Opinion
14-P-1428
03-16-2016
COMMONWEALTH v. GARY GRAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of indecent assault and battery on a child and rape of a child, alleging that he was denied the effective assistance of counsel, that the judge erroneously allowed testimony by a subsequent complaint witness and erroneously instructed the jury on consciousness of guilt, and that an expert improperly vouched for the victim's credibility. We affirm.
Background. In July of 1989, the defendant was arraigned on indictments charging him with indecent assault and battery on a child and rape of a child. The alleged victim was the defendant's daughter. Trial was scheduled to begin on March 22, 1990, but the defendant failed to appear. His bail was forfeited, and the case lay dormant until August 18, 2011, when the defendant was taken into custody following a traffic stop. The default was removed, and the case proceeded to trial.
At trial the victim, then thirty-three years old, testified that her parents separated when she was six or seven years old. After the separation, she would visit the defendant on weekends. The victim described numerous occasions of sexual intercourse between her and her father and numerous indecent assaults upon her person by her father during this time. In 1989, after a "safe touch" class at her elementary school, the victim disclosed the sexual abuse.
The victim testified that she lived in foster homes and had no contact with the defendant from the time that she was nine until she was eighteen. When she was around twenty years old, she began speaking with the defendant over the telephone, and for six weeks he sent her $200. The victim stated that she discussed the abuse with the defendant many times in the three years preceding trial, and that he minimized the assaults. Over the weekend before trial, the defendant offered to pay any court fees for the victim if she would not appear at trial.
The victim testified that she had been told three times by the defendant "that it only happened once." Other "excuses [she had] gotten" include "Oh, I just grabbed your butt" and "I just didn't know how to love you."
Dr. Annamaria Cappucci testified that, in 1989, the victim reported the assaults to her. Dr. Cappucci performed a physical examination and found that the victim's hymen was not intact. The defendant was convicted on both counts.
Discussion. 1. Attorney's conflict of interest. On the first day of trial, before evidence was taken, defense counsel brought to the judge's attention a conversation he had had with the victim two years earlier, wherein the victim stated that "[t]his is all bullshit[, t]his never happened." Counsel stated that the victim called him approximately one week later and "kept [him] on the phone for an hour, basically reiterating the same thing." Defense counsel expressed concern that cross-examination of the victim "might get a little edgy" if she testified in one manner, because, in order to impeach her with this statement, counsel might have to become a witness. After defense counsel told the judge that the defendant's wife heard the statement and would so testify, the judge concluded that any testimony by counsel would be cumulative. There was no objection to the ruling and, at trial, the defendant's wife testified to the victim's statements that "I don't remember any of this happening between me and my dad," and "[t]his is all bullshit[, t]his never happened."
On appeal, the defendant argues that he was denied the effective assistance of counsel because of defense counsel's "irreconcilable conflict of interest." It was the defendant's "burden to prove a genuine conflict of interest" which would require disqualification. Commonwealth v. Zabek, 86 Mass. App. Ct. 520, 523 (2014). See Steinert v. Steinert, 73 Mass. App. Ct. 287, 288 (2008). The judge ruled that counsel was not a necessary witness because his testimony would be cumulative of that given by the defendant's wife, and the defendant does not argue that this ruling constitutes an abuse of discretion. See Smaland Beach Assn. v. Genova, 461 Mass. 214, 220 (2012) ("[W]e review disqualification orders for an abuse of discretion"); Steinert v. Steinert, supra (same). In light of the wife's testimony, defense counsel's failure to withdraw and testify did not deprive the defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The single sentence in the defendant's brief, that "[i]t was error for the trial court to instruct, or even allow, counsel to continue in his representation," does not rise to the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and we do not consider it. See Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993); Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996).
