COMMONWEALTH v. MONTAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was indicted on eight charges involving sexual assaults on children. The charges related to two sisters who were children of family friends of the defendant. Following a nine-day trial, a Superior Court jury convicted him of two of the three charges involving the younger sister: rape of a child and indecent assault and battery on a person under the age of fourteen. The jury acquitted the defendant of a second charge of rape of the younger sister. On the charges involving the older sister, the jury acquitted the defendant of two charges and could not reach unanimous verdicts on the remaining three, which the Commonwealth later nol prossed. The defendant filed a motion for new trial, which the trial judge denied following an evidentiary hearing. In this consolidated appeal, the defendant raises numerous claims of error. We affirm.

Background. The defendant and his wife had a close relationship with the girls and their parents. As confirmed by photographic evidence, the defendant would sometimes have the younger sister sit in his lap (while both were clothed). The indecent assault and battery conviction was based on testimony from the younger sister that in approximately 1999, when she was about seven, the defendant would rub her against his erect penis when he was holding her in his lap while seated at a computer. The rape conviction was based on an incident from the same era when the younger sister was at the defendant's home to model for photographs that he took for a photography class.² According to the younger sister's testimony, at one point while the defendant's wife had left the home for an errand, the defendant pulled down the Capri pants that the girl had been wearing and anally raped her.

The sisters did not tell anyone that the defendant had sexually abused them until 2005. At that point, the older sister told a school friend who told a school official, resulting in the police, parents, and the Department of Social Services (DSS) also being informed. According to the testimony of the girls' mother, after she quizzed the younger sister about whether she too had been assaulted, the girl stated, “Yes, he touched me, but I don't want to talk about it.” The mother stated that she pressed some more, but the girl refused to elaborate.

The police conducted an initial investigation, but they closed the matter after the family informed them that they did not want it prosecuted. For reasons not clear from the record, the police reopened the case in 2009, at which time the defendant was indicted on charges that related to the older sister. In 2010, the younger sister came forward with her own allegations, and the defendant was indicted based on them, with the two cases eventually being joined for trial.

By the time the trial occurred in 2012, the sisters had been interviewed on many occasions and in various contexts about the events that they alleged had occurred long before. Their respective versions of the events varied in numerous respects. For example, the older sister initially maintained that the younger sister was not with her at certain key events, and then later stated that she was. In addition, shortly before trial, the sisters raised new allegations about previously unrevealed assaults for which the defendant was never charged.

As was confirmed by the testimony given at the hearing on the motion for new trial, the prosecutor provided defense counsel with full, timely, and open discovery, including with regard to the evolving accounts that the sisters provided over time. Unsurprisingly, at trial defense counsel sought to impeach both sisters with that evidence. Counsel also sought to suggest various reasons why the sisters might fabricate the allegations. Chief among these was the theory that the defendant was a source of marital strife for the sisters' parents.³

Discussion. The defendant alleges multiples infirmities in the trial, which fall into three general categories: errors by the trial judge, ineffective assistance by defense counsel, and misconduct by the prosecutor. We address these claims in that order.

1. Asserted errors by the trial judge. It was uncontested that the younger sister told her boyfriend in 2010 that she had been raped by a family friend when she was a young child. Up until shortly before trial, the prosecutor had planned on calling the boyfriend as the younger sister's first complaint witness. However, based on the statements from the girls' mother that the younger sister had recounted in 2005 that the defendant had “touched” her, the prosecutor requested that the mother be allowed to testify as the first complaint witness. Although the younger sister's statement to her mother was lacking in detail, it did qualify as one revealing a sexual assault.⁴ See Commonwealth v. Aviles, 461 Mass. 60, 62, 70 (2011). Contrast Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). The judge therefore did not abuse his discretion in designating the mother as the first complaint witness. Even if the defendant were correct that the judge should have conducted a voir dire of the mother before allowing her to testify as the first complaint witness, the defendant can show no prejudice, because the mother testified at trial exactly as the prosecutor represented that she would.

The defendant also argues that the judge erred in allowing a DSS social worker who interviewed the family in 2005 to testify as to what the younger sister told her at that time.⁵ In effect, the defendant maintains that the judge allowed the social worker to testify as a second first complaint witness. The Commonwealth counters that because the defendant was claiming that the younger sister had made recent fabrications, it was permissible for the judge to allow the social worker to testify as to the younger sister's prior consistent statements. In the end, we need not resolve this debate, because -- based on the testimony that the social worker actually gave -- the defendant cannot show any appreciable prejudice. According to the social worker, the younger sister stated in 2005 that while the defendant “might have tried to do something to her” and that “something happened when she was young,” “she could not remember anything about this.” The social worker also testified that the younger sister denied that anyone had “ever touched her private parts.” This account in fact was not consistent with the mother's testimony that the younger sister by that point already had stated that the defendant had touched her; the social worker's testimony, if anything, was helpful to the defendant.

