COMMONWEALTH v. JULIUS SANDERS (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant, Julius Sanders, was found guilty of rape, G. L. c. 265, § 22 (b). His defense, presented through cross-examination and closing argument, was that the complainant, Vaeda,¹ had consented to intercourse. On appeal, the defendant argues that (1) the trial judge's refusal to allow the defendant to present evidence of the statements of a deceased witness deprived him of due process and the ability to present evidence; (2) the judge erred by allowing impermissible complaint testimony from multiple witnesses; (3) the judge made errors in her preliminary instructions; and (4) the confluence of errors necessitates a new trial. We affirm.

Background. 1. Trial evidence. The jury could have found the following facts. Vaeda spent the evening of August 22 and into the morning of August 23, 2017, socializing, drinking wine, and consuming cocaine with several people, including Fabien Roche, Angela Devine, and the defendant, among others, first at a friend's apartment and then in Vaeda's apartment. After all the guests left Vaeda's apartment, she fell asleep between midnight and 1 A.M. Later, Roche and the defendant returned to Vaeda's apartment, where the three consumed more cocaine. The defendant left again, at which point Vaeda and Roche had consensual sex in the living room. Afterwards, Roche slept in the living room, and Vaeda, after donning pajamas consisting of a tank top and shorts, slept alone in her bed in her bedroom.

Vaeda testified that in the early hours of August 23, 2017, she woke to someone pressing on her back. She thought at first that it was Roche but realized quickly that it was the defendant. He pulled down her shorts and inserted his penis into her vagina from behind. Vaeda testified that she told him “no” and that he was hurting her, but he proceeded to have intercourse with her without her consent. At one point, the defendant repositioned her to face him, and she said “stop” and tried to punch him. The defendant repositioned Vaeda face down on the bed and again inserted his penis in her vagina. She told him “to stop hurting me, I can't breathe,” and he continued, “aggressively” and “roughly.” After the defendant got off Vaeda, he said, “Don't go around telling anybody I raped you.” She responded that he did. The defendant left the room while Vaeda stayed in bed, because she was afraid, she could not breathe, and she felt light-headed and disgusted. After she heard the defendant leave, she texted her ex-husband and called Luis Felicier.

2. Statements of the deceased witness. At trial, Vaeda testified that she did not know if anyone else was present in her apartment during the relevant time besides herself and the defendant. She told Malden police Sergeant Peter Mitchell that she “heard” Devine might have been there. Roche testified that on the morning in question, the defendant and Devine had returned to Vaeda's apartment and woke Roche. He then left hurriedly because he was late for work. Devine was unable to be called as a witness at trial because she died.

a. Devine's police interview. In a telephone interview with the police five days after the incident, Devine stated that she left Vaeda's house and went to buy cigarettes with the defendant. When they arrived at the store, neither of them had money, so they returned to Vaeda's apartment. The defendant told Devine to wait outside while he went upstairs to get cigarettes. Devine stated that the defendant was gone for a long time; after a while she also went upstairs. She recalled one male was in the living room, and the defendant “walk[ed] out of [Vaeda]'s bedroom wearing 'black boxers.'” Devine was able to see in Vaeda's bedroom and saw Vaeda's “feet up to her thigh” and could “tell [Vaeda] was naked.” Devine explained that she “didn't think nothing of it” because she “though [sic] it was normal sex.” The defendant did not say anything to her; he gave her three cigarettes and walked her home.

b. Devine's grand jury testimony. Devine testified before the grand jury that she and a Black man (the defendant) went back to Vaeda's apartment for cigarettes. He told her to wait outside but it was taking a long time so she entered the apartment. She saw the defendant in black checkered boxers in the doorway of Vaeda's bedroom. She saw the other Black guy (Roche) as well. She also testified that she saw Vaeda lying on her bed and “looking like she was sleeping or something” and that she was wearing pajama shorts. To the extent Devine described her perceptions, she said “something just felt strange but I just -- because you know the guy was in his boxers and she was just like laying on the bed and I just grabbed the cigarettes and left.” She said it was “kind of blurred and mixed up to me” “[b]ecause it happened a while ago.” She did not testify that she “didn't think nothing of it” because she “though [sic] it was normal sex.”

