COMMONWEALTH v. MONTES DIAZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted on five indictments charging indecent assault and battery on a child under fourteen and acquitted on several additional indictments charging the same offense. On appeal he argues that the trial judge improperly joined the indictments, that multiple first complaint witnesses testified in support of the Commonwealth's case, and that the prosecutor appealed to jury sympathy and misstated evidence in her closing argument. We affirm.

Background. The defendant lived in an apartment with his girlfriend and several of her family members, including her four minor children, ZRV, TSV, DSV, and JSV. While the defendant was indicted on charges involving all four children spanning the four years they lived together, his convictions stem from offenses related only to ZRV and TSV.

The evidence concerning the offenses against ZRV established that the defendant repeatedly entered the children's bedroom at night. ZRV once awoke with the defendant on top of her, grabbing her breasts. On another occasion the defendant rubbed his exposed penis on ZRV's vagina. Sometimes, when the defendant entered the children's room, ZRV's siblings summoned their mother to remove him. Other times, the children would lock the door or push their beds against it to keep the defendant out. The mother nonetheless allowed the defendant to remain in the home.

The offenses concerning TSV stemmed from an incident in which the defendant pulled TSV into the pantry and touched her breasts, buttocks, and vagina. TSV's adult sister saw her leaving the pantry with the defendant's hand near her buttocks. TSV then disclosed that the defendant had touched her, and the family called the police.

Discussion. 1. Joinder. Because the charges arose from a single scheme, the trial judge properly exercised his discretion in denying the defendant's motion to sever the indictments.² See Commonwealth v. Montanez, 410 Mass. 290, 303 (1991). To have prevailed on the motion, the defendant had to “demonstrat[e] that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.” Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). Related offenses are those “based on the same criminal conduct or ․ series of criminal episodes connected together or constituting parts of a single scheme or plan.” Id., quoting Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). Here, the incidents involved overlapping time frames, the victims were all children of the defendant's girlfriend and in close age range, the assaults were all alleged to have occurred in the family's apartment, and the defendant committed the assaults either by entering the children's room at night or isolating a child during the day. Based on our case law, this constitutes a pattern allowing for the joinder of these related offenses. See Commonwealth v. Silva, 93 Mass. App. Ct. 609, 618-619 (2018); Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 201-202 (2010); Commonwealth v. Souza, 39 Mass. App. Ct. 103, 111-112 (1995).

Moreover, the defendant did not suffer compelling prejudice from the joinder, as evidence regarding the other offenses would have been admissible had there been separate trials. A defendant seeking severance must show a specific ground of prejudice and not “merely that [his] chances for acquittal would have been better had the ․ indictments been tried separately.” Commonwealth v. Ferraro, 424 Mass. 87, 90-91 (1997), quoting Montanez, 410 Mass. at 304. The defendant points to no such specific ground, instead arguing generally that the cumulative number of indictments against various victims prejudiced him.³ But had the indictments been tried separately, evidence as to each would have been cross-admissible to “show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). In addition, the jury acquitted the defendant of several charges, which is “a strong indication that a misjoinder of offenses has not resulted in any actual prejudice.” Aguiar, 78 Mass. App. Ct. at 204, quoting Commonwealth v. Green, 52 Mass. App. Ct. 98, 103 (2001).⁴

2. Improper first complaint testimony. Under the first complaint doctrine, one designated first complaint witness “may testify to the ‘details of the alleged victim's first complaint of sexual assault (including the victim's statement of the facts of the assault) and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief.’ ” Commonwealth v. Kebreau, 454 Mass. 287, 292 (2009), quoting Commonwealth v. King, 445 Mass. 217, 243 (2005). After reviewing each of the defendant's arguments, we conclude that Officer Molly Rattigan's testimony as to JSV, TSV, and ZRV was the only additional first complaint testimony, offered without objection from the defense.⁵ While the testimony was improper, the judge acted sua sponte, striking the testimony and administering a strong curative instruction. “The jury are presumed to [have] follow[ed] the instructions of the judge.” Commonwealth v. Degro, 432 Mass. 319, 328 (2000).

There was no violation of the first complaint doctrine with regard to the other statements identified by the defendant. First, the mother's and adult sister's descriptions of a hickey on ZRV's neck -- which ZRV said was caused by the defendant -- were admissible to provide context for the mother's and sister's later testimony that the defendant admitted to giving ZRV the hickey.⁶ See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010), quoting Commonwealth v. Arana, 453 Mass. 214, 200-221 (2009) (first complaint doctrine does not bar “testimony that ‘is otherwise independently admissible’ ”).

