Opinion
10-P-1037
03-27-2012
COMMONWEALTH v. RALPH FERNANDEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ralph Fernandez, appeals from his conviction of one count of rape of a child with force. At trial, the victim testified that she did not know the defendant prior to the incident and that he violently sexually assaulted her. The defendant testified that he had sex with the victim, but claimed that it was consensual and that he knew her prior to the event.
Discussion. 1. The prosecutor's arguments. a. Alleged inflammatory language. In view of the evidence that the rape was brutal and violent in nature, the prosecutor's reference to the rape and subsequent investigation as a 'nightmare' for the victim was not 'unfairly inflammatory language,' but rather reflected a fair assessment of the victim's experience. See Commonwealth v. Sanna, 424 Mass. 92, 107 (1997). However, the statement that the defendant 'was going in for the kill, so to speak,' was an unnecessary embellishment on the evidence that crossed into the realm of improper argument. 'We view with disfavor unnecessary and hyperbolic embellishments. Counsel should argue the facts and fair inferences from the facts.' Santos v. Chrysler Corp., 430 Mass. 198, 214 (1999). '[I]t is error for a prosecutor to make an argument designed to evoke an emotional, rather than intellectual, response from the jury . . . .' Commonwealth v. Young, 461 Mass. 198, 204 (2012). Although counsel may employ a 'dramatic description' of the crime, ibid. (citation omitted), it must be based on the evidence. Leone v. Doran, 363 Mass. 1, 18 (1973). Here, there was no objection. When considered in the light of the evidence as a whole, '[t]he prosecutor's language, while ill- chosen, was not so rousing or inflammatory as to sweep the jury beyond rational examination of the evidence.' Commonwealth v. Lassiter, 80 Mass. App. Ct. 125, 132 (2011). There was no substantial risk of a miscarriage of justice. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 187 (2009).
b. Alleged vouching. The defendant also argues that the prosecutor impermissibly vouched for the credibility of the victim based on her willingness to participate in the trial process and her lack of a reason to lie. The defendant did not object to the prosecutor's closing argument on the basis of vouching, so we review for a substantial risk of miscarriage of justice. See Commonwealth v. Miranda, 458 Mass. 100, 114 (2010). A prosecutor may argue with reference to the evidence that a witness had no motive to lie, in order to rebut a claim by the defendant that the witness is lying. Commonwealth v. Shanley, 455 Mass. 752, 777 (2010). Contrast Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (vouching for victim because she went through the rigors of a trial is not permitted). The prosecutor here permissibly did so.
c. Alleged burden-shifting. The defendant further argues that the prosecutor shifted the burden of proof to the defendant by questioning what motive the victim would have to point, falsely, to the defendant as her assailant and by indicating to the jury that the defendant was 'pulling the wool over your eyes.' Since these objections were preserved, we review for prejudicial error. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 556 (2011). The comments regarding the victim's lack of motive to lie were not burden-shifting, but permissible rebuttal as noted supra. The comment regarding the attempt to pull the wool over the eyes of the jury was better left unsaid because it was not in response to an improper tactic employed by the defense. See Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 39-40 (2002). Instead, it improperly suggested that defense counsel was motivated by something other than a search for the truth. See Commonwealth v. Awad, 47 Mass. App. Ct. 139, 142 (1999). However, when the evidence and argument are viewed in their entirety, we do not believe the comment rises to the level of prejudicial error.
2. First complaint doctrine. a. Wrong first complaint witness. The defendant alleges that the judge designated the wrong first complaint witness, and should have held a voir dire to determine which witness was actually the first complaint witness. See Commonwealth v. King, 445 Mass. 217, 242-243 (2005). Here, the judge decided this preliminary question of fact on the basis of the testimony of both the victim and McLaughlin. Bearing in mind that our review of the trial judge's decision is under the deferential abuse of discretion standard, see Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011), there was no error.