Discussion. 1. Hearsay statement. At trial, the defendant attempted to admit a portion of the statement Devine made during the telephone interview with the police. The telephone interview was hearsay because the defendant sought to prove the truth of statements Devine made out of court, i.e., to prove that the defendant and Vaeda had “normal sex” and Devine “didn't think nothing of it.” See generally Mass. G. Evid. § 801 (2022).² Commonwealth v. McCowen, 458 Mass. 461, 485 (2010). Therefore, the defendant could only offer the telephone interview if it fell within an exception to the rule against hearsay. Commonwealth v. Rice, 441 Mass. 291, 305 (2004); Mass. G. Evid. § 802.

a. Constitutional exception. For a statement to be admissible under the “narrow, constitutionally based exception to the hearsay rule,” the defendant must establish both that (1) it “[i]s critical to [the defendant's] defense” and (2) that it “bears 'persuasive assurances of trustworthiness.'” Commonwealth v. Drayton, 473 Mass. 23, 25, 36 (2015), S.C., 479 Mass. 479 (2018), quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The application of the exception is a highly-fact intensive inquiry. Commonwealth v. Steeves, 490 Mass. 270, 282 (2022); Drayton, supra at 37.³ “Where the exclusion of evidence involves constitutional dimensions, we examine the judge's decision independently, under a standard higher than that of abuse of discretion” (quotation and citation omitted). Steeves, 490 Mass. at 276.

The trial judge assumed without deciding that Devine's statement was critical to the defendant's defense, but held it lacked the persuasive assurance of trustworthiness. We agree with the judge's conclusion that the police interview statement is “not the 'rarest of cases' warranting the application of the constitutionally based hearsay exception.” Steeves, 490 Mass. at 283. Devine's statement to the police suffered from a number of defects: the statement indicates Devine arrived in the apartment after the incident, there were inconsistencies between the police interview and grand jury testimony, and the statement lacked sufficient corroboration.

The defendant argues that because Devine stated she “thought it was normal sex,” she saw the act. Devine's statement to the police, however, indicates that she was not in the apartment during the incident. Devine told the police that after the defendant entered Vaeda's building, she waited outside “for a while,” and that when she entered the apartment the defendant was walking out of Vaeda's bedroom in his boxers. She looked in the bedroom and saw Vaeda's “feet up to her thigh.” Nothing indicates that she was present when the defendant and Vaeda were interacting or heard any conversation between them, about consent or otherwise.

To the extent that the defendant is relying on the statement that Devine “though [sic] it was normal sex,” he has failed to show this was any more than surmise on her part where she arrived after-the-fact. There was corroboration that Devine was in the apartment at some point on the morning of August 23, 2017, but the statement about “normal sex” is not “corroborated by some other evidence in the case,” and Devine's statements were not consistent on multiple occasions over time. Steeves, 490 Mass. at 282-283. Rather, Devine's statements changed between the police interview and her grand jury testimony. See Commonwealth v. Deconinck, 480 Mass. 254, 262 (2018) (witness's statement to police did not bear persuasive assurance of trustworthiness when it conflicted with witness's grand jury testimony and he disavowed statement).

First, during the grand jury testimony, Devine did not repeat her statement about “normal sex.” Instead, she testified that “something just felt strange.” Second, during her grand jury testimony, Devine stated she could see Vaeda from the waist down, that she was wearing “pajama shorts,” and that it appeared Vaeda was sleeping. Yet during the police interview, Devine stated that she could see Vaeda's “feet up to her thigh” and knew that Vaeda was “naked.”

Accordingly, we agree with the trial judge that the defendant failed to establish that the narrow, constitutionally based exception to the hearsay rule applied in these circumstances.

b. State of mind exception. The defendant argues in the alternative that the statement was admissible not for its truth (that the sex was “normal”) but only for Devine's state of mind; that, “upon seeing the act,” she was not alarmed for her friend.⁴ We discern no abuse of discretion in the judge's ruling. See Commonwealth v. Rosa, 468 Mass. 231, 237 (2014).

