Opinion
14-P-1788
02-23-2016
COMMONWEALTH v. ERICK RUIZ-TRUJILLO.
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 convicted the defendant of rape of a child with force, G. L. c. 265, § 22A. On appeal, he argues that the trial judge abused his discretion in admitting first complaint testimony and by not giving a consciousness of innocence instruction. We affirm.
1. First complaint testimony. In sexual assault cases, the first complaint doctrine allows "the recipient of a complainant's first complaint of an alleged sexual assault . . . [to] testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint." Commonwealth v. King, 445 Mass. 217, 218-219 (2005). A first complaint witness "may also testify about the details of the complaint . . . [but] [t]estimony from additional complaint witnesses is not admissible." Id. at 219. "In limited circumstances, a judge may permit the testimony of a complaint witness other than, and in lieu of, the very 'first' complaint witness." Id. at 243. One such limited circumstance is when "the encounter that the victim has with the first person does not constitute a complaint, when, for example, the victim expresses to that person unhappiness, upset or other such feelings, but does not actually state that she has been sexually assaulted." Commonwealth v. Murungu, 450 Mass. 441, 446 (2008).
On the night in question, the mother was awakened by the screaming of her six year old daughter, Alice, who slept next to her. The defendant, who was the mother's boyfriend, was standing next to Alice. Circumstances (including baby oil on the defendant's hands, and blood and baby oil on the inside of Alice's underpants) prompted the mother to question both Alice and the defendant. Alice said that the defendant had pinched her belly. The defendant denied that anything had occurred. The mother called the police and, shortly thereafter, Officer Kirchner questioned Alice about what had happened. Alice said that the defendant had hurt her and pointed to her lower abdomen to explain how he had done so.
A pseudonym.
The defendant contends that the trial judge erred in two respects: first, by considering Alice's statements to the officer a "complaint," and, second, by substituting the officer for the mother as the first complaint witness. Both the decision to admit first complaint testimony and to substitute a later complaint witness as the first complaint witness are reviewed for abuse of discretion. Murungu 450 Mass. at 446 (allowing substitute); Commonwealth v. Aviles, 461 Mass. 60, 73 (2011) (admitted for independent purpose). "[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." LL. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas . Corp., 512 F.3d 9, 15 (1st Cir. 2008).
The judge did not abuse his discretion in this case. It is true that Alice's responses to Officer Kirchner's questions -- pointing to her lower abdomen after he asked her if she was hurt and again after he asked her how the defendant had hurt her -- lack the sophistication and specificity we might expect from an adult, or even an older child. However, considering the fact that Alice was six years old, the judge was entitled to interpret her responses as a complaint of sexual assault.
The trial judge also acted within his discretion when he determined that the mother was not the first complaint witness. The mother's testimony that Alice told her that "poppa pinched her belly" could reasonably be interpreted as "[t]estimony of a vague conversation that does not 'complain' that a sexual assault occurred." Murungu, supra.
2. Consciousness of innocence. The defendant argues that the judge's consciousness of guilt instruction should have been paired with a consciousness of innocence instruction. The defendant failed to object to the judge's instruction, so we review to determine whether there was error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). Here, there was not error. "A judge does not err, or abuse discretion, by refusing to give a consciousness of innocence instruction . . . [because] 'consciousness of innocence is a subject properly left to the give and take of argument, without jury instructions.'" Commonwealth v. Pina, 430 Mass. 266, 273 (1999), quoting from Commonwealth v. Oeun Lam, 420 Mass. 615, 619 (1995).
The consciousness of guilt evidence was that, when the officers responded to the scene, the defendant placed his hands behind his back (signifying a willingness to be handcuffed) without the officers asking him to do so.
For the reasons set out above, the judgment is affirmed.
So ordered.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.