Opinion
14-P-1458
04-12-2017
COMMONWEALTH v. Shane P. SQUIRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was indicted and tried on two sets of charges involving sexual assaults stemming from a July, 2012, incident and an August, 2012, incident. After a jury trial in the Middlesex Superior Court, the defendant was convicted of one count of vaginal rape as a lesser included offense of aggravated rape and one count of carrying a dangerous weapon (nunchucks) regarding the July incident. He was acquitted of the counts charging anal rape with nunchucks, vaginal rape with nunchucks, assault and battery by means of a dangerous weapon (nunchucks), and assault by means of a dangerous weapon (knife) stemming from the July incident. With respect to the August incident, the defendant was convicted of one count of vaginal rape and one count of anal rape, and he was acquitted of the count charging vaginal rape by a toothbrush. The defendant also was convicted of a single count of criminal harassment.
On appeal from his convictions, the defendant raises several issues. He asserts (1) the judge posed an improper question to prospective jurors during empanelment; (2) a police officer impermissibly testified to statistical evidence regarding the number of women sexually assaulted; (3) improper first complaint evidence pervaded the trial; (4) evidence of the investigative process was impermissibly admitted; and (5) the prosecutor made improper remarks during his summation. We address each claim seriatim.
1. Jury empanelment. This case involved the delayed disclosure of sexual abuse, and the judge inquired of each prospective juror on the prosecution's request and without objection from the defendant, as follows:
"You may hear ... testimony in this case that the alleged victim here did not immediately disclose the sexual assault. Is there anything about that fact that would affect your ability to be fair and impartial in this case?"
Of all the prospective jurors examined, only ten responded either affirmatively or equivocally as to whether the alleged victim's delayed disclosure would affect their ability to be fair and impartial. In each instance, the judge followed up with that individual to ascertain whether he or she was nonetheless willing to impartially consider all of the evidence before rendering a decision. Those who assured the judge that they were capable of doing so were seated without objection. Three prospective jurors who were not certain they could be fair and impartial were excused for cause, also without objection. Of the seven individuals who had initially answered affirmatively or equivocally but had then been found to be impartial and seated, the Commonwealth exercised peremptory challenges on four, and the defendant exercised peremptory challenges on two. One remained on the jury unchallenged by either party.
Contrary to the defendant's contention, this process did not eliminate "jurors open to considering the timing of [the victim's] reports in their credibility assessments." The question merely probed whether any of the prospective jurors had a fixed opinion because of a delay in reporting and whether because of that opinion he or she would be unable to be impartial. See Commonwealth v. Perez, 460 Mass. 683, 689-691 (2011) ; Commonwealth v. Andrade, 468 Mass. 543, 548-549 (2014) ; Commonwealth v. Young, 73 Mass. App. Ct. 479, 485 (2009). See also Commonwealth v. Lane, 521 Pa. 390, 393-402 (1989). See generally G.L.c.234, § 28 ; Commonwealth v. Boyer, 400 Mass. 52, 55 (1987). We perceive no error.
General Laws c. 234, § 28, was repealed after the defendant's trial. See St. 2016, c. 36, § 1. See now G.L.c. 234A, § 67A.
2. Statistical evidence. The prosecutor elicited from a detective an acknowledgment that one in four women is sexually assaulted. The defendant objected, and the objection was overruled. The prosecutor also elicited an acknowledgment from the detective, to which there was no objection, "that there could be many folks who have crimes committed against them that never go to the police." The defendant argues the testimony was improper opinion evidence that bolstered the victim's credibility. He adds that the error was exacerbated when the prosecutor, without objection, remarked in summation that "one in four women ... have been sexually assaulted[, and t]he great majority of [them] don't ever tell anyone. But [the victim] did tell what happened to her."
Clearly, statistics that indicate the number of women sexually assaulted are not within the scope of ordinary experience and therefore, can only be offered through properly qualified expert testimony. See Commonwealth v. Harris, 1 Mass. App. Ct. 265, 268 (1973). Evidence that the detective had "received specialized training in the area of sexual assault," was insufficient to demonstrate that he had the expertise to provide such data or that the data was scientifically valid. See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-595 (1993) ; Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994). Absent such proof, the detective was not qualified to offer such evidence, and thus, the evidence was improperly admitted. We consider next whether the error was prejudicial.
