Commonwealth v. Torres

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12-P-1733 Appeals Court

COMMONWEALTH vs. FELIX TORRES.

No. 12-P-1733.

Worcester. March 7, 2014. - September 10, 2014.

Present: Katzmann, Rubin, & Carhart, JJ.

Rape. Indecent Assault and Battery. Practice, Criminal, Public
trial, Severance, Trial of indictments together, Mistrial.
Constitutional Law, Public trial. Evidence, First
complaint, Prior misconduct, Pattern of conduct, Relevancy
and materiality, Redirect examination.

Indictments found and returned in the Superior Court
Department on September 12, 2006.

The cases were tried before Bruce R. Henry, J.; a motion
for a new trial, filed on January 21, 2011, was heard by him;
and a motion for reconsideration was considered by him.

Angela G. Lehman for the defendant.
Stephen J. Carley, Assistant District Attorney, for the
Commonwealth.

CARHART, J. The defendant appeals from his convictions of

seven counts of indecent assault and battery on a child and

eight counts of rape of a child, and from the denials of his
 2

motions for a new trial and to reconsider. The defendant argues

that the trial judge erred in concluding that the court room was

not closed to the public, failing to sever the counts sua

sponte, admitting improper first complaint testimony, and making

various evidentiary rulings. We affirm.

Background. The jury were presented with the following

evidence. The defendant was in an intermittent relationship

with Sonia Nieves. They had two children together, Kim1 and

David.2 Nieves also had a child from a different relationship,

Sara.3 Nieves's three sisters, Nina,4 Ann,5 and Beth,6

occasionally lived with her and the defendant. The victims,

Kim, Nina, and Ann, all testified at trial.

Kim testified that the defendant touched her for the first

time when she was seven or eight years old. He entered her

bedroom while Sara was sleeping in the room and touched Kim's

breast, buttocks, and vagina with his hand. On another

occasion, the defendant climbed into Kim's bed, again while Sara

was in the room, touched Kim's vagina with his penis, and put

1
A pseudonym.
2
A pseudonym.
3
A pseudonym.
4
A pseudonym.
5
A pseudonym.
6
A pseudonym.
 3

his penis inside Kim's mouth. He was silent during both

incidents.

Nina testified that the defendant touched her for the first

time when she was eight years old. On that occasion, he

approached Nina while she was doing laundry and put his penis

inside her buttocks and vagina. Then, when Nina was eleven

years old, the defendant entered her bedroom and put his penis

inside her vagina. He was silent during both incidents.

Ann testified that the defendant touched her for the first

time when she was six or seven years old. He entered her

bedroom while she was playing with her brother and, without

saying anything, put his finger inside her vagina. When she was

between ten and fourteen years old, the defendant called Ann

into her brother's bedroom at a family barbeque, sucked on her

breast, and then performed oral sex on her. Again, the

defendant was silent during the incident. Ann also testified to

three other incidents where the defendant put his fingers inside

her vagina while other children were in the room, put his penis

inside her vagina while she was sleeping on a couch, and put his

penis inside her vagina while she was napping on Nieves's bed.

In 2006, after learning that Sara had been abused by her

maternal grandfather, the family gathered together to discuss

the situation. At some point, Kim told Ann that she had been

abused by the defendant. This disclosure prompted Nieves, Ann,
 4

Nina, and Beth to meet privately and discuss the defendant.

During this meeting, Ann and Nina told the group that they had

also been abused by the defendant. The sisters ultimately

called the police two times, once regarding their father and

once regarding the defendant.

Discussion. 1. Closure. The defendant claims that the

trial judge erred in denying his motions for a new trial and to

reconsider. After the guilty verdicts, the defendant moved for

a new trial, alleging that his right to a public trial was

violated because the court room was improperly closed during

jury selection and that he was denied the effective assistance

of counsel. The judge held a two-day evidentiary hearing, at

which two court officers, the defendant's trial counsel, two of

the defendant's family members, and the defendant testified.

Some of the witnesses testified to the "culture" of jury

selection in the Worcester County Superior Court, as well as the

seating capacity for jurors in the court room in which the jury

were empanelled.

After hearing the evidence, the judge issued a thoughtful

decision in which he concluded that, notwithstanding the

"culture" in Worcester County to "typically" clear the court

room for empanelment, there was also a practice of permitting

admittance during empanelment when seats were available. By

comparing the seating capacity of the court room with the number
 5

of jurors called during the empanelment process, the judge

concluded that the court room was not closed to the public in

this case. We also note that the judge discredited the

defendant's two family members who claimed that they were

excluded. Accordingly, the motion for new trial was denied.

The defendant filed a motion to reconsider, which was also

denied.

