Opinion
18-P-808
05-28-2020
COMMONWEALTH v. GUILLERMO VAZQUEZ.
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
Following a four-day trial in the Superior Court in 2008, a jury found the defendant, Guillermo Vazquez, guilty of four counts of rape of a child, in violation of G. L. c. 265, § 23. Two counts related to his granddaughter, Megan, and two related to another granddaughter, Gwen, who was Megan's cousin. The defendant argues that his convictions should be overturned because the trial judge admitted subsequent complaint evidence that violated the first complaint doctrine. He further argues that his motion for a new trial, alleging ineffective assistance of counsel, should have been granted. We affirm.
A pseudonym. See G. L. c. 265, § 24C.
A pseudonym.
In 2008, the defendant timely appealed from the verdicts of guilty. In 2016, the case was entered in this court. Appellate proceedings were stayed pending the defendant's filing a motion for a new trial. In 2017, the defendant moved for a new trial, alleging ineffective assistance of counsel. In 2018, the motion judge denied the motion, and the defendant appealed from the denial. The two appeals were consolidated.
Background. We summarize the facts as the jury could have found them, reserving certain details for later discussion. The defendant regularly babysat for his granddaughter Megan. On one occasion, when Megan was about six years old, she was sleeping in the living room of the defendant's house in the Jamaica Plain section of Boston. The defendant woke her up, told her to come to his bedroom, brought her to his bed, and told her that little girls, to be good and grow old, had to go through what they were about to do. He instructed her that it was a secret between them.
She was seventeen years old when she testified at trial.
The defendant pulled down Megan's pants, took off her underwear, and inserted his penis into her vagina. This hurt Megan, but the defendant instructed her not to make any noise. Afterward, the defendant gave Megan a little money, which she used to buy candy. On three or four later occasions, the defendant raped Megan, sometimes vaginally and sometimes anally.
Megan's cousin Gwen, also the defendant's granddaughter, grew up in the defendant's house, where she lived with her parents and siblings. From the time she was six years old until she was twelve, the defendant raped Gwen vaginally and anally between three and seven times per week.
Gwen was twenty-one years old when she testified at trial.
Around 1998, when Gwen was twelve years old, she told her friend and neighbor Ricardo Colon that when she turned thirteen, the defendant would never touch her again. This conversation occurred when Gwen, Colon, and Megan were in the defendant's backyard. Gwen told Colon that her grandfather had had sex with her and then, during the conversation, started crying. Megan overhead part of the conversation and related to Gwen that the same thing was happening to her.
Thereafter, Megan had two conversations with her mother about the defendant's having raped her. In the first, Megan's mother asked Megan if the defendant (the father of Megan's mother) had ever touched Megan. Megan answered yes, whereupon her mother told her to stop lying. The second conversation occurred on the way to an interview at the district attorney's office. At that time her mother instructed her to tell the interviewers that nothing had happened to her. Megan complied.
Discussion. 1. First complaint. Under the first complaint doctrine,
"the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time. Testimony from additional complaint witnesses is not admissible."Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert. denied, 546 U.S. 1216 (2006). A victim of sexual crimes generally may not testify that she told various people about the crimes, even if the victim omits details of conversations. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The recipient of a victim's subsequent complaint generally may not testify about it, "even if that testimony does not contain a detailed account of the victim's allegations." Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 493 (2009).
Thus, Colon became Gwen's first complaint witness, and Gwen became Megan's first complaint witness. On appeal, the defendant does not contest the admissibility of Gwen's and Colon's first complaint testimony about Gwen's allegation against the defendant, or Megan's and Gwen's first complaint testimony about Megan's allegation.