Our prejudicial error standard demands that the Commonwealth "convince us 'with fair assurance' that [the error] did not 'substantially sway[ ]' the outcome of the case." Commonwealth v. Rosado, 428 Mass. 76, 80 (1998), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Here, as the jury acquitted the defendant of three of the six rape charges and found him guilty of the lesser included offense of the single aggravated rape charge, we are convinced that the brief statistical references did not sway the outcome. See Commonwealth v. McCoy, 456 Mass. 838, 852 (2010) (jury's acquittal on two of the five changes suggests they were not influenced by improper testimony).
3. First complaint testimony. The defendant asserts the judge erroneously permitted the testimony of more than one first complaint witness, that a portion of each of the witnesses' testimony exceeded the bounds of first complaint evidence, and, further, that there were multiple other instances in which complaint evidence was improperly admitted. The first complaint doctrine permits only one complaint witness—generally the first person told of the sexual assault. Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006). However, when there are separate allegations of sexual abuse, as is the case here, it is permissible to permit more than one first complaint witness. See Commonwealth v. Kebreau, 454 Mass. 287, 293-296 (2009). The doctrine further provides that the alleged victim, as well as the first complaint witness, may testify as to the details of the complaint itself and offer an explanation as to why the complaint was made at a particular time. Ibid. This would include permitting the designated first complaint witness to testify to the broad swath of "circumstances surrounding the initial complaint." Commonwealth v. King, 445 Mass. at 246. See Commonwealth v. McCoy, 456 Mass. at 845. Because the defendant objected at trial to only one of the many purported violations to the first complaint doctrine, we address it first.
The defendant acknowledges on appeal that there was only one relevant objection. Although he notes there was a second objection to a potential first complaint violation, he does not raise any issue on appeal related to that objection.
a. Text messages. The judge admitted in evidence a series of text messages sent between the victim and the first complaint witness from about 7:10 A.M. to 10:17 A.M. on August 10. These text messages revealed that, within hours of the August 10, rape, the victim disclosed the details of the incident to the first complaint witness. The victim relayed that the defendant had come to her room and that she was too embarrassed to describe the implement the defendant had inserted into her during the course of the rape. The defendant objected to the admission of the text messages sent after 7:30 A.M.
We review the admission of these text messages for an abuse of discretion. See Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011). The trial judge determined this stream of text messages reflected a "continuing conversation," which, if communicated between two people speaking directly to each other in the same room, would have constituted a single five-minute conversation, and on that basis, the judge admitted the messages in evidence. We see no abuse of discretion. See id. at 73. Contrast Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009) (telephone conversation after the initial disclosure of the incident was inadmissible as first complaint evidence).
The very nature of text messaging is communication over a series of exchanges. This distinguishes the text messages admitted here from the successive telephone conversations which were inadmissible in Arana. See ibid. Accordingly, we cannot conclude the judge abused her discretion in determining that, when read together, these text messages comprised a single reporting of the incident. See Commonwealth v. Aviles, 461 Mass. at 73. The stream of text messages falls within the goal of the first complaint doctrine "to give the jury as complete a picture as possible of how the accusation of sexual assault first arose" and that "[n]othing ought necessarily to be left to speculation or surmise." Commonwealth v. King, 445 Mass. at 244, 247 (quotation omitted).
We turn now to the remaining unobjected-to claims to determine whether error, if any, created a substantial risk of a miscarriage of justice. For the reasons set forth below, we conclude no substantial risk was created by any of the challenged evidence, either in isolation or cumulatively. See Commonwealth v. McCoy, 456 Mass. at 850.
b. Multiple first complaint witnesses. The defendant challenges the admission of multiple first complaint witnesses. He asserts only one first complaint witness should have been permitted to testify. This argument overlooks the fact that there were two separate instances of sexual assault, and the victim reported each for the first time on separate occasions to different people. She first reported the July incident to Maria Fatima Hidalgo Lucero, the social worker who had been assigned to the victim for several years. She first reported the August incident to her son's developmental specialist, Sarah Duff. The first complaint doctrine permits more than one first complaint witness when, as is the case here, the testimony of each witness relates to a different crime. See Commonwealth v. Kebreau, 454 Mass. at 296. The judge's ruling comported with this doctrine, and we perceive no error.
