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Appeals Court of Massachusetts.



Decided: October 27, 2021

By the Court (Desmond, Sacks & Grant JJ.1)


Convicted of two counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, the defendant appeals. He argues that his convictions should be reversed because: (1) the judge should have excused a juror for cause; (2) the victim testified on direct examination about why she did not tell her mother “what happened”; (3) the judge permitted the mother to testify that when the defendant was drunk he sometimes would not remember things; (4) the judge precluded the mother from testifying that another family member had been convicted of sexually assaulting children other than the victim; and (5) the prosecutor argued in closing from facts not in evidence, including that the mother was “not surprised” to learn of the victim's allegations. We affirm.

Background. When the victim was ten years old, she lived with her mother and the defendant, who was the mother's boyfriend. The victim did not get along with him; he was an alcoholic who drank almost every day, and she did not trust him.2

One evening in about September 2017, when the victim was in the kitchen preparing food, the defendant came up behind her with a strong odor of alcohol on his breath; he was drunk. He pressed his body against hers and put his hand on her upper thigh near her buttock. She turned, pushed him away, and said, “Get away from me.” He chuckled. A few seconds later, he came up behind her again, put his hand down her sweatpants and inside her underwear, and touched her vagina and rubbed her clitoris for more than a minute. Crying, the victim pulled a kitchen knife from a knife block and said, “If you do this again ․ I will kill you.” The defendant again chuckled. The victim locked herself in her bedroom and hid the knife under her pillow.

A couple of weeks later, the victim's mother found the knife and asked why it was in the bedroom. The victim said she felt unsafe, but did not disclose the sexual assaults. Shortly after that, the victim told a school counselor that she felt unsafe going home from school, but did not disclose the sexual assaults because she thought no one would believe her. On October 5, 2017, as a result of a physical altercation between the mother and the defendant, police came to the home, and the Department of Children and Families (DCF) removed the victim from her mother's custody.

About nine months later, the victim was with her grandmother in Maine and became upset when she saw other family members smoking cigarettes. The grandmother took her for a car ride and asked why she was upset; the victim replied that she did not like smoking and “[t]hings happened.” After a few minutes of silence, the victim disclosed that the defendant had burned her with a lit cigarette. When the grandmother asked if the defendant had ever touched her, the victim disclosed the sexual assaults.

Discussion. Juror's impartiality. The defendant argues that the judge did not adequately determine that a juror could be impartial in assessing the credibility of a child witness, and as a result reversal of the convictions is warranted.

During voir dire, the juror disclosed that she had relatives in law enforcement and that her college roommate had been sexually assaulted, but said those experiences would not affect her ability to be fair and impartial. Then the judge asked:

The judge: “Would you tend to believe the testimony of a child over that of any other witness, or would you wait to hear all of the evidence?”

The juror: “I would say I would probably believe the child.”

The judge: “Okay. So, if a child gets up would you automatically assume the person is telling the truth?”

The juror: “I'm sorry. Can you repeat that?”

The judge: “Would you automatically assume the child is telling the truth?”

The juror: “No.”

The judge: “Okay. And that's what I'm asking here.”

The juror: “Okay.”

The judge: “Would you be able to judge the credibility of that witness in the same way you would any other witness?”

The juror: “I think so.”

Defense counsel then asked:

Defense counsel: “The fact that this involves a child, do you think you would tend to be fair and impartial?”

The juror: “Emotionally, I feel like I can right now, but at 2:00 [p.m.], I can't say. I really can't say.”

Defense counsel: “But it could be uncomfortable for you to sit through that, though?”

The juror: “I don't know.”

Out of the juror's presence, this exchange ensued:

The judge: “[Defense counsel], any challenges for cause?”

Defense counsel: “I --”

The judge: “You're not asking if pregnant women are irrational, are you?”

The prosecutor: “It's going to happen.”

The judge: “Any challenges? No peremptory challenge?”

Defense counsel: “No.”

Because the defendant did not ask the judge to excuse the juror for cause, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Heywood, 484 Mass. 43, 45 (2020). The question whether a juror “stands indifferent,” G. L. c. 234A, § 67A, “turns on credibility and is the province of the trial judge.” Commonwealth v. Leahy, 445 Mass. 481, 497 (2005). The judge had the opportunity to assess the juror's demeanor and tone of voice in responding to his questions. Based on that information, and the juror's response “I think so” after the judge asked if she could assess a child witness's credibility like that of any other witness, the judge did not abuse his discretion in ruling that she was impartial. Cf. Commonwealth v. Kennedy, 478 Mass. 804, 817 (2018) (judge discretionarily denied challenge for cause to juror who answered “I believe so” to question whether she could be fair to defendant); Commonwealth v. Rios, 96 Mass. App. Ct. 463, 470 (2019) (juror's use of “seemingly equivocal” language did not require judge to excuse for cause [citation omitted]). The judge's appropriate exercise of discretion is further shown by his having excused for cause nine other prospective jurors who expressed that they would have difficulty remaining impartial, either because of the sexual nature of the case or the fact that it involved testimony from a child. See Kennedy, supra at 817 n.8. Nor did the juror's somewhat more ambivalent responses to defense counsel's questions require the judge to excuse the juror, or even to inquire further, absent a challenge for cause. See id. at 818. We perceive no substantial risk of a miscarriage of justice.

