COMMONWEALTH v. GONZALEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant, Robertson Gonzalez, was convicted of indecent assault and battery on a child under age fourteen. He appeals claiming numerous errors. We agree with the defendant that he is entitled to a new trial based on the exclusion of evidence supporting a so-called Bowden defense and therefore reverse his conviction.² See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).

1. Bowden defense. The defendant argues that the judge abused his discretion in precluding him from eliciting testimony on the lack of a proper police investigation. See Bowden, 379 Mass. at 485-486 (inadequate police investigation is valid basis for defense). Specifically, the defendant sought to examine a police sergeant about best practices for a sexual assault interview. No record of the initial interview existed, and the victim's father testified that he was present during the interview. Thus, the defendant contended that this interview, conducted with a parent present, could have affected the victim's later statements for which there was a record.

“Defendants have the right to base their defense on the failure of police adequately to investigate ․ in order to raise the issue of reasonable doubt as to the defendant's guilt in the minds of the jury.” Commonwealth v. Alcantara, 471 Mass. 550, 561 (2015), quoting Commonwealth v. Phinney, 446 Mass. 155, 165-166 (2006), S.C., 448 Mass. 621 (2007). When a defendant asserts a Bowden defense, the judge “must determine ‘whether the probative weight of the Bowden evidence exceed[s] the risk of unfair prejudice to the Commonwealth from diverting the jury's attention to collateral matters.’ ” Alcantara, supra at 561-562, quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 803 (2009). “[T]he inference that may be drawn from an inadequate police investigation is that the evidence at trial may be inadequate or unreliable because the police failed to ․ pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant's guilt or innocence.” Silva-Santiago, supra at 801. With that evidence, “[a] jury may find a reasonable doubt if they conclude that the investigation was careless, incomplete, or so focused on the defendant that it ignored leads that may have suggested other culprits.” Id. In this context, “a judge may not remove issues of inadequacy of a police investigation or lack of evidence from the jury's consideration.” Commonwealth v. Perez, 460 Mass. 683, 692 (2011). See Mass. G. Evid. § 1107 (a) (2019). However, “a judge is not required to instruct on the claimed inadequacy of a police investigation.” Perez, supra, quoting Commonwealth v. Williams, 439 Mass. 678, 687 (2003). See Mass. G. Evid. § 1107 (b) (2019). We review the exclusion of the evidence for abuse of discretion. Alcantara, 471 Mass. at 562.

Here, the victim disclosed the allegations of sexual abuse at the hands of the defendant and her grandfather to her parents approximately one year after the incidents occurred. Her father took her to the Lawrence police department two days later, and they spent approximately two hours there being jointly interviewed by police officers. The defendant was charged nearly one year later and, at that time, the police department had no record of the initial interview. No case had been opened nor was a complaint sought. No police report or witness statement was generated. As a result, the defendant wanted to inquire about the appropriateness of the father's presence in the first interview, the failure to document the interview, and the subsequent delay in the police investigation. The defendant suggested that the interview was conducted improperly; however, the judge prevented him from: (i) arguing that there were deficiencies in the investigation; and (ii) examining the police sergeant with respect to interview practices. The defendant should have been permitted to explore these inadequacies and thus was precluded from asking the jury to draw an adverse inference based on the manner and method of the interview of the victim, the officers' failure to preserve and introduce material evidence, and the delays in the investigation.

We are not persuaded by the Commonwealth's argument that the defendant could only elicit the evidence regarding the first interview from the officers that conducted the interview. The victim's father testified to the circumstances and his presence in the interview room. And, the defendant sought to elicit testimony from a police sergeant who was not involved with the initial interview, but was involved in a subsequent interview where the victim was interviewed without a parent present. It was an abuse of discretion to exclude this evidence.

2. Contemporaneous allegation. The defendant filed a pretrial motion seeking to introduce evidence of a contemporaneous allegation by the victim ³ against her grandfather, the defendant's father. As discussed supra, in 2015 the victim disclosed to her parents that a year prior she was sexually abused by the defendant, her uncle, and her grandfather.⁴ She described being asleep on the floor in the defendant's home when she awoke to the defendant's hand behind her thighs and then on her vagina, under her clothing. She was able to roll away from the defendant but awoke again to find the defendant's hand on her vagina.

