the defendant and the victim worked for TeamOps, a company that provided security for events taking place at Gillette Stadium in Foxborough. TeamOps employees were either stationed at a specific stadium location or placed on a "roam team" that responded to any crowd concerns as they arose. The defendant was the supervisor of a roam team. The defendant knew the victim from prior work experience because she had previously been assigned to work on his roam team. He also often supervised John Tarpey, another employee of TeamOps and the victim's boyfriend.
On April 23, 2016, the defendant and the victim were working for TeamOps during a motocross event at Gillette Stadium. The victim was stationed at sections 137 and 138 of the stadium alongside her friend and coworker Alicia Larsen. At some point during the event, the defendant approached the victim and asked if she wanted to "go somewhere." She responded by asking if he meant that he wanted to play a prank on Tarpey, who was assigned to the defendant's roam team. The defendant responded, "Yes, something like that." The defendant and the victim walked away together toward an empty stairwell. After climbing a few levels of stairs, the victim asked the defendant where they were going. He told her, "Somewhere where I can spank you," and he then "proceeded to hit [her] butt." She stopped climbing the stairs, and the defendant pushed her up against the railing and "stuck his tongue down [her] throat." He then put his hand down her pants. The two left the stairwell at the same time after the defendant received a call on his radio.
The victim testified that she had walked away with the defendant on previous occasions in order to make Tarpey jealous.
The victim returned to her assigned section and rejoined Larsen. When she approached Larsen, she began to cry. Unable to speak, she typed, "Roberto just made out with me," in her cell phone and showed it to Larsen. Larsen and the victim then went to a bathroom together, where the victim told Larsen that the defendant had also put his hand down her pants. The two then went to find their supervisor, Jose Moniz, and report the allegations. After the victim told another supervisor, Kelly Way, what had occurred, she then spoke with the responding police officers and provided them with a signed written statement.
At trial, the defendant testified on his own behalf and denied the charges. He claimed that it was the victim who had asked him to go to the stairwell, where she requested, out of jealousy, that he remove Tarpey's former girlfriend from his roam team.
Discussion. On appeal, the defendant argues that (1) the judge improperly admitted prejudicial multiple complaint testimony by allowing three witnesses to testify that the victim was crying when they spoke to her; (2) the prosecutor made inflammatory comments during closing argument; (3) the jury instruction given on the use of prior inconsistent statements was erroneous; and (4) the judge erred by excluding, as hearsay, testimony that the defendant sought to introduce to show his state of mind. We are unpersuaded and address each argument in turn.
1. Multiple complaint witness testimony. The defendant first argues that testimony from multiple witnesses that the victim was upset after the assault violated the "spirit" of the first complaint doctrine as articulated in Commonwealth v. King, 445 Mass. 217 (2005). Because the defendant leveled no objection to this testimony at trial, we review whether the testimony was improper, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Delaney, 425 Mass. 587, 595-596 (1997). Under the first complaint doctrine, a single, designated witness "may testify to the details of the alleged victim's first complaint of sexual assault [including the victim's statement of the facts of the assault] and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief." Commonwealth v. Kebreau, 454 Mass. 287, 292 (2009), quoting King, supra at 243. The first complaint doctrine does not "prohibit the admissibility of evidence that ... is otherwise independently admissible." Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009).
At trial, Way testified that the victim was "very emotional," "crying," and "her body was shaking." Moniz testified that the victim was "crying" when she approached him. Detective Hodson, the officer that took her statement, testified that she was "crying hysterically" when he interviewed her.
Here, we agree with the Commonwealth that the first complaint doctrine was not violated. In Commonwealth v. McCoy, 456 Mass. 838 (2010), a victim's mother -- who was not designated as the first complaint witness -- offered testimony regarding her daughter's appearance after the rape took place. Id. at 846. The Supreme Judicial Court (SJC) concluded that the "testimony regarding the victim's demeanor and physical condition ... is neither inadmissible hearsay nor first complaint evidence." Id. The same rationale applies here. The three witnesses in question testified that the victim was upset and crying when they observed her after the alleged incident. As in Arana, this evidence did not constitute first complaint testimony and it was properly admitted. See Arana, 453 Mass. at 225-226.