The defendant argues that the judge failed to weigh the probative value of subsequent complaint evidence against its prejudicial effect, as § 413 (b) of the Massachusetts Guide to Evidence (2020) (Guide) sets out. However, subsection (b) was not part of the 2008-2009 edition of the Guide. Nor at the time of the trial had our courts yet required trial judges to weigh the probative value of subsequent complaint evidence against its prejudicial effect. See Commonwealth v. Lessieur, 472 Mass. 317, 326, cert. denied, 136 S. Ct. 418 (2015); Commonwealth v. Arana, 453 Mass. 214, 229 (2009). In any event, the trial judge's sidebar comments implied that he did weigh the probative value against the prejudicial effect of the subsequent complaints.
Some exceptions exist, however. A relevant exception is that multiple complaint witnesses may testify "in response to cross-examination by the defendant and contentions raised in his defense." Commonwealth v. Kebreau, 454 Mass. 287, 289 (2009). The Commonwealth may "rebut a defense theory of fabrication" with evidence that a victim reported abuse, even if that report was not a first complaint. Commonwealth v. Aviles, 461 Mass. 60, 70 (2011). "This court . . . has approved the admission of multiple reports of a victim's allegations of rape where the evidence served an independent purpose and, in view of the defense strategy, was necessary to present a fair and accurate picture of the Commonwealth's case." Monteiro, 75 Mass. App. Ct. at 496.
We now review the admission of the subsequent complaint evidence that the defendant challenges, generally in the order that the jury heard and saw it. We review for "an abuse of discretion." Commonwealth v. Murungu, 450 Mass. 441, 446 (2008).
a. Megan's complaint to her mother. After Megan testified without objection that the defendant had raped her, and that Gwen was the first person she told, Megan testified, while still on direct examination, to the two conversations with her mother about the rapes.
Because first and subsequent complaint testimony comprises testimony of both a complainant and the recipient of the complaint, we examine both what Megan and her mother testified to, as we do with other complaint recipients.
The defendant objected to Megan's testimony about her mother instructing Megan while they were on the way to the interview that Megan should tell the interviewers that nothing had happened, but not to Megan's testimony about her complaint to her mother. The judge overruled the objection and ruled that the Commonwealth was entitled to anticipate, in its direct examination of Megan that she would be cross-examined on her denials at the district attorney's office that she was raped, and the need to have her credibility rehabilitated. At that time, the judge did not give the jury a limiting instruction about Megan's complaint to her mother and her mother's instructions to deny that she was raped, but did so soon afterward.
After Megan testified on direct examination, cross-examination, and redirect examination, the judge told the jury: "These out-of-court statements that the witness says she . . . made to other people or wrote up outside of court in her diary concerning what she says her grandfather did, they're admitted only as that evidence might bear upon your determination of the credibility of the witness. I am not admitting her out-of-court statements concerning what she may have told others concerning what her grandfather did. I'm not admitting that for the substance or purpose of proving that her grandfather did the acts what she says he did, but only as that evidence might affect your . . . judgment of the witness's credibility."
Because trial counsel told the jury in his opening statement that he would confront Megan about her recantation, the jury were entitled to first hear Megan's testimony about her complaint to her mother and that she recanted it on the mother's instruction just before Megan's interview in the district attorney's office. Thus, Megan's testimony about her complaint of rape to her mother "served an independent purpose" and was necessary to put Megan's recantation into context. Monteiro, 75 Mass. App. Ct. at 496. The judge did not abuse his discretion, Murungu, 450 Mass. at 446, by allowing Megan to testify about both her complaint to her mother and the circumstances of her recantation before she was cross-examined, rather than after. See King, 445 Mass. at 241 (delaying some testimony until "the defendant has damaged the victim's credibility . . . can cause unwarranted prejudice to the Commonwealth").
Megan's mother testified that she had received a telephone call from Megan's school and then spoke with Megan, who said that the defendant had raped her. However, because Megan's mother so testified on cross-examination by the defendant, she was not another complaint witness presented by the Commonwealth. See Murungu, 450 Mass. at 447 (first complaint doctrine does not bind defendants).
b. Megan's complaint to school nurse. When Megan was cross-examined, trial counsel established that Megan had a closer relationship with her father than with her mother, who was the defendant's daughter. He also established that during her parents' marital difficulties, which began two years before, and that after her parents' separation, in February 2008, shortly before the trial, Megan sided with her father. Under cross-examination, Megan also acknowledged that she had delayed telling her father, her doctor, and anyone at school that the defendant had raped her.
