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SJC-12227
COMMONWEALTH vs. GAUDY ASENJO.
Essex. February 6, 2017. - August 15, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Budd, JJ.
Rape. Evidence, First complaint, Expert opinion. Witness,
Expert. Battered Woman Syndrome.
Indictments found and returned in the Superior Court
Department on May 22, 2013.
The cases were tried before James F. Lang, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Emily A. Cardy, Committee for Public Counsel Services, for
the defendant.
David F. O'Sullivan, Assistant District Attorney (Jennifer
S. Kirshenbaum, Assistant District Attorney, also present) for
the Commonwealth.
HINES, J. In January, 2015, the defendant, Gaudy Asenjo,
was convicted by a Superior Court jury of three counts of
2
aggravated1 rape of a child.2 The complainant was the
defendant's niece, Sara,3 who was fourteen years of age at the
time of the rape. The defendant appeals from the convictions,
claiming that the judge erred in (1) interpreting the first
complaint rule to require the disclosure of the perpetrator's
identity to the first complaint witness and allowing a police
officer to testify as the first complaint witness; (2) allowing
the complainant to testify to multiple disclosures of the sexual
assault in violation of Commonwealth v. King, 445 Mass. 217
(2005), cert. denied, 546 U.S. 1216 (2006), and its progeny; and
(3) precluding expert testimony in support of her defense based
on battered woman syndrome. We conclude that the essential
feature of first complaint evidence is the report of a sexual
assault, not the identity of the perpetrator. Consequently, the
admission of the police officer's testimony as first complaint
evidence was error, which, after viewing the evidence as a
whole, was prejudicial. We conclude also that the judge erred
1
The aggravating factor was the age difference of more than
ten years between the defendant and the complainant, who was a
child over the age of twelve and under the age of sixteen. See
G. L. c. 265, § 23A.
2
In a separate trial in April, 2015, her codefendant, Luis
Rivera, was acquitted on three counts of aggravated rape of a
child.
3
A pseudonym. See G. L. c. 265, § 24C. Sara was born in
March, 1996, and she was eighteen years of age at the time of
trial.
3
in admitting the complainant's testimony as to her multiple
disclosures of the rape. Last, we conclude that a defendant
asserting duress under G. L. c. 233, § 23F, based on battered
woman syndrome, is not required to present affirmative evidence
of abuse as a predicate to the defense. The judge erred in
excluding the proffered expert testimony on this ground.
Therefore, based on the foregoing, we reverse and order a new
trial.
Background. We summarize the evidence the jury could have
found. In February, 2011, Sara and her twin sister spent most
of their February school vacation at the home of the defendant,
their maternal aunt. One evening, toward the end of the week,
Sara, Sara's sister, the defendant's daughter, the defendant,
and the defendant's then boy friend, Luis Rivera, were present
in the home socializing and drinking alcohol. Rivera and the
defendant had been in a relationship for a long time, such that
Sara considered him an uncle. That evening, Sara was upset with
her sister and the defendant's daughter. Although they were all
drinking alcohol, the other girls were also smoking marijuana
without including Sara.
After the other two girls went upstairs to go to bed, Sara
stayed downstairs talking with the defendant. At the time, Sara
was "really close" with the defendant and thought of her as a
"second mom." During the conversation, the defendant inquired
4
about Sara's sexual experience and told Sara how satisfying her
sexual relationship with Rivera was. Later that evening, the
defendant telephoned Rivera, who had left the residence earlier,
and asked him to return because Sara wanted him to come back.
After the defendant told Sara that Rivera was returning, Sara
stated that she had not showered that day. The defendant
instructed Sara to go into the bathroom and wipe her vagina
clean. The defendant helped Sara remove her pants, and Sara
cleaned herself. As the defendant inspected Sara's vagina, she
told Sara that Rivera would like it and that he would be "really
happy."
Approximately ten minutes later, Rivera arrived at the
defendant's home. The defendant suggested that the three of
them go into the bathroom, where Sara was instructed to lie down
on the floor on her back. After the door was closed and locked,
the defendant turned off the lights and illuminated the room
with the flashlight application on her cellular telephone.
Rivera pulled Sara's pants and underwear down, but left her
shirt on. Rivera performed oral sex on Sara, as the defendant
sat on the edge of the bathtub watching and asking Sara whether
she liked it. Sara did not answer, and instead focused on her
upcoming birthday so that she would not have to think about what
was happening to her. A few minutes later, Rivera inserted
something into Sara's vagina that hurt her. Sara did not know
5
whether it was his finger or his penis. Rivera directed the
defendant to perform oral sex on Sara while he had vaginal
intercourse with the defendant.
