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Commonwealth v. Calcano-Jimenez

Appeals Court of Massachusetts
Dec 2, 2022
No. 21-P-1097 (Mass. App. Ct. Dec. 2, 2022)





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).


The defendant appeals from his conviction, after a jury trial, of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H. On appeal, he contends that evidence outside the permissible scope of the first complaint doctrine was admitted, that evidence of an unredacted harassment prevention order was improperly admitted, that the prosecutor strayed outside the bounds permitted for opening statements and closing arguments, and that reversal is required considering the errors individually or cumulatively because they unfairly bolstered the credibility of the victim (whom we shall call Sara), which was the central issue at trial. The Commonwealth concedes that "the admission of multiple complaint evidence" and the unredacted harassment prevention order, without instruction, was error and that those errors merit a new trial. Despite this concession, we independently review the claims and, having done so, agree that the errors entitle the defendant to a new trial.

Where, as here, the introduction of evidence was not objected to at trial, we review first to determine whether there was error and then to determine whether its admission created a "substantial risk of a miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). An error creates a substantial risk of a miscarriage of justice when we are persuaded that it did "'materially influence[]' the guilty verdict" (citation omitted). Id.

The defendant argues that the victim's disclosure to a detective sergeant of the Lawrence police department violated the first complaint doctrine and impermissibly enhanced Sara's credibility by lending an imprimatur of official belief to her allegations. Sara first disclosed the assault to her best friend the night after the assault occurred in April 2016. Approximately two months later, Sara reported the assault to the detective sergeant. The detective sergeant testified to Sara's description of the details of the assault and the emotional effect it had on Sara. The detective sergeant also testified to what the best friend told the detective sergeant about the substance of the first complaint. While the judge gave a full and complete first complaint instruction to the jury immediately before the best friend testified to the first complaint, no similar instruction was given with respect to the detective sergeant's testimony. As a result, the detective sergeant's testimony came in without restriction or limitation and could be considered by the jury for all purposes -- including to buttress Sara's credibility. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) (repetition of "narrative tends to enhance the credibility of the complainant").

The defendant did not object to the detective sergeant's testimony, nor did he request a first complaint instruction with respect to that testimony.

The detective sergeant's duplicative complaint testimony should not have been admitted. "Under the first complaint doctrine, '[l]aw enforcement officials . . . may testify to the complaint only where they are in fact the first to have heard of the assault." Commonwealth v. Hoyt, 461 Mass. 143, 157 (2011), quoting Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006). This rule is particularly important because law enforcement testimony "may [be more readily accepted] by the jury" due to the jury's perception of the officer's position. Commonwealth v. McGee, 75 Mass.App.Ct. 499, 502 (2009). The impact of the error here was amplified because the detective sergeant testified not only to what Sara said about the charged conduct, but also about uncharged conduct that Sara reported. It was also amplified by the detective sergeant's testimony that not all sexual assault cases lead to arrests, but that this one did.

The defendant next argues that the unredacted harassment prevention order obtained by Sara against the defendant immediately after she reported the assault to the detective sergeant should not have been admitted. "The judicial imprimatur on the [harassment prevention] order lends it significant weight [as] [t]his is not just a filing in court but a determination by the court." Commonwealth v. Foreman, 52 Mass.App.Ct. 510, 515 (2001). Here, the unredacted harassment prevention order -- which was signed by a judge -- stated that it had been issued because there was "a substantial likelihood of immediate danger" to Sara from the defendant. See Commonwealth v. Reddy, 85 Mass.App.Ct. 104, 108 (2014). The jury were not instructed on the less stringent standard required for the issuance of a harassment prevention order than for a criminal conviction. See Foreman, supra at 516. Furthermore, given that the order was based on the same conduct at issue here, the jury could conclude that a "judge had already . . . decided the credibility dispute that [they] were being asked to consider." Id. at 515. Thus, the harassment prevention order lent considerable weight to Sara's credibility and should not have been admitted in its unredacted form and without limiting instruction.

We agree with the parties that the cumulative effect of these two errors warrants a new trial. Although it is accordingly unnecessary to reach the defendant's other arguments, we touch upon them briefly in the event there is a retrial.

First, the defendant argues that the first complaint witness impermissibly testified to a description of her own reaction to Sara's complaint. Such testimony generally is not permitted under the first complaint doctrine. See King, 445 Mass. at 246, 246 n.26 (first complaint witness may testify to "observations of the complainant during the complaint . . . and other relevant conditions that might help a jury assess the veracity of the complainant's allegations" including if it speaks to complainant's state of mind). However, the testimony was not solicited by the prosecutor's question, the witness's impermissible description of her own emotional reaction was intertwined with her permissible description of Sara's emotional demeanor, and the testimony was brief. We accordingly see no abuse of discretion in the judge not striking the testimony sua sponte. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011) (abuse of discretion standard of review for admission of first complaint testimony).

Second, the defendant argues that the first complaint witness's testimony concerning a later conversation with Sara describing a subsequent confrontation with the defendant was not admissible under the first complaint doctrine. Even accepting this proposition, it does not necessarily follow that the testimony was inadmissible; the first complaint doctrine "does not prohibit the [admission] of evidence that, while barred by that doctrine, is otherwise independently admissible" (citation omitted). Commonwealth v. Santos, 465 Mass. 689, 700 (2013). Here, the testimony consisted mostly of inculpatory statements the defendant made to Sara. See Mass. R. Evid. 801(d)(2) (2022).

Finally, the defendant argues that portions of the prosecutor's opening and closing statements were improper. To the extent the prosecutor relied on the inadmissible evidence we have identified above, we need say nothing more than that we are confident that the prosecutor will not rely on that evidence in any retrial. As to the remaining issues the defendant raises concerning the opening and closing, we have reviewed the record closely and conclude that the prosecutor's statements in the opening were an aggressive, but fair, preview of the anticipated evidence, and that the closing was fairly grounded in the evidence adduced at trial. See Commonwealth v. Silva, 455 Mass. 503, 515 (2009). See also Commonwealth v. Mitchell, 89 Mass.App.Ct. 13, 28 (2016).

For these reasons, the judgment is vacated, the verdict is set aside, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Wolohojian, Ditkoff &Walsh, JJ.

The panelists are listed in order of seniority.

Summaries of

Commonwealth v. Calcano-Jimenez

Appeals Court of Massachusetts
Dec 2, 2022
No. 21-P-1097 (Mass. App. Ct. Dec. 2, 2022)
Case details for

Commonwealth v. Calcano-Jimenez

Case Details


Court:Appeals Court of Massachusetts

Date published: Dec 2, 2022


No. 21-P-1097 (Mass. App. Ct. Dec. 2, 2022)