Commonwealth v. Aviles

Mills, J.

(dissenting). Because I conclude that the admission of the multiple complaint testimony was improper under the first complaint doctrine, and because the defendant preserved this issue for our review, I would reverse the judgments of conviction and accordingly, I respectfully dissent.

The challenged testimony. Marie testified that in 2002, while she was still living at the defendant’s apartment, she revealed to her mother the indecent touchings that had occurred on the air mattress. While this testimony was admissible under the first *399complaint doctrine, the defendant argues that Marie’s testimony regarding the additional complaint she made to her grandmother three years later was not.1

Marie’s mother was permitted to testify that in 2005, she and Marie had a conversation in which the mother learned “additional information,” and that “as a result” of that conversation, they went to the police to give statements. While the mother, as the designated first complaint witness, could and did testify regarding Marie’s disclosure in 2002, the defendant argues that her testimony regarding the 2005 disclosure was improper.

Standard of review. The majority observes that both parties argue admission of the multiple complaint testimony as one of preserved error. However, upon its review, the majority concludes that the defendant did not preserve this issue. Based upon three pretrial conversations between the parties and the judge, I disagree.

In the first conversation, defense counsel argued that the complaint of rape was “beyond the scope of” the first complaint doctrine. The prosecutor responded that while she did not intend to elicit “details” from Marie, she argued that Marie could testify that she had made such a complaint. Defense counsel objected to testimony regarding “what happened two years later that caused people to go to the police.” He then made it explicit that he was “object[ing] to the conversation with the grandmother, and the ensuing police report” because it was not “first complaint.” The judge reserved decision.

In the second conversation, the judge summarized the controverted testimony to be that “as a result of seeing the [djefendant on television, [Marie] told her mother and grandmother that she had been raped by him.” Defense counsel argued that Marie could not testify to “what she said to [other people], for example, that she was raped.” The judge ruled that although Marie could not disclose “[t]he substance of what she said to her mother or grandmother[,]” she could testify “that as a result of seeing the Defendant on television, she made a disclosure to her mother or grandmother.” Defense counsel immediately objected to this ruling and “ask[ed] that [his] objection be preserved.” The judge did not respond.

*400In the third conversation, which occurred very shortly after the second, defense counsel sought reconsideration of the judge’s ruling, focusing at that point on the evidence of Marie seeing the defendant on television. The record reflects that at this time, defense counsel, the prosecutor, and the judge had in mind the guidelines established in the second conversation, which had occurred only ten transcript pages earlier. At the conclusion of this third conversation, the judge stated that defense counsel’s “objection is noted” and agreed that his “rights [were] preserved.”2 Thus, I would review the challenged testimony under the familiar principles of the prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Discussion. The majority appears to acknowledge that the challenged testimony was not admissible as first complaint evidence.3 I disagree, however, with the majority’s analysis and conclusion regarding whether the testimony was otherwise admissible under Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009), and other cases cited in the majority opinion.

*401Although evidence not admissible as first complaint may be “independently admissible in the judge’s discretion on the basis of some other evidentiary principle,” id. at 224, the multiple complaint evidence was not otherwise admissible in this case. The majority concludes that the challenged testimony was properly admitted because, in part, it “enabled the jury ‘to make a fairer and more accurate assessment of the Commonwealth’s case.’ ” Ante at 394, quoting from Commonwealth v. Arana, supra at 229. I read Commonwealth v. Arana differently. If multiple complaint testimony “serves no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant’s accusations, it is inadmissible.” Id. at 229. See Commonwealth v. McCoy, 456 Mass. 838, 846 (2010) (“The testimony of multiple witnesses may not be used solely to enhance a victim’s credibility, without serving any additional evidentiary purpose”). Thus, I disagree with the majority’s conclusion that the challenged testimony was admissible simply because it established Marie’s credibility. Ante at 394-395.

Our cases explicitly instruct that in order to be admissible, such testimony must “serve[] a purpose other than to corroborate [Marie’s] allegations.” Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 495 (2009). If multiple complaint testimony was admissible simply because it bolstered a victim’s credibility or enabled the jury to better understand the Commonwealth’s case, the first complaint doctrine would have no meaning. The testimony regarding the 2005 disclosures did not relate to Marie’s state of mind and did not offer any reason for the delay in her disclosures. Further, the “jury did not need to know how the complaint of abuse evolved into the case before them.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The defendant did not exploit the delay in order to impeach Marie’s credibility and did not otherwise open the door to the multiple complaint testimony. Compare Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009).

In applying the prejudicial error standard of review, I note that in this case, the “central determination before the jury was the credibility of the complainant!].” Commonwealth v. Arana, supra at 228. When the case turns on credibility, “there is a particularly high probability of prejudice from the admission of *402duplicative complaint evidence.” Commonwealth v. Monteiro, supra at 497. Considering the multiple complaint testimony which was erroneously received by the jury, I conclude that relief is warranted and thus, I respectfully dissent.

Although Marie did not testify as to the details of that conversation, she did testify that such a conversation occurred in which she revealed a rape.

Although the defendant did not object at trial, the judge’s statement that this issue was preserved “relievfed] the defendant of the necessity to object to the evidence at trial.” Commonwealth v. Kee, 449 Mass. 550, 553 n.5 (2007). See Commonwealth v. Dunton, 397 Mass. 101, 102 n.2 (1986) (an objection need not be renewed where the judge expressly assures defense counsel that his rights are “fully protected”); Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 24 n.12 (1990) (issue preserved where judge twice noted defense counsel’s objection and said that “his rights were preserved”).

The Commonwealth argues that the multiple complaint testimony was permissible under Commonwealth v. Kebreau, 454 Mass. 287 (2009). In that case, one witness was permitted to testify to a disclosure, which occurred between 1988 and 1990, of genital touching. Another witness, who the judge ruled was an additional first complaint witness, was permitted to testify to a subsequent disclosure, which occurred in 1994, of rapes.

The rapes in Kebreau, which began in 1990, did not take place until after the first complaint of indecent touchings. Accordingly, it was impossible for the complainant in that case to have reported the rapes at the time of her first complaint. In this case, by contrast, all the abuse occurred before Marie’s first complaint. As a matter of timing, Marie could have reported the rape in her first complaint to her mother. Compared to the risk of prejudice to the defendant, the prejudice to Marie by excluding evidence of the rape complaint is relatively minor. True, the jury might question why Marie did not report the rape at the time that she reported the other touchings (which might, in turn, support an inference that the rape was fabricated). However, this same inference might occur even if the testimony were admitted, because she waited three years to come forward with the new complaint rather than report it at the time of the first complaint.