It is well settled that the First and Sixth Amendments to

the United States Constitution guarantee criminal defendants the

right to a public trial. Commonwealth v. Cohen (No. 1), 456

Mass. 94, 106 (2010) (adding that "[t]he public trial right

applies to jury selection proceedings"). A defendant who claims

that his right to a public trial has been violated bears the

burden of proving that the court room was closed. Id. at 107.

Such a violation is a constitutional issue and constitutes

structural error. Id. at 105. Accordingly, we "exercise [our]

own judgment on the ultimate factual as well as legal

conclusions." Ibid., quoting from Commonwealth v. Tucceri, 412

Mass. 401, 409 (1992). After a careful review of the record and

the judge's credibility determinations, we cannot say that we

disagree with the judge's ultimate factual findings or

conclusions. Indeed, the judge's finding, that the court room

was not closed to the public, is amply supported by the evidence

and reflects a diligent analysis of the circumstances that lay
 6

at the heart of the defendant's claims. We conclude that the

judge did not err in denying the defendant's motions for a new

trial and to reconsider.

2. Joinder. The defendant next argues that the judge

erred in failing to sever the counts sua sponte, pursuant to

Mass.R.Crim.P. 9(d), 378 Mass. 860 (1979). Rule 9 of the

Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979),

governs joinder, and rule 9(a)(1) provides that "[t]wo or more

offenses are related offenses if they are based on the same

criminal conduct or episode or arise out of a course of criminal

conduct or series of criminal episodes connected together or

constituting parts of a single scheme or plan." Rule 9(a)(2)

states, "If two or more related offenses are of the same or

similar character, they may be charged in the same indictment or

complaint, with each offense stated in a separate count."

Finally, rule 9(d)(1) provides, "If it appears that a joinder of

offenses or of defendants is not in the best interests of

justice, the judge may upon his own motion or the motion of

either party order an election of separate trials of counts,

grant a severance of defendants, or provide whatever other

relief justice may require." It is against this backdrop that

we consider the defendant's claim that the judge erred in

failing to sever the counts.
 7

We begin this analysis by noting that a decision to sever

counts of an indictment is one left to the "sound discretion of

the judge." Commonwealth v. Allison, 434 Mass. 670, 679 (2001).

Absent "a clear abuse of discretion," we will not disturb the

judge's ruling in this regard. Ibid. The defendant "bears the

burden of demonstrating that the offenses were unrelated, and

that prejudice from joinder was so compelling that it prevented

him from obtaining a fair trial." Commonwealth v. Pillai, 445

Mass. 175, 180 (2005), quoting from Commonwealth v. Gaynor, 445

Mass. 245, 260 (2005). In showing that the offenses are

unrelated under rule 9(a), the defendant must show that the

offenses lack "factual similarities." Ibid., citing

Commonwealth v. Ferraro, 424 Mass. 87, 89-91 (1997). See

Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995) ("Offenses

are related if 'the evidence in its totality shows a common

scheme and pattern of operation that tends to prove' each of the

complaints"). In showing prejudice, the defendant must prove

that he was foreclosed from pursuing a "particular tactic or

right" at trial. Commonwealth v. Spray, 467 Mass. 456, 469

(2014).

In this case, we note that the evidence offered in support

of each count was similar, if not identical. Although the

incidents occurred over many years, there was overlap among the

incidents, which took place in similar locations and in
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factually similar ways. Thus, the mandates of rule 9 were met

as to each count, warranting joinder. Moreover, we note that

experienced trial counsel did not move to sever the counts, and

we cannot say that the failure to seek severance was not a sound

tactical decision. See Commonwealth v. Teti, 60 Mass. App. Ct.

279, 289 (2004) (attorney may strategically choose not to seek

severance). Indeed, the defendant was not foreclosed by the

joinder from pursuing a "particular tactic" at trial, as his

theory of the case was that the allegations were concocted

through collusion among the victims, which was best played out

through a trial in which all of the victims testified. The fact

that this tactical decision did not result in an acquittal does

nothing to support an appellate argument that the defendant was

prejudiced and the counts should have been severed. See

Commonwealth v. Spray, supra. We conclude that there was a

sound basis for trial counsel to refrain from seeking a

severance of the counts and that the judge did not abuse his

discretion, considering the parameters of rule 9, in deciding

that severance was not "in the best interests of justice."