To put Megan's cross-examination testimony in context, the Commonwealth had her testify on redirect examination about her complaints to her school nurse and father that she was raped, and two journal entries she made about the rapes that preceded her parents' marital difficulties. We now discuss these two complaints and the journal entries.
On redirect examination, Megan testified that around Christmas of 2005, "I told her," referring to her school's nurse. Megan did not testify to further details about this complaint. The defendant did not object. The judge did not give the jury a limiting instruction at that time, but did so soon afterward. The Commonwealth did not call the nurse to testify. Megan's testimony about her complaint to the nurse was properly before the jury because the defendant, while cross-examining Megan, had elicited that she had delayed reporting the defendant's rape to the nurse. The defendant opened the door to Megan's testifying that she did complain to the nurse. See Commonwealth v. McCowen, 458 Mass. 461, 479 (2010). See also Kebreau, 454 Mass. at 289; Monteiro, 75 Mass. App. Ct. at 496. Furthermore, her "testimony was so lacking in detail as to be virtually insignificant." Murungu, 450 Mass. at 448.
See note 9, supra.
c. Megan's complaint to her father. On redirect examination, Megan testified that after the school nurse telephoned her home and spoke to her father, Megan and her father talked. She testified, "I told my dad what happened." Megan did not testify to further details about this complaint. The defendant did not object.
Later, when the Commonwealth called Megan's father as a witness, he testified that in December 2005, he learned about her allegations of rape against the defendant when her school telephoned. He then talked to Megan, who made the allegations against the defendant. Megan's father did not testify about details of her complaint. He testified, "I learned from the school this was happening with my daughter." The defendant did not object. This complaint, too, was properly before the jury because the defendant, in eliciting that Megan had delayed complaining to her father, had opened the door to further context. See McCowen, 458 Mass. at 479; Kebreau, 454 Mass. at 289; Murungu, 450 Mass. at 448 ("testimony was so lacking in detail as to be virtually insignificant"). See also Monteiro, 75 Mass. App. Ct. at 496 (Commonwealth may "present a fair and accurate picture" of its case).
d. Megan's journal entries. Megan testified on redirect examination that on June 25, 2003, she had recorded in her journal that the defendant had raped her. Megan read the graphic entry to the jury. On July 24, 2004, Megan recorded another journal entry about the rapes on the same page as the June 25, 2003, entry, to tie them together. Megan wrote that she hated the defendant, that he had lied and gotten her in trouble, and that she wondered whether to tell her father and whether to tell Jeanette, her friend and former neighbor. Megan read this journal entry to the jury. She testified that she told Jeanette about what the defendant had done, but did not testify about the details of this complaint. The defendant objected to Megan's testimony and the submission of the journal entries to the jury. During his recross-examination, trial counsel questioned Megan whether she had written the two entries on the dates recorded.
We conclude that the judge correctly ruled that the journal entries constituted prior consistent statements the prosecutor used to rehabilitate Megan after trial counsel had insinuated that Megan had fabricated her allegations to favor her father in her parents' marital conflict. See Commonwealth v. Novo, 449 Mass. 84, 93 (2007) ("when trial testimony is impeached by a claim that the witness has recently fabricated her account, a prior consistent statement made before the witness had incentive to fabricate may be admitted for the limited purpose of rebutting the claim of recent fabrication"). See Aviles, 461 Mass. at 70 (Commonwealth may "rebut a defense theory of fabrication"). The judge gave a proper limiting instruction concerning Megan's complaints to the school nurse, her father, and her journal entries, directing the jury that they could consider this evidence solely to assist in assessing Megan's credibility, but not to prove the rape allegations against the defendant. There was no error.