After the assault ended, Sara went upstairs, where her
sister and the defendant's daughter were sleeping. Sara was
scared because Rivera was still in the home, but she eventually
went back downstairs to use the bathroom. Rivera asked Sara
whether she wanted to do it again, but she ignored him, used the
bathroom, and ran back upstairs without incident. Sara was hurt
and confused, thinking that it was her fault and that she could
have done something to stop it. The next morning, the defendant
did not speak about the assault, and Rivera returned to the home
to bring everyone breakfast. Although Rivera did not speak to
Sara that morning, he touched her backside each time he was
alone with her.
Sara continued to visit the defendant's home after the
assault. Each time Sara visited, she tried to ensure that
Rivera was not present. A few weeks after the assault, Sara
asked the defendant whether it was possible that Sara was
pregnant because she was having stomach pains and had not
menstruated that month. The defendant stated that she did not
know whether Sara was pregnant, but that if Sara were, she
should tell her parents that the father was a boy from school,
rather than Rivera.
6
Over a period of two years after the rape, Sara disclosed
the attack on four different occasions. Sara first disclosed
the assault within weeks of the incident when she told her
cousin Mary4 that Rivera had raped her at the defendant's home.
Sara mentioned the defendant's presence during the rape, but did
not disclose her participation. Sara did not mention the
defendant's participation because Sara still loved her and did
not want to get her into trouble. In December, 2012, Sara
disclosed the rape for the second time to her sister and some of
their friends at a sleepover while playing a game they called
"if you really knew me." Sara revealed that the defendant was
present when it happened but again did not disclose her
participation. Sara made the third disclosure to her mother
within days of the sleepover without mentioning the defendant's
role in the rape. Finally, Sara repeated the details of the
rape to Detective Ashley Sanborn of the Danvers police
department, revealing for the first time the defendant's
participation.5
4
A pseudonym. See G. L. c. 265, § 24C. Mary's mother is
the sister of both the defendant and Sara's mother.
5
Sara made two disclosures to Detective Ashley Sanborn on
January, 2, 2013. The first, which was the basis for Sanborn's
first complaint testimony at trial, occurred in the presence of
Sara's mother and sister. Sara gave a second, more detailed
statement after her mother and sister left the room, in the
presence of Sanborn and another detective. Although the judge
originally ruled that the Commonwealth could elicit testimony
7
Sanborn appeared as the Commonwealth's first complaint
witness and testified that on January 2, 2013, she spoke with
Sara and Sara's family, at the family's request, at the Danvers
police station. After Sara's father left the room, Sara
disclosed that she had been raped by the defendant and Rivera.
Sara's sister also testified regarding Sara's December, 2012,
disclosure.
Discussion. 1. First complaint evidence. On the first
day of trial, the Commonwealth moved to introduce the testimony
of Sanborn as first complaint evidence. The defendant objected,
arguing that Sanborn was not in fact the first complaint witness
because Sara had disclosed the rape to others on at least three
prior occasions. In a written order, the judge allowed the
Commonwealth's motion. He ruled that Sara's prior disclosures
did not meet the test for first complaint evidence because the
statement to Sanborn was "the first time she [Sara] disclosed
that the defendant had committed sexual offenses against her and
participated with . . . Rivera in offenses that he committed as
a principal."
The judge's order allowing the Commonwealth's motion to
designate Sanborn as the first complaint witness was error for
two reasons. First, as our cases recounting the history of the
regarding both statements, he later determined that the second
statement was inadmissible.
8
first complaint doctrine confirm, its essential feature is the
report of the sexual assault, not the identity of the
perpetrator. As we discussed in King, 445 Mass. at 228-229, the
original purpose of the "fresh complaint" rule was to combat the
traditional, albeit outdated, notion that a true victim of
sexual assault should raise a "hue and cry," or report the
sexual assault in a timely manner. Although the first complaint
doctrine evolved from the fresh complaint rule, the underlying
purpose of first complaint evidence is still "to counterbalance
or address inaccurate assumptions regarding stereotypes about
delayed reporting of a sexual assault or about sexual assault
victims in general," rather than affirmative evidence that the
alleged sexual assault actually occurred. Id. at 240. See
Mass. G. Evid. § 413(a) (2017). "At its core, therefore, the
doctrine exists to facilitate credibility determinations where
an allegation of sexual assault is at issue." Commonwealth v.
