Commonwealth v. Gonzalez ( 2023 )

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21-P-33 Appeals Court
COMMONWEALTH vs. FELIPE GONZALEZ, SR.
No. 21-P-33.
Bristol. February 2, 2023. – August 9, 2023.
Present: Englander, Grant, & Brennan, JJ.
Rape. Child Abuse. Constitutional Law, Confrontation of
witnesses. Evidence, First complaint, Authentication.
Practice, Criminal, Confrontation of witnesses, Argument by
prosecutor.
Indictments found and returned in the Superior Court
Department on September 15, 2016; March 2, 2017; and October 11,
2017.
The cases were tried before Sharon E. Donatelle, J.
Jennifer M. Petersen for the defendant.
Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.
BRENNAN, J. After a jury trial in Superior Court, the
defendant was convicted of nine counts of rape of a child
aggravated by age difference (G. L. c. 265, § 23A), one count of
rape of a child by force (G. L. c. 265, § 22A), one count of
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assault with intent to rape a child (G. L. c. 265, § 24B), one
count of assault and battery (G. L. c. 265, § 13A), six counts
of indecent assault and battery on a child under fourteen (G. L.
c. 265, § 13B), and one count of witness intimidation (G. L.
c. 268, § 13B), all related to the repeated and prolonged sexual
abuse of the victim. Concluding that (1) the judge acted within
her discretion in permitting a substitution of the first
complaint witness, (2) the judge properly admitted as first
complaint evidence screenshot images (screenshots) of the
victim's conversation over a social media application, (3) the
victim's statements about having "told" her mother did not
amount to subsequent complaints, (4) the defendant's statements
to the victim were properly admitted in evidence, and (5) there
was no risk of a miscarriage of justice based on the
prosecutor's closing argument, we affirm.
Background. In October 2011, when the victim was
approximately eight years old, she came to the United States
from Guatemala to live in Avon with her mother and her mother's
husband, the defendant. About six months later, the defendant
sexually assaulted the victim for the first time. This was the
beginning of a long pattern of sexual abuse that continued after
the family moved to North Attleboro when the victim was
approximately ten years old, and to Raynham when she was twelve.
The victim testified that the defendant routinely raped her --
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as often as "every other day" -- and occasionally forced her to
perform other sexual acts by threatening to rape her if she did
not. The victim did not tell her mother about the sexual
assaults because the defendant threatened to rape her younger
sister and to hurt her mother if she reported the assaults.
When the victim was thirteen years old, in August 2016, she
disclosed the sexual assaults to her male cousin who lived in
Guatemala. The victim began to tell her cousin over the
telephone that she had been raped, but when the defendant
arrived home, the victim moved their conversation to a social
media application, Facebook messenger. A portion of their
messages, which was admitted in evidence translated from
Spanish, was as follows:
Cousin: "Who did it?"
Victim: "I am not going to tell you[.] Because I know you
are going to get angry[.]"
Cousin: "Was it Felipe? Or tell me who it was[.] You
must . . . tell me[.]"
Victim: "It was him[.] But you cannot do anything[.]
Ok[.] I am telling you because I trust you[.] When I was
eight years old[.] Do the math now I am 13 and (he) still
tries to do it[.]
"(He) walks into my bedroom and [t]ells me things[.]
Yes, I am sure[.]
"I know what it means to do something by force [a]nd
what it means to do something out of your own will[.] . . .
"Do not tell anyone ok . . . [?] Can you promise me
that?"
Although the chain of events is not entirely clear from the
record, it seems that the victim's cousin passed screenshots of
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their conversation to the victim's godmother, and she in turn
sent them to the victim's father, who resided in Connecticut.