See note 9, supra.
e. Megan's complaint to Jeanette. To rebut the defendant's suggestion that Megan had postdated her journal entries, an issue the defendant had raised, the Commonwealth called Jeanette to testify that Megan had shown her journal entries to her in July 2004. Over the defendant's objection, Jeannette testified that she had read both journal entries in July 2004, but did not testify about their substance. The judge correctly overruled the defendant's objection because trial counsel had questioned when Megan had written her journal entries, and thus, Jeanette could testify about having read them when she did. See Aviles, 461 Mass. at 70; Novo, 449 Mass. at 93.
In addition to his limiting instructions during Megan's testimony, the judge gave final instructions directed to Megan's testimony about her subsequent complaints and her journal entries in which he carefully differentiated between her first complaint testimony and her subsequent complaint testimony, which consisted of her prior consistent statements and which the jury could use solely to evaluate Megan's credibility, and not as proof of her allegations of rape. "The jury are presumed to follow all instructions they are given." Commonwealth v. Silva, 482 Mass. 275, 290 (2019).
f. Gwen's complaint to her mother. Gwen's mother testified on cross-examination that she learned in 1999 or 2000 about Gwen's rape allegations against the defendant. On redirect examination, without objection, Gwen's mother testified that Gwen had not told her directly about her allegations against the defendant. Rather, she testified that she learned that Gwen had told her friend Raven, who told her mother, who then telephoned someone at Gwen's and Raven's school, who in turn telephoned Gwen's mother about Gwen's allegations. Through his cross-examination of Gwen's mother, the defendant opened the door to this testimony. See McCowen, 458 Mass. at 479; Monteiro, 75 Mass. App. Ct. at 496.
In this context, we conclude that the testimony of these various witnesses about Megan's and Gwen's subsequent complaints did not represent a "piling on," King, 445 Mass. at 235, or a "parade of multiple complaint witnesses," Stuckich, 450 Mass. at 457 n.11, which our cases have warned against. The trial judge did not abuse his discretion in admitting this evidence. See Murungu, 450 Mass. at 447.
The defendant does not fully develop his argument that the judge improperly excluded evidence on two topics. First, that the Commonwealth, after initially charging the defendant for raping Gwen, issued a nolle prosequi in 2000 and only later reindicted him. Second, that the defendant could have offered in his testimony his "opinion" as to why Megan and Gwen had alleged that he had raped them. The nature and factual source of his opinion does not appear in the record. In any event, evidence of the Commonwealth's reasons for its "strategic decision . . . to cease pursuing charges" and its "exercise of a prosecutorial tool to discontinue prosecution," Commonwealth v. Denehy, 466 Mass. 723, 734 (2014), was inadmissible as irrelevant. See Commonwealth v. Santiago, 425 Mass. 491, 497 n.4 (1997), cert. denied, 525 U.S. 1003 (1998). The defendant's unspecified "opinion" about why his granddaughters accused him would have been "speculation . . . not based on personal knowledge" and was "properly excluded." Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014).
2. Ineffective assistance of counsel. On December 1, 2017, almost ten years after his trial, the defendant moved for a new trial, alleging ineffective assistance of counsel before and during the trial, and included an affidavit from trial counsel. The defendant argues that the motion judge, who was not the trial judge, erred by denying his motion for a new trial without conducting an evidentiary hearing. We find no error. In her ruling citing seven appellate decisions, the judge denied the motion for a new trial "for each of the reasons addressed by the Commonwealth's opposition. Defendant has not met his burden to raise a substantial issue." A judge need not hold an evidentiary hearing on a motion for a new trial if the motion and any accompanying affidavit do not raise a substantial issue. See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). The motion judge did not credit trial counsel's affidavit, writing, "Each of the arguments about trial counsel's decision-making is belied by the facts as revealed in the transcript and by the law." In choosing not to hold an evidentiary hearing, the judge acted within her "sound discretion." Fogarty v. Commonwealth, 406 Mass. 103, 110 (1989).
