COMMONWEALTH v. SANCHEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of raping a coworker, whom we shall call Marie. The two agreed to meet at a billiards bar after work one night for drinks. The rape occurred at the defendant's home in nearby Amherst, after Marie accepted the defendant's invitation to stay there for a while until she felt well enough to drive the longer distance to her home in Agawam. On appeal, the defendant claims that reversal of his conviction is required due to errors in the admission of improper first complaint testimony, and the prosecutor's improper closing argument. We affirm.

1. First complaint. Before trial, the defendant filed a motion in limine to redact portions of Marie's medical records; specifically, a certified copy of a form entitled “INFORMATION PERTAINING TO ASSAULT & KIT TRACKING FORM PROVIDER SEXUAL CRIME REPORT” (Form 2B), which was signed by Marie and nurse examiner Caroline Fortier.² The defendant sought redaction of any references in the medical records to sexual assault, rape, emergency contraception, and medication to treat potential sexually transmitted infections. The motion in limine was allowed, and a redacted version of Form 2B -- agreed upon by counsel -- was included within a set of medical records “marked by agreement” and admitted in evidence.

At trial, Marie testified that she called her friend Daniel immediately after the rape and told him “what had happened,” without elaboration. Marie then drove to Daniel's home, where she had a conversation with another friend, Courtney, who told Marie that she would bring her to the hospital in the morning. Instead, the next day, Marie's sister took her to the hospital, where Fortier examined Marie and asked her each question on Form 2B in order to assess whether Marie “need[ed] further medical care.” Fortier recorded Marie's responses on the form and read the unredacted responses aloud at trial. Fortier testified that she collected samples of fluid from Marie's vagina, which she placed into a sexual assault evidence kit. Thereafter, Fortier provided the kit to Amherst police Detective Marcus Humber. Humber received the kit and investigated Marie's complaint by, among other things, speaking with the defendant and sending the samples in the kit to a lab for testing. That testing revealed the presence of sperm in Marie's vagina which statistically matched the deoxyribonucleic acid (DNA) profile of the defendant.

For the first time on appeal, the defendant claims error in the admission of: (1) Fortier's testimony reciting Marie's unredacted answers to the questions recorded by Fortier on Form 2B, including a box, checked “No,” which asked if Marie had “consensual sexual intercourse in the past 120 hours/5 days,” and Marie's response (“held arms above head”) to the question whether “weapons/force” were used; and (2) Marie's testimony that she had a conversation with her friend Courtney during which Courtney told Marie she was going to bring her to the hospital. The defendant argues that this testimony constituted prejudicial “piling on” of first complaints. Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied, 546 U.S. 1216 (2006). The defendant further claims that Fortier should not have been allowed to testify that she provided the sexual assault evidence kit to Detective Humber, because it “create[d] the imprimatur of official belief in” Marie's rape complaint. Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). We are not persuaded.

The first complaint doctrine does not preclude the introduction of evidence that is independently admissible “and serves a purpose other than to repeat the fact of a complaint” (citation and quotations omitted). Commonwealth v. Kennedy, 478 Mass. 804, 814 (2018). Here, the certified copy of Form 2B, and Marie's redacted responses, were independently admissible statements “relat[ing] to the treatment and medical history of [Marie's] case[ ].” G. L. c. 233, § 79. See Commonwealth v. Dargon, 457 Mass. 387, 395-396 (2010). See also Mass. G. Evid. § 803(4), (6)(B) (2018). Fortier's testimony that she provided the evidence kit to Detective Humber simply described how Humber received the samples, see Kennedy, supra at 815, and established the requisite chain of custody of the physical evidence. At no point did Fortier express or imply a belief in the truth of Marie's allegations. Finally, although the relevance of Marie's testimony that she had a conversation with Courtney is not apparent to us, we cannot say that it was error to allow it where (1) the defendant did not object, and (2) Marie did not testify to the content of the conversation or that she “told” Courtney about the rape. See Commonwealth v. Aviles, 461 Mass. 60, 68 (2011). Contrast Stuckich, 450 Mass. at 457.