Shortly after learning of the abuse allegations, on August
17, 2016, the victim's father drove to the home in Raynham where
the victim lived with her mother and the defendant. After the
father arrived, he informed the victim's mother of the abuse
allegations and then the mother placed a video telephone call to
the defendant, who was at work. The father testified that,
during that conversation, the defendant spoke to the victim and
told her, in Spanish, something to the effect of the following:
"whether I did this or I did not do this, I'm going to get in
trouble." The victim testified that the defendant asked her "if
[she] was sure that [she] wanted to say that, and whether he did
it or he didn't do it, that it was going to cause a lot of
problems."
Discussion. 1. Substitution of the first complaint
witness. The defendant argues that the trial judge abused her
discretion by permitting the Commonwealth to introduce the
victim's communications with her cousin as her first complaint
where the victim previously disclosed the sexual abuse to a
relative of the defendant who did not remember the disclosure.
We disagree.
Where the first complaint witness "has an obvious bias or
motive to minimize or distort the victim's remarks," it is
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within the judge's discretion to allow the next available
complaint witness to testify. Commonwealth v. Murungu, 450
Mass. 441, 446 (2008). "[T]he standard of review of that
determination is an abuse of discretion. If the decision is
dependent on findings of fact, such as in the case of bias on
the part of the witness, the judge should make the necessary
findings which will be upheld unless clearly erroneous." Id. at
446-447.
Until shortly before trial, prosecutors understood that the
victim's disclosure to her cousin was her first complaint.
Then, on the eve of trial, prosecutors learned from the victim
that, when she was ten years old, she told a then nine year old
girl -- who was a relative of the defendant -- about the abuse.
After the girl's father told police that his daughter had no
memory of the victim's disclosure, the Commonwealth moved, in
limine, to introduce as substitute first complaint evidence the
victim's Facebook messages to her cousin in Guatemala. The
judge conducted a voir dire of the girl (the defendant's
relative), who testified that she had no memory of the victim
telling her that the defendant had done something to her
sexually. She also testified that she calls the defendant her
"uncle"; that her father speaks with the defendant every one to
two weeks; and that, despite being relatively close before the
defendant was charged, she and the victim had not been in
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contact since then. We are satisfied that the judge's
conclusions that the defendant's relative was biased in favor of
the defendant and had motive to minimize her recollection of the
victim's disclosure were amply supported. See Murungu, 450
Mass. at 446. Further, the defendant's relative had no memory
of any disclosure by the victim.1 See Commonwealth v. Holt, 77
Mass. App. Ct. 716, 722 n.5 (2010) (no error to allow substitute
first complaint witness where initial first complaint witness
had no recollection of any complaint). We discern no abuse of
discretion in the judge's decision to permit a substitution of
the victim's complaint to the next person she told.
2. Admission of screenshots as first complaint evidence.
The defendant next challenges the judge's decision to admit the
first complaint evidence through screenshots of the victim's
Facebook messages with her cousin in Guatemala. "Once a judge
has carefully and thoroughly analyzed [the underlying goals of
the first complaint doctrine, our established first complaint
jurisprudence, and our guidelines for admitting or excluding
relevant evidence], and has decided that proposed first
complaint evidence is admissible, an appellate court shall
1 Called by the defendant at trial, that relative testified
that the victim never disclosed anything about being abused by
the defendant.
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review that determination under an abuse of discretion
standard." Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
a. Authentication. At trial, the judge ruled that the
screenshots of the victim's conversation with her cousin were
properly authenticated by the victim's testimony. The defendant
now claims proper authentication requires testimony from more
than one participant in a conversation. We discern no support
for this remarkable proposition in any applicable case law. In
fact, it is well settled that Facebook messages may properly be
authenticated by circumstantial evidence alone, without live
testimony from any participant. See Commonwealth v. Meola, 95
Mass. App. Ct. 303, 310-315 (2019), citing Commonwealth v.
Purdy, 459 Mass. 442 (2011). See also Mass. G. Evid.
§ 901(b)(1), (11) (2023). Here, the victim testified as to when
and how the conversation took place, and she verified that the
screenshots and translation of the conversation were accurate.