Like here, the SJC reviewed the issue in McCoy for a substantial risk of a miscarriage of justice. McCoy, 456 Mass. at 845-846. In McCoy, the Commonwealth had designated the responding officer as the first complaint witness. Id. at 845. The mother was called by the Commonwealth to (1) testify that the police called to notify her that her daughter had been raped, (2) describe her daughter's demeanor at the hospital, and (3) testify that she and her daughter had a conversation about the assault. Id. at 846. The SJC found the description of the daughter's demeanor evidence admissible but ruled that the rest of the mother's testimony was inadmissible. Id. at 846.
2. Closing argument. The defendant next argues that the prosecutor improperly confused the jury during his closing argument by stating that Larsen "was not in that stairwell" but "she effectively was because she bore witness to [the victim]'s emotional and physical state when she came back." He also challenges the prosecutor's argument that inconsistencies among the victim's various statements showed that her allegation was not contrived but, in fact, reflected credibility. Because these arguments were preserved, we review them for prejudicial error.
The defendant also makes a number of new, unpreserved arguments related to the Commonwealth's closing. Specifically, he contends that the Commonwealth should not have (1) referred repeatedly to the victim's age and gender, (2) argued that the victim's memory lapses were consistent with those of someone involved in a traumatic event, (3) suggested that the jury could "relate" to Larsen's description of the victim as "ugly crying," (4) said that the victim's first complaint "gives you a clearer picture" of her, and (5) pointed out that the defendant testified on direct examination that he "isolated" the victim, but on cross-examination denied he said that. We see no merit in any of these arguments and decline to address them further. See Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).
"We consider the [closing] remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Francis, 450 Mass. 132, 140 (2007). A prosecutor is entitled to marshal the evidence, suggest inferences to the jury, and call upon the jury's knowledge and experience. See Commonwealth v. Ridge, 455 Mass. 307, 330 (2009). Nonetheless, "[a]rguments aimed at arousing the passions or sympathies of the jury are the paradigm example of prosecutorial misconduct during closing argument. Such arguments distract juries from their true fact-finding function and are highly improper." Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 312 (2005), quoting Lawless, Prosecutorial Misconduct § 9.21 (3d ed. 2003).
The defendant's first assertion regarding Larsen being "effectively" in the stairwell requires little discussion. There was ample evidence that the victim and the defendant were completely alone in the stairwell, and both the prosecutor and defense counsel mentioned that fact during their statements to the jury. Larsen herself testified that she was not present to witness the incident in question and did not see what happened. "A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). We likewise find no merit in the defendant's contention regarding the prosecutor's view of the evidence. The prosecutor's statement responding to the defendant's assertion of the contrived nature of the victim's statements was fair argument and fully permissible. See Kebreau, 454 Mass. at 304-305. A lawyer may urge the jury to "rely on common sense and life experience." Mass. G. Evid. § 1113(b)(2) (2019).
We also note that the judge gave thorough instructions, multiple times, that closing arguments do not constitute evidence and should not be treated as such.
3. Jury instruction. The defendant also argues that the judge's instruction to the jury regarding prior inconsistent statements was improper and led the jury to discard portions of the victim's cross-examination testimony. The argument is not supported by the record. The judge's instruction was an accurate statement of the law and does not imply that the jury should disregard the victim's inconsistent statements. See Commonwealth v. Colon, 449 Mass. 207, 224 (2007) ("Prosecutors may not misstate the evidence or refer to facts not in evidence"). To be sure, "[a] trial judge has wide latitude in framing the language to be used in jury instructions as long as the instructions adequately explain the applicable law" (quotations and citations omitted). Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009). The judge's instruction was proper.
The judge instructed the jury: "If a lawyer has referenced a document from which prior inconsistent statements were made and that document was not made an exhibit in this case that document is not evidence. You may consider inconsistent statements in that document for the limited purposes I just instructed you but if the document itself is not evidence it is not to be a factor in your deliberations."
4. Denial of hearsay evidence. Finally, the defendant argues that some testimony he hoped to provide was improperly excluded as hearsay. The defendant planned to use this testimony to show why he was nervous while speaking with Way a few days after the reported incident. While we agree with the defendant that the proffered testimony did not constitute hearsay, the absence of that testimony did not prejudice his case. Indeed, the testimony would have presented the jury with little new information, in that Way had already testified that the defendant looked nervous and that she had not informed him of the nature of the allegations against him.
Specifically, the defendant would have introduced evidence that Glen Lang, a friend and coworker, spoke to him at the end of his shift and told him that there was an unspecified allegation made against him.
The proffered testimony was not offered for the truth of the matter asserted, but instead to explain the defendant's demeanor during his meeting with Way. See Mass. G. Evid. § 801(c) (2019).
Judgments affirmed.