Mayotte, 475 Mass. 254, 260 (2016). The fact that Sara
identified the defendant as a perpetrator for the first time in
the statement to Sanborn did not supplant the three prior
disclosures that, in revealing that a rape actually had
occurred, met the substantive test for admissibility as first
complaint evidence. Commonwealth v. Murungu, 450 Mass. 441, 446
(2008) (disclosure of actual sexual assault necessary to
constitute complaint). Thus, the interpretation of the first
9
complaint rule to require the identification of the defendant as
a prerequisite to admissibility was error.
Second, given our interpretation of the first complaint
rule to require only the report of the sexual assault, Sanborn
was improperly designated as the first complaint witness.
Sara's testimony established that Mary was the first person to
whom Sara reported the rape, about one month after it occurred.
Where a complainant has reported the sexual assault to multiple
persons, the designation of the first complaint witness is
solely a temporal consideration; it must not be subject to
manipulation based on the likely value of the witness's
testimony. The Commonwealth may not "pick and choose among
various complaint witnesses to locate the one with the most
complete memory, the one to whom the complainant related the
most details, or the one who is likely to be the most effective
witness." Murungu, 450 Mass. at 446. Unless, for some reason,
Mary were unavailable as the first complaint witness, she, not
Sanborn, should have been designated as such.
In certain limited circumstances, our law permits one
witness to be substituted for another to provide first complaint
evidence. We address briefly whether Sanborn properly could be
designated as the first complaint witness under this rubric.
"[W]hen the first person told of the alleged assault is
'unavailable, incompetent, or too young to testify
10
meaningfully,' the trial judge may admit testimony from a
substitute first complaint witness." Commonwealth v. Kebreau,
454 Mass. 287, 292 (2009), quoting King, 445 Mass. at 243-244.
Additionally, a judge may substitute the first complaint witness
where the victim's disclosure to the "first person does not
constitute a complaint," or where the victim makes a complaint
to a person who "has an obvious bias or motive to minimize or
distort the victim's remarks." Murungu, 450 Mass. at 446. See
Mass. G. Evid. § 413(a) & note. Mary was available to testify
and there was no evidence that her testimony was biased or that
she had motive to "minimize or distort [Sara]'s remarks."
Murungu, supra. Because the Commonwealth failed to demonstrate
the propriety of a substitution on either ground, Sanborn's
testimony as the first complaint witness could not be admitted
on this basis.
The defendant objected to the erroneous admission of
Sanborn's first complaint testimony. Therefore, we must
determine whether the error was prejudicial. See Commonwealth
v. Flebotte, 417 Mass. 348, 353 (1994). We conclude that it
was. Here, the defendant was indicted on three counts of
aggravated rape: one as a principal, and two as an aider and
abettor. Mary's testimony6 would have established only that the
6
Prior to trial, Sanborn interviewed Mary by telephone.
During the interview, Mary explained the circumstances and
11
defendant was present while Rivera raped Sara. Thus, if Mary,
the proper first complaint witness, had testified, the only
evidence of the defendant's participation in the rape would have
come from Sara's testimony. The substance of Sanborn's first
complaint testimony implicating the defendant in the rape, taken
together with her status as a police officer, likely tipped the
scales unfairly in favor of Sara's credibility. See King, 445
Mass. at 243. Because the Commonwealth cannot show that the
error "did not influence the jury, or had but very slight
effect," the defendant is entitled to a new trial. Flebotte,
supra.
2. Admission of the complainant's multiple disclosures.
On Sara's direct examination, the judge allowed her testimony
that she made four separate disclosures of the rape: (1) to
Mary a few weeks after the rape; (2) to her sister and friends
during the sleepover in December, 2012; (3) to her mother
shortly after the sleepover; and (4) to Sanborn in January,
2013. In overruling the defendant's objection to this
testimony, the judge explained that the evidence was admissible
because "the Commonwealth is entitled to elicit why [Sara]
waited to make the disclosure regarding this particular
defendant, and why she came forward when she did." Although the
details of Sara's first disclosure of the rape. A transcript of
that interview was included in the record on appeal.
12
judge noted his concern about "any piling on," he determined
that the risk of prejudice was not as high for the defendant
because Sara's prior disclosures did not actually implicate the
defendant.7 The admission of multiple disclosures in the
circumstances of this case was error.
