Opinion
18-P-380
12-17-2019
COMMONWEALTH v. Carlos RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of two charges of rape of a child. The convictions stemmed from the defendant's abuse of his stepson, which began when the victim was in elementary school and spanned a number of years. On appeal the defendant claims error in the attorney-conducted voir dire and the designation of the first complaint witness. We affirm.
1. Voir dire. The defendant contends that certain questions asked by the prosecutor during attorney-conducted voir dire were improper and violated his right to an impartial jury. These questions concerned four topics: the so-called "CSI effect," lack of physical evidence, uncorroborated witness testimony, and delayed disclosure. Because the defendant did not object to the questions, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 763 (2016).
The CSI effect is "a largely speculative ‘theory that jurors who watch forensic science television programs like "CSI" will hold prosecutors to an unreasonably high standard of proof because of the prowess displayed by fictional forensic scientists.’ " Commonwealth v. Gray, 465 Mass. 330, 338 (2013), cert. denied, 571 U.S. 1014 (2013), quoting Commonwealth v. Vuthy Seng, 456 Mass. 490, 503 (2010).
The Commonwealth argues that we should not consider questions posed to prospective jurors who were not empanelled. We assume, without deciding, that all of the questions identified by the defendant are relevant to our analysis.
The prosecutor began her voir dire by asking the members of the venire if they watched CSI or similar television shows. For those who responded affirmatively, the prosecutor followed up with related questions, including questions about viewing frequency and the extent to which the shows might affect a prospective juror's approach to a real case. She also asked whether the jurors expected to see deoxyribonucleic acid (DNA) evidence in a rape case and whether they could decide a rape case without such evidence.
The defendant cites the following line of questions, asked to one potential juror, as a representative example: "[W]ould you expect to see DNA in a case like this if you heard of that on the shows? ... If you didn't hear anything about DNA, would that be a struggle, having seen it on the shows? ... Could you hear and decide a case ... of a sexual assault if there was no DNA?"
Similarly, the prosecutor asked venire members if they expected to hear about physical injuries in a rape case and whether it would be a "struggle" to decide a rape case without evidence of injuries. Along related lines the prosecutor asked jurors if they could decide a case based solely on witness testimony, focusing at times on their ability to decide based on a single witness's testimony. The prosecutor also asked how jurors would feel about delayed disclosure, including specifically by child victims.
The defendant cites the following example: "Do you think that you could decide a case hearing from just one witness?"
Among other examples the defendant cites the following: "[D]o you think there are reasons why a person or specifically a child might not report a crime right away?"
Overall, the questions had various formulations and ranged in specificity. At times the prosecutor probed the topics more abstractly with questions about what potential jurors might expect in a rape case or at trial generally. In other instances the formulations were more case-specific, including questions about whether jurors would expect to see certain evidence in "this" case "since the charges here are rape."
In reviewing the defendant's challenge to these questions, we are mindful that "[t]he scope of voir dire ... ‘is in the sound discretion of the trial judge and will be upheld absent a clear showing of abuse of discretion.’ " Commonwealth v. Dabney, 478 Mass. 839, 848, cert. denied, 139 S. Ct. 127 (2018), quoting Commonwealth v. Gray, 465 Mass. 330, 338 (2013), cert. denied, 571 U.S. 1014 (2013). Although a 2014 legislative amendment gave attorneys (and self-represented parties) in the Superior Court the right to participate in voir dire upon request, see G. L. c. 234A, § 67D, "the scope of such questioning remains in the discretion of the judge." Dabney, 478 Mass. at 848. This was memorialized in Superior Court Standing Order 1-15 (effective Feb. 2, 2015), which "fully preserve[d] the discretionary authority of the trial judge with respect to the examination and selection of jurors in each case ... while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias." See Dabney, 478 Mass. at 849.
The Standing Order was in effect at the time of the defendant's trial but has since been superseded by Superior Court Rule 6, which also preserves the trial judge's discretion. See Dabney, 478 Mass. at 849-851.
We conclude that the scope of the voir dire here was within the bounds of the trial judge's broad discretion. With regard to the questioning about the CSI effect, we do not see a material distinction between the questions permitted by the judge and those deemed to be proper in Gray. The judge in Gray had asked each prospective juror a variation of the following: "It's expected that the Commonwealth will not introduce DNA or fingerprint evidence to link the defendant to the crime scene. The Commonwealth will allege that it possesses other evidence to demonstrate that the defendant committed the crimes. Would the absence of DNA or fingerprint evidence prevent you from fairly evaluating the evidence in this case?" Gray, 465 Mass. at 337. The Supreme Judicial Court concluded that this was not an abuse of discretion, explaining that "[t]he question posed suggested to potential jurors that they should evaluate fairly the evidence introduced at trial and was ‘tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence.’ " Id. at 340, quoting Commonwealth v. Perez, 460 Mass. 683, 691 (2011). For similar reasons the court concluded that the judge did not abuse his discretion during individual voir dire by asking one juror to "[p]ut aside the DNA and the fingerprint evidence" and by instructing a second juror to "focus solely" on the Commonwealth's evidence. Gray, supra.