The defendant contends that Devine's statement was admissible pursuant to Mass. G. Evid. § 803(3)(B)(i): “Statements of a person as to his or her present friendliness, hostility, intent, knowledge, fear, or other mental condition are admissible to prove such mental condition.” See Commonwealth v. Aviles, 461 Mass. 60, 69 (2011), quoting Commonwealth v. Arana, 453 Mass. 214, 225 (2009) (“[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case”). Only a statement that is about a “'present' (i.e., current) mental condition is excepted from the hearsay bar.” Commonwealth v. Caldron, 383 Mass. 86, 91 n.4 (1981). See id. (statement made minutes after alleged robbery close enough in time to event to “qualify as present”). See also Commonwealth v. Garrey, 436 Mass. 422, 437 (2002) (statements made after defendant ran across street following deadly fight, engaged in second altercation, and was placed in handcuffs not admissible to prove his “present intent, knowledge, or other mental condition” because “they followed the incident”). In addition to satisfying the technical requirements of the hearsay exception, any state of mind evidence must be relevant to be admitted. See Commonwealth v. Trotto, 487 Mass. 708, 727 (2021). See also Mass G. Evid. § 803 note (“Evidence of a person's state of mind, whether hearsay [and offered under this exception] or nonhearsay, is admissible only if the state of mind is relevant”).

Here, Devine's statement, made five days after the event, was not “present” or “current,” and does not fall within the exception. Moreover, Devine's state of mind was not relevant to the sole issue at trial: whether Vaeda consented to intercourse with the defendant. It also added nothing to the existing evidence that Vaeda was lying in bed after the incident, though Vaeda testified that she stayed in bed out of fear, after the defendant said not to tell anyone he raped her and Vaeda said that he had.⁵ We discern no error in excluding the evidence.

2. First complaint. The defendant claims error in various violations of the first complaint doctrine set forth in Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006), and its progeny. Under the first complaint doctrine, a victim of a sexual assault, and the first person they told of the sexual assault, may testify to the details of the victim's first complaint as part of the Commonwealth's case-in-chief. Id. at 242-245. The Commonwealth is limited to one first complaint witness. Id. at 242-243. This is to prevent repetition of the fact that there were multiple complaints, which “may unfairly enhance a complainant's credibility as well as prejudice the defendant.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008), quoting King, supra. “Other witnesses may not testify to subsequent complaints unless their testimony is independently admissible.” Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 274 (2021).

The defendant challenges the testimony of four witnesses, arguing that statements by each amounted to “piling on” of sexual assault complaint testimony. We address each in turn applying the following standards of review. Where the defendant objected to the admission of the evidence, we will determine if there was an error, and if so, whether it was prejudicial. Aviles, 461 Mass. at 72. Where there was no objection, our review is limited to determining whether an error occurred and, if so, whether it created a substantial risk of a miscarriage of justice. Id. “A substantial risk of a miscarriage of justice exists when we have 'a serious doubt whether the result of the trial might have been different had the error not been made.'” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002). “Errors of this magnitude are extraordinary events and relief is seldom granted.” Randolph, supra.

a. John Lanni, Jr. Malden police Sergeant “Jack” Lanni testified during the Commonwealth's case-in-chief that Vaeda identified the defendant's picture in a photograph array and said, “That's him” and “He -- he raped me.” Defense counsel objected and moved to strike the second statement. The trial judge properly sustained the objection and struck the statement, stating, “All right. We'll strike the last portion of it. [Vaeda] identified the [d]efendant.” There was no error and no prejudice, where the judge struck the inadmissible portion of the answer and, as part of the final charge, repeated her preliminary instructions to the jury that “[o]bjections to questions are not evidence, nor is any answer that I ordered to be stricken from the record or told you to disregard.”

b. Luis Felicier. Luis Felicier also testified for the Commonwealth.⁶ Three times during his direct examination he offered nonresponsive answers, stating that Vaeda told him she was raped. On all three occasions, the judge sustained defense counsel's objection. The second time, the judge struck Felicier's answer from the record. On the third occasion, the defendant again objected and moved for a mistrial. The judge declined to declare a mistrial, again instructed the jury to disregard the answer, gave a curative instruction, and admonished the witness in front of the jury. Thus, the judge carefully and immediately acted to strike the improper testimony. Given this strong response as well as the final charge to the jury, and because “[t]he jury are presumed to follow instructions to disregard testimony,” Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005), we discern no prejudice to the defendant. See Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).

