Opinion
18-P-806
03-03-2020
COMMONWEALTH v. Dieuseul NAPOT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a Superior Court jury of sexual offenses he committed against the victim, whom we shall call Noreen, when Noreen was between five and eight years old. We affirm.
Background. Noreen was born in 1990 and lived with her aunt and her aunt's then-partner, the defendant, from 1995 until 1998. The defendant regularly sexually assaulted Noreen during this time period. Noreen did not tell anyone about the abuse until she was ten or eleven years old, when she told a peer. When she was twelve or thirteen years old, Noreen told her mother, her father, and her father's then-partner, Karla Brown. On December 4, 2003, Noreen's father reported to the Boston Police Department that the defendant assaulted Noreen. However, the police never investigated the complaint because Noreen's father did not follow up on it.
More than ten years later, in October 2014, Noreen saw the defendant on the street, approached him, and engaged him in conversation. Unbeknownst to the defendant, Noreen was recording the conversation on her cellular telephone. Noreen reported the assaults to the police the following spring and provided them with a copy of the recorded conversation. On September 30, 2015, the defendant was indicted for four counts of rape of a child and four counts of indecent assault and battery on a child under the age of fourteen.
Before trial, the defendant moved to suppress the recorded conversation on the ground that Noreen obtained it in violation of the Massachusetts wiretap statute. Following an evidentiary hearing, but before the judge who conducted the hearing issued a ruling, the defendant withdrew the motion based on the absence of evidence that the government was involved in obtaining the recording or in Noreen's decision to record the conversation. Thereafter, one and one-half weeks before trial, a second judge (motion judge) held a hearing on motions in limine. The Commonwealth was in the process of identifying a first complaint witness at that time and was considering Noreen's peer, mother, and father. All three had testified before the grand jury. The motion judge ordered the Commonwealth, before trial, to identify in writing "the universe of potential first complaint witnesses," along with their statements and citations to the grand jury testimony. He also advised the defendant "to work on cross-examination of two or three or four potential witnesses even though one will be presented." The next week, the Commonwealth filed its motion in limine to admit first complaint testimony from Brown, the father's former partner.
The motion judge heard argument on this motion in limine after he had completed the first day of empanelment. The Commonwealth represented what the peer, Noreen's mother, Noreen's father, and Brown would testify to if called as the first complaint witness; the defendant confirmed that he had received the contents of Brown's statement before trial and that it was consistent with the Commonwealth's representation; and the judge engaged the parties in a thorough analysis of the request to present Brown's testimony. Ultimately, the motion judge found that Brown was the only "available competent first complaint witness" because the peer did not recall the disclosure, the mother maintains that Noreen had already told her father of the abuse when she disclosed it to her mother, and the father maintains he learned of the disclosure from Brown.
Before the motion judge could finish empanelling the last juror, he suffered a family emergency that required his absence from the remainder of the trial. A third judge (trial judge) agreed to substitute for the motion judge and stated, "There is a rule about a judge taking over during trial, but this jury hasn't been sworn so I don't think that rule applies at all." Neither defense counsel nor the Commonwealth commented on the trial judge's observation. The trial judge reviewed with the parties the motion judge's voir dire questions, which the motion judge had sent to her the night before, empanelled the final juror, and presided over the remainder of the defendant's trial.
On appeal, the defendant challenges what he claims was the erroneous denial of his motion to suppress. We decline to address this claim because the motion to suppress was withdrawn before the judge made a ruling, leaving nothing for us to review. See Krupp v. Gulf Oil Corp., 29 Mass. App. Ct. 116, 121 n.5 (1990) (existence of judgment or other appealable order is requisite to jurisdiction of appellate court). Instead, we consider whether, as the defendant also claims, (1) it was error to allow Brown to testify as the first complaint witness, and (2) the trial judge's alleged failure to familiarize herself with the proceedings created a substantial risk of a miscarriage of justice.
