Opinion
14-P-1814
03-08-2016
COMMONWEALTH v. DAVE CASTRO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A jury convicted the defendant of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. On appeal, he argues that (1) the judge abused his discretion by restricting cross-examination of the victim with respect to her sexual history, (2) a substantial risk of a miscarriage of justice resulted from the judge's failure to provide sua sponte a limiting instruction regarding the victim's complaints of sexual assault, and (3) the judge's empanelment procedure was an abuse of discretion. We affirm.
1. Limitation on cross-examination. The victim is the defendant's daughter, and was the Commonwealth's only witness at trial. She testified that when she was between the ages of four and ten the defendant sexually assaulted her on multiple occasions. The victim first told her mother about the assaults five years after they had last occurred. Before trial, the defendant moved for leave to cross-examine the victim regarding other past sexual conduct. Specifically, the defendant wanted to inquire into the victim's allegation that she had been sexually assaulted by two cousins. The defendant also wanted to question the victim about her sexual relationship with a boyfriend, which the victim disclosed to her mother during the same conversation in which she first complained of the defendant's sexual assaults. The defendant argued that cross-examination on these issues would help establish a purported motive on the part of the victim to fabricate the allegations against the defendant. The trial judge denied the defendant's motion. The defendant contends that limiting his cross-examination of the victim deprived him of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to confront witnesses called to testify against him and to present a complete defense. See Commonwealth v. Joyce, 382 Mass. 222, 225-227 (1981).
We review the judge's denial of the defendant's motion for abuse of discretion. See Commonwealth v. Mountry, 463 Mass. 80, 86 (2012). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation and internal quotation marks omitted). Subject to certain exceptions, the rape shield statute bars admission of "[e]vidence of the reputation of a victim's sexual conduct . . . [and e]vidence of specific instances of a victim's sexual conduct." G. L. c. 233, § 21B, inserted by St. 1977, c. 110. The exception upon which the defendant relies here "arises where [evidence of a victim's sexual conduct] is relevant to a victim's bias or motive to fabricate." Mountry, supra. In order to take advantage of this exception, "[a] defendant must show that the proffered evidence is relevant to the question of a victim's bias or motive to fabricate." Ibid. Even after a defendant has made such a showing, the motion judge "retains broad discretion" to exclude the proffered evidence when its weight and relevance is outweighed by its prejudicial effect. Ibid.
The defendant's theory of bias was that the victim fabricated a sexual assault complaint against him in order to deflect attention away from sexual assaults allegedly perpetrated by her cousins and also from the victim's sexual relations with a boyfriend. The trial judge did not err in concluding that this evidence bore little, if any, on the victim's bias or motive to fabricate. See Commonwealth v. Tam Bui, 419 Mass. 392, 401 (1995) (excluding evidence of witness's bias where "defendant's bias theory was too tenuous to be one that he was entitled to pursue on the record he presented"). The victim came forward voluntarily with both the allegation against her cousins and the report of consensual sexual relations with her boyfriend. See Mountry, supra, at 87-88 (upholding prohibition of cross-examination on victim's sexual conduct where victim "made no effort to conceal . . . her relationship with her boy friend"). There was no indication that the victim tried to hide those episodes or that she feared punishment for reporting them. See Commonwealth v. Parent, 465 Mass. 395, 406 (2013) (upholding prohibition of cross-examination on victim's sexual conduct where "no evidence actually suggesting that [victim] feared" punishment at the time she complained of sexual assault). Contrast Commonwealth v. Stockhammer, 409 Mass. 867, 876 (1991) (overturning prohibition where "[d]efense counsel intended to elicit from the complainant that her parents strongly disapproved of premarital sex, and that she was afraid of how they would react to the knowledge that she was sexually active").
2. First complaint instruction. The Commonwealth did not identify a first complaint witness or elicit first complaint testimony. However, the defendant elicited from the victim's mother that she found out about the abuse in November, 2011. And, during cross-examination of the victim, defense counsel elicited that she reported the abuse to her mother five years after it had ended. On redirect examination, the victim explained the reasons for her delayed disclosure and why she told her mother when she did. The defendant argues that the judge should have given a "modified first complaint instruction" as to the foregoing testimony in order to have informed the jury that the testimony should not have been considered as substantive evidence that the assault in fact occurred. The defendant did not ask for such an instruction, and the issue was not otherwise preserved; we therefore review to determine whether there was error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).
The judge was not required to give a limiting instruction sua sponte. Moreover, its absence did not create a substantial risk of a miscarriage of justice because the defendant deliberately elicited the testimony in order to advance his theory of the case. See Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 496 (2012) ("Where, as here, the defendant used the challenged evidence in order to advance his defense, we cannot fairly conclude that he was harmed or that his counsel's failure to object was not a reasonable tactical decision. . . . There was no substantial risk of a miscarriage of justice"). Contrast Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) (sexual assault victim "should not have been allowed to testify on direct examination. . . that she . . . told various . . . people" about the abuse [emphasis added]). The testimony elicited by the Commonwealth on redirect examination was admissible to explain why the victim waited to disclose the abuse. See Commonwealth v. Errington, 390 Mass. 875, 880 (1984) ("A witness who has been impeached by his testimony that he was silent in circumstances naturally calling for expression may explain why he was silent"). Although the judge could have given a limiting instruction to the effect that the "evidence is admissible only to explain the witness's state of mind in delaying her report of the alleged crime," Commonwealth v. Hall, 66 Mass. App. Ct. 390, 396 (2006), "there is no requirement that [a] judge give limiting instructions sua sponte." Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 55 (2009), quoting from Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002).
3. Jury empanelment. The judge required the parties to exercise their peremptory challenges after the individual voir dire of each juror. The defendant argues that this procedure denied him a fair trial because it denied him "comparative choice," i.e., the ability to exercise peremptories after knowing the entire composition of the jury. The issue was preserved. We review for abuse of discretion. See Commonwealth v. Vuthy Seng, 456 Mass. 490, 494 (2010) ("[E]mpanelment conducted by means of individual voir dire . . . [is] left largely to the discretion of the judge").
The defendant's argument is doomed by the express provisions of Rule 6 of the Rules of the Superior Court, which explicitly permits the procedure employed by the judge here. See Dist./Mun.Cts.R.Crim.P. 7 (providing that Rule 6 of the Rules of the Superior Court applies in District Court jury trials). See also Commonwealth v. Sires, 413 Mass. 292, 308 n.19 (1992) (no abuse of discretion when judge "required the defendant to exercise his peremptory challenges after the individual voir dires of each juror"); Commonwealth v. Vuthy Seng, supra at 495 (similar procedure "was tarnished by no error, defect, or irregularity").
Judgment affirmed.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 8, 2016.