COMMONWEALTH v. GARCES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his convictions, after a bench trial, on three charges of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. The charges involved three separate incidents during which the defendant indecently assaulted the victim in 2001. The defendant raises the following issues on appeal. First, he argues that the Commonwealth elicited testimony from a police witness that impermissibly bolstered and vouched for the credibility of the victim. Second, he contends that the judge impermissibly curtailed his constitutional right to cross-examine the victim regarding a prior inconsistent statement. Third, he argues that the judge abused her discretion in admitting multiple complaint testimony. Finally, the defendant argues that the cumulative effect of these errors warrants reversal of his convictions.² We affirm.

The defendant called Holyoke Police Detective Jennifer Sattler as part of his case-in-chief. On direct examination, the defendant elicited the following testimony from the detective. In April 2004 (roughly three years after the incidents occurred), the Department of Children and Families made a referral to the district attorney's office, which in turn referred the matter to the Holyoke Police Department. As a result, Detective Sattler got in touch with the victim's mother, who brought the victim to the station. Detective Sattler met with the victim and her mother on April 4, 2004. The victim stated that she did not want to talk about the incident, report it, or do anything further. She did, however, wish to have the incident “documented somewhere,” but to do so on another day. Six days later, the victim returned to the station and was interviewed by Detective Sattler. The victim stated that she had not told anyone about the abuse until 2004, when she disclosed it to her mother. At the conclusion of the interview, the victim stated that she did not want to press charges. The detective told the victim and her mother that the case would be deemed closed unless they initiated contact to reopen it. Three years later, in 2007 (when the victim was seventeen), the mother called twice to say that the victim wished to move forward with charges. But the victim herself never called to say that until 2011 or 2012. At that point, there was contact between the police department and the district attorney's office about the victim's changed position, but no formal complaint issued until the beginning of 2014.

In a short ten-question cross-examination, the prosecutor elicited two pieces of testimony that the defendant argues now were impermissible. First, the prosecutor asked the detective whether it was common in her experience for victims not to want to press charges right away and that “this wouldn't be the first time this ․ has happened.” Second, the prosecutor elicited that a complaint eventually did in fact issue and that it was the complaint upon which the defendant was being tried. The defendant argues that the two lines of cross-examination improperly vouched for the victim's credibility by communicating that Detective Sattler believed the victim and that, because the police believed the victim, they obtained a complaint. “Improper vouching occurs where the prosecution ․ place[s] the prestige of the government behind the witnesses [ ] by making explicit personal assurances of the witness' veracity, or where the prosecutor implicitly vouch[es] for the witness' veracity by indicating that information not presented to the jury supports the testimony” (quotations and citation omitted). United States v. Grant, 971 F.2d 799, 811 n.22 (1st Cir. 1992). See Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 475 (2014).

Because the defendant lodged no objection below, we review “to see whether the evidence was improper and, if so, whether it created a substantial risk of a miscarriage of justice.” Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 174 (2011). “An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict. In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [fact finder's] result might have been otherwise but for the error,’ and whether it can be inferred ‘from the record that counsel's failure to object was not simply a reasonable tactical decision’ ” (citations omitted). Id.

“A witness is subject to reasonable cross-examination on any matter relevant to any issue in the case, including credibility and matters not elicited during direct examination.” Mass. G. Evid. § 611(b)(1) (2020). We see no error in admitting on cross-examination testimony that a formal complaint issued in 2014, when that same information had already been introduced by the defendant on direct examination of the same witness. See Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 318 (2008) (defendant's line of questioning on aspects of investigation essentially “opened the door sufficiently for the Commonwealth to then permissibly return to the topic”); Commonwealth v. O'Brien, 35 Mass. App. Ct. 827, 834 (1994) (“The defense had opened the door and must abide the consequence that the prosecution could later, on [cross-examination], put questions in the same field”). Even were that not the case, the defendant has not shown any risk of a miscarriage of justice where, as here, the trier of fact was a judge who can be presumed to already know that the defendant was before the court on the complaint at issue and to have properly charged herself to draw no impermissible inference from that fact. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) (Witness's filing of report “establishes nothing other than an impermissible inference that [the witness] believe the complainant. It has no relevance to whether the defendant in fact committed the acts charged, and the [fact finder] did not need to know how the complaint of abuse evolved into the case before them”).

However, we agree with the defendant that the Commonwealth impermissibly elicited unqualified ³ expert testimony from Detective Sattler concerning her experience with other sexual abuse victims not wanting to press charges. The clear purpose of the testimony was to suggest that the victim's delay in reporting the abuse, as well as her unwillingness to press forward with charges for several years, were typical of abuse victims and, therefore, that no negative inference should be drawn from the delay. This testimony was improper, see Commonwealth v. Richardson, 423 Mass. 180, 185 (1996) (expert “may not refer or compare the child to those general characteristics [of sexually abused children]”), because it implicitly vouched for the victim under the guise of expert testimony, see Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 667 (2011).

Nonetheless, the defendant has failed to show that a substantial risk of a miscarriage resulted from the two lines of cross-examination. Among other things, we note that no use was made of the testimony in the prosecutor's closing. To the contrary, the prosecutor argued that the reason the victim delayed in pressing forward with the charges was because her mother was still married to the defendant at the time -- not because she was acting like other abuse victims.

The defendant next argues that the judge impermissibly curtailed his constitutional right to cross-examination by preventing defense counsel from questioning the victim whether she had told anyone that there were “two or three” incidents of abuse. Whatever else may be said about this argument, it is not supported by the record. In fact, when defense counsel posed the question later, the victim was permitted to answer.

Finally, the defendant argues that the mother, as the first complaint witness, should only have been permitted to testify to the victim's statements at the mother's home -- not to what the victim disclosed later that same evening after the mother took the victim to the grandmother's house.⁴ We disagree. During her initial interaction with her mother, the victim was distraught, could barely speak, and was responding nonverbally to the mother's questions. Once the mother was able to deduce that the victim had been harmed in some fashion, she took her promptly to the grandmother's home, where the victim was able to compose herself sufficiently to disclose in greater detail what had occurred. The judge did not abuse her discretion in determining that the two interactions were part of a “single, tightly intertwined ․ communication” with no “meaningful gap in time” between them, Commonwealth v. Revells, 78 Mass. App. Ct. 492, 495-496 (2010), and therefore constituted only a single complaint.

For these reasons, the judgments are affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   Deciding each individual claim of error as we do, see infra, it follows that the defendant's claim of cumulative error fails.

3.   The prosecutor laid no foundation for the detective's testimony as an expert, whether by training or experience.

4.   Where there was no objection, “we review to determine whether there was error under the first complaint doctrine, and if there was such error, whether the introduction of the evidence yielded a substantial risk of a miscarriage of justice.” Commonwealth v. Starkweather, 79 Mass. App. 791, 798 (2011).