The defendant does not claim that the decision to withdraw the motion to suppress constitutes ineffective assistance of counsel, nor could he. The defendant assented to the withdrawal, in response to which the judge stated, "Based upon the status of the evidence that we heard, I concur ... that there is no basis upon which there appears to be any government action." It is well settled in this Commonwealth that (1) suppression of a recorded conversation is not required where a private individual made the recording in violation of the Massachusetts wiretap statute, Commonwealth v. Santoro, 406 Mass. 421, 423 (1990), and (2) "[i]t is not ineffective assistance of counsel when trial counsel declines to file [or pursue] a motion with a minimal chance of success." Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Discussion. 1. First complaint. Determining the identity of the first complaint witness is a preliminary question for the judge, who "is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence." Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). Judges have discretion to substitute a later complaint witness as the first complaint witness in certain cases, "based on the purpose and limitations of the first complaint doctrine." Commonwealth v. Murungu, 450 Mass. 441, 445 (2008). See Commonwealth v. King, 445 Mass. 217, 243-244 (2005), cert. denied, 546 U.S. 1216 (2006). We review a judge's decision to allow a substitute first complaint witness for an abuse of discretion. Aviles, supra. A judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The defendant claims that the motion judge abused his discretion in designating Brown as the first complaint witness because Noreen apparently stated that she told her mother about the abuse before she told her father and Brown. There was no abuse of discretion. A statement by Noreen that she first complained to the mother is not in the record. Instead, the record establishes that the mother told the police officer investigating Noreen's complaint, as well as the grand jury, that, in essence, the mother was not the first person Noreen informed of the assault because Noreen "had already told her father" about the abuse by the time Noreen told her (the mother). We agree with the motion judge that the mother's learning about the disclosure after the father "disqualifies her as being a first complaint witness." See Murungu, 450 Mass. at 445 (first complaint witness is "the first person the victim informs of the incident"). This is not a case where the Commonwealth tried to pick and choose the best witness, cf. Commonwealth v. McGee, 75 Mass. App. Ct. 499, 501-502 (2009), as memories understandably had faded by the time of trial. To the extent the defendant desired to show that Noreen first disclosed the abuse to her mother, and not Brown, nothing precluded him from questioning Noreen or her mother at trial about the timing or content of Noreen's disclosure. See Murungu, supra at 447.
At oral argument, appellate counsel raised the motion judge's failure to conduct a voir dire. Although we need not address the issue because it was not argued in the brief, Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), we note that the defendant did not ask for a voir dire, perhaps because he was provided before trial with "the universe of potential first complaint witnesses" and their anticipated testimony. In any case, a voir dire was unnecessary after it became clear at the hearing on the motion in limine that there was no "factual dispute" about the identity of the first complaint witness. Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010). The defendant does not challenge the motion judge's conclusions that the peer and Noreen's father were not appropriate first complaint witnesses, nor does he challenge the motion judge's exchange with defense counsel. The judge said, "We have the young girl that says I told my mom, we have the mom that says I didn't hear it ... I learned about it from another source," to which defense counsel responded, "Those are the facts, yes."
Trial commenced more than thirteen years after Noreen complained to her mother, father, and Brown.
Finally, where Noreen presented as a credible witness, and where her testimony was corroborated by the testimony of the other witnesses and the defendant's statements in the recorded conversation, we are confident that the decision to admit Brown's testimony, even if error, "did not influence the jury, or had but very slight effect" (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (defining prejudicial error).
2. Substitute judge. Where "the judge before whom a jury trial has commenced is unable to proceed with the trial," another judge may proceed with and finish the trial upon certifying in writing that they have familiarized themselves with the record. Mass. R. Crim. P. 38 (a), 378 Mass. 916 (1979). Here, the trial judge substituted for the motion judge before empanelment was complete and concluded that rule 38 did not apply because the jury were not sworn. Although the defendant made no objection at the time, he now claims that the trial judge misinterpreted rule 38 and therefore did not familiarize herself with the proceedings, creating a substantial risk of a miscarriage of justice. We are not persuaded.
The defendant cites to no case, and we have not found one, that stands for the proposition that rule 38 applies before the jury is sworn. "It is well established that jeopardy attaches in a jury trial when the jury is sworn," Commonwealth v. Love, 452 Mass. 498, 503 (2008), and we see no reason to hold otherwise in the rule 38 context. See, e.g., Commonwealth v. Ventura, 294 Mass. 113, 116 (1936) (empanelled jurors waiting for empanelment to conclude "are not participating in the trial").
In any event, the trial judge's decision to substitute for the motion judge without certifying her familiarity with the record did not create a risk of a miscarriage of justice, much less a substantial risk, because the record does not support the defendant's contention that the trial judge was unfamiliar with the proceedings. The trial judge communicated with the motion judge regarding the status of empanelment and the voir dire questions he had asked, and defense counsel lodged no objection when the trial judge asked a voir dire question that, with the benefit of a transcript, we can see varied slightly from the question asked by the motion judge. The absence of an objection by trial counsel demonstrates that the variation was not so great that it affected the substance of the question. Where the defendant did not object to the substitution, and where the substitution did not create a substantial risk of a miscarriage of justice, the trial judge's conclusion that rule 38 did not apply does not require reversal of the convictions. Cf. Commonwealth v. Taylor, 463 Mass. 857, 867-868 (2012).
Where the motion judge asked potential jurors whether "you or any member of your immediate family or a close friend [have] ever been the victim of a sexual assault, and if so, would that fact make it difficult for you to be fair and impartial in your consideration of the evidence," the trial judge asked whether jurors had been the victim of, or accused of committing, a childhood sexual offense. When one potential juror responded in the affirmative, the trial judge asked, "And because of your life experience, would you question your ability to be fair and impartial?" The juror said that she would and therefore was excused.
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Judgments affirmed.