Opinion
18-P-1155
03-27-2020
COMMONWEALTH v. Manuel TRONCOSO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Manuel Troncoso, was convicted of two charges of forcible rape of a child under sixteen years old, G. L. c. 265, § 22A ; two charges of indecent assault and battery on a child under fourteen years old, G. L. c. 265, § 13B ; and one charge of rape, G. L. c. 265, § 22 (b ). The victim was the defendant's stepdaughter, and the charges arose from conduct that began in 2001, when she was thirteen, and continued after she turned sixteen. On appeal, the defendant contends that the trial judge violated his rights to cross-examine witnesses and to present a defense, and that the Commonwealth failed to prove the element of force necessary to sustain the three convictions for rape. We affirm.
Background. Pertinent to this appeal, the jury could have found that the defendant impregnated the victim five times, as a result of which the victim had two abortions and bore three children. The first time, when the victim was fourteen years old, the defendant secretly took her to get an abortion. The second time, when the victim was sixteen, the defendant told the victim's mother, his wife, that someone in the victim's high school had gotten the victim pregnant, and the two of them took her to get an abortion. The third time, when the victim was seventeen, after telling his wife that the victim got pregnant at a party and the father was in now Iraq, the defendant decided that she would carry the baby to term. The baby lived with the defendant, the victim's mother, and the victim until the defendant and the victim's mother separated. Instead of moving in with her mother, the victim took the baby to live with the defendant. Eventually the defendant, the victim, and the child relocated to Florida, where the defendant and the victim had two more children and then married. In 2012, they returned to Massachusetts, and after a few months the victim left the defendant, taking the children with her.
A grand jury indicted the defendant for the sexual assaults against the victim in 2015. At the same time, the grand jury returned three indictments charging the defendant with rape and indecent assault and battery of the youngest child of the defendant and the victim, their only daughter, who was three years old when the alleged sexual assaults occurred. Prior to trial, the defendant filed a motion to sever the trial of the five indictments concerning the victim from the trial of the three indictments concerning the three-year-old. He also filed a motion in limine to exclude any reference to the conduct involving the three-year-old. The judge allowed the motions, and the case went to trial solely on the charges involving the victim.
The grand jury also indicted the defendant for sex crimes against a third victim, which occurred around the same time as the crimes against the first victim and involved a girl about the same age. These similar indictments were grouped together for trial, but the Commonwealth nolle prossed them prior to trial. The indictments involving the three-year-old were nolle prossed after the defendant was sentenced for the convictions subject to this appeal.
Discussion. 1. Rights to cross-examine and to present a defense. Criminal defendants have the constitutional right to cross-examine witnesses for bias and prejudice. See Commonwealth v. Chicas, 481 Mass. 316, 320 (2019) ; Mass. G. Evid. § 611 (b) (2) (2019) ("Reasonable cross-examination to show bias and prejudice is a matter of right which cannot be unreasonably restricted"). A judge may not "foreclos[e] inquiry into a subject that could show bias or prejudice on the part of the witness." Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987).
The right to cross-examine is not absolute, however, and is subject to reasonable limitations. "A judge, of course, has broad latitude to direct the course of a trial, and this judicial discretion extends to limiting and otherwise controlling cross-examination." Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003). "Those limits are ‘based on concerns about ... harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant.’ " Chicas, 481 Mass. at 320, quoting Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). "Moreover, a judge has discretion to limit questions that involve collateral issues and questions where the connection to the evidence of bias is too speculative." Chicas, supra. A judge's decisions to restrict cross-examination are reviewed for abuse of discretion. See id.
One of the theories that the defendant sought to assert at trial was that the victim fabricated the allegations that he raped her when she was a child to gain leverage against him in the divorce and custody proceedings regarding their three children. The Commonwealth argued to the judge that this claim was false; the victim, in fact, had no intention to deprive the defendant of access to the three children -- until she discovered that he was sexually abusing the three-year-old. It was only at this point that the victim disclosed to the police that he had abused her, too. If the defendant wished to question the victim about her motivations in the divorce proceedings, the victim's response would necessarily require testimony that had been excluded at the defendant's request. Accordingly, at trial the judge directed defense counsel to stay away from the divorce proceedings and the origin of the criminal charges during cross-examination.
