Opinion
No. 11–P–523.
2012-07-31
COMMONWEALTH v. Thomas CONSOLI.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was a Spanish speaking interpreter at the Boston Medical Center (BMC). He was charged with indecent assault and battery on two women patients, each fourteen years of age or older, in separate incidents on the same day. After a jury trial, he was convicted of indecent assault and battery on one victim, and of the lesser included offense of assault and battery on the other victim. On appeal, he argues that the cases were improperly joined; he also challenges the judge's instructions to the jury on first complaint and what inferences reasonably could be drawn from the fact that the cases were tried together. We affirm.
Background. The first victim testified that she went to the BMC for an MRI; the defendant was assigned to interpret for her and, while she was waiting, he told her that the procedure might cause damage to her uterus. He also said he needed to check if she had any metal on her bra. She told him there was no metal in her bra, but he pulled at it; her breast became exposed. The defendant then told her that he would have to check her belt; he grabbed her pants and started opening them. She resisted, holding onto her pants. The defendant also told her that there would be another exam afterwards to see if there was damage to her uterus. After the procedure, the defendant escorted the victim to a bathroom on a separate floor that he needed his security card to enter, and insisted that he accompany her into the bathroom. She refused to use the bathroom while he was present, so he left, and she locked the door. Later in the day, she asked her primary care physician if what had happened to her in the morning was “routine in the healthcare system.” That doctor, testifying as a first complaint witness, stated that the victim had told him that the hospital interpreter told her “he needed to check her bra to see if there was metal in the bra prior to the MRI, and also move the hands towards the pants, her pants.” The first victim also told the doctor that the defendant had accompanied her to the bathroom and that she had locked the door and waited until he was gone. The defendant did not object to the doctor's testimony or request a limiting instruction at that time.
The second victim testified that, on the same day, she was more than nine months pregnant and went to the BMC “to be induced for the delivery.” While she was in the labor room, the defendant came into the room with a nurse and interpreted the ensuing conversation. Both the defendant and the nurse left the room together; however, the defendant came back alone. He put his hand under the sheets and touched her “intimate parts and ask[ed her] where do you have your pain?” The second victim later asked a hospital aide, described as a “birth sister,” and the anesthesiologist “if an interpreter was authorized to feel or touch a patient.” The aide testified as a first complaint witness; she stated that the victim told her that “he pulled the gown up and touched her under the belly, and then he pulled the sheet down and touched her vagina.” The defendant did not object to this testimony or request a contemporaneous limiting instruction.
Discussion. The defendant first argues that the judge's failure to give a limiting instruction at the time that each first complaint witness testified created a substantial risk of a miscarriage of justice. While we agree that it would have been preferable to have given such an instruction at that time, we do not see a substantial risk of a miscarriage of justice. “[A]lthough a contemporaneous fresh complaint instruction is recommended, it is ‘not a strict requirement.’ Commonwealth v. Vieux, 41 Mass.App.Ct. 526, 533 (1996), cert. denied, 520 U.S. 1245 (1997). See Commonwealth v. Lorenzetti, 48 Mass.App.Ct. 37, 40–41 (1999) (although contemporaneous instructions were erroneous, error was cured by final instructions).” Commonwealth v. Edward, 75 Mass.App.Ct. 162, 166 (2009). In both instances, the first complaint testimony was brief and focused primarily on each victim's demeanor at the time of the conversation. Also, the defendant did not object to the first complaint instruction given at the end of the trial and does not challenge it here. We presume that the jury followed the judge's proper instruction in assessing the fresh complaint testimony. See Commonwealth v. Hernandez, 63 Mass.App.Ct. 426, 433 n.3 (2005).
The defendant next argues that the two charges were improperly joined for trial, contending that the crimes were not related. “The decision whether to join the cases is a matter committed to the sound discretion of the trial judge. Commonwealth v. Sullivan, 436 Mass. 799, 803 (2002). ‘[T]o prevail on a claim of misjoinder, the defendant “bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.” ‘ Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).” Commonwealth v. Enimpah, 81 Mass.App.Ct. 657, 662 (2012). “When offenses are related, ‘[t]he trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.’ “ Ibid., quoting from Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979).
The defendant was charged with assaulting two women on the same day in the same hospital; in each case, he was called to act as an interpreter for a woman who was not comfortable speaking in English and who faced a medical procedure. Also, in each case, the Commonwealth's evidence indicated that the defendant manipulated the situation to be alone with a vulnerable victim and then touched her sexually. These offenses show a common pattern of operation and are therefore related; minor discrepancies such as the nature of the scheduled procedure or the body part assaulted do not lead to a different conclusion. In addition, “evidence of one offense likely would have been admitted at a separate trial of the other.” Commonwealth v. Pillai, supra at 183. We are satisfied that the motion judge did not abuse his discretion in allowing the Commonwealth's motion for joinder. In addition, the defendant's argument that he was given insufficient opportunity to oppose the motion in the two separate hearings held on the matter is not persuasive.
Finally, the judge's instruction “to consider each complaint separately” was adequate. “We cannot [fairly] say ... that the absence of an unrequested instruction [not to infer from the fact of two complaints that the defendant had a propensity to assault women] in this case created a substantial risk of a miscarriage of justice because the absence of the instruction was not ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise’ had the instruction been given. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting [from] Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986).” Commonwealth v. Pillai, supra at 184.
Judgments affirmed.