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Appeals Court of Massachusetts.



Decided: October 29, 2021

By the Court (Meade, Shin & Walsh, JJ.1)


After a jury trial in the Superior Court, the defendant was convicted of aggravated rape, assault by means of a dangerous weapon, and armed assault with intent to rob. The defendant now alleges errors in the prosecutor's closing argument, in the admission of statements contained in the victim's medical records, and in the admission of witness testimony violating the first complaint doctrine. We affirm.

Background. The jury could have found the following facts. In the summer of 2016, the victim created a profile on advertising her services as an escort. The defendant came across her page soon after. He called the victim, and the two set a time to meet, agreeing on a price of $200 for sex. On August 3 the victim, joined by a close friend and a neighbor, drove to meet the defendant at his apartment complex. She did not inform her friends of whom she planned to meet, or what she planned to do, simply telling them that she was going to pick up some money.

Upon meeting, the victim and defendant engaged in small talk, and the victim believed they were heading toward the defendant's apartment unit. But as they began to walk, the defendant grabbed the victim's arm and pulled out a gun. He began asking the victim where her money was and ordered her to undress. Still pointing the gun at the victim, the defendant began to rape her. Afterward, he demanded the victim hand over her phone and threatened to punch her in the stomach when she refused. The victim managed to flee. She ran to her friends in the car and informed them that she had been raped. Together, they drove to a nearby police station, and the victim was transported to a hospital for examination. Medical records from this examination were introduced at trial.

After an investigation, police arrested the defendant in November 2016. In addition to the victim's medical records, the evidence introduced at trial included: the victim's testimony, testimony of her friends in the car, one of whom served as the first complaint witness, and the testimony of police and medical personnel. The defendant testified at trial, claiming the intercourse was consensual.

Discussion. 1. Closing arguments. The defendant raises three claims of improper closing argument. Because he failed to object to the comments in question during trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001). In doing so, we examine the closing argument as a whole, the evidence presented at trial, and any instructions given by the judge. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016).

In their closing arguments, prosecutors “are entitled to marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Such inferences “need only be reasonable and possible.” Roy, supra. A prosecutor is likewise authorized to state the evidence in terms favorable to the Commonwealth and to respond to arguments made by defense counsel. See Commonwealth v. Anderson, 411 Mass. 279, 286 (1991). Finally, prosecutors may comment on the defendant's credibility and court room demeanor, so long as these arguments are based on the evidence or fair inferences drawn from it. See Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 52 (2003).

Our courts have outlined numerous tactics that are impermissible during closing argument. Among other prohibitions, prosecutors may not “play ․ on the jury's sympathy or emotions.” Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). A prosecutor has a “particular obligation” to argue the Commonwealth's case “in a way that states the evidence clearly and fairly and inspires confidence that the verdict was reached based on the evidence rather than sympathy for the victim.” Commonwealth v. Santiago, 425 Mass. 491, 494 (1997).

The defendant first argues that the prosecutor impermissibly inflamed the jury's sympathy by recounting the reason the victim made a Backpage profile. On direct examination, the prosecutor established that the victim turned to escorting to produce funds to bail her boyfriend out of jail so he could visit his dying father. As this evidence was properly before the jury, the prosecutor was entitled to marshal it in his closing. The statement was also permissible as a response to defense counsel's attack on the victim's credibility.2 In his closing, defense counsel suggested the victim fabricated the rape to avoid an impending payment obligation, owed to one of the passengers in the car. Such an attack entitled the prosecutor to provide additional context to explain the victim's behavior. See Anderson, 411 Mass. at 286. Even assuming portions of the argument improperly stoked the passions of the jury, they do not rise to the level of a substantial risk of a miscarriage of justice because they were merely a few sentences of a lengthy closing and were, given all of the facts in this case, inconsequential. Moreover, the judge provided thorough instructions to the jury which reminded them that closing arguments were not evidence and cautioned them not to be swayed by emotion. We presume the jury followed these limiting instructions. See Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).

Next, we discern no error in the prosecutor's comments about the defendant's lack of respect for women.3 The comments stemmed from two pieces of evidence introduced at trial: the defendant's own testimony on direct that he “[doesn't] even hit females” and a crude text message in which the defendant stated he was not ready to meet the victim because he was on the toilet. As stated supra, the prosecution may suggest inferences that the jury can draw from the evidence presented. The inference the prosecutor asked the jury to draw here may not have been especially strong, but it was reasonable and rooted in the evidence.4

The prosecutor's commentary surrounding the defendant's demeanor while testifying was likewise proper.5 The prosecutor simply asked the jury to assess the defendant's credibility based on his in-court behavior and on several other sources, including evidence that the defendant was deceptive when interacting with police.6 The prosecutor did not err in asking the jury to consider these factors in drawing a conclusion as to the defendant's credibility.

2. Admission of medical records. The defendant next contests the admission of statements in the victim's hospital records. The records included an “Emergency Department Report” and several forms related to collection of sexual assault evidence. The defendant takes issue with two entries from the Emergency Department Report: first, a statement that the victim “present[ed] in [the] ER by EMS after being sexually assaulted,” and second, a notation that she was “refer[red] to [a] sexual assault care clinic.”