Victim's reasons for delaying disclosure. The defendant argues that the judge erred in permitting the victim to testify, over objection, that she did not tell her mother “what happened” because she did not trust the mother and thought that the mother would think she made up the accusation to “get rid of” the defendant. The defendant objected to that question, but did not argue, as he contends here, that the evidence it sought to elicit would violate the first complaint doctrine, see Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied, 546 U.S. 1216 (2006). Because he did not raise that argument at trial, he arguably did not preserve his claim for appellate review, in which case we would review the issue for a substantial risk of a miscarriage of justice. See Commonwealth v. Kebreau, 454 Mass. 287, 297 (2009). Even were we to review for prejudicial error, we would find none.

Under King, the first complaint witness “may testify to the details of the alleged victim's first complaint of sexual assault,” 445 Mass. at 243, and the alleged victim “may also testify to the details of the first complaint (i.e., what [she] told the first complaint witness) and also why the complaint was made at that particular time.” Id. at 245. It is doubtful that the victim's testimony about why she did not tell her mother “what happened” amounted to any “details” describing a “sexual assault” within the meaning of King.

Beyond that, the victim's testimony about why she did not disclose the sexual assaults to her mother was admissible to rebut the suggestion, raised by the defense throughout the case, that the victim was not credible because she did not disclose them sooner. In opening, defense counsel told the jury that they would hear evidence that the victim never told her mother or her school counselor about the sexual assaults. On cross-examination of the victim, counsel emphasized the many opportunities that the victim had to disclose the sexual assaults to others, including friends and the school counselor. Called by the defense, the mother testified that she had a “very close” relationship with the victim, who was “very” open with her and would confide secrets in her, but the victim never confided that she was having any problems with the defendant. The mother also testified that the walls were “very, very thin,” but she never heard the victim yell at the defendant. In that context, the victim's testimony about why she did not tell her mother about the sexual assaults was admissible to counter the defendant's intimation that the victim's failure to tell her mother showed that her allegations were not credible. See Commonwealth v. Aviles, 461 Mass. 60, 69-70 (2011). See also Commonwealth v. Hoime, 100 Mass. 266, 275-276 (2021) (direct testimony as to victim's initial decision not to report rape admissible to explain delay in testing forensic evidence, anticipating fabrication defense).

Testimony that defendant would not remember things when intoxicated. The defendant finds fault with the judge's ruling permitting the mother to testify that when the defendant drank alcohol, he would sometimes forget things. On cross-examination, the prosecutor asked the mother if the defendant “would drink to the point that he was drunk and often would not remember things.” Over objection, the mother answered, “Sometimes.” The defendant contends that the question called for an expert opinion which the mother was not qualified to give, and was irrelevant because the mother did not testify that the defendant was drunk on the date of the sexual assaults. We disagree.

The symptoms of alcohol intoxication are a matter within the common knowledge of a lay witness or juror. See Commonwealth v. Canty, 466 Mass. 535, 541-542 (2013). See also Mass. G. Evid. § 701 (2021). The mother testified that she was in a romantic relationship with the defendant for two and one-half years, and they lived together for at least seven months, during which he drank almost every day. Her observation that when he was drunk he would not remember things was a “ ‘summary description[ ] ․ based on the sensory reactions of [a person] ․ and [did] not [require] special learning or experiment.’ ” Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 330 n.43 (2010), quoting Commonwealth v. Brusgulis, 41 Mass. App. Ct. 386, 390–391 (1996) (witness's testimony that she could understand defendant, he seemed to understand her, and his speech was lucid and coherent did not require special expertise).

Moreover, the mother's testimony was cumulative of other evidence. The victim testified, without objection, that when the defendant consumed alcohol “he didn't remember a lot of things the next day when he was sober.” She also testified that he was drunk at the time of the sexual assaults, and so the mother's testimony about his daily drinking and its effect on him was relevant. The defendant introduced the records of his stint in an alcohol rehabilitation facility from September 28 to October 3, 2017, to show that he had moved out of the victim's home by then. The judge did not abuse his broad discretion, see L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), in ruling to admit the mother's testimony about her observation that when the defendant was drunk he sometimes would not remember things.