c. Scope of first complaint testimony. i. First complaint witness to July incident. After reporting the July rape to Lucero in a telephone conversation on the morning of July 16, the victim continued to disclose the details of the rape throughout the day. Lucero took the victim to the doctor's office that afternoon, and she "spoke [to him] about what happened." Lucero also shared with the jury that during a conversation with the victim in mid-August she "learn[ed] something that might have happened." The defendant complains that this testimony exceeded the scope of permissible first complaint testimony.
First, we disagree that the testimony concerning the details the victim continued to reveal over the course of the day violated the strictures of the first complaint doctrine. See Commonwealth v. King, 445 Mass. at 247 ("[The] first complaint doctrine is to give the jury as complete a picture as possible of how the accusation of sexual assault first arose"). Second, the evidence of Lucero explaining to the doctor "what happened" had an independent basis of admissibility as a statement made to assist in the victim's medical treatment, and "[t]he first complaint doctrine does not ... prohibit the admissibility of evidence that ... is otherwise independently admissible." Commonwealth v. Aviles, 461 Mass. at 69 (quotation omitted). See Commonwealth v. Dargon, 457 Mass. 387, 396 (2010) (fact-specific references to the reported cause of injury made for the purpose of obtaining medical treatment are admissible).
The defendant also complains that because Lucero was the first complaint witness to the July, but not the August, incident her statement that "something that might have happened" in August was inadmissible fresh complaint testimony. However, this fleeting statement, without more, fails to articulate a complaint of sexual assault, and to the extent it constituted generalized hearsay, its admission would have had little, if any, influence on the jury. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 585 n.4 (2013). See also Commonwealth v. Murungu, 450 Mass. 441, 445-446 (2008). Therefore, no substantial risk of a miscarriage of justice was created by its admission. See Commonwealth v. McCoy, 456 Mass. at 850.
ii. First complaint witness to August incident . Duff, who was the first complaint witness to the August incident, testified that, while she was visiting the victim on July 19, 2012, the victim showed her pictures of bruising on her body and "describe[d] to [her] how she received those bruises." Duff's testimony, without more, also does not rise to impermissible first complaint evidence. See Commonwealth v. Bianchi, 435 Mass. 316, 323 (2001), citing Liacos, Massachusetts Evidence § 8.1, at 463 n.2 (7th ed. 1999). Compare Commonwealth v. Murungu, 450 Mass. at 446 (testimony that victim expressed upset but did not actually state she had been sexually assaulted, is an exception to the first complaint doctrine). Contrast Commonwealth v. McCoy, 456 Mass. at 846-847 (mother's testimony that she conversed with victim about the assault was error, as it is the equivalent of saying that the victim repeated her account of the incident). Duff properly identified the photographs based on her personal knowledge rather than an out-of-court statement. See Commonwealth v. Whitehead, 379 Mass. 640, 656-657 (1980). Moreover, Duff's statement that the victim described to Duff "how" the injuries were inflicted was also not impermissible first complaint testimony, as the word "how" signals only that particular details were disclosed, not what those details were. In the context of the evidence, where on receiving an explanation as to "how" the victim was bruised, Duff assisted the victim in reporting to the police a "harassment" and not a rape, the statement was not shorthand for a complaint of sexual assault.
Duff identified the photographs that had been admitted in evidence as the pictures the victim had showed her.
d. Victim's written statement. Contrary to the defendant's claim, the generalized testimony from the victim and three other witnesses regarding their personal observations of the victim having difficulty completing her written statement and the testimony identifying the statement was neither inadmissible nor first complaint evidence. Where there was no evidence as to the content of the statement, the witnesses' testimony regarding the victim's demeanor and physical condition while preparing her statement was especially relevant to the issue of the victim's credibility and delayed disclosure. See Commonwealth v. Dargon, 457 Mass. at 401 (evidence of the victim's demeanor during the sexual abuse interview was relevant to the victim's credibility and admissible). See also Commonwealth v. McCoy, 456 Mass. at 846 (observations of demeanor and physical condition were admissible); Commonwealth v. Ortiz-Soto, 49 Mass. 645, 647 n.2 (2000) (testimony based on personal observation was not hearsay).