The victim also said that her grandfather touched her thigh and raised her hand towards his thigh and genital area while she slept in bed with him. She said that he sucked on her fingers and often touched her vagina over her clothing when he hugged her.⁵ The defendant sought to introduce these statements to show bias against the defendant and his family, a motive to lie, and inconsistencies in the victim's allegations. In denying the motion, the judge deemed the proposed cross-examination inadmissible under G. L. c. 233, § 21B (rape shield statute), and concluded that the probative value of the evidence to the defendant was insufficient to overcome the prejudice to the victim.

Evidence of sexual abuse by a third party to show the victim's promiscuity as part of a general credibility attack is generally excluded pursuant to G. L. c. 233, § 21B. See Commonwealth v. Hynes, 40 Mass. App. Ct. 927, 929 (1996). The statute provides for specific exceptions where the prior sexual abuse is alleged to be the cause of any physical feature, characteristic, or condition of the victim. In addition, the defendant “may introduce evidence of the complaining witness's sexual conduct where that conduct is relevant to the complainant's bias or motive to fabricate.” Commonwealth v. Harris, 443 Mass. 714, 721 (2005). Indeed, reasonable cross-examination to demonstrate motive or bias is permissible, Commonwealth v. Joyce, 382 Mass. 222, 228-229 (1981), because “a defendant [is] permitted to introduce evidence which may materially affect the credibility of the [alleged] victim's testimony.” Commonwealth v. Polk, 462 Mass. 23, 33 (2012), quoting Commonwealth v. Ruffen, 399 Mass. 811, 816 (1987). See Mass. G. Evid. § 412 (b) (2019). The defendant must “show that the theory under which he proceeds is based on more than vague hope or mere speculation” (quotation omitted). Commonwealth v. Sa, 58 Mass. App. Ct. 420, 426 (2003). After the defendant makes a proper showing, he then must show that the proffered evidence's weight and relevancy is “sufficient to outweigh its prejudicial effect to the victim.” G. L. c. 233, § 21B.

Here, the defendant filed a motion in limine to admit evidence that could impact the jury's view of the victim's reliability and credibility in two ways. First, he argued that evidence that the victim was assaulted by more than one person, in the same home, around the same period of time, and in a similar manner was relevant to show bias against the defendant and his family. Next, he claimed that it was also relevant to the overall credibility of the victim because of circumstances surrounding the disclosure against both the defendant and the grandfather, and inconsistencies between her initial disclosures and subsequent interviews. On appeal, the defendant amplifies that argument by suggesting that as a result of the trauma, she was unable to distinguish between the perpetrators and incidents.⁶

The allegations against the defendant and her grandfather are similar. They occurred in the same home, within the same year, and at times when the victim was sleeping over. With respect to both men, she described being awoken by hands on her thigh and vaginal area. Under these circumstances, the judge should have permitted a voir dire of the victim on her contemporaneous allegation to determine if there was evidence of (i) bias against the defendant or his family, (ii) motive to lie, and (iii) the victim's inability to distinguish between the reported incidents. The probative value of this evidence was substantial as the defendant's primary theory of defense was that he did not commit the acts. See Commonwealth v. Pearce, 43 Mass. App. Ct. 78, 86 (1997), S.C., 427 Mass. 642 (1998). See also Commonwealth v. Fitzgerald, 412 Mass. 516, 523-524 (1992). In the event of retrial, the judge should reconsider the admissibility of the contemporaneous allegation, following a voir dire of the victim consistent with this memorandum and order.

Judgment reversed.

Verdict set aside.

FOOTNOTES

2.   The defendant also argues that it was error to exclude evidence of the victim's contemporaneous allegation against her grandfather, and to deny his request to conduct a voir dire of the victim concerning this allegation. In addition, the defendant claims it was error to preclude him from impeaching the victim; that the prosecutor's closing was improper; and that the judge erred in instructing the jury on a lack of DNA evidence. As discussed infra, in the event of retrial the judge shall permit a voir dire of the victim on the contemporaneous allegations against her grandfather. As a result of our disposition, we need not reach the other issues.

3.   The victim was twelve years of age when the abuse occurred. She was age sixteen at the time of trial.

4.   The victim made the disclosure after her father saw her texting with a boy and began asking the victim questions.

5.   The case against the grandfather was severed from this case.

6.   The Commonwealth argues that the grounds for which the defendant sought to introduce this evidence are different than those asserted on appeal and therefore the issue is not preserved. We disagree; the Commonwealth parses the arguments too finely. Compare Commonwealth v. Grady, 474 Mass. 715, 719 (2016). We therefore review for prejudicial error.