Opinion
09-P-543
10-20-2011
COMMONWEALTH v. ALGERNON TAYLOR.
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
After a jury trial, the defendant was convicted of three counts of rape, one count of assault and battery by means of a dangerous weapon, and two counts of indecent assault and battery on a person who has attained the age of fourteen. On appeal, the defendant argues that evidence of multiple out-of-court complaints were admitted in violation of the first complaint rule and as a result of ineffective assistance of counsel. We affirm.
1. First complaint. The defendant did not object to the introduction of the witness testimony at trial, so we review the challenge for error and if so, whether there exists a substantial risk of a miscarriage of justice. Commonwealth v. Kebreau, 454 Mass. 287, 297 (2009). Under the first complaint doctrine, 'the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time.' Commonwealth v. King, 445 Mass. 217, 218-219 (2005). See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010).
a. Victim's testimony. The defendant argues that reversible violations of the first complaint doctrine arose when the victim testified that she spoke with a police officer and that she was examined at the University of Massachusetts Medical Center. We disagree. The victim was entitled not only to testify to the details of the incident, but also to testify to limited background regarding the investigation and to lay a foundation for the admission of the medical records. See McCoy, supra at 847. To the extent the victim's testimony indicated that she told the officer 'what happened' and that she 'reported the rape,' the testimony may have strayed out of bounds, see Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008), but so fleetingly and inconsequentially that a substantial risk of a miscarriage of justice could not have arisen. See Commonwealth v. Aviles, 77 Mass. App. Ct. 389, 396 (2010).
b. The first complaint witness. The victim's grandmother was the Commonwealth's first complaint witness. She testified to what her granddaughter had relayed to her about the incident, as well as her granddaughter's demeanor and that she suggested they call the police. As a first complaint witness, the victim's grandmother was permitted to testify to the details of the complaint, the demeanor of the victim, and limited background of the investigation. See King, supra at 244-246; McCoy, supra at 847. There was no error.
c. Officer Boulette. The defendant claims that Officer Boulette's testimony that revealed he had a conversation with the victim, which led him to the scene of the crime, and that he spoke to her a second time in a question-and-answer type version of an interview, was admitted in violation of the first complaint doctrine. We disagree. 'While testimony detailing an investigation generally is not allowed unless it is from the first complaint witness or in response to a defense theory, here, the limited testimony served the independent purposes of providing background information and laying a foundation for the admission of physical evidence . . . .' McCoy, supra at 847. While in McCoy it was physical evidence of the sexual assault examination kit, here it was the physical evidence of the videotaped interview of the defendant, in which he states he raped the victim. There was no error.
d. Officer Riley. The defendant claims that Officer Riley's testimony regarding the victim's demeanor was a violation of the first complaint doctrine. We disagree. '[T]estimony
regarding the victim's demeanor and physical condition . . . is neither inadmissible hearsay nor first complaint evidence . . . .' McCoy, supra at 846. The theory of the defense was that the victim consented but later regretted what had happened. Officer Riley's testimony was admissible 'not as first complaint evidence but as evidence relevant to a highly contested issue, namely' whether the victim had consented to the sexual acts. Commonwealth v. Arana, 453 Mass. 214, 226 (2009). See id. at 225 ('Evidence 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').
The defendant also argues that a violation of the first complaint doctrine occurred when Officer Riley testified that he was dispatched for 'a 720,' which, he explained, is 'a code used for a rape,' and that the victim said she was raped. The latter statement was excluded by the judge, and he stated after objection to this testimony that '[y]ou're not allowed to testify to what was said, but you can testify that there was a conversation between you two about events that had happened that day.' After Officer Riley stepped down, the judge further addressed the jury by stating, '[u]nderstand, by the way, that under our rules, witnesses are sometimes not al1owed to testify about certain conversations that may have taken place, so that was the reason for my ruling.'
The defendant's brief implies that counsel's objection came directly after the description of a code 720. However, the record reveals that this testimony did not draw an objection. The defendant did not object until the officer was asked, 'did she tell you what happened to her?'
To the extent that the ruling and statements by the judge were not sufficiently ameliorative, and even in the event any of the above mentioned testimony could be considered a violation of the first complaint doctrine, we conclude that there is no risk that justice miscarried. 'A substantial risk of a miscarriage of justice exists when we 'have a serious doubt whether the result of the trial might have been different had the error not been made." McCoy, 456 Mass. at 850, quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). See Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). Here, particularly in light of the defendant's videotaped confession that he had raped the victim, we cannot conclude that any of the complained-of testimony (even if it was admitted in error), created a substantial risk of a miscarriage of justice.
2. Ineffective assistance of counsel. Because there was no risk that justice miscarried, there is no basis to support the defendant's claim of ineffective assistance of counsel. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010).
Judgments affirmed.
By the Court (Berry, Meade & Milkey, JJ.),