We again review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Case law is clear that under G. L. c. 233, § 79, medical records relating to the “treatment and medical history” of a patient are exempt from the prohibition against hearsay. Whether to admit such records lies within the discretion of the judge, with the limit that the statements may not relate to the question of liability. G. L. c. 233, § 79.7 Our courts have “construe[d] G. L. c. 233, § 79, liberally,” Commonwealth v. Dargon, 457 Mass. 387, 394 (2010), admitting records that relate “directly and mainly” to a patient's medical history “even though ․ the facts recorded may have some bearing on the question of liability,” id., quoting Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998). The Supreme Judicial Court has drawn the line at “ultimate conclusions concerning the charged crimes,” making an important distinction between “conclusory fact[s] central to the jury's inquiry” and “physical observations from which inculpatory inferences flow” (quotations and citations omitted). Dargon, supra at 394-395. On this reasoning, the Dargon court found that preprinted language on a hospital form bearing the title “Sexual Assault Evidence Collection Kit” and referencing the words “assault” and “assailant” almost two dozen times qualified as an impermissible reference to culpability, though it did not rise to the level of a substantial risk of a miscarriage of justice. Id. at 396-398.

As an initial matter, the judge here admitted a form like the one at issue in Dargon with the victim's hospital records.8 Although the defendant does not challenge the admission of this form on appeal, in keeping with Dargon, we recognize that the same conclusory preprinted language should have been redacted. Nevertheless, we conclude that the oversight did not create a substantial risk of a miscarriage of justice.

As to the items the defendant does contest, we see no error. These entries do not implicate the concerns recognized in Dargon, because they do not contain official diagnoses or conclusions. Instead, they are more akin to observations “from which inculpatory inferences flow.” DiMonte, 427 Mass. at 242. See Commonwealth v. Concepcion, 362 Mass. 653, 654-656 (1972) (proper admission of hospital records containing tentative diagnosis of rape). Their slight bearing on the question of liability likewise poses no issue because both statements relate to the victim's medical history and treatment. The first notation in the record qualifies as medical history because it states the reason the victim came to the hospital and establishes what she was being treated for. The second notation is also admissible because, as a referral for additional services, it states the victim's course of treatment. We also note that the hospital records do not name the defendant as the assaulter.

3. Violations of the first complaint doctrine. Finally, the defendant argues that the testimony of numerous witnesses violated the first complaint doctrine. The first complaint doctrine prohibits evidence from more than one complaint witness in sexual assault cases. See Commonwealth v. King, 445 Mass. 217, 242-243 (2005). The purpose of this limit is to avoid “unfairly enhanc[ing] a complainant's credibility” and “prejudic[ing] the defendant by repeating for the jury the often horrific details of an alleged crime.” Id. at 243. However, evidence of other complaints is still permitted under the doctrine, if independently admissible.9 See Commonwealth v. Arana, 453 Mass. 214, 220-221, 229 (2009).

Because defense counsel failed to object, we again review for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). The defendant points to eight separate violations of the doctrine. But a review of the record suggests that no such violations occurred. The judge properly identified a single first complaint witness and instructed the jury accordingly. The remaining testimony in question was either struck sua sponte by the judge or was independently admissible. See Arana, 453 Mass. at 220-221, 229. In three instances, the judge struck the testimony and instructed the jury to disregard it, sufficiently mitigating the first complaint violation. The other witnesses in question properly testified to their observations of the victim's demeanor or to the nature of their interactions with the victim, as police and medical personnel, without reference to the content of her complaint. Also, the testimony was merely cumulative as it neither added any new information nor repeated “horrific details of [the] alleged crime.” King, 445 Mass. at 243. See Commonwealth v. Roby, 462 Mass. 398, 409-410 (2012) (no substantial risk of miscarriage of justice in cumulative first complaint testimony where, inter alia, “testimony was brief and provided no details of the alleged sexual encounters”). See also Arana, supra at 220-222, 226 (evidence of victim's demeanor after crime was independently admissible as was evidence surrounding “circumstances” and “timing” of first complaint and police involvement). Because this testimony was proper, the defendant's first complaint argument is without merit.

Judgments affirmed.


2.   The prosecutor stated, “[T]hat's the whole reason she was there in the first place, to help out a friend of hers who was on the verge of not being able to say goodbye to someone they loved, her boyfriend locked up with a father dying of cancer. He never said goodbye to that father, as you heard. She never got the money to help bail him out.”

3.   The prosecutor stated: “How did it strike you? How did it strike you? I never hit women. I don't even hit them. Were those the words, was that the behavior of someone who respects women that would never in a million years set this trap, had these goals? The text messages back and forth ․ are those the words of someone who respects women? They are not. They are not.”

4.   We find the defendant's suggestion that the prosecutor improperly engaged in propensity-based reasoning in making this comment to be without merit. Rather, the comment was a response to the defendant's claim that he respected women and would never hit them.

5.   Here the prosecutor stated, “So is it the reason we didn't have some truth out of Mr. McGowan during that interview because the detectives didn't narrow it down enough? Is that why? Or did he know exactly why they were there, why he was there and he was like, yikes, she reported it and someone believed her, and that's what was going through his mind? He knew exactly what was going on, and he was lying through his teeth. His testimony yesterday, did that strike you as honest? Did it? Or did it come off to you like the height -- or did he exude, rather, an absolute certainty, an unfounded confidence that you the jury would never, ever believe an escort over him?”

6.   When initially questioned by police, the defendant denied ever meeting the victim, claiming that she must have been mistaken about his identity.

7.   The term liability referenced in the statute includes criminal liability. Commonwealth v. Dargon, 457 Mass. 387, 394 (2010).

8.   This form was entitled “Form 2A Information Pertaining to Assault & Kit Tracking Form Provider Sexual Crime Report.”

9.   The Arana court aptly noted that the doctrine “is not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth's case-in-chief.” Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009).

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