Opinion
18-P-1115
07-16-2020
COMMONWEALTH v. FERNANDO FAGUNDES.
NOTICE: 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
A jury convicted the defendant of indecent assault and battery on a person over the age of fourteen. On appeal the defendant argues that multiple violations of the first complaint doctrine entitle him to a new trial. We agree, and thus reverse.
Background. The evening of September 17, 2010, the victim, who was then nineteen years old, attended a barbecue at the defendant's house. The victim was friends with the defendant's niece and knew the defendant fairly well. Also at the barbecue were the victim's parents, the victim's sister, the defendant's niece and her parents, and the defendant and his wife.
While the group was on the patio, the defendant said that he knew how to give massages and proceeded to give one each to the victim's father and mother. The victim then asked the defendant to "massage [her] back a little bit to work [the knots] out." The defendant began massaging the victim's shoulders and back over her clothes, continuing for a few minutes until the rest of the group went inside.
The victim and the defendant gave conflicting accounts of what happened next. The victim testified that the defendant "moved his hands to the sides of [her] breasts and rubbed them" several times under her clothes. He then "placed his hand underneath [the victim's] jeans and underneath [her] underwear and swiped his hand across [her] vagina" twice. The victim did not tell the defendant to stop because she was "frozen" and "didn't know what to do." The defendant next began to push his hand into the victim's mouth, but the victim closed her mouth and bit one of his fingers. The defendant said, "Yeah, bite my finger," at which point the victim said no. Nonetheless, the defendant continued pushing his hands into the victim's mouth, leading her to say no two more times. The defendant stopped when the victim's father came back outside.
The defendant testified in contrast that he never touched the victim's breasts or vagina. He admitted that he "probably" touched the victim's bra while massaging under her armpits and that he "might have gone where the belt area is" close to the victim's buttocks, but denied putting his hands in her jeans or underwear. According to the defendant, the victim did not indicate that she was uncomfortable or object to what he was doing; instead, she was "enjoying" it and was "relax[ed]" and "leaning back." The defendant denied ever putting his hands in the victim's mouth.
The victim's sister was designated as the first complaint witness at trial. The sister testified that both she and the victim stayed overnight at the defendant's house after the barbecue. When the prosecutor asked whether the victim told her anything "prior to you going to bed that night," the sister replied, "[The victim] said, Fernando [the defendant] touched me inappropriately."
After conducting a voir dire, the trial judge found that the sister was the first person whom the victim told about the sexual assault. The defendant does not challenge this finding.
The following exchange then occurred:
Q.: "And did you have any further discussion with her that night about what she'd said?"At this point the defendant objected. The judge overruled the objection, and the sister continued to testify as follows:
A.: "Not that night."
Q.: "When did you have a further discussion with her[?]"
A.: "In the morning."
Q.: "Okay. And where was that -- where did this conversation take place[?]"
A.: "The same place, in the bedroom we were staying in."
Q.: "And what did [the victim] tell you occurred that night between her and the [d]efendant[?]"
"[The victim] said that Fernando, when we went inside, had continued giving her a massage, and he did her shoulders and then he went underneath her shirt and continued to give a massage right here, underneath her shirt, and then went to her armpits and said that she had knots and then went . . . [o]n her breasts. On her side of her breast.
"And then she said that he went on top of her sweatshirt and down like this, all the way to underneath her pants. And then went back up, and then did it again. And then he went to put . . . his hand in her mouth, and she said no and bit down, and he said, 'Yeah, bite my finger,' and then my dad came out."
The victim likewise testified that, before going to bed, she told her sister, "Fernando . . . touched me inappropriately." The prosecutor then asked, "Now, what happened the next day[?]" Over the defendant's objection, the victim testified, "The next morning, after [the defendant's niece] had left the room, my sister confronted me about what I had said to the both of them, and I explained what had happened . . . and what he had actually done."
The victim testified that the defendant's niece was also in the room.
Discussion. Under the doctrine of first complaint, a victim of a sexual assault, and the first person the victim told of the sexual assault, may testify to the details of the victim's first complaint as part of the Commonwealth's case-in-chief. See Commonwealth v. King, 445 Mass. 217, 242-245 (2005), cert. denied, 546 U.S. 1216 (2006). The Commonwealth is limited to one first complaint witness. See id. at 242-243. In addition, the victim may not "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." Commonwealth v. Aviles, 461 Mass. 60, 68 (2011).