The judge's reliance on King, 445 Mass. at 245, for the
proposition that a complainant may testify to multiple
disclosures of the alleged sexual assault to give temporal
context to the first complaint was misplaced. King states that
"the complainant may . . . testify to the details of the first
complaint . . . and also why the complaint was made at that
particular time." Id. This was not, however, an invitation to
allow a complainant to testify on direct examination to multiple
disclosures in her explanation of why the first complaint was
made at a "particular time." See id. at 243.
We acknowledge that Sara's testimony that she made multiple
disclosures may not have had the same impact as multiple
witnesses testifying to Sara's report of the sexual assault.
Nonetheless, the admission of her testimony created the same
risk of prejudice that we sought to prevent by the limitations
7
Although the judge was under the misapprehension that Mary
would testify as a defense witness, the decision to allow Sara
to preemptively testify about her disclosure to Mary was error
because Sanborn was the designated first complaint witness. See
Commonwealth v. King, 445 Mass. 217, 242-243 (2005), cert.
denied, 546 U.S. 1216 (2006).
13
we imposed in King. Sara's testimony, like that of multiple
first complaint witnesses, "likely serve[d] no additional
corroborative purpose, and may [have] unfairly enhance[d] [her]
credibility." Id.
Because this testimony was merely corroborative, it created the
very type of prejudice that we cautioned against in King. The
first complaint doctrine's limitation to one witness was
intended to vitiate the possibility of undue prejudice to the
defendant because it eliminated "prejudicial 'piling on' of such
witnesses." Id. at 245.
Defense counsel's use of the prior disclosures to attack
Sara's credibility did not cure the prejudice to the defendant.
Sara's testimony regarding her prior disclosures was admitted
substantively, without an instruction limiting the evidence to
impeachment purposes. See G. L. c. 233, § 23. This evidence
was particularly prejudicial to the defendant in light of the
improperly substituted first complaint witness's testimony,
which was the only evidence corroborating the defendant's
participation in the rape. Moreover, the judge compounded the
error by allowing Sara to explain, during each of the
disclosures, why she did not previously implicate the defendant.
See King, supra.
We have recognized that the first complaint doctrine does
not "prohibit the admissibility of evidence that, while barred
14
by that doctrine, is otherwise independently admissible."
Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). The
Commonwealth, relying on Arana, argues for the first time on
appeal that the evidence of Sara's multiple complaints was
independently admissible as prior inconsistent statements, see
Mass. G. Evid. § 613(a)(1) & note (2017), and that, in any
event, no prejudice resulted because of defense counsel's use of
the statements on cross-examination. We disagree.
Sara's statements were not admissible as prior inconsistent
statements because the Commonwealth did not offer them as such.
See id. The judge admitted the evidence of Sara's prior
disclosures to allow the Commonwealth to explain why Sara waited
to make the disclosure about the defendant's participation in
the rape and why she came forward when she did. Moreover, the
Commonwealth did not attempt to prove that Sara made prior
statements that were inconsistent with her present testimony,
nor did it "lay a foundation by asking [Sara] if the prior
statements were in fact made and . . . giv[e] [Sara] an
opportunity to explain," as required. Mass. G. Evid.
§ 613(a)(1). See G. L. c. 233, § 23. Sara's testimony to the
multiple disclosures, therefore, was not independently
admissible.
3. Battered woman syndrome evidence. In support of her
duress defense, the defendant sought to introduce expert witness
15
testimony regarding her battered woman syndrome diagnosis. The
judge excluded the defendant's expert witness testimony on the
ground that the defendant failed to lay a proper foundation for
such evidence. The judge determined that such testimony was
"irrelevant, and hence inadmissible, absent competent evidence
before the jury to support the putative expert testimony. The
expert's recitation of what the defendant told her is inadequate
in that regard, as it may only be considered by the jury with
respect to the validity of the doctor's proffered opinion."8
This was error.
As discussed infra, G. L. c. 233, § 23F, provides the
defendant the statutory right to present such evidence. Nothing
in § 23F requires that a defendant proffer evidence of abuse in
order to present expert witness testimony, where certain
specified defenses are asserted.9 Moreover, the judge's reliance
on Mass. G. Evid. § 703 (2017) to exclude the defendant's expert
8
The judge stated that "there has to be some quantum of
admissible competent evidence of some history of psychological
or physical abuse, that could support the opinion that [the
defendant's expert witness] would be offering." The judge noted
that he was not setting an "overly high threshold," but insisted
that there must be some admissible evidence, such as a witness
who could testify to the abuse, to establish a foundation to
support the defendant's proposed expert witness testimony.