Defense counsel acknowledged this at the pretrial hearing on the defendant's motion to exclude bad act evidence, stating, "I have no intention of going near that topic on cross-examination."
The defendant overstates the degree to which his cross-examination and defense were impeded. In his opening statement, defense counsel stated that when the defendant and the victim returned to Massachusetts, the marriage "started to crumble" and the victim "started to take up with a boy whom she knew in high school." The judge permitted the defendant to pursue this theory. During cross-examination of the victim, defense counsel was permitted to ask both the victim and her mother, over the Commonwealth's objection, about the victim reconnecting with a high school friend when she separated from the defendant. The judge sustained the Commonwealth's objections only when defense counsel asked the victim if "there was a time between when you moved back to Massachusetts and when you were divorced when you reported the children being kidnapped," and when defense counsel asked the victim if she was currently living with the high school friend.
Defense counsel also referred to the defendant's niece, who was traveling to the trial from New Jersey and was expected to testify that the victim told her, before the allegations of sexual abuse surfaced, that the victim wanted "to bring [her] boyfriend to Thanksgiving" and that she wanted the defendant out of her life and the lives of her children. The judge did not make a definitive ruling on this witness's testimony, but rather instructed defense counsel to "bring her in" and "make an offer of proof." Although the witness was present in court the next day, defense counsel decided not to call her as a witness and did not make an offer of proof. The judge did not exclude this witness.
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The judge did not abuse his discretion by excluding the evidence or denying the defendant's motion for mistrial. The restrictions on the defendant's case were reasonable and prevented the introduction of confusing and prejudicial collateral matters. Moreover, "a party's success in excluding evidence from the consideration of the jury does not later give that party license to invite inferences (whether true, or as in this case, false) regarding the excluded evidence." Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 9 (1980). The judge's rulings appropriately prevented defense counsel from engaging in the "fundamentally unfair" litigation strategy of exploiting the absence of evidence he had succeeded in excluding. Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 568 (1983). See Commonwealth v. Grimshaw, 412 Mass. 505, 508 (1992) ; Commonwealth v. Zuluaga, 43 Mass. App. Ct. 629, 647 (1997).
The case Commonwealth v. Woodbine, 461 Mass. 720, 737-738 (2012), in which the trial judge abused his discretion by restricting cross-examination of a police officer to avoid opening the door to evidence that had been suppressed, is readily distinguishable. In Woodbine, the evidence was suppressed because of police misconduct, and the court held that the Commonwealth "must bear the consequences." Id. at 738. Where, as here, the defendant successfully excluded evidence of his own alleged misconduct, it is not unfair to require him to bear the consequences.
2. Sufficiency of the evidence of forcible rape. The defendant contends that the Commonwealth failed to prove the element of force necessary to convict him for forcible rape of the victim when she was under sixteen and for rape after she turned sixteen. These crimes occurred when the defendant was married to the victim's mother and the victim was his stepdaughter -- she and her brother called the defendant "daddy." Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found that the defendant was the head of the household and a strict disciplinarian. Starting when the victim was thirteen, when her mother was not home, the defendant would tell her to go into various rooms of the house where he would pull down her pants, fondle her breasts and vagina, grab her hand and make her touch his penis, and have intercourse with her. It happened every time her mother was not home. The victim complied because of the defendant's authority: "[H]e was always strict on us. He was always -- it was every -- it was what he said we had to do it every time." The degree of the defendant's control is evident from the fact that he decided when the victim would or would not get an abortion.
With respect to the convictions for forcible rape of a child, the evidence that the defendant was a much older authority figure who exercised his will over the victim was sufficient to establish constructive force. See Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255 (2008). After the victim turned sixteen, having been groomed by the defendant, the same forces continued to operate to control and intimidate her to submit. Such evidence is sufficient to establish "force." See Commonwealth v. Moniz, 87 Mass. App. Ct. 532, 535-536 (2015) ; Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 417-418 (2010).
Judgments affirmed.