3. First complaint testimony. The defendant next argues

that the judge abused his discretion in allowing witnesses to

testify to statements beyond the scope of the first complaint

doctrine. This argument lacks merit. The Commonwealth called a

first complaint witness for each victim, and the judge gave a
 9

first complaint curative instruction for each witness. In

defense counsel's opening and in his cross-examination of the

victims, he alluded to and introduced information that exceeded

the scope of the first complaint doctrine in an effort to

establish that the victims had colluded, or been manipulated, to

accuse the defendant. For example, when cross-examining Kim,

defense counsel asked whether her aunts told her that the

defendant had abused them and whether Kim told a police officer

that something came out of the defendant's penis during one of

the assaults. In response, the Commonwealth presented evidence

that exceeded the bounds of the first complaint doctrine.

Defense counsel did not object, except in one instance.

We review the admission of first complaint testimony for

abuse of discretion. Commonwealth v. Aviles, 461 Mass. 60, 73

(2011) ("The judge who is evaluating the facts of a particular

case is in the best position to determine the scope of

admissible evidence, keeping in mind the underlying goals of the

first complaint doctrine"). It is undisputed that first

complaint testimony is limited to the "details of the alleged

victim's first complaint of sexual assault and the circumstances

surrounding that first complaint as part of the prosecution's

case-in-chief." Commonwealth v. King, 445 Mass. 217, 243, 246

(2005), cert. denied, 546 U.S. 1216 (2006) (explaining that a

first complaint witness may testify to her observations during
 10

the complaint and conversations or events "that culminated in

the complaint"). The Commonwealth may not present multiple

first complaint witnesses or introduce "[e]vidence that a

complainant repeatedly complained of a sexual assault to several

different persons." Id. at 243. The trial judge is required to

give a standard limiting instruction to the jury to the effect

that first complaint testimony is not to be considered as

evidence that the crime occurred. Id. at 247-248.

In this case, the judge followed first complaint protocol

and gave the required limiting instructions. It was defense

counsel who alleged that the victims fabricated their

accusations and first brought out statements that exceeded

permissible first complaint testimony, which opened the door to

further testimony beyond the scope of the first complaint

doctrine. A review of the record leads us to conclude that this

was a reasonable trial tactic in marshalling a defense. Once

the defendant "opened the door" to these statements, the

Commonwealth was appropriately permitted to explore the contents

and the context of the statements in more detail. See

Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009)

(testimony beyond scope of first complaint doctrine is

admissible "for the independent purpose of rebutting the
 11

inferences raised by the defendant's inquiries"). We find no

abuse of discretion.7

4. Evidentiary rulings. The defendant argues that a

series of evidentiary rulings by the judge deprived him of a

fair trial. The defendant first claims that the judge erred in

allowing the Commonwealth's motion in limine to admit testimony

that the defendant abused his stepdaughter, Sara, in order to

show the defendant's intent, state of mind, and a common pattern

or course of conduct toward the young women in his family. We

disagree. We review evidentiary rulings, such as a ruling on a

motion in limine, for abuse of discretion, and we will only find

error if the defendant shows that "no conscientious judge,

acting intelligently, could honestly have taken the view

expressed by him." Commonwealth v. Spencer, 465 Mass. 32, 48

(2013), quoting from Davis v. Boston Elevated Ry. Co., 235 Mass.

482, 502 (1920).

Although evidence of bad acts is inadmissible to show a

person's propensity to commit "the crime charged," Commonwealth

v. King, 387 Mass. 464, 469 (1982), it may be "admissible for

7
The defendant also argues that Ann, in serving as a first
complaint witness for Kim, was improperly permitted to testify
that Kim looked upset about going to visit the defendant right
before she disclosed her abuse. Defense counsel objected. As
the first complaint doctrine permits a first complaint witness
to testify to "circumstances surrounding that first complaint,"
we find no abuse of discretion. Commonwealth v. King, 445 Mass.
at 243.
 12

other purposes," Mass. G. Evid. § 404(b) (2014). For example,

"such evidence 'may be admissible, if relevant, to show a common

scheme or course of conduct, a pattern of operation, absence of

accident or mistake, intent, or motive,'" so long as the

evidence is "related in time, place, and/or form to the charges

being tried." Commonwealth v. Walker, 442 Mass. 185, 202

(2004), quoting from Commonwealth v. Barrett, 418 Mass. 788,

793-794 (1994), and Liacos, Brodin, & Avery, Massachusetts

Evidence § 4.4.6, at 155 (7th ed. 1999). In this case, the bad

acts evidence and the crime for which the defendant was charged

were certainly not unrelated. Sara testified that when she was

around eleven years old, the defendant touched her vagina with

his hand while Kim was asleep in the room. The defendant was

silent during the incident. The victims were at a similar age

at the time of abuse, had family connections to the defendant,

and were abused in similar environments and in similar ways.

Such commonalities might indicate that the defendant was engaged

in a "pattern" or "common scheme or course of conduct." The

incidents were certainly related in "place" and "form." Thus,

the evidence was relevant and admissible for a permissible

purpose.

