COMMONWEALTH v. MAISONET (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant, David L. Maisonet, was convicted of two counts of indecent assault and battery on a child under fourteen years of age. On appeal, he claims error in the admission of certain testimony of the victim's mother, the admission of uncharged conduct, the prosecutor's closing argument, and the admission of evidence purportedly violating the first complaint doctrine. Also, for the first time on appeal, the defendant contends that he received the ineffective assistance of counsel. We affirm.

1. Admission of certain testimony from the victim's mother. We review a judge's decision to admit or exclude testimony for an abuse of discretion. Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). The defendant called the victim's mother as a defense witness, over the Commonwealth's objection,² in order to show certain inconsistencies in the victim's account of the assaults. In response to a question, the mother said that she could not recall her prior testimony at a pretrial hearing because she was very emotional that day and had been arrested by the police that day and brought to court for the pretrial hearing. On cross-examination by the prosecutor, the mother testified that she wanted to “kill” the defendant when she learned about the abuse and did not want the victim to have to look at him again.

The defendant argues that these statements implied that the mother believed her daughter's allegations. We disagree. The statements at issue were brief and consistent with the temperament of the witness as observed by the jury. Moreover, it is not unsurprising that a mother's natural bias would be to protect her thirteen year old daughter. As the scope of cross-examination lies within the discretion of the trial judge, and the defendant has not shown a clear abuse of discretion or prejudice, this claim must fail. Commonwealth v. Crouse, 447 Mass. 558, 572 (2006). See Commonwealth v. Garcia, 470 Mass. 24, 35 (2014) (“A judge has broad discretion in circumscribing the proper scope of cross-examination”).

2. Admission of uncharged conduct. The defendant contends that it was error to permit the victim to testify to a prior uncharged incident in which the defendant repeatedly grabbed the victim's thigh while the two were together in a car when the victim was twelve years of age. This evidence was the subject of a motion in limine and a subsequent objection at trial. Accordingly, we review for prejudicial error. Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018).

Evidence of the defendant's other bad acts “is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). See Mass. G. Evid. § 404 (2019). Such evidence is, however, admissible “to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation” (citation omitted). Crayton, supra. “Even if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Id.

Here, the challenged evidence was admitted “to show that the relationship between the defendant and the victim was one of continuous sexual abuse” (quotation omitted). Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71-72 (2018), citing Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015). In other words, the defendant's actions were relevant because they showed a pattern of sexual interest in the victim. Where the evidence was relevant, the judge properly could have determined that any prejudice flowing from it did not outweigh its probative value. See Commonwealth v. Almeida, 479 Mass. 562, 568 (2018). See also Commonwealth v. Keown, 478 Mass. 232, 242 (2017) (matters of probative value versus prejudicial effect “are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error” [citation omitted]). As to any remaining prejudice, we are confident that it was sufficiently ameliorated by the judge's limiting instructions. Crayton, 470 Mass. at 249-252. See Commonwealth v. Walker, 442 Mass. 185, 202-203 (2004).

3. Closing argument. At trial, the defendant objected to certain aspects of the prosecutor's closing argument, claiming that these remarks improperly shifted the burden to the defendant.³ On appeal, the defendant abandoned this claim. Instead, he raises a new issue. The defendant argues that the prosecutor's closing argument asked the jury to draw improper inferences from the evidence and that it appealed to juror sympathy. As the defendant changed the basis for his objection, this issue was not preserved. Therefore, we review to determine whether any error created a substantial risk of a miscarriage of justice. McDonagh, 480 Mass. at 137-138.

“In analyzing a defendant's claim of improper argument ․ we analyze the remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial” (quotation and citation omitted). McDonagh, 480 Mass. at 142. Here, not only did the defendant fail to object on the grounds that he now asserts, but also the trial judge immediately gave proper instructions following the closing arguments. These instructions included that the jury determine the credibility of the witnesses, that they alone decide what evidence to accept, and that closing arguments are not evidence. We have long held that jurors are presumed to follow the judge's instructions. See, e.g., Commonwealth v. Degro, 432 Mass. 319, 328 (2000). Moreover, the victim's credibility was the sole issue in the case, and as such, the argument was permissible. Commonwealth v. Polk, 462 Mass. 23, 29-40 (2012). Considered within the context of the entire trial, we conclude that the prosecutor's remarks did not create a substantial risk of a miscarriage of justice.

4. First complaint. The defendant claims that the victim's nonresponsive answer to a question from the prosecutor, in which she mentioned that she told her mother about the assault, created a substantial risk of a miscarriage of justice. Under the first complaint doctrine,

“the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time.”

Commonwealth v. King, 445 Mass. 217, 218-219 (2005). Here the victim's sister properly testified as the first complaint witness. The victim's statement that she told her mother about the assaults was brief and fleeting. The prosecutor did not follow up on it in his examination of the victim and did not address it in his closing argument. Nor did the statement draw an immediate objection. Therefore, it likely did not have a significant impact on the jury. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 498 (2010). Moreover, defense counsel used this statement to highlight the fact that the victim had previously disclosed neither the abuse that had occurred years earlier nor the uncharged conduct previously discussed. Defense counsel further highlighted the lack of disclosure in his closing argument to suggest that the assaults did not happen.

The defendant also contends that the victim's statement that her mother kicked the defendant out of the house when she learned of the abuse was also admitted in violation of the first complaint doctrine. As the statement did not imply that the victim disclosed the abuse to anyone other than the first complaint witness, we disagree with this contention.⁴ There was no error, let alone a substantial risk of a miscarriage of justice.

5. Ineffective assistance of counsel. For the first time on appeal, the defendant claims that he received the ineffective assistance of counsel because his trial attorney called the victim's mother as a witness. When a defendant seeks a new trial based on ineffective assistance of counsel, “the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015). “Under the familiar Saferian test, a defendant is denied constitutionally effective assistance of counsel if the representation fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Id., quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant also must show that “better work might have accomplished something material for the defense.” Commonwealth v. Watt, 484 Mass. 742, 764 (2020), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Here, the defendant did not assert the ineffective assistance claim through the preferred method, i.e., in a motion for a new trial. See Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 799 (2018), citing Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Nor did he submit an affidavit from counsel. Relief may be afforded on ineffective assistance claims brought on direct appeal “when the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Davis, 481 Mass. 210, 223 (2019), quoting Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015). This is not such a case.

Judgments affirmed.

FOOTNOTES

2.   As the mother was not designated the first complaint witness, the Commonwealth argued that her testimony was not relevant.

3.   Contrary to the claim in his brief, the defendant did not ask for a curative instruction. He acknowledged at oral argument that he realized his error after reviewing the Commonwealth's brief. In the future, counsel should correct such an error with the court. Mass. R. Prof. C. 3.3 (a) (1), as appearing in 471 Mass. 1416 (2015).

4.   This statement did, however, constitute irrelevant hearsay, see Adoption of Luc, 484 Mass. 139, 148 n.20 (2020) (“Hearsay is defined as an out-of-court statement offered to establish the truth of the words contained in the statement”), an issue not raised by the defendant. Although it would have been best left unsaid in the prosecutor's closing argument, it is unlikely that the jury would have given it substantive weight.