The defendant argues that the conversation between the sister and the victim the day after the incident was a successive complaint and inadmissible under the first complaint doctrine. He also argues that the trial judge allowed evidence of multiple complaints -- specifically, testimony from the victim that she told her parents about what happened, and testimony from the victim and an officer that she had reported the incident to the police. The defendant timely objected to all this testimony with the exception of the victim's testimony that she made a report to the police. We review the preserved claims to determine whether the judge abused his discretion by admitting the testimony and, if so, whether the error was prejudicial. See Aviles, 461 Mass. at 72-73. We review the unpreserved claim to determine whether any error created a substantial risk of a miscarriage of justice. See id. at 72.
Specifically, the victim testified, "[T]hey [the parents] called me after my sister had told them what had happened, so I spoke to them on the phone." The victim's father later testified that the parents and the sister together spoke to the victim on the phone and she told them "what had happened." The Commonwealth agrees that this testimony established that the victim made a complaint of sexual assault to the parents.
1. Successive complaints. "[I]n circumstances where a [victim] makes successive complaints to the first complaint witness, the initial complaint is the only evidence admissible as first complaint." Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009). See Aviles, 461 Mass. at 70; Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008); Commonwealth v. Murungu, 450 Mass. 441, 447 n.9 (2008). We agree with the defendant that the victim's statement, "Fernando touched me inappropriately," was the initial complaint. Contrary to the Commonwealth's assertion, this statement was indicative of sexual assault and thus constituted a complaint. See Aviles, supra at 62, 67 (victim's statement that defendant "touched" her, without further details, was first complaint). Cf. Murungu, supra at 446 ("encounter that the victim has with the first person does not constitute a complaint, when . . . the victim expresses to that person unhappiness, upset or other such feelings, but does not actually state that she has been sexually assaulted").
The Commonwealth alternatively suggests that the testimony about the next-day conversation was still admissible because the conversation was not a successive complaint, but a continuation of the initial one. This argument is not without some force when considering the underlying goals of the first complaint doctrine, which are to "refute any false inference that silence is evidence of a [victim's] lack of credibility" and "to give the jury as complete a picture as possible of how the accusation of sexual assault first arose." Aviles, 461 Mass. at 72, quoting King, 445 Mass. at 243, 247. In furtherance of these goals, when the Supreme Judicial Court established the parameters of the doctrine in King, it specifically declined to follow the rule adhered to by most jurisdictions "that evidence of the [victim's] report should be limited to the fact of the complaint only." King, supra at 244. The court reasoned that, "by allowing in evidence all of the details [of the first complaint], the doctrine gives the fact finder 'the maximum amount of information with which to assess the credibility of the . . . complaint evidence as well as the overall credibility of the victim.'" Id., quoting Commonwealth v. Licata, 412 Mass. 654, 659 (1992). A partial statement without details, on the other hand, "might tend to discredit the [victim's] testimony at trial as a recent fabrication rather than to corroborate it." King, supra, quoting Commonwealth v. Blow, 370 Mass. 401, 405 (1976). See Aviles, supra ("fact finder should not be left to speculate on the evidence or to draw erroneous inferences due to incomplete information"). Reexamining King in Aviles, the court reaffirmed that it believed that the better rule is to admit all of the details of the first complaint. Aviles, supra.
Bearing in mind, therefore, that "it is beneficial to provide . . . jurors with more, not less, information concerning the initial complaint," King, 445 Mass. at 245, we think there may be circumstances where two disclosures, though technically successive, could be deemed to constitute a single complaint. In Commonwealth v. Revells, 78 Mass. App. Ct. 492 (2010), for example, the victim began to verbally disclose to her mother that the defendant had sexually abused her, but was unable to articulate any details. See id. at 493, 496. At the mother's request, the victim then wrote a letter describing the abuse. See id. We concluded that the letter was not a separate complaint, but part of "a single, tightly intertwined oral and written communication"; thus, "the entire communication to the mother was the first complaint and was properly admitted 'to give the jury as complete a picture as possible of how the accusation of sexual assault first arose.'" Id. at 496, quoting King, supra at 247. In so concluding, we found it significant that there was no "meaningful gap in time" between the disclosures. Revells, supra.
In this case, though, unlike in Revells, the conversations between the victim and her sister occurred several hours apart and were not "tightly intertwined." Revells, 78 Mass. App. Ct. at 496. Nor did the Commonwealth demonstrate the presence of other factors that might have justified treating the conversations as a single one. For instance, no evidence was offered either at voir dire or at trial that the first conversation was interrupted, that the victim drifted off to sleep and promptly resumed the conversation when she woke up, or that she in any way indicated that she had more to say after the initial disclosure. Rather, the victim testified that she went to bed without saying anything more, and that it was her sister who confronted her and initiated the conversation the next morning.