9
General Laws c. 233, § 23F, permits the defendant to
introduce "either or both" evidence that she was a victim of
abuse or expert evidence regarding battered woman syndrome;
therefore, it was error for the judge to require the defendant
to establish evidence of abuse as a predicate to introducing
expert witness testimony. See G. L. c. 233, § 23F.
16
witness testimony was misplaced where § 23F provides an
independent statutory basis to admit such evidence.
Because G. L. c. 233, § 23F, is not so narrowly construed,
we take this opportunity to provide guidance regarding the
statutory requirements to admit evidence under G. L. c. 233,
§ 23F.
General Laws c. 233, § 23F, states:
"In the trial of criminal cases charging the use of
force against another where the issue of defense of self or
another, defense of duress or coercion, or accidental harm
is asserted, a defendant shall be permitted to introduce
either or both of the following in establishing the
reasonableness of the defendant's apprehension that death
or serious bodily injury was imminent, the reasonableness
of the defendant's belief that [s]he had availed [her]self
of all available means to avoid physical combat or the
reasonableness of a defendant's perception of the amount of
force necessary to dealt with the perceived threat:
"(a) evidence that the defendant is or has been the
victim of acts of physical, sexual or psychological harm or
abuse;
"(b) evidence by expert testimony regarding the common
pattern in abusive relationships; the nature and effects of
physical, sexual or psychological abuse and typical
responses thereto, including how those effects relate to
the perception of the imminent nature of the threat of
death or serious bodily harm; the relevant facts and
circumstances which form the basis for such opinion; and
evidence whether the defendant displayed characteristics
common to victims of abuse.
"Nothing in this section shall be interpreted to
preclude the introduction of evidence or expert testimony
as described in clause (a) or (b) in any civil or criminal
action where such evidence or expert testimony is otherwise
now admissible."
17
The Commonwealth contends that § 23F requires foundation
testimony or evidence supporting an instruction on one of the
defenses specified in order to trigger the application of § 23F.
We do not agree. In order to present evidence under § 23F, a
defendant need not present affirmative evidence of abuse because
§ 23F provides that, where a defendant asserts the defense of
self-defense or defense of another, duress or coercion, or
accidental harm, the "defendant shall be permitted to introduce"
certain evidence to establish the reasonableness of his or her
apprehension that death or serious bodily harm was imminent
(emphasis supplied). G. L. c. 233, § 23F.
Section 23F is more permissive than the common-law bases
for expert opinions outlined in Mass. G. Evid. § 703. Compare
G. L. c. 233, § 23F, with Mass. G. Evid. § 703 (facts or data on
which expert witness may base opinion include "[a] facts
observed by the witness or otherwise in the witness's direct
personal knowledge; [b] evidence already in the record or that
will be presented during the course of the proceedings . . . ;
and [c] facts or data not in evidence if the facts or data are
independently admissible in evidence and are a permissible basis
for an expert to consider in formulating an opinion"). Section
23F does not restrict expert witness testimony to facts in
evidence, require the witness's personal knowledge or
observation, or require that the basis for the expert's opinion
18
be independently admissible. Instead, the statute merely
requires that the defendant assert certain specified defenses to
render admissible evidence of the defendant's past or current
abuse and expert witness testimony regarding abusive
relationships and the impact such abuse had on the defendant.
See G. L. c. 233, § 23F.
Additionally, the Commonwealth's contention that § 23F
applies only to criminal cases "charging the use of force
against another," id., is without merit. The Commonwealth reads
§ 23F too narrowly. Although the statute provides that a
criminal defendant in cases "charging the use of force against
another . . . shall be permitted to introduce" certain evidence,
it does not require that the use of force is an essential
element of the crime in order for § 23F to apply. Id. See
Commonwealth v. Anestal, 463 Mass. 655, 675-676 (2012) (applying
§ 23F in murder in first degree case, notwithstanding fact that
"force" is not essential element of crime of homicide).
On retrial, where the defendant asserts the defense of
duress, expert witness testimony regarding the defendant's past
abuse and battered woman syndrome diagnosis, and the impact
thereof, shall be admissible, pursuant to § 23F, with proper
notice. See Mass. R. Crim. P. 14 (b) (2) (A), as appearing in
463 Mass. 1501 (2012).
19
Conclusion. For the reasons set forth above, the
defendant's convictions of aggravated rape of a child are
reversed and the verdicts are set aside. The case is remanded
to the Superior Court.
So ordered.