The judge did not abuse his discretion in declining to declare a mistrial when the victim testified that, over the weekend before trial, the defendant and his lawyer asked her if she was going to go to court. See Commonwealth v. Simmonds, 386 Mass. 234, 241 (1982) ("The decision whether to declare a mistrial is a matter within the judge's discretion"). The fact that defense counsel had a conversation with the victim as to whether she would testify was hardly an important issue in the trial, and there was no objection to the judge's decision to strike the offending statements and give a curative instruction. The judge's instruction was immediate, forceful, and "sufficient to avert any prejudice to the defendant," Commonwealth v. Cunneen, 389 Mass. 216, 224 (1983), and we presume that the jury followed it. Commonwealth v. Helfant, 398 Mass. 214, 228 (1986).
2. First complaint witness. Before trial, the Commonwealth moved to allow Dr. Cappucci to testify as a first complaint witness. See Commonwealth v. King, 445, Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006). Defense counsel objected and argued that the proper first complaint witness was Doris Lawson, the victim's third grade teacher. In 1989, Lawson drafted a statement recounting the victim's complaints to her of sexual abuse by her father. In 2013, the Commonwealth asked its investigator to contact Lawson and determine whether Lawson would testify as a first complaint witness. In her affidavit, the investigator stated that she had spoken on the telephone with Lawson, who stated that "she did not feel comfortable coming back to Massachusetts to testify in this matter because she only had a vague recollection of the incident concerning [the victim]." Lawson stated that "these events took place many years ago and that she could not recall the details of what was said."
The judge held a voir dire of the investigator, in which she testified to the particulars of her conversation with Lawson. After the hearing, the judge found that Lawson was not "available as someone who has a memory of this child making a sexual complaint, abbreviated or otherwise." The judge conducted a voir dire of Dr. Cappucci and found that her testimony, "in the context of an anomalous fact pattern, fulfills the first complaint doctrine," and he allowed Dr. Cappucci to testify to the victim's complaints.
Although it appears that the judge directed the investigator to call Lawson again "[a]nd we'll see where it stands," we conclude from his allowance of Dr. Cappucci's testimony that he found Lawson unavailable to testify as a first complaint witness. We note that much of the difficulty in locating Lawson, and in her inability to recall the details of the victim's disclosure, was caused by the defendant's twenty-year default.
We review the judge's decision to allow Dr. Cappucci to testify as a first complaint witness for an abuse of discretion, Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 536 (2012), and see none. The evidence before the judge supports his conclusion that Lawson was unavailable and would not meaningfully be able to testify to the victim's statements in 1989. The judge conducted two voir dires to resolve the issue, see Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008), and he "carefully negotiated the evidentiary minefield that the first complaint doctrine can present." Commonwealth v. Lawton, supra. The defendant did not object to the judge's ruling or to Dr. Cappucci's testimony, and there was no error which would create a substantial risk of a miscarriage of justice. Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).
The defendant also argues that Dr. Cappucci improperly vouched for the victim's credibility when she testified that, based upon the history given her by the victim, "it was fairly evident" how her hymen was injured. There was no objection to this testimony. In light of the victim's detailed testimony regarding the defendant's actions and the judge's instruction limiting the jurors' use of Dr. Cappucci's testimony, there was no risk of a miscarriage of justice.
3. Consciousness of guilt. The defendant's final argument, that the evidence was insufficient to support the judge's instruction regarding consciousness of guilt, lacks merit. "Consciousness of guilt instructions are permissible when there is an 'inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,' such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness." Commonwealth v. Stuckich, supra at 453, quoting from Commonwealth v. Toney, 385 Mass. 575, 584 (1982). The Commonwealth presented evidence that defendant did not appear for trial in 1990, that his bail was forfeited, and that, in 2011, he did not comply with a request by the police to pull over his vehicle. The victim testified that the defendant told her "it only happened a few times," and that he offered to pay any court fees imposed upon her if she did not appear for trial. "The defendant had an unqualified right to negate the inference of consciousness of guilt by explaining to the jury" his version of these events, Commonwealth v. Chase, 26 Mass. app. Ct. 578, 580-581 (1988), which he did. The defendant was "[c]ontent" with the judge's instructions, and there was no error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Dwyer, 22 Mass. App. Ct. 724, 729 (1986).
Judgments affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 16, 2016.