Exclusion of testimony about another family member's sexual assaults of other victims. The defendant also argues that the judge improperly precluded him from asking the victim's mother on redirect examination about another family member who had been convicted of sexually assaulting children other than the victim. At sidebar, defense counsel told the judge that another family member had been convicted of sexually abusing other children, that this victim had denied that that family member had ever sexually assaulted her, and that defense counsel had no evidence that that family member had abused the victim. Even so, defense counsel maintained that the mother's testimony about the other family member's conviction was admissible to rebut the mother's testimony, elicited by the prosecutor, that the victim would sometimes keep secrets from the mother; to show the victim's “propensity of not telling the truth ․ [t]o the mother”; and to show that the victim had used the knife to deface a photograph of that family member. The judge sustained the objection, ruling that absent any evidence that the other family member abused this victim, the testimony was inadmissible, and the mother could not opine on the victim's truthfulness.

The judge's ruling was not an abuse of his discretion. See L.L., 470 Mass. at 185 n.27. Whether the mother believed the victim told her the truth was not a proper subject for testimony. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 5 (2019). And contrary to the defendant's claim on appeal, even assuming that the mother would have testified that the victim said she used the knife to deface the family member's photograph, the judge acted within his discretion in ruling that the prejudicial impact of that testimony would have outweighed any probative value. See Commonwealth v. Dabney, 478 Mass. 839, 859, cert. denied, 139 S. Ct. 127 (2018) (invoices for Internet prostitution advertisements inadmissible to impeach witness; absent information about website's billing practices, evidence would be “too confusing”).

Prosecutor's closing argument. Finally, the defendant argues that the prosecutor's closing argument was improper in two respects. First, he contends that the prosecutor misstated the evidence by saying that the mother testified that she “wasn't surprised to find out that [the defendant] had sexually assaulted her daughter,” when in fact the mother had testified that she was not surprised that the victim made “some type of allegation” against the defendant, but she was “quite surprised” to learn recently that the victim had alleged that the defendant had touched her upper thigh and vagina. The defendant objected to the argument, and requested a limiting instruction. The judge responded that each of the closing arguments had characterized the testimony differently and so “the most [he] would say” was that it was up to the jury to decide what the testimony had been. The defendant did not suggest that this instruction would be insufficient.

During his charge, the judge instructed that the jurors were the sole and exclusive judges of facts, closing arguments are not evidence, and the jurors’ memory of the testimony controls. The defendant did not object or ask for a more pointed curative instruction. Therefore, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). That question turns on whether we have “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

As in many sexual assault cases, the verdicts here depended on whether the jury believed the victim. See Beaudry, 445 Mass. at 586. Whether the mother was surprised by the victim's allegation was, at best, a collateral issue. And in his own closing, defense counsel argued that the victim's mother “was shocked by the allegation,” and “[s]he didn't believe” it. While the prosecutor may have misstated the mother's testimony, we must accord the jurors “ ‘[a] certain measure of ․ sophistication in sorting out excessive claims’ in closing arguments.” Commonwealth v. Andre, 484 Mass. 403, 419 (2020), quoting Commonwealth v. Taylor, 469 Mass. 516, 529 (2014). Although a more specific curative instruction “would have been the better course,” the ones the judge gave sufficiently mitigated the error. Commonwealth v. Lester, 486 Mass. 239, 249 (2020). We take further assurance that the error did not affect the outcome of the case from the fact that the jury acquitted the defendant of burning the victim with the cigarette. See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001).

Second, the defendant contends that a substantial risk of a miscarriage of justice arose when the prosecutor argued in closing that someone who drinks as much alcohol as the defendant “do[es]n't have memory of everything that happens” and “may do things that are harmful to other people, or violent, or aggressive, and that's exactly what happened here.” That argument was grounded in the evidence of the defendant's alcohol consumption, as well as the testimony of the victim and her mother about how he acted when drinking. Beyond that, the effects of alcohol consumption are within the common knowledge of jurors. See Commonwealth v. Valentin, 474 Mass. 301, 310 (2016) (prosecutor properly urged jurors to rely on own experiences in evaluating effect of alcohol on defendant's ability to shoot gun).

Judgments affirmed.


2.   The victim testified that in September 2017, the defendant came into her bedroom, smelling of alcohol, and burned her ankle with a lit cigarette. The defendant was charged with and the jury acquitted him of assault and battery by means of a dangerous weapon.

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