As for the denial of the motion for a new trial, "where the motion judge is not the trial judge, and no evidence is taken, we are able to assess the trial record and conduct a de novo review." Commonwealth v. Sanchez, 476 Mass. 725, 742 (2017). We discuss each claim in turn, and do not discern that trial counsel was ineffective. Under the familiar Saferian test, a defendant is denied constitutionally effective assistance of counsel if the representation fell "measurably below that which might be expected from an ordinary fallible lawyer," and that the performance inadequacy "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Failure to oppose joinder. The defendant asserts that his trial counsel was ineffective for failing to oppose the Commonwealth's motion to join for trial the indictments relating to Megan and Gwen. We disagree because the defendant has not demonstrated that opposing joinder "might have accomplished something material for the defense." Commonwealth v. Lally, 473 Mass. 693, 703 (2016). There is no reason to conclude that opposing the Commonwealth's motion to consolidate the cases would have met with success. The offenses against Megan and Gwen were factually similar, see Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005), including the defendant's having raped his granddaughters vaginally and anally in his home and then having them clean themselves off with a towel. The offenses are therefore related. See Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). When offenses are related, and one party moves for joinder, if the best interests of justice do not bar it, joinder for trial is required. Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1979). Had the defendant opposed joinder, in our view, his opposition would have had "a minimal chance of success." Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 147 n.8 (2008), quoting Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). See Commonwealth v. Mamay, 407 Mass. 412, 416-417 (1990) (charges properly joined when defendant doctor used same scheme to commit sexual offenses against six female patients in his office over eight months); Commonwealth v. Pope, 392 Mass. 493, 502-503 (1984) (charges properly joined when defendant committed sexual offenses against four victims in same hotel). Therefore, trial counsel's failure to oppose joinder was not ineffective assistance.
Even had the defendant successfully opposed joinder, we are not convinced that the evidence that he raped Megan would not have been admissible in Gwen's trial, and vice versa. See Commonwealth v. Mendez, 476 Mass. 512, 520 (2017) ("bad act evidence may be admissible if relevant for another purpose such as . . . a common scheme or pattern").
b. Opening door to prejudicial evidence. The defendant asserts that his trial counsel opened the door to prejudicial evidence, which we have discussed. We disagree. The defendant's strategy was to question the victims' credibility. He had no other apparently available defense. His cross-examination questions trying to establish that Megan and Gwen had fabricated their allegations, and that Megan had done so as a means to side with her father in his disputes with her mother, were countered by the Commonwealth with prior consistent statements, especially Megan's, that the rapes had indeed occurred. Because the defendant's strategic decisions in this regard were not "manifestly unreasonable when made," trial counsel was not ineffective. Commonwealth v. Coonan, 428 Mass. 823, 827 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).
c. Failure to object to evidence. The defendant asserts that his trial counsel was ineffective for failing to object to subsequent complaint evidence. However, trial counsel's manifestly reasonable strategy, see Coonan, 428 Mass. at 827, was to question the victims' credibility. When the Commonwealth offered prior consistent statements, trial counsel objected to some of them, but not all, and his objections were properly overruled. Because he had strategically opened the door to subsequent complaint evidence, and because the judge had ruled against him when he did object, further objections on the same ground would not have accomplished "something material for the defense." Lally, 473 Mass. at 703, quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
d. Failure to move for curative instructions and mistrial. The defendant asserts that his trial counsel was ineffective for failing to move for certain curative instructions and for a mistrial. We disagree. Although the judge sua sponte gave limiting instructions to some of the evidence, no curative instruction was called for because the judge's admission of subsequent complaint evidence was proper. Nor could properly admitted evidence be the basis for a mistrial. Therefore, absent error by the trial judge, trial counsel's failure to move for curative instructions or for a mistrial was not ineffective.