e. Initial report to police. On August 14, 2012, the victim went to the police station with Duff and spoke to Officer Kevin Kelley. She testified that when she told Kelley the crime involved a sexual assault, Kelley stopped the interview to get a detective. Officer Kelley testified he had to get an officer trained in sexual assault investigation. Duff heard the victim tell Officer Kelley "something about a sexual assault or a rape or something to that effect." To the extent this evidence is the equivalent of saying that the victim repeated her account of the incident to Kelley, it is not admissible under the first complaint doctrine because this was not the first complaint, nor is it admissible under any other exception. See Commonwealth v. King, 445 Mass. at 242-243 ; Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008).
In this case however, the conversation was immediately halted upon the single disclosure that the victim was reporting a sexual assault. The testimony was not prejudicial, as it lacked detail and contained no statement of belief in the victim. See Commonwealth v. King, 445 Mass. at 243 (harm from multiple complaint witnesses comes from repeating "the often horrific details of an alleged crime"); Commonwealth v. Kebreau, 454 Mass. at 298 (brief reference to incident did not create a substantial risk of a miscarriage of justice); Commonwealth v. McCoy, 456 Mass. at 851 (defendant not prejudiced by testimony as it did not include details of assault or express belief in victim's account). Moreover, the jury surely understood that the charges on trial had commenced with the victim's report of the crimes to the authorities. In these circumstances, the admission of the evidence did not give rise to a substantial risk of a miscarriage of justice. See id. at 850.
f. Testimony of victim. Nor are we persuaded that the victim's testimony that she had been interviewed by the district attorney's office create a substantial risk of a miscarriage of justice. It was a vague reference that did not include any specific reference to the sexual assaults. It could hardly have been a surprise to the jury that the victim would have spoken to the individuals from the prosecutor's office after charges were brought against the defendant. Contrast Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 492, 494, 497 (2009) (detective improperly testified that after watching tape of sexual abuse interview at district attorney's office, his investigation culminated in defendant's arrest because testimony implied detective's belief in victim).
g. Testimony of nurse who prepared rape kit. The nurse who conducted the rape kit examination, Amy Boa, testified that the victim reported penetration of her vagina and anus with a penis and that nunchucks had been used as a weapon during the assault. We see no error with the admission of these statements, as they constitute admissible " ‘fact-specific references to the reported cause of [the victim's] injuries' made for the purposes of obtaining medical treatment." Commonwealth v. Dargon, 457 Mass. at 396, quoting from Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998). Moreover, to the extent the defendant asserts that the nurse's testimony regarding the testing she conducted on the victim exceeded the bounds of admissible hearsay, we see no substantial risk of a miscarriage of justice. Because the evidence showed the testing had been thorough and no area had been overlooked, the test results, which were all negative, with two minor exceptions, helped to bolster the defendant's claim that the victim had fabricated the crime. See Commonwealth v. Arana, 453 Mass. at 229.
Boa testified that the victim's underpants tested positive for blood and amylase, which is a substance found in saliva and urine.
h. Testimony of Detective Chad Howard. Detective Chad Howard took over the interview of the victim and testified at trial. The defendant contends that Howard attested to five reports he received from the victim, but the defendant fails to identify those reports. The record reflects that Howard testified the victim told him about the August 10, incident; disclosed photographs to him related to the first incident; discussed in his presence the first incident and the pattern of the defendant's behaviors; and told him an object had been used in the second incident. Because Howard was not the first complaint witness, evidence that the victim had discussed the assaults with him violated the prohibition against multiple witness complaint evidence which could improperly enhance the victim's credibility. See Commonwealth v. King, 445 Mass. at 243 ; Commonwealth v. McCoy, 456 Mass. at 846-847.
