Opinion
14-P-690
02-22-2016
COMMONWEALTH v. EUGENE J. PERULLO.
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
A jury in the Superior Court convicted the defendant of indecent assault and battery, G. L. c. 265, § 13H. The victim is the defendant's daughter, whom we shall call Judy. On appeal, the defendant claims that he is entitled to a new trial because the prosecutor misstated the evidence regarding his conduct during her opening statement to the jury. He also contends the judge abused his discretion in allowing the first complaint witness to testify in detail about Judy's emotional state at the time the complaint was made. We affirm.
Background. The jury could have found the following facts. Judy was sixteen years old on June 20, 2010, when she went out to dinner with the defendant to celebrate Father's Day. Judy lived with her parents and brother in an apartment in Wilmington. On that day, however, Judy's brother and mother were in the Berkshires visiting family. Just before dinner, Judy learned from the defendant that her parents were planning to divorce. During dinner, the defendant told Judy that he loved her "more than a father should" and stated that he had "sexual urges" toward her, which he kept "under control." The defendant also told Judy that a friend of his, whom Judy knew, had similar feelings toward her and that the defendant protected Judy by telling the friend that Judy had a boy friend.
When the two returned home, Judy felt uncomfortable and, therefore, she called a friend and went out, returning home again around midnight. By this time, Judy's mother was home and had gone to bed. Judy put on a pair of sweatpants and a T-shirt and went to bed in her own bedroom. When Judy awoke the following morning, the defendant was lying next to her, dressed only in underwear. He was rubbing her vagina with his hand on top of her sweatpants. Judy began to cry. She got up and went into the bathroom, where she called and sent text messages to her friend, Jessica, whom she asked to come and pick her up. Within fifteen minutes, Jessica arrived and found Judy waiting outside on the curb crying. As Jessica drove to her house, Judy told her what had happened.
The theory of the defense, developed through cross-examination and closing argument, was that Judy had fabricated the incident because she did not want to live with her father following her parents' pending divorce. The defendant attempted to establish that he was a disciplinarian and that Judy resented him because he imposed a strict curfew and other rules, which Judy allegedly found unacceptable. Additionally, there was evidence that Judy and the defendant had a strained relationship and that at one point Judy was not permitted to live at home. Judy also testified to an incident where the defendant found her in the shower with her boy friend and expressed his disapproval.
Discussion. 1. Opening statement. There is no dispute that the prosecutor misstated the evidence during her opening statement when she said, on three occasions, that the defendant's hand was "underneath" Judy's sweatpants, "above her underwear rubbing her vagina." The victim had previously stated, and subsequently testified, that the defendant's hand was over her sweatpants when he rubbed her vagina. The defendant did not object and our review, therefore, is limited to whether the prosecutor's misstatement created a substantial risk of a miscarriage of justice. Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 868 (2007). There was no such risk here.
"The opening remarks 'must be judged in light of the entire [statement], the judge's instructions to the jury, and the evidence actually introduced at trial.'" Id. at 869 (alteration in original), quoting from Commonwealth v. Jones, 439 Mass. 249, 260-261 (2003). While the prosecutor misspoke, nothing in the record indicates that she did so in bad faith. See Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 544 (2009). Nor does the record support a conclusion that the defendant was prejudiced by the remarks. The evidence, as described, did not materialize. Moreover, trial counsel immediately drew attention to the prosecutor's error in his own opening statement, and then capitalized on the error by commenting on the apparent inconsistency thereby implying that the victim was not credible. See Commonwealth v. McCoy, 456 Mass. 838, 851 (2010). Also, before the opening statements, the judge instructed the jury that opening statements were not evidence. A similar instruction was repeated during the judge's final charge to the jury. These instructions were sufficient to properly guide the jury and served to avoid prejudice. Commonwealth v. Rosa, supra.
2. First complaint testimony. Prior to trial, the defendant filed a motion in limine to exclude testimony from the Commonwealth's first complaint witness, Jessica, about Judy's emotional state at the time she told Jessica about the defendant's conduct. The motion was denied and, at trial, Jessica testified that Judy was sitting with her knees up to her chest and was crying when she came to pick her up. According to Jessica, Judy continued to cry and sob while she described the incident to her. Jessica made reference eight times to the fact that the victim was crying or sobbing. She also stated that Judy was quiet whereas she is usually happy and talkative. Trial counsel objected once during Jessica's direct testimony but did not explain the basis of his objection. The defendant contends that Jessica's testimony was excessive and amounted to an improper emotional appeal to the jury. He also claims that the single objection described above was sufficient to preserve the alleged error for review.
We need not decide whether the issue is preserved because we conclude there was no error. As an initial matter, the first complaint doctrine does not preclude evidence of a victim's demeanor. See Commonwealth v. King, 445 Mass. 217, 246 (2005) ("[A] first complaint witness may testify to the circumstances surrounding the initial complaint. By 'circumstances,' we mean that the witness may testify to his or her observations of the complainant during the complaint"). Additionally, as the Commonwealth notes in its brief, "[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 [the] case." See, e.g., Commonwealth v. Arana, 453 Mass. 214, 225 (2009), and cases cited. In Arana, testimony describing the victim as "hunched over" and "holding herself" was considered relevant demeanor evidence which was admissible not as additional first complaint evidence, but to bolster the victim's credibility in the face of the defendant's accusations that the victim's allegations of sexual abuse were fabricated. Id. at 225-226. Likewise, here, the challenged testimony about Judy's crying was admissible for the independent reason that it was "evidence relevant to a highly contested issue, namely, whether [Judy's] accusations were fabricated." Id. at 226. Thus, while eight references to Judy's crying were unnecessarily repetitive, the defendant is not entitled to a new trial on this basis.
Judgment affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.