c. Laura Donnelly and Keturah Edwards. Laura Donnelly, an emergency medical technician for an ambulance company, testified about being dispatched to Vaeda's apartment on the morning of August 23, 2017. At the start of Donnelly's testimony, the prosecutor asked her not to “go[ ] into everything” Vaeda told her but “focus[ ] on what you were told for the purposes of assessing her for treatment purposes.” At that point, the judge had a sidebar discussion in which counsel agreed that the prosecutor could lead Donnelly through the “basic[ ] ․ physical fact[s] of what happened.” The prosecutor then led the witness through Vaeda's statements about the physical facts of the attack, as agreed, including that Vaeda told Donnelly “she was restrained from behind,” “she attempted to fight off” the person, “that individual was attempting to have sex with her,” “she was unable to fight that individual off,” and the person “stuffed her head into the pillows.”

Keturah Edwards, the Sexual Assault Nurse Examiner (SANE) nurse, also testified, about examining Vaeda on August 23, 2017. The prosecutor was similarly permitted to lead Edwards. Edwards testified that Vaeda reported asking “the assailant” to “stop,” that “[s]he began to hit him, asking him to put her down,” and that “the assailant flipped the patient down on the bed, face-down, and then inserted his -- opened her legs and then inserted his penis into her vagina again.” Defense counsel did not object to these statements. Later, defense counsel used “assailant” in his questioning of Edwards. On cross-examination, Edwards testified that the injuries she observed on Vaeda could have been caused by consensual intercourse.

“[T]o be properly admitted, any testimony containing an embedded report of sexual assault, other than the complainant's first complaint, must serve an admissible purpose other than to corroborate the complainants' testimony as to the specific assaults that (allegedly) took place.” Arana, 453 Mass. at 231-232. The defendant acknowledges that statements made for the purpose of medical treatment are admissible. Mass G. Evid. § 803(4).⁷ “'[F]act-specific references to the reported cause of [a person's] injuries' made for purposes of obtaining medical treatment” are also admissible, “even though 'incidental to liability.'” Commonwealth v. Dargon, 457 Mass. 387, 396 (2010), quoting Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).

The defendant argues for the first time on appeal that some of the statements from both Donnelly and Edwards went beyond that necessary for medical treatment and were therefore impermissible first complaint testimony. To the extent the testimony served the purpose of guiding the examination of Vaeda's physical condition, it was proper. Commonwealth v. DeOliveira, 447 Mass. 56, 62 (2006). While some of the testimony went beyond what was strictly necessary to provide medical treatment, such as Vaeda's statement that she said “no” to intercourse, we do not discern a substantial risk of a miscarriage of justice.

As in Commonwealth v. McCoy, 456 Mass. 838, 850-851 (2010), the main issue in this trial was consent, and Vaeda's credibility was the prime focus. The defense capitalized on inconsistencies in Vaeda's testimony generally and specifically during the cross-examination of Donnelly and Edward. During his opening statement, defense counsel suggested to the jury that Vaeda changed her story and said different things to different people throughout the case. Subsequently, during closing argument, defense counsel detailed inconsistencies in Vaeda's testimony, such as whether the defendant ripped her shorts off, whether the defendant offered to cuddle afterwards, and how the defendant separated her legs. “In short, the inconsistencies contained in the various versions of the victim's statements were a cornerstone of the defense. Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant.” Id. at 851.⁸

3. Preliminary instructions. The defendant argues that the judge erred in her preliminary instructions to the jury. Because there was no objection, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Silva, 482 Mass. 275, 287 (2019). To determine whether there was error, “we consider the charge, taken as a whole, and assess the possible impact of [an] alleged error on the deliberations of a reasonable juror, i.e., whether a reasonable juror could have used the instruction incorrectly.” Id. at 288, quoting Commonwealth v. Rosa, 422 Mass. 18, 27 (1996).