In this case however, the fact that Howard had spoken to the victim about both rapes was used by the defendant to capitalize on the inconsistencies between the victim's trial testimony and her statements to Howard, and in support of the defense theory that she had fabricated the crime to obtain housing. In marshaling this defense theory of fabrication, the defendant brought forth more evidence surrounding the details and circumstances of the rape than was included in any of the purported improper complaint evidence. See id. at 850-853 ("Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant"). Furthermore, that the defense was successful, at least in part, is evident from the acquittal on five of the ten charges and conviction on the lesser included offense of the aggravated rape charge. The verdicts also strongly suggest that the jury weighed the details of the victim's allegations and were not swayed by the impermissible testimony concerning the details of the rape, regardless of the number of times they were purportedly repeated by other witnesses. See id. at 852 ("The jury's acquittal on two charges suggests that they had assessed the victim's credibility and were not influenced by any cumulative first complaint testimony").
The success of the defense cannot be lightly discounted here, as the proof of guilt was strong. There was testimony from an independent witness showing that the defendant was alarmingly focused on the victim, which bolstered the victim's claim; for example, the defendant was observed jumping from a second-story balcony to land on the ground in front of the victim. Other evidence also contradicted the defendant's statement to the police about not having been in the victim's room and not seeing her after she moved to the first floor. Despite these claims, the defendant also volunteered that his deoxyribonucleic acid might be found on the victim. In addition, where the defendant used the complaint evidence to bolster a defense that was significantly successful in the face of strong evidence of guilt, we are convinced that the errors did not create a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. at 850, quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999) (substantial risk of a miscarriage of justice requires that we " ‘have a serious doubt whether the result of the trial might have been different had the error not been made’ ... [and] relief under this standard is seldom granted").
4. Investigative process. The defendant also argues that Howard's somewhat detailed testimony regarding the investigative process, some of which is outlined above and which also included testimony regarding the victim's interview at the district attorney's office and Howard's testimony before the grand jury, improperly created "the imprimatur of official belief in the [alleged victim]." See Commonwealth v. Stuckich, 450 Mass. at 457. In Stuckich, unlike this case, the investigation of the abuse spanned three years, with two separate interviews having been conducted at the district attorney's office with the child victim. See id. at 451-452. Here, the police investigated the multiple rapes of the adult victim over a period of approximately three months. The defendant cross-examined Howard regarding the details of the crime and the investigation to highlight the lack of forensic evidence, the victim's delay in reporting, and the inconsistencies between the victim's statements to Howard and her trial testimony. As the verdicts evince the advantage the defense gained by using the details of the investigation to illuminate material gaps in the victim's allegations, we see no substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. at 851-852.
5. Closing argument. The defendant did not object to the prosecutor's closing at trial but asserts now that the prosecutor improperly noted that probably about half the jurors have at some point had to have their "feet up in the stirrups." The reference, while crude, and perhaps better left unsaid, was not error. The prosecutor merely "call[ed] on the experience and common knowledge of the jury" to consider why the victim, given her experience, might have been unwilling to submit to a vaginal examination at that time. Commonwealth v. Ridge, 455 Mass. 307, 330 (2009).
Finally, the defendant also challenges two other comments made by the prosecutor in his closing. He challenges first the prosecutor's statement that the victim's story "never changed ... from the beginning to the end." He asserts this comment improperly referenced the inadmissible first complaint evidence. This claim may have some heft, but we need not decide here whether the statement was improper because even if the comment improperly highlighted impermissible first complaint evidence, we see no substantial risk of a miscarriage of justice flowing from it. The comment was fleeting, lacked specificity, and responded to the defendant's claim that the victim was lying. See Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). Last, the defendant asserts that the prosecutor improperly urged the jury to consider that Duff, too, knew about the first incident, despite Duff having testified as a first complaint witness to the second incident. We agree this comment exceeded the bounds of proper argument but, where it lacked any detail and where the verdict makes clear the jury believed few of the details pertaining to the first incident, we conclude that the reference was not unduly prejudicial. Moreover, the judge told the jurors at the beginning of trial that the lawyers "[are] not witnesses and they are not giving you any evidence"; and in her final instructions to the jury, she reiterated that the closing arguments are not evidence. We presume the jury understood and followed these instructions. See Commonwealth v. Alcantara, 471 Mass. 550, 556 (2015). No substantial risk of a miscarriage of justice was created. See Commonwealth v. Bourgeois, 391 Mass. at 884-885.
Judgments affirmed.