The defendant also argues that certain testimony from the girls' mother was improperly admitted.⁶ That testimony was that on one occasion, the defendant “approached [the mother] from behind, grabbed [her], and tried to put his hand inside [her] pants.” Because no objection was lodged, our review is limited to whether the admission of this evidence was error causing a substantial risk of a miscarriage of justice. Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). The mother's testimony on this point tended to support the defense theory that the defendant was a source of marital discord between the sisters' parents, which may explain why able trial counsel did not object. In addition, by showing the defendant's sexual attraction to an adult, this testimony arguably could be taken to undercut claims that he was attracted to the two young girls. Finally, the testimony allowed defense counsel to pursue another avenue of impeachment because the mother previously had told others that the defendant had sexually assaulted her in a different manner. In sum, even if the testimony about the defendant trying to put his hand down the mother's pants could have been excluded as improper bad act evidence, we conclude that its admission did not cause a substantial risk of a miscarriage of justice.

The defendant additionally claims the judge erred by allowing his wife -- who was called as a defense witness -- to testify about conversations she had had with him without the judge's first conducting a colloquy regarding waiver of spousal privilege. As the Commonwealth points out, that privilege does not apply to prosecutions involving abuse of a child. See G. L. c. 233, § 20. Moreover, the defendant cannot demonstrate that the wife revealed any damaging admissions by him. The statements at issue -- that the defendant did not know why the girls would accuse him -- are exactly the sort of responses one might expect of someone who was confronted out of the blue with false allegations of sexual abuse. These statements cannot fairly be characterized as the defendant's admitting that the girls had no reason to lie.

Finally, the defendant faults the judge for allowing Dr. Alice Newton to offer expert testimony that child victims of sexual assaults may not show physical signs of trauma, especially lasting ones. At the point in the trial that the judge decided he would allow this expert to testify, the younger sister had testified that the defendant had forcibly anally raped her when she was approximately seven, that it “hurt,” and that she did not remember any injuries to her body. This being the case, the judge committed no abuse of discretion in allowing Dr. Newton's testimony. See Commonwealth v. Federico, 425 Mass. 844, 851 & n.13 (1997).

2. Ineffective assistance. When cross-examining the sisters at trial, defense counsel intentionally brought out several allegations of uncharged sexual assaults against them by the defendant. Counsel did so in order to use the sisters' late disclosure and varying accounts of the incidents for impeachment purposes. Although that strategy might be characterized as counterintuitive and risk-laden, counsel implemented it with evident skill, and employed it forcefully to contest the credibility of the sisters. In the end, the jury convicted the defendant of only two of the eight charges, and none of the charges related to the older sister. There was no error in the judge's conclusion that defense counsel's choice of strategy was not “manifestly unreasonable.”

The same is true with regard to the defendant's current claim that his counsel should have argued that he never had any opportunity to commit the crimes. According to his testimony at the hearing on the motion for new trial, defense counsel rejected such a strategy as not “strategically viable” based on the “background facts.” That decision is supported by the record, which indicates the great extent of the interactions between the two families. Notably, defense counsel did make a more targeted version of the “no opportunity” defense. Specifically, with regard to the photo shoot incident -- which was the basis for the rape conviction -- counsel elicited from the defendant's wife that the defendant was never alone with the younger sister during that incident, and counsel then argued the point in his closing.

Nor has the defendant shown that his counsel was constitutionally ineffective for failing to retain an expert on delayed disclosure to counter the Commonwealth's expert on this subject. The Commonwealth's expert testified in only general terms, not with respect to why these particular children might have delayed disclosure. The defendant has not made a persuasive case as to what points an expert hired by him could have contested. The main point offered by the expert that the defendant put forward in support of his motion for new trial was that children might delay disclosure of sexual abuse simply because it never happened in the first place. During the trial, however, defense counsel skillfully elicited this very point from the Commonwealth's expert, and then he argued it again in closing.

3. Prosecutorial misconduct. Because the judge properly allowed the mother to testify as the younger sister's first complaint witness, the prosecutor could not have committed error in putting her forward as such. In fact, even if the judge had erred in this regard, we fail to see how this could have constituted prosecutorial misconduct (barring bad faith, which the defendant has not shown).