We emphasize, and are mindful, that trial judges have "flexibility to deal with the myriad factual scenarios that arise in the context of purported first complaint evidence" and that "[t]he 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." Aviles, 461 Mass. at 72, 73. The judge here did not state his reasons for allowing the testimony about the later conversation, but we infer from the arguments preceding his ruling that he found that the two disclosures constituted a single complaint. But where the evidence showed that the victim objectively indicated that the initial conversation was over, we see no support in the case law for treating the later conversation as part of the same complaint. See Arana, 453 Mass. at 222-223 (conversations that occurred "in the days following" initial disclosure were inadmissible successive complaints). See also Stuckich, 450 Mass. at 451, 456 (if letter to guidance counselor was first complaint, victim's ensuing conversation with her would be inadmissible successive complaint). Cf. Revells, 78 Mass. App. Ct. at 496 ("the letter was not a separate complaint, such as a letter written on one day and discussed on another"). We must therefore conclude that it was error to admit the testimony.
We reject the Commonwealth's contention that the sister's testimony about the later conversation became independently admissible during cross-examination when defense counsel asked, "And the next day, when the victim told you . . . where [the defendant] had touched her, did she tell you that she told him to stop?" This question, and the sister's negative response, did not make her direct testimony admissible on the issue of "the victim's state of mind regarding consent," as the Commonwealth argues. That testimony "did not specifically rebut the defendant's theor[y]" that the victim consented to the defendant's touching her, and so it would not have been admissible on redirect examination on this basis. Commonwealth v. Parent, 465 Mass. 395, 403 (2013).
2. Multiple complaints. It was likewise error to admit the testimony that the victim spoke to her parents about what had happened. As noted, a victim may not testify that she "told" people other than the first complaint witness about the sexual assault, even if "the details of [the] conversations [are] omitted." Stuckich, 450 Mass. at 457. See Aviles, 461 Mass. at 68; Arana, 453 Mass. at 223. For the same reason, the victim should not have been allowed to testify that, after speaking to her parents, she "decided to report what had happened" to the police. The victim's testimony about these complaints, though void of detail, was "essentially the same as permitting [the recipients of the complaints] to testify," enhancing her credibility to the prejudice of the defendant. Stuckich, supra.
We again reject the Commonwealth's contention that the testimony became independently admissible during cross-examination. Defense counsel questioned the victim about her delay in reporting the incident, both to her parents and to the police. Although the Commonwealth argues that this made the victim's direct testimony admissible to rebut the defense of fabrication, there was nothing in the testimony that "specifically rebut[ted]" the defense's theory. Parent, 465 Mass. at 403-404. "If a claim of fabrication alone were sufficient to open the door to the admission of multiple complaints, there would be nothing left of our 'first complaint' doctrine." Id. Cf. Aviles, 461 Mass. at 69-70 (testimony that victim made complaint to grandmother after moving into her home was admissible to rebut defense's specific theory that victim fabricated allegations to provide basis for moving out of defendant's apartment and back to grandmother's home).
The officer's testimony that he interviewed the victim "about an incident that occurred a . . . [few] days prior" stands on different footing. While it is true that the fact of a complaint is embedded in the testimony, and that "[l]aw enforcement officials . . . may testify to the complaint only where they are in fact the first to have heard of the assault," King, 445 Mass. at 243, the testimony here was "offered in connection with a description of the victim's demeanor." Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 800 (2011). This is significant because "[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case." Arana, 453 Mass. at 225. We conclude that, as in Starkweather, supra at 801, the officer's testimony about the victim's demeanor was relevant to her credibility and the trial judge acted within his discretion in admitting it.
Specifically, the officer testified that the victim was "very emotional" and "upset" and "cr[ied] briefly" before "recompos[ing] herself."
3. Prejudice. Where, as here, the victim's credibility is a central issue at trial, "there is a particularly high probability of prejudice from the admission of duplicative complaint evidence." Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 497 (2009). The risk of prejudice was even further heightened in this case because the sister's improperly admitted testimony about the victim's successive complaint included details that mirrored the victim's testimony in significant respects. And the Commonwealth capitalized on the error in closing:
"And it wasn't [until] the next day when [the victim] tells [her sister] what exactly happened. And you heard that testimony. And it was just like the testimony that you heard from her. You want corroboration? There's your corroboration."Moreover, the evidence of the additional complaints, while not prejudicial standing alone, contributed to the improper bolstering of the victim's credibility. As a result we are unable to say with fair assurance "that the error[s] did not influence the jury or had but very slight effect." Arana, 453 Mass. at 228, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The defendant is entitled to a new trial.
We do not address the other issues raised by the defendant because they are not likely to recur, or not likely to recur in the same context, at retrial.
Judgment reversed.
Verdict set aside.
By the Court (Massing, Shin & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 16, 2020.