COMMONWEALTH v. Robert SUNDBERG.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from his convictions of various charges,2 the defendant raises multiple claims of error in the admission or exclusion of evidence at trial, and contends that he received ineffective assistance of counsel. We discern no cause to disturb the judgments and affirm, addressing the defendant's various claims in turn.
First Complaint. The defendant asserts that the trial judge improperly allowed testimony from multiple first complaint witnesses.3
The first complaint doctrine allows the Commonwealth to call a witness to rebut the presumption that “the absence of a timely complaint suggests fabrication of the assault.” Commonwealth v. King, 445 Mass. 217, 240 (2005). The witness “may testify to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint.” Commonwealth v. Roby, 462 Mass. 398, 407 (2012), quoting King, supra. However, the court must protect against “piling on” and limit “the testimony to that of one witness who ․ will be the first person told of the sexual assault.” Roby, supra.
1. Testimony by victim's sister. The defendant contends that certain testimony by the victim's sister was duplicative of testimony offered by another first complaint witness. Specifically, the defendant cites testimony by the victim's sister that the victim told her that the defendant “forced [the victim] to do things while she was saying no.” The testimony was not first complaint testimony; as the trial judge observed in denying the defendant's motion for a mistrial, viewed in the context of the sister's entire testimony, the statement described general physical and emotional abuse of the victim and not a specific instance of sexual assault. See Commonwealth v. Murungu, 450 Mass. 441, 445 (2008) (exception to first complaint limitation “when, for example, the victim expresses to that person unhappiness, upset or other such feelings, but does not actually state that she has been sexually assaulted”). Therefore, we discern no abuse of discretion in allowing the testimony or in denying the defendant's motion for a mistrial.
2. Testimony by Captain Moran.4 There is no merit to the defendant's claim that the testimony of police Captain Brian Moran constituted impermissible first complaint testimony. Captain Moran's testimony described the investigation he conducted into the victim's allegations, and laid the foundation for text messages, obtained from the defendant's phone, which the Commonwealth admitted in evidence. Captain Moran did not offer commentary on, or otherwise corroborate, the victim's testimony. He referred to specific incidents only in relation to the steps he took to investigate those incidents.
3. Testimony by Gibbons and Spaulding. The defendant claims that the trial judge impermissibly allowed both State Trooper Genevieve Gibbons and Deborah Spaulding to testify as first complaint witnesses. While both Gibbons and Spaulding did, in fact, testify as first complaint witnesses, each testified to a separate assault; Spaulding's testimony related to an assault that occurred in April 2016, while Gibbons's testimony related to a separate incident that occurred about a year or two before the April 2016 incident. We discern no abuse of discretion because each witness testified to a distinct and separate incident occurring about a year apart, and the victim could not have disclosed the second incident to the first witness.5 The two incidents were separately charged, and could have been tried separately. See, e.g., Commonwealth v. Lewis, 91 Mass. App. Ct. 651, 659-660 (2017). There was no abuse of discretion. See, e.g., id. at 660.
Prior consistent statements. The trial judge did not abuse her discretion in admitting prior consistent statements by the victim, concerning assaults that occurred before the events the defendant suggested at trial gave rise to a motive for the victim to fabricate her allegations. “If ․ the witness's trial testimony is impeached by a claim of recent contrivance or inducement, a prior statement made before the witness had incentive to fabricate testimony is admissible to rebut the claim of recent fabrication, but not to prove the truth of the matter.” Commonwealth v. Wright, 444 Mass. 576, 583 (2005), citing Commonwealth v. Martinez, 425 Mass. 382, 396 (1997). While “we recognize the danger in admitting cumulative accounts of prior consistent statements,” the trial judge may do so when such testimony is relevant to rebut various claims of recent contrivance. Commonwealth v. Lessieur, 472 Mass. 317, 325-326 (2015) (three prior consistent statements describing same incident properly admitted to rebut claim of recent contrivance).
The defendant contends that he did not raise a claim of recent contrivance at trial and that, even if he did, admitting multiple prior consistent statements improperly bolstered the victim's testimony. We disagree. The defense theory of the case, as demonstrated by his opening statement and cross-examination of the victim, was that the victim had contrived her allegations of abuse due to her disappointment in the state of her relationship with the defendant in 2016. The defendant's claim of recent contrivance opened the door for the prosecution to offer prior consistent statements on the incidents occurring before 2016.
Prior sexual acts. The trial judge likewise did not err in denying the defendant's motion to admit evidence of the victim's prior sexual conduct, because such evidence is barred by the rape shield statute. See G. L. c. 233, § 21B. The rape shield statute prevents defendants from using a sexual assault victim's reputation for promiscuity to attack her credibility in sexual assault and rape cases. See Commonwealth v. Fitzgerald, 412 Mass. 516, 523, (1992). Evidence of specific incidents of a victim's sexual conduct is barred unless it is used to show (1) specific instances of the victim's sexual behavior with respect to the person accused of misconduct, (2) recent sexual behavior if offered to show that someone other than the accused caused the victim's injury, or condition, or (3) the exclusion would violate the accused's constitutional rights. See Mass. G. Evid. § 412(b) (2021). After hearing the evidence, it is for the trial judge to determine if the evidence is barred by the rape-shield statute. See Commonwealth v. Joyce, 382 Mass. 222, 231 (1981) (“[i]n the exercise of this discretion a trial judge should consider the important policies underlying the rape-shield statute”).
In the present case, each incident the defendant sought to admit in evidence at trial involved the victim engaging in sexual activity with others while in the presence of the defendant, not with him. The evidence accordingly does not fit within any of the exceptions created by the rape shield statute. In any event, even were we to conclude that the evidence fit within an exception to the statute, the trial judge did not err in her conclusion that the prejudicial effect of the evidence outweighed its probative value. The evidence of the victim's prior sexual behavior does more to portray the victim as promiscuous than to rebut the characterization of the defendant as someone who would fly into a jealous rage and become violent. This is precisely what the rape shield law is designed to prevent.6
Ineffective assistance of counsel. Finally, we reject the defendant's claim, raised for the first time on appeal, see Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), that he received ineffective assistance of counsel at trial, by virtue of counsel's failure to object to certain evidence. Neither failure cited by the defendant rises to the threshold of “serious incompetency, inefficiency, or inattention of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).7
2. The charges included rape, assault with intent to rape, strangulation, stalking, assault and battery on a family or household member, assault and battery, and malicious damage to a motor vehicle.
3. Relatedly, he also claims that the Commonwealth elicited first complaint testimony from a trial witness in direct violation of the judge's explicit instruction not to do so.
4. Moran was a lieutenant at the time of the investigation, but testified that he had retired at the rank captain by the time of trial.
5. We note that the victim's disclosure to Gibbons occurred before the defendant committed the rape the victim later disclosed to Spaulding.
6. We also note that the evidence has limited probative value, as it generally describes incidents that took place while the couple were out in social settings, whereas the sexual assaults occurred at home when the couple was alone, and after the victim had rebuffed the defendant's sexual demands.
7. In both instances, we have herein rejected the defendant's claims of error in the admission or exclusion of the related evidence. It was not ineffective for counsel to fail to raise an objection or to seek to admit evidence when doing so would have been unavailing. See Commonwealth v. Delong, 72 Mass. App. Ct. 42, 51 (2008).
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