Opinion
21-P-892
11-02-2022
COMMONWEALTH v. NICHOLAS DELGADO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The defendant was convicted after jury trial of indecent assault and battery on a person fourteen or over, G. L. c. 265, § 13H, the daughter of the woman he had been dating for five years. In this, his direct appeal, he raises a series of arguments. We address each in turn.
The defendant argues first that the judge should have instructed the jury that it was their prerogative to determine by a preponderance of the evidence whether the Commonwealth had met its burden of proof with respect to the authentication of certain electronic communications, text messages that the Commonwealth contended were sent by the defendant to the victim. Because no objection was made to the failure to give such an instruction, we review to determine whether there was any error and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Boiling, 462 Mass. 440, 452 (2012) .
The defendant did not object to the introduction of the text messages at trial, or challenge their authorship on cross-examination or in closing argument, though he did challenge authentication in a motion in limine. We think it is a fair reading of the case law that an instruction regarding authentication was therefore not required. See Commonwealth v. Oppenheim, 86 Mass.App.Ct. 359, 369 (2014). Even if such an instruction would have been appropriate, given the strong evidence of the defendant's authorship, including the content of the messages, we would conclude that there was no substantial risk of a miscarriage of justice from the judge's failure to give such an instruction sua sponte.
The victim's cousin was the first complaint witness. See Commonwealth v. King, 445 Mass. 217, 218-219 (2005). The victim's father was permitted appropriately to testify as to the victim's demeanor, behavior, and actions following the assault. On cross-examination the father testified, in response to a question from defense counsel about whether he came to Massachusetts in January 2019, "Yeah, after. After she told me what happened, yeah. Then I came."
There was no objection or motion to strike and, because the first complaint doctrine does not restrict the evidence that may be put in by the defendant, we see no error. See Commonwealth v. Murungu, 450 Mass. 441, 447 (2008) (first complaint doctrine does not bind defendants).
The defendant also complains about testimony that the father went to the "other court" "a couple of times" "for custody." There was no objection at trial. That the victim moved with her father to Texas, which is what necessitated the other court proceeding, was relevant to the credibility of her allegation against the defendant. The references to another court and the resulting change in custody, though, might create a risk that a jury would conclude that another court had already determined the defendant's guilt in this case. The trial judge instructed, "Ladies and gentlemen, you also did hear some testimony during this trial about custody and court and the question of how [the victim] ended up leaving Massachusetts and moving to Texas. I'm instructing you now that how that happened or whether or not the court was involved in that change of living has nothing to do with whether or not the defendant committed this particular offense. So the fact that there may have been court involvement surrounding who was legally in custody of [the victim], again, has nothing to do with the question of whether or not the defendant committed this offense, and you should not consider that as part of your deliberations."
We think that in this case the curative instruction was adequate to prevent a substantial risk of a miscarriage of justice.
The defendant next argues that there was error in the prosecutor's closing argument which suggested that the victim moving away with her father strengthened her credibility because she would not have done that if the assault had not happened. The defendant argues that this violates the rule that a prosecutor may not "suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify." See Commonwealth v. Cruz, 98 Mass.App.Ct. 383, 391-392 (2020), quoting Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008). Of course, that was not what the prosecutor was saying. He was saying that the victim's actions following the assault were consistent with its truth.
The defendant next argues that the prosecutor should not have referred to the defendant's "version of events" where he did not testify. But this was not a comment on his failure to testify, but rather to the defendant's admissions, of which there was evidence, made both orally and via text message.
Finally, the defendant notes, and the Commonwealth concedes, that there was an error in the judge's failure to provide a contemporaneous limiting instruction when the victim testified regarding her first complaint. There was no objection, and the judge gave a full, detailed, and proper instruction with respect to first complaint both when the first complaint witness testified, and again in the final charge. In these circumstances we conclude there was no substantial risk of a miscarriage of justice from the error. The judgment is affirmed.
So ordered.