First, the defendant argues the judge erred by not precisely following the model criminal jury precharge instructions when, instead of instructing the jury that the indictment was “not evidence in this case,” the judge instructed that “an indictment is not, in and of itself, evidence of anything.” Relying on the precharge instructions provided by the Suffolk Superior Court,⁹ the defendant claims the judge inserted four additional words -- “in and of itself” -- that changed the meaning of the instructions. The problem is that the defendant is relying on instructions published on October 1, 2021, which was after this 2019 trial. The instructions the judge gave were nearly identical to Instruction § 1.1.1 of the Massachusetts Superior Court Criminal Practice Jury Instructions (Mass. Cont. Legal Educ. 3d ed. 2018), which states “an 'indictment,' is not itself any evidence of guilt.” In any event, the judge's instructions were not an error, and certainly not prejudicial. See Commonwealth v. Millyan, 399 Mass. 171, 186 (1987) (“This was not the most accurate statement of the law, but it hardly created any serious prejudice to [the defendant]”). This is especially true where the preliminary instructions also explained that the judge would provide a more detailed final charge at the conclusion of the trial, and, during the final charge, the judge emphasized the presumption of innocence and again instructed the jury that “[a]n indictment is not evidence.”

Second, the defendant challenges the judge's three-sentence descriptions of the presumption of innocence, burden of proof, and standard of proof beyond a reasonable doubt. The defendant does not claim that any of these statements were inaccurate; he argues instead that these instructions were far less fulsome than the model instructions. Again, the defendant's argument is based on a version of model instructions that did not yet exist at the time of trial, and while it may have been better practice to read the full model instructions then in use, this is not a basis for reversal. The statements were accurate, and the judge reminded the jury that the preliminary instructions were merely an overview of the law and a complete delineation of the concepts would be provided at the close of the trial. Further, the judge in fact provided a comprehensive instruction on reasonable doubt in her main charge, at which time she made it plain that the later charge was meant to augment the preliminary instructions. See Commonwealth v. Walker, 68 Mass. App. Ct. 194, 204 (2007).

4. Cumulative error. Finally, the defendant maintains that the alleged errors cumulatively created a substantial risk of a miscarriage of justice. Given our conclusions herein on the underlying alleged errors, there was no cumulative effect.

Judgment affirmed.

FOOTNOTES

1.   A pseudonym.

2.   For all citations to the Massachusetts Guide to Evidence, we cite to the current version of the Guide, whose provisions are the same as those in effect at the time of trial.

3.   Courts consider certain elements in determining that the second prong is satisfied: “hearsay that fails to satisfy the technical requirements for a traditional hearsay exception, but nevertheless appears to fall within the rationale for such an exception; hearsay that is corroborated by some other evidence in the case; and hearsay offering a consistent account on multiple occasions over time.” Steeves, 490 Mass. at 282-283, citing Drayton, 473 Mass. at 37-38.

4.   To the extent that the defendant's brief refers to the “present sense impression” exception to the hearsay rule, Massachusetts does not recognize that exception. Mass G. Evid. § 803(1).

5.   The defendant's argument also contravenes a longstanding tenet of Commonwealth law -- that there is no uniform way a victim should react after a rape, particularly while still in the same room as the rapist. As the Supreme Judicial Court explained decades ago, the courts have long expressed skepticism “of the view that victims of rape should be expected to speak out about the attack shortly after it occurs” and acknowledged that “the opposite may be true.” Commonwealth v. Lavalley, 410 Mass. 641, 646 n.7 (1991), overruled on another ground by Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006).

6.   The Commonwealth did not designate Felicier (or anyone else) a first complaint witness.

7.   The rule extends to health care professionals other than physicians. Bouchie v. Murray, 376 Mass. 524, 527–528 (1978).

8.   Similarly unavailing is the defendant's argument for the first time on appeal that he was prejudiced by Edwards's use of the term “assailant.” Edwards never identified the defendant as the assailant, and the defendant used the term as well before eliciting from Edwards that the injuries she saw on Vaeda could have occurred during consensual intercourse.

9.   The defendant is relying on the model criminal jury precharge instructions available on the Superior Court's website, https://www.mass.gov/guides/superior-court-model-jury-instructions.