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COMMONWEALTH v. Alexander BONILLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of aggravated rape of a child. See G. L. c. 265, § 23A. The rape occurred while the defendant was living with the victim's mother, a two year old son the defendant and the mother had together, and the eleven year old victim, who is not the defendant's child. On appeal, the defendant argues that he should have been permitted to introduce evidence of text messages that were described by counsel at trial as ones sent from the mother of the victim to the defendant's new wife about three months after the victim disclosed the sexual assault to her mother. At trial, defense counsel asserted that the text messages about a visit between the mother's son and the defendant, his father, showed that the mother allowed these visits even after her daughter's disclosure, and he argued that this behavior by the mother was inconsistent with the mother's apparent belief in her daughter's disclosure, as demonstrated by the mother driving her daughter from Vermont to Lawrence in order to report the rape. The text messages themselves were not placed in evidence; we treat this description of the text messages by counsel as an offer of proof.2
The judge found that the text messages were relevant only to the mother's belief in her daughter's credibility and held that such evidence was not a proper subject of cross-examination because the victim's credibility was a question for the jury alone. The judge, however, also indicated that if the door to such questions was opened by the mother's testimony on cross-examination, he would be willing to revisit his ruling at sidebar.
During cross-examination, in response to questions by defense counsel, the victim indicated that her mother had gone with her to see the police following her sexual assault disclosure. One possible implication of this is that the mother found the allegation credible. See Commonwealth v. Quincy Q., 434 Mass. 859, 874 (2001) (“we do not permit ․ any witness[ ] to comment directly or indirectly on the credibility of the complainant or any other witness” [emphasis added]). Nonetheless, defense counsel did not ask the mother on cross-examination a single question about her daughter's disclosure or the subsequent trip to the police station, nor did he renew the request to utilize the text messages to impeach her.
The defendant's position on appeal is somewhat confused. He does not contend that the judge erred in concluding that evidence of the mother's judgment of the daughter's credibility was inadmissible.3 The defendant argues on appeal not that the text messages should have been admitted to demonstrate the mother did not find the daughter credible, but rather because the mere fact of the text messages being sent between the mother and the defendant's new wife, regardless of its content, was admissible as evidence of “bias.”
At argument, however, counsel was unable to identify how the mere existence of messages between the two would demonstrate any such bias (beyond suggesting that the texts drew into question the mother's belief in her daughter's credibility, which is not true of the mere sending of text messages to the defendant's wife). Because the defendant thus has not shown that the mere fact of the sending of the text messages is relevant to any issue properly before the jury, the defendant is incorrect that there was any error in the judge's decision not to admit it. Consequently, the defendant's claim is unavailing.
2. There is a second set of text messages apparently at issue from an unknown person named “Kalyn” to another unnamed and unknown person. With no information concerning from whom it was sent, it has not been shown relevant to any issue in the case and will not be discussed further.
3. Even if it were admissible for this purpose, we could not conclude in these circumstances that there was reversible error, where counsel's decision not to raise the issue as permitted on cross-examination may well have been a reasonable tactical decision not to inquire about the mother's belief in her daughter's credibility. Prior to the mother's testimony, the victim was asked whether she was concerned when the defendant took his son, the victim's younger brother, out of the victim's mother's house for visits. She testified that she was not concerned because “parents usually try to make sure that their kids are not in harm's way at all” and that she was put in harm's way by the defendant because she was not his child. This may have given counsel second thoughts about pursuing this line of inquiry in cross-examination of the mother.
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