Relying on Napue v. Illinois, 360 U.S. 264 (1959), the defendant argues that the prosecutor improperly “stood silent” while witnesses gave testimony that she knew or should have known to be false. Napue is a case that bears little resemblance to the one before us. There, the prosecutor elicited testimony that the prosecution's principal witness had not been promised a reduction in sentence for his testimony, a statement that the prosecutor knew to be false. Napue, supra at 266-267. It appears that the defendant there was unaware during his trial that the testimony being given was false; rather, he learned of it only when the existence of the agreement surfaced in a subsequent collateral proceeding (which involved the sentence imposed on the principal witness for his own part in the crime). Id. It was in this context that the Supreme Court held that the prosecutor's letting the witness's false testimony stand warranted a new trial. Id. at 272.

In the case before us, by contrast, the prosecutor fully had disclosed the conflicting nature of the witnesses' statements, which empowered defense counsel to try to discredit their testimony based on the inconsistencies. Despite this difference in contexts, the defendant maintains that the holding of Napue has some application here. According to him, if a witness denies having made a prior statement to the Commonwealth, and the prosecutor has personal knowledge that that denial is false, then she must take affirmative steps to correct this, and may not rely simply on defense counsel's trying to do so. Even if we were to assume arguendo that this is correct as a proposition of law, the defendant still cannot show reversible error here for the reasons discussed below.

Because the prosecutor had disclosed all relevant information to the defendant prior to trial, defense counsel was in a position to complain if he believed the prosecutor was letting false testimony stand. Yet, defense counsel did not raise any such issues at trial. It follows that any claim of error in this regard was not preserved, and our review is confined to whether any error caused a substantial risk of a miscarriage of justice.

Both sisters generally acknowledged the evolving nature of their renditions of the relevant events, and defense counsel effectively cross-examined them on this topic.

As to those instances where witnesses made denials that the prosecutor arguably knew were false but did not herself act to correct, we are unpersuaded that the prosecutor committed any misconduct that created a substantial risk of a miscarriage of justice.⁷ An illustrative example follows.

The younger sister was cross-examined about her 2010 conversations with her boyfriend. She denied that she had argued with him about not wanting to engage in oral or anal sex. As the defendant contends, such testimony was at least arguably inconsistent with earlier statements that the younger sister had made to investigators, including in the prosecutor's presence. After having elicited testimony from the younger sister that she had not argued with her boyfriend over this topic, defense counsel let the matter drop. The defendant now suggests that the prosecutor had an affirmative obligation -- e.g., on redirect -- to bring out the inconsistency. He passes over the fact that defense counsel was wise not to press the matter further. Had the younger sister testified that she raised the alleged rape with the boyfriend as the reason for not wanting to engage in anal sex, this substantively would have strengthened her testimony (and undercut the defendant's claim that she had told her boyfriend that the rape was vaginal). Moreover, it is difficult to imagine that any impeachment value from her arguably false denial of having had the argument would have been particularly strong. That is because jurors presumably would have been sympathetic to a twenty year old witness wanting to avoid testifying about whether or not she had been having anal sex with her boyfriend two years earlier. Indeed, the entire line of questioning quite arguably was improper under the rape shield statute.⁸ See G. L. c. 233, § 21B.⁹

Finally, the defendant claims error with regard to the prosecutor's closing argument. Some of these claims require little discussion. For example, although the prosecutor used strong language in characterizing the defendant's theory that the sisters had fabricated their stories in response to their parents' marital strife (calling it variously “desperate” and “bizarre”), the cases recognize that some degree of enthusiastic rhetoric is acceptable. See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998) (“The jury are presumed to have a certain measure of sophistication in sorting out excessive claims on both sides”).

We do agree with the defendant that the prosecutor crossed the line into improper closing argument in two respects. First, at the very beginning of her closing argument, the prosecutor referred to the defendant as “one bold, brazen, cocky guy,” a theme she then repeated. To the extent that the jury could credit the testimony supporting the defendant's guilt, then the prosecutor's characterization of him in this manner enjoys support in the trial evidence. The problem with the prosecutor's statement is not that it lacks evidentiary support, but that it amounts to an improper attack on the defendant's character, rather than an argument as to why the jury should find the defendant guilty.¹⁰ See Commonwealth v. Rosario, 430 Mass. 505, 515-516 (1999) (prosecutor's reference to defendant as “monster” constituted “hyperbole to cast a negative light on the defendant” and was “wholly inappropriate”). The defendant did object to these statements, although he did not ask for any specific relief beyond a general instruction that closings are not evidence (which was given).