Even if we agreed with the defendant that the judge erred in admitting this testimony, we see no substantial risk that justice miscarried. See Commonwealth v. Alphas, 430 Mass. 8, 13-14 (1999).³ First, Fortier's testimony regarding Marie's responses, reported to and recorded by Fortier on Form 2B, “added nothing of significance to the evidence properly admitted” because the jury could read the form for itself. Commonwealth v. McCowen, 458 Mass. 461, 481 (2010). Second, the jury were aware by the time Fortier testified that the Commonwealth had “brought its resources to bear on this incident,” Stuckich, 450 Mass. at 457, because Marie testified that she reported the assault to the police, and Detective Humber testified that he investigated her complaint. Finally, the jury could conclude that there was overwhelming evidence the defendant knew that Marie did not consent to have sex with him on May 26, 2016, rendering harmless any error in the admission of testimony that Marie spoke with Courtney. See Alphas, supra at 15 (error could not have created substantial risk of miscarriage of justice where evidence was overwhelming).

The defendant testified in his own defense that he heard Marie telling him to stop during their encounter. The jury were not required to believe his testimony that he stopped immediately and did not ejaculate in Marie out of “respect,” where his sperm was found in Marie's vagina on May 27. The jury also could infer the defendant's guilt from his admission that he lied to the police when he initially claimed he and Marie had engaged only in kissing and touching without intercourse. See Commonwealth v. Vick, 454 Mass. 418, 424 (2009) (false statements to police may be evidence of consciousness of guilt). In these circumstances, any prejudice which may have flowed to the defendant from the now-challenged testimony was minimal.

2. Closing argument. Although he lodged no objections at trial, the defendant now claims that the prosecutor exceeded the bounds of permissible argument when, during her closing, she misstated the evidence, vouched for Marie's credibility, and appealed to the jury's emotions. We review these claims to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Resende, 476 Mass. 141, 155 (2017).

Marie testified that the defendant “flirted” with her at the bar. The defendant denied this and testified, “I don't know what flirting means. What do you mean flirting?” The prosecutor did not misstate this evidence when she paraphrased the defendant's response by arguing, “He says, ‘What's flirting, what do you mean?’ ” Even if she did, any prejudice was cured when the judge instructed the jury to ignore any impression “either attorney gave you [in the course of final argument] as to how she thinks you ought to find the facts, or expressed her own personal opinions to you, or talked about things that you don't recall from the evidence, [stressing the point that] ․ it's your collective memory of the evidence that controls.”

In light of this instruction and “the context of the whole argument,” Commonwealth v. Whitman, 453 Mass. 331, 343 (2009), the prosecutor's suggestion that Marie was “telling you the truth” did not improperly vouch for Marie's credibility. The prosecutor was entitled to contrast the parties' demeanor and testimony at trial, and to urge the jury to infer that Marie was credible because her testimony was consistent with that of the other witnesses and corroborated by physical evidence. See Commonwealth v. Thomas, 401 Mass. 109, 116 (1987) (“Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed”). She did not “express a personal belief in [Marie]'s credibility.” Commonwealth v. Martinez, 476 Mass. 186, 200 (2017).

Finally, we are not persuaded by the defendant's claim that comments by the prosecutor regarding the reasons for Marie's report improperly appealed to the jury's sympathy. Defense counsel argued in closing that Marie fabricated the allegations because she regretted having consented to sexual intercourse with the defendant and enjoyed the attention she got from reporting a rape. “The prosecutor permissibly could respond to these challenges.” Martinez, 476 Mass. at 200. Because “[t]he passages complained of do not exceed the bounds of propriety,” there is no risk of a miscarriage of justice. Commonwealth v. Costa, 414 Mass. 618, 629 (1993).

Judgment affirmed.

FOOTNOTES

2.   The Commonwealth's motion to expand the record is allowed.

3.   The defendant's reliance on Commonwealth v. Grady, 474 Mass. 715, 719 (2016), for the proposition that he preserved his objection to Fortier's testimony by filing a motion in limine, is misplaced. The rule stated in Grady applies where a motion in limine “was heard and denied.” Id. The defendant's motion in limine to redact Form 2B was allowed. Fortier's testimony that she provided evidence to Detective Humber is not “the very same evidence” that was precluded as a result of that ruling, id., nor was it the subject of its own motion. Contrast Commonwealth v. Espinal, 482 Mass. 190, 203 n.18 (2019) (objection preserved where defendant moved in limine to exclude description of investigative process). An objection was required to preserve this issue.