Additionally, bad acts evidence is only admissible where

its prejudicial effect does not outweigh its probative value.

Commonwealth v. Butler, 445 Mass. 568, 576 (2005). Here, the
 13

judge instructed the jury that Sara's testimony "may not and

indeed must not be considered . . . as any evidence that [the

defendant] has a bad character or as evidence that he has a

propensity to commit the crimes that have been charged in this

case" and that the jury should only consider the bad acts

evidence if the jury found it believable, relevant, and

probative "of the issue of the defendant's intent or state of

mind at the time of the alleged rapes and indecent assaults and

batteries and on the issue of whether he demonstrate[d] a

pattern or a common course of conduct." The judge repeated a

similar instruction in his final instructions to the jury.

Given these repeated curative instructions and our review of the

record, we conclude that the prejudicial value of the evidence

did not outweigh its probative value. See Commonwealth v.

Walker, supra. We further conclude that the judge did not abuse

his discretion in allowing the motion in limine.

The defendant also claims that the judge erred in

permitting Beth to testify during redirect examination that the

defendant attempted to kiss her. "The scope of redirect

examination is within the sound discretion of the trial judge,"

and the defendant bears "a heavy burden" to show an abuse of

that discretion. Commonwealth v. Arriaga, 438 Mass. 556, 577

(2003), quoting from Commonwealth v. Mattais, 387 Mass. 79, 92

(1982). We will not find such abuse where the defendant "opened
 14

the door" for the Commonwealth's rebuttal. Ibid. In this case,

the Commonwealth did not elicit testimony about the kiss until

after defense counsel elicited testimony that the witness did

not like the defendant. Thus, the rebuttal testimony was

permissible during redirect examination in order to explain why

the witness disliked the defendant. We find no abuse of

discretion.

Next, the defendant argues that the judge erred in refusing

to grant a mistrial after Beth extemporaneously testified that

the maternal grandfather received an eight-year sentence for

sexually abusing children. After denying the motion for a

mistrial, the judge immediately struck the testimony from the

record and gave a curative instruction. "The decision whether

to declare a mistrial is within the discretion of the trial

judge." Commonwealth v. Bryant, 447 Mass. 494, 503 (2006).

Indeed, "[w]here a party seeks a mistrial in response to the

jury's exposure to inadmissible evidence, the judge may

'correctly rel[y] on curative instructions as an adequate means

to correct any error and to remedy any prejudice to the

defendant.'" Ibid., quoting from Commonwealth v. Kilburn, 426

Mass. 31, 37-38 (1997). In deciding the appropriate cure for

improper testimony, the judge may have considered, among other

factors, that the testimony did not bear on the charged conduct,

that the testimony was a surprise to both parties, and that
 15

"[j]urors are presumed to follow a judge's instructions,

including instructions to disregard certain testimony."

Commonwealth v. Roby, 462 Mass. 398, 413 (2012), quoting from

Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Given

these considerations and our review of the record, we conclude

that there was no abuse of discretion.

The defendant also argues that the Commonwealth improperly

questioned him as to whether Sara lied when she testified that

Nina was the first person she told about her grandfather abusing

her. Defense counsel objected, the judge sustained the

objection, and the defendant did not answer the question. "It

is well-established, and we have repeatedly stated, that it is

improper to ask a witness at trial to assess the credibility of

other witnesses' testimony." Commonwealth v. Colon, 64 Mass.

App. Ct. 303, 306-307 (2005). Thus, we review the prosecutor's

improper question, to which defense counsel objected, for

prejudicial error. See Commonwealth v. Ward, 15 Mass. App. Ct.

400, 401-402 (1983). We consider that the error here consisted

of just a single question, the defendant did not answer the

question, and the judge gave a curative instruction. See id. at

402. Accordingly, we conclude that there was no prejudice.

Finally, the defendant argues that the prosecutor

improperly gave witnesses signals as to how they should answer

questions while testifying. At trial, defense counsel raised
 16

the objection about improper signaling during an unrelated side-

bar discussion. The judge responded to defense counsel's

concern by stating to the prosecutor, "[C]ounsel, if -- I should

point out to you yesterday you signaled the witness with two

fingers up when you asked her about a certain number of years,

all right? So let's not get into this nonsense." The defendant

did not renew his objection. On appeal, the defendant does not

provide any evidence as to what the prosecutor allegedly did at

trial or as to how this "signaling" affected the trial. Rather,

the defendant simply suggests that such signaling occurred, it

was error, and that it, along with other alleged errors

throughout the trial, made the trial fundamentally unfair. On

this record, we decline to find that the trial was fundamentally

unfair.

Judgments affirmed.

Orders denying motion for new
trial and to reconsider
affirmed.