Second, the mother's testimony that the adult sister told her that “something the defendant was doing” made her uncomfortable did not recount a complaint from a victim that a sexual assault occurred. Moreover, the judge struck the testimony and instructed the jury to disregard it, which the jury are presumed to have done. See Degro, 432 Mass. at 328.

Third, testimony from two witnesses that the adult sister told them about the incident in the pantry and seeing the defendant's hand near TSV's buttocks was not first complaint testimony, as it recounted the adult sister's personal observations, not what TSV said. And even if improper, the testimony was lacking in detail and therefore did not result in a substantial risk of a miscarriage of justice. See Commonwealth v. Dumas, 83 Mass. App. Ct. 536, 541 (2013).

Last, a detective's testimony that she learned that the defendant assaulted four people was not first complaint testimony because it did not refer to a sexual assault. This testimony also lacked sufficient detail to raise a substantial risk of a miscarriage of justice; the detective did not testify about anything the children told her and so did not improperly enhance their credibility. See id.

3. Prosecutorial misconduct. The prosecutor properly marshalled the evidence in closing and rebutted the defendant's attacks on the victims' credibility. The prosecutor's argument that the adult sister learned from experience not to report abuse to the Department of Children and Families was a reasonable inference from her testimony about the family's previous social services involvement. See Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013) (inferences argued by prosecutor “need only be reasonable and possible”). Additionally, it was excusable hyperbole for the prosecutor to state that the assaults constituted ZRV's “nightly experience” and that DSV “would see” the defendant without his pants on in the children's room. Jurors are presumed “to have a certain measure of sophistication in sorting out excessive claims on both sides.” Commonwealth v. Rosario, 430 Mass. 505, 516 (1999), quoting Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). See Commonwealth v. Correia, 65 Mass. App. Ct. 27, 34 (2005).

Finally, the prosecutor was entitled to respond to the defendant's numerous attacks on the children's credibility. See Commonwealth v. Senior, 454 Mass. 12, 17-18 (2009). Using the evidence admitted at trial, the prosecutor appropriately responded to the attacks by arguing that the children were separated as a result of reporting the abuse and had no reason to lie.⁷ Furthermore, the judge instructed the jury that closing arguments are not evidence, and the acquittals on several of the charges indicate that the jury carefully parsed the evidence. Even assuming error, we discern no substantial risk of a miscarriage of justice.

Judgments affirmed.

FOOTNOTES

2.   In addition to the above-described offenses, the defendant was tried for sexually assaulting DSV and JSV and was ultimately acquitted of those charges. DSV testified that the defendant pulled DSV's pants down and slapped his penis and buttocks while they were play-fighting in the mother's bedroom. JSV testified that the defendant “pulled down [her] pants and took out his private part and rubbed it on [hers]” on two occasions in the mother's bedroom. The jury also acquitted the defendant of a charge against TSV alleging that he touched her buttocks with his penis.

3.   The defendant also contends that several excused venire members indicated they could not be impartial because of the nature of the charges. He points to no seated juror, however, who demonstrated a bias against him.

4.   To the extent the defendant argues that evidence of uncharged conduct prejudiced him, his argument is meritless. The jury heard that the defendant caused a hickey on ZRV's neck, inappropriately danced with her, and stared at her as if she were “older.” All of this was admissible to show the nature of the relationship and a common course of conduct. Furthermore, the evidence did not “overwhelm[ ]” the jury. Commonwealth v. Holley, 476 Mass. 114, 123 (2016).

5.   Though the defendant suggests that Rattigan should have been the actual first complaint witness for JSV, we need not reach that issue as the jury acquitted the defendant on the charges related to JSV.

6.   The defendant also takes issue with related testimony from ZRV's step-grandmother that she did not talk to the mother about the hickey because ZRV said she already had. This testimony was admissible to show the step-grandmother's state of mind as to why she did not tell the mother.

7.   The defendant relatedly claims that the prosecutor improperly elicited emotional evidence during the trial when she asked the children about their reactions to the separation. But emotional testimony is not unusual in criminal cases. See Commonwealth v. Martinez, 437 Mass. 84, 89-90 (2002). Significantly, the defendant did not object, move for a mistrial, or request a curative instruction, which is indicative that the tone and manner of the questioning were not unfairly prejudicial.