The trial judge's designation of McLaughlin as the first complaint witness was contingent upon the testimony of the victim and McLaughlin corresponding with the prosecutor's assertions made during the pretrial hearing, which it did. It is understandable that the trial judge eschewed the usual practice of conducting a voir dire, see Commonwealth v. Murungu, 450 Mass. 441, 446 (2008), citing Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008), because the defendant's claim that the victim's brother was the proper first complaint witness rests on a second-hand statement in a police report. The report is not part of the record on appeal.
b. Testimony of SANE nurse. The defendant also alleges that portions of the testimony of the sexual assault nurse examiner (SANE nurse), Diane Magan, who examined the victim after the assault, were admitted in violation of the first complaint doctrine. 'Once the defendant opened the door on cross-examination, the Commonwealth was entitled to attempt to rehabilitate the witness.' Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009). The testimony regarding medications prescribed to the victim rebutted the defendant's earlier questions on cross-examination that sought to suggest the victim did not cooperate with the SANE nurse.
Most of the remainder of the testimony to which the defendant now objects is evidence to which he successfully objected at trial and is thus not grounds for reversal. The SANE nurse's testimony that she notifies the police department in the town in which a sexual assault occurred that there has been a sexual assault did not constitute additional complaint evidence. Regardless, the defendant has not connected it to the relevant standards and thus has not made a sufficient argument for us to review that issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). For the same reason, we do not consider the defendant's passing reference to testimony by one of the police officers allegedly in violation of the first complaint doctrine.
3. Photographic evidence. At the time of the offense the victim was a small, fifteen year old high school sophomore. The admission in evidence of a photograph of the victim in a softball uniform from around the time of the offense met the standards for relevancy, see Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004); Mass. G. Evid. § 401 (2012 ed.), and we discern no unfair prejudice. See Commonwealth v. Pytou Heang, 458 Mass. 827, 851 (2011); Mass. G. Evid. § 403. The photograph was relevant to the element of force because it enabled the jury to see that the victim was significantly smaller than the defendant at the time of the crime, and understand her testimony about being physically overpowered by the defendant.
4. Alleged propensity evidence. a. Reference to defendant's ten children. The defendant argues that the judge erred by allowing the prosecutor to elicit testimony from the defendant that he had never been married but had ten children. Read in context, this was an attempt to rebut the defendant's claim that he was not able to ascertain the victim's age. This evidence was thus relevant, and the trial judge did not abuse her discretion in finding the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice.
For the same reason, the judge did not err by permitting the prosecutor to refer to how old the victim appeared in the photograph of her in her softball uniform mentioned supra.
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b. Prior convictions for impeachment. The defendant's contention that his conviction of cruelty to animals should have been excluded as impeachment evidence because it was an admission to sufficient facts, rather than a guilty plea or verdict, fails because such a disposition qualifies as a conviction within the meaning of G. L. c. 233, § 21. See Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 670 (1998). Further, because this conviction was within the five years preceding the trial, it made it permissible for the trial judge to admit the defendant's earlier conviction of possession with intent to distribute a class D substance. See G. L. c. 233, § 21; Mass. G. Evid. § 609.
5. Credit for time served. The defendant alleges that the motion judge erred in denying him sentence credit for time served during the pendency of an unrelated case for which he was ultimately acquitted. '[T]ime spent in custody awaiting trial for one crime generally may not be credited against a sentence for an unrelated crime.' Commmonwealth v. Milton, 427 Mass. 18, 24 (1998). The relevant statutes, G. L. c. 127, § 129B, and G. L. c. 279, § 33A, 'do not permit defendants to 'bank time' against future offenses.' Milton, supra.
The exercise of discretion to award jail credits is governed by equitable considerations. See Commonwealth v. Frias, 53 Mass. App. Ct. 488, 494 & n.10 (2002), and cases cited. Unlike in Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387 (1977), the jail time that the defendant seeks credit for was prior to his arrest in the present case. Thus, he would not have been jailed during that period absent the unrelated charge, in stark contrast to Manning. Id. at 391. Additionally, there is no support in the record for the defendant's assertion that the Commonwealth delayed the indictment in this case while he was being held on the unrelated charge. Thus, the motion judge did not err.
Judgment affirmed.
Order denying motion for sentence credit affirmed.
By the Court (Green, Brown & Agnes, JJ.),