A curative instruction is one in which the jury is instructed "to disregard something that should not have happened in court." Black's Law Dictionary 1025 (11th ed. 2019).
e. Shifting the burden of proof. The defendant asserts that his trial counsel was ineffective because in his opening statement, trial counsel twice said that he would prove that the defendant was not guilty, including saying once that he would prove it beyond a reasonable doubt. Although trial counsel's seeming acceptance of the burden of proof was better left unsaid, the defendant failed to demonstrate that his trial counsel's opening statement prejudiced him and therefore that his counsel was ineffective. See Commonwealth v. Millien, 474 Mass. 417, 430-431 (2016).
Trial counsel did not accept the burden of proof during his closing argument, unlike in Commonwealth v. Parent, 465 Mass. 395, 406-407 (2013) (defense counsel accepted burden of proof during opening statement and closing argument). Rather, he twice told the jury that the Commonwealth had to prove its case against the defendant beyond a reasonable doubt. Moreover, the judge repeatedly throughout the trial instructed the jury that the Commonwealth had the burden of proof on all the indictments, once during jury selection, twice before opening statements, and numerous times at the end of the trial, making clear that the Commonwealth's burden never shifts, and instructing extensively about what the Commonwealth needed to prove beyond a reasonable doubt before the jury could find the defendant guilty. If trial counsel's opening statement "created any confusion as to who bore the burden of proof, the confusion would have been cured by the judge's instructions," id. at 407, and trial counsel's own closing argument.
f. Failure to prepare adequately. The defendant asserted that his counsel failed to prepare adequately for trial. Trial counsel generally averred that around the time of the trial, he was recovering from "a serious cardiac issue" that had caused his hospitalization and kept him from functioning at "[one hundred] percent." He also averred that after Megan's family had told him that Megan would not testify at the trial, he should have hired an investigator to learn that she would testify and learn her motive to fabricate her allegations. Trial counsel implied, but did not state, that he was unprepared for trial in general, because of his cardiac issue, and unprepared to cross-examine Megan. He did not state how an investigator would have learned from Megan that she later planned to testify when he, trial counsel, was unable to learn it from her family. As we have noted, the motion judge did not credit trial counsel's affidavit, which does not set forth any specific consequence from trial counsel's unspecified "cardiac issue."
The defendant did not demonstrate that his counsel's cardiac "issue" and his failure to hire an investigator to address this one point prejudiced him at trial, and that his counsel was ineffective on these grounds. See Saferian, 366 Mass. at 96.
g. Cumulative failures. The defendant argues that his trial counsel's conduct cumulatively amounted to ineffective assistance. We disagree. We discern neither conduct by trial counsel that fell below that of an ordinary lawyer nor prejudice to the defendant by any such conduct. See id. We discern none individually or cumulatively. See Commonwealth v. Baran, 74 Mass. App. Ct. 256, 260 (2009).
The defendant further alleges that his trial counsel was disbarred after the trial. We take judicial notice that a lawyer with the same name as defendant's trial counsel was disbarred on October 11, 2012, more than four years after the defendant's trial. The defendant also alleges that his trial counsel was the same named lawyer who had been investigated for ethical violations, and who, as trial counsel in a different case, cross-examined a Commonwealth witness whom he had represented, and who did not deny that he had told the same witness out of court that he did not believe the defendant's alibi. See Commonwealth v. Martinez, 425 Mass. 382 (1997). The defendant fails to explain how, even if his trial counsel was disbarred years after his trial, and was the same counsel as in Martinez, his conduct in the defendant's trial fell below that of an ordinary lawyer and deprived the defendant of an otherwise available, substantial ground of defense. See Saferian, 366 Mass. at 96. See Commonwealth v. Thibeault, 28 Mass. App. Ct. 787, 793-794 (1990) (counsel under suspension during trial not per se ineffective).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Neyman, Shin & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 28, 2020.