COMMONWEALTH v. BEATO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant of indecent assault and battery on a person fourteen years of age or older. The defendant appeals, claiming violations of the first complaint doctrine. See Commonwealth v. King, 445 Mass. 217, 242-248 (2005), cert. denied, 546 U.S. 1216 (2006); Mass. G. Evid. § 413 (2019). Specifically, he contends that the judge erred by allowing the Commonwealth's motion to substitute the first complaint witness without conducting a voir dire and by admitting evidence of multiple complaints. We affirm.

Background. In July 2015 the victim, then fourteen years old, went to the defendant's apartment to visit with her friend Amy (a pseudonym), the defendant's daughter. After spending time in Amy's room and then outside, the victim went back to the room to retrieve her sandals. The defendant, whom the victim knew as “Stanlin,” ² entered the room with one of the sandals. When the victim went to get it, the defendant said that he had something to tell her and turned off the light. The defendant stood in the doorway, blocking it, and then kissed the victim's neck and grabbed her buttocks. The victim pushed the defendant, took her sandal, and went to the porch where she told Amy what happened.

After the victim arrived home, she told her mother, with her father also present, what the defendant had done. Several days later, the victim's parents took her to the police station where she was interviewed by a detective. In an effort to determine the identity of “Stanlin Beato,” the detective obtained an image of one Jose Beato, who lived at the address where the incident occurred, from the registry of motor vehicles. The detective showed it to the victim, and the victim identified the man in the image as her assailant.

Substitution of first complaint witness. The defendant first argues that the judge abused her discretion by allowing the Commonwealth to substitute the victim's mother for Amy as the first complaint witness without conducting a voir dire. Determining the identity of the first complaint witness is a preliminary question for the judge, and “[g]enerally, a voir dire will be the appropriate mechanism for such a determination.” Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). The first complaint witness should be the first person who was informed of the sexual assault “[w]here feasible.” King, 445 Mass. at 243. A judge has the discretion, however, to permit someone else to testify if the first person told is unavailable. See id. at 243-244. We review a judge's decision to allow substitution of the first complaint witness for an abuse of discretion. See Commonwealth v. Alce, 96 Mass. App. Ct. 851, 853 (2020).

On the day that trial was to begin, the judge held a hearing on the Commonwealth's motion in limine to substitute the victim's mother as the first complaint witness. The basis for the motion was that Amy was potentially biased against the victim. At the hearing the prosecutor informed the judge that Amy, then sixteen years old, had been summonsed to appear that day. She did not appear, however; instead, according to defense counsel, her parents had sent her to summer school. Defense counsel stated that he was “sure” that Amy's parents had “weighed the consequences and probably wanted her to be in school.” The judge then determined that Amy's parents made her unavailable by sending her to summer school and allowed the Commonwealth's motion.

We conclude that the judge did not abuse her discretion by allowing the motion because the actual first complaint witness did not appear despite reasonable efforts by the Commonwealth.³ See Alce, 96 Mass. App. Ct. at 852 (explaining that “ ‘unavailability’ for purposes of allowing substitution of a witness under the first complaint doctrine does not require the same rigorous efforts necessary to show a witness is unavailable under the hearsay exception”). The judge permissibly found that Amy, a minor, was rendered unavailable when her parents -- one of them the defendant -- sent her to summer school despite a summons for the defendant's trial. And given Amy's unavailability, the judge could not have conducted a voir dire to determine whether she was biased. Furthermore, because there was no factual dispute that the victim's mother was the next complaint witness, see Murungu, 450 Mass. at 446, no voir dire of the mother was required before the judge ruled on the Commonwealth's motion. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010) (no need for voir dire where no factual dispute about identity of first complaint witness).

That Amy later became available after the trial was continued does not alter our conclusion. Before the victim's mother testified as the substituted first complaint witness, defense counsel represented that Amy would be a defense witness. Nonetheless, the defendant did not renew his objection to the substitution of the first complaint witness, nor did he renew his request for a voir dire.⁴ In these circumstances we see no abuse of discretion in the judge's failure to revisit (sua sponte) her earlier ruling.

Multiple complaint testimony. The defendant next argues that the judge erred by admitting evidence that amounted to a “piling on” of multiple complaints by the victim. King, 445 Mass. at 245. The defendant specifically points to testimony that the victim's father was present when the victim told her mother what happened and testimony about the victim's interview with the detective. Because the defendant did not raise these arguments to the judge, our review is limited to determining whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).

Evidence that the victim's father was present for the victim's conversation with her mother did not constitute impermissible “piling on.” The victim's simultaneous account to both of her parents did not comprise distinct or successive complaints that implicate multiple complaint testimony concerns. The father did not testify, and the challenged evidence was not “the equivalent of saying that [the victim] repeated her account of the incident” to him. Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). A first complaint witness can “testify to the circumstances surrounding the initial complaint,” including “the events or conversations that culminated in the complaint,” and evidence that the victim's father was present helped “to give the jury as complete a picture as possible of how the accusation of sexual assault first arose.” King, 445 Mass. at 246-247. And because the father did not testify, the victim's credibility was not enhanced.

The admission of testimony about the victim's interview with the detective also does not warrant reversal. The first complaint doctrine “does not exclude testimony that ‘is otherwise independently admissible’ and serves a purpose ‘other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations.’ ” Commonwealth v. Kennedy, 478 Mass. 804, 814 (2018), quoting McCoy, 456 Mass. at 845. While the fact of a complaint was embedded in the detective's testimony, the testimony was relevant to explain the identification of the defendant as Jose Beato in light of the victim's reference to her assailant as “Stanlin.” See Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 799-800 (2011) (no first complaint violation where evidence had “independent significance” about identification of weapon). Therefore, this “evidence served an evidentiary purpose ‘separate and apart from the first complaint doctrine.’ ” Commonwealth v. Santos, 465 Mass. 689, 700 (2013), quoting Commonwealth v. Dargon, 457 Mass. 387, 400 (2010). We are also confident that the admission of this evidence, even if error, did not create a substantial risk of a miscarriage of justice. The testimony was brief, did not include details of the allegations or suggest that the detective believed the victim, and was not used by the prosecutor in closing to bolster the victim's credibility. See Commonwealth v. Roby, 462 Mass. 398, 409-410 (2012).

Judgment affirmed.

FOOTNOTES

2.   The record includes references to the defendant both as “Stanlin” and “Starlin.”

3.   Given this conclusion, we need not discuss the allowance of the motion on the alternative ground of Amy's bias, which was based on a statement in a police report. We note, however, that had Amy been available, it would have been appropriate to conduct a voir dire to explore her possible bias.

4.   The defendant ultimately elicited testimony, both from the victim and Amy, that the victim told Amy what happened.