The other error in the closing was that the prosecutor suggested that the sisters should be believed in part because they came “into this courtroom and talk[ed] about such a humiliating and shameful part of their lives.” ¹¹ Where, as here, a witness's credibility has been attacked, the prosecutor may argue that a witness has no apparent motive to lie. See Commonwealth v. Dirgo, 474 Mass. 1012, 1014 (2016). However, a prosecutor may not argue that the witness should be believed because she came to court to testify.¹² Id. at 1013. No objection on this point was lodged.

The question then is whether the two improprieties in the prosecutor's closing warrant a new trial. We conclude that they do not. The verdicts themselves indicate that the jury were able carefully to sift through the specific allegations that the sisters had raised. It is evident that the jury were not unduly inflamed by any attacks on the defendant's character and that the jury did not fail to scrutinize the sisters' testimony just because they testified in court. We are confident that the errors in the closing “did not influence the jury, or had but very slight effect.” Rosario, 430 Mass. at 514, quoting Commonwealth v. Gilday, 382 Mass. 166, 178 (1980). In sum, we conclude that while the defendant may not have received a perfect trial, he received a fair one. See Commonwealth v. Lodge, 431 Mass. 461, 476 (2000) (criminal “defendant is entitled to a fair trial, not a perfect one”).

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   It was undisputed that the photo session took place. Indeed, photographs from the session figured prominently at trial.

3.   It was undisputed that during the late 1990s, the girls' parents had become extremely close with the defendant and his wife, that the two couples had a pronounced falling out in approximately 2000, followed by a brief rapprochement in 2004 (which ended when the older sister raised her allegations in 2005). Regarding the reasons for the falling out, there was evidence that the girls' father believed that the defendant had become “too close” to the girls' mother, that the defendant had fondled the girls' mother, and that the girls' father -- suspecting that his wife was having an affair -- had propositioned the defendant's wife for “revenge.”

4.   The fact that the victim did not recall telling her mother this did not render the mother's testimony inadmissible. See Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 414-415 (2010).

5.   The defendant raises this as a claim of prosecutorial misconduct rather than error by the judge, but it is properly viewed as the latter.

6.   Again, although the defendant characterizes this issue as one of prosecutorial misconduct, it is more appropriately classified as asserted evidentiary error.

7.   We note that many of the defendant's claims about the prosecutor's allowing false testimony to stand involve testimony from the older sister. The jury did not convict the defendant of any offenses involving her. While the older sister also provided testimony to support one of the charges involving the younger sister (claiming to have seen the defendant lead the younger sister into his bedroom), the jury did not convict the defendant of that charge either.

8.   The prosecutor objected to this line of questioning based on the rape shield statute, but the judge ultimately allowed defense counsel some leeway.

9.   We address one more asserted instance of the prosecutor's knowingly letting false testimony stand. At the hearing on the motion for a new trial, the defendant highlighted an example that he continues to raise on appeal, albeit only in passing in his reply brief. The defendant called the younger sister's boyfriend at trial, seeking to elicit from him that the younger sister had told him that she had been raped vaginally, not anally. The boyfriend in fact testified that she had not told him this, that he could not remember what he may have told the police about this, and that it is possible that he had told the police that the rapes were vaginal because he had assumed this. The only “proof” that this testimony was inaccurate appears to be a statement included in a report by a detective who had interviewed the boyfriend over the phone. That statement -- which had been timely disclosed to the defendant -- indicates that the boyfriend had relayed to the detective that the younger sister had told him that she had been raped vaginally. The boyfriend had a follow-up pretrial interview in which the prosecutor participated, and a report of which also was turned over to the defendant. In that interview, the boyfriend's account of what the younger sister had told him was entirely consistent with his trial testimony. Based on this undisputed history, the defendant has not come close to establishing that the prosecutor “knew” that the boyfriend's trial testimony was false.

10.   It bears noting that the term “cocky” -- which the prosecutor employed four times in the first three sentences of her closing -- is probably best avoided in a sex crime case.

11.   To the extent that the defendant argues that the prosecutor unduly played on sympathy for the sisters, we are unpersuaded. Nor do we see merit in the defendant's argument that the prosecutor engaged in vouching for witnesses.

12.   Although the Commonwealth did not confess error on appeal, it did state that the prosecutor “came needlessly close to the line.”