As in Gray, the questions here did not suggest to the venire that they should ignore any absence of scientific evidence in their deliberations. The questions were tailored to ensure that potential jurors could decide the case without bias and did not have the effect of empanelling just those "predisposed to convicting the defendant based solely on the Commonwealth's evidence, without consideration of the scientific evidence the Commonwealth failed to introduce." Gray, 465 Mass. at 340. See Perez, 460 Mass. at 691 (no abuse of discretion where "questions did not suggest to potential jurors that a lack of scientific evidence could not be considered in determining whether a reasonable doubt existed as to the defendant's guilt"). The judge did not abuse his discretion by permitting this line of questioning.
We reiterate, however, that questions aimed at combatting the CSI effect "should be posed sparingly." Gray, 465 Mass. at 339.
The defendant's claims regarding the other categories of questions similarly fail. The questions did not suggest to potential jurors that they should ignore delayed disclosure and any absence of evidence of physical injuries in reaching a verdict. Nor did they suggest that the jurors should convict the defendant based on witness testimony alone. Rather, fairly viewed, the questions sought to uncover biases and to ensure that seated jurors could decide the case based on the evidence presented. Permitting these questions did not constitute an abuse of discretion. See Gray, 465 Mass. at 340. See also Commonwealth v. Young, 73 Mass. App. Ct. 479, 485 (2009) (judge did not abuse discretion by asking venire whether they could convict defendant based solely on witness testimony).
2. First complaint. The defendant next raises several claims of error related to the first complaint doctrine. See Commonwealth v. King, 445 Mass. 217, 243-247 (2005), cert. denied, 546 U.S. 1216 (2006). The first complaint witness should be the first person who was informed of the sexual assault, "[w]here feasible." Id. at 243. A judge can "substitute a later complaint witness as the first complaint witness," however, if "the listener has an obvious bias or motive to minimize or distort the victim's remarks." Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). Determining the identity of the first complaint witness is a preliminary question for the judge. See id.
The defendant argues that the judge erred by allowing the victim's godmother, Mercedes Rivera, to testify as the first complaint witness without conducting a voir dire to determine whether the actual first complaint witness was the victim's mother, Sonia Rivera. , When there is inconsistent evidence regarding the identity of the first complaint witness, the judge normally should conduct a voir dire. See Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008). See also Murungu, 450 Mass. at 446-447 (explaining that "[g]enerally, a voir dire will be the appropriate mechanism" for resolving this preliminary question). A voir dire is unnecessary, however, if there is no factual dispute about identity. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010).
Because Mercedes Rivera and Sonia Rivera share a surname, we will refer to them by their first names.
Relatedly, the defendant argues that the Commonwealth violated Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004), by not disclosing its designation of Mercedes as the first complaint witness until trial. But the defendant provides no support for his contention that rule 14 governs designations of first complaint witnesses. Moreover, even assuming a discovery violation occurred, the defendant has not shown prejudice for the reasons discussed below. We note also that Mercedes was included on a witness list dated September 2016, well before the June 2017 trial.
In this case a voir dire was unnecessary because the judge found Sonia to be an inappropriate first complaint witness. As an initial matter, we note that the information before the judge -- in particular, the victim's statement to police -- supported designating Mercedes as the first complaint witness. But assuming there was a legitimate factual dispute that the first complaint witness was instead Sonia, that dispute became moot once the judge determined that someone other than Sonia should testify. The prosecutor represented that Sonia was "a hostile witness to the Commonwealth," citing both a restraining order and a recently dismissed criminal action involving Sonia and the victim. Upon hearing this, the judge found that "[i]f it comes down to those two [Mercedes and Sonia], then [Sonia] clearly is not an appropriate first complaint witness." This was within the judge's discretion, see Murungu, 450 Mass. at 446, and the defendant does not argue to the contrary.
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). The defendant himself observes that the complaints to Mercedes and Sonia had the same evidentiary value because neither witness initially believed the victim.
The defendant does argue that the judge should have "determined that, if [Mercedes] were not the first complaint witness, she was the ‘next complaint witness’ " after Sonia. See Murungu, 450 Mass. at 446 ("The substituted witness should in most cases be the next complaint witness ..."). Because the defendant did not raise this argument to the judge, our review is limited to determining whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). We see no error because the defendant did not identify who other than Mercedes was the next complaint witness, rendering voir dire unnecessary. See Revells, 78 Mass. App. Ct. at 496. Nor do we discern a substantial risk of a miscarriage of justice, as the defendant has not shown that the actual next complaint witness, whoever that may be, would have provided less favorable testimony for the Commonwealth than Mercedes did.
Mercedes did not believe the victim initially, referencing "crazy stuff" he had made up when he was younger to get attention. Further, there were discrepancies between Mercedes's testimony and the victim's account of the first complaint.
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Judgments affirmed.