We therefore are satisfied that the evidence was sufficiently
authenticated. See Commonwealth v. Oppenheim, 86 Mass. App. Ct.
359, 366-367 (2014) (preponderance of evidence standard for
authentication of electronic communications).
b. Confrontation clause. The defendant also asserts that
the admission of screenshots of the victim's first complaint
without live testimony from the recipient of the complaint
deprived him of his right to confront adverse witnesses, as
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guaranteed by the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights. We disagree. Confrontation clause issues "do not arise
when the evidence is not offered for the truth of the matter
asserted and therefore is not hearsay under traditional rules of
evidence." Commonwealth v. Caillot, 454 Mass. 245, 255 (2009),
cert. denied, 559 U.S. 948 (2010), citing Tennessee v. Street,
471 U.S. 409, 413-414 (1985). See Crawford v. Washington, 541
U.S. 36, 51, 59 n.9 (2004). Here, the Facebook messages
themselves were the first complaint, admissible not for their
truth, but to corroborate the victim's account of the assault.
See Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008) ("If, in
fact, the letter was the first complaint, that is the end of the
matter. The letter would be the first complaint evidence");
Commonwealth v. King, 445 Mass. 217, 219 (2005), cert. denied,
546 U.S. 1216 (2006) ("First complaint testimony may be admitted
for a limited purpose only, to assist the jury in determining
whether to credit the complainant's testimony about the alleged
sexual assault. The testimony may not be used to prove the
truth of the allegations"); Commonwealth v. Alce, 96 Mass. App.
Ct. 851, 854 n.6 (2020) ("Significantly, because under the first
complaint doctrine, the alleged victim's out-of-court statement
is not offered for its truth, it is not hearsay and the
confrontation clause is not implicated" [quotation and citation
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omitted]). See also Commonwealth v. Revells, 78 Mass. App. Ct.
492, 496 (2010) (first complaint was both victim's verbal
statements to her mother and letter she wrote in "tightly
intertwined oral and written communication"). The jury were
properly instructed that they could not consider the screenshots
"as evidence that the assault in fact occurred."2
3. Victim's testimony about having "told" her mother.
During direct examination, the victim testified that the
defendant last raped her "a few nights before I told my mother
about what he was doing" and she last saw the defendant "[t]he
day that I told my mom." The defendant claims that these
references to the victim's having "told" her mother were
prejudicial error because they were "essentially the same as
permitting those other witnesses to testify" as additional
complaint witnesses, even where "the details of her
2 We also reject the defendant's contention that allowing
the victim to authenticate the screenshots improperly allowed
her to bolster her own credibility. Complainants are
specifically permitted to "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," for
the stated purpose of demonstrating that their allegations are
credible. King, 445 Mass. at 219. See Commonwealth v. Arana,
453 Mass. 214, 228 (2009) ("The first complaint doctrine is an
evidentiary rule designed to give support to a complainant's
testimony of a sexual assault in cases where the credibility of
the accusation is a contested issue at trial"). It so happens
that in this case, as in most cases with written first
complaints, this testimony also served to authenticate the
screenshots.
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conversations were omitted." Stuckich, 450 Mass. at 457. We
disagree.3
The first complaint doctrine "does not . . . prohibit the
admissibility of evidence that, while barred by that doctrine,
is otherwise independently admissible." Commonwealth v. Arana,
453 Mass. 214, 221-222 (2009). When considering whether
evidence of subsequent complaints was properly admitted, "we ask
whether the independently admissible evidence served a purpose
other than to corroborate the victim's accusation, and whether
that evidence was sufficiently important to a fair understanding
of the Commonwealth's case that its probative value outweighed
potential prejudice to the defendant." Commonwealth v. Dargon,
457 Mass. 387, 400 (2010).
Here, in conjunction with the father's testimony that on
August 17, 2016, he went to Raynham and spoke to the victim and
her mother, who then spoke to the defendant over a video
telephone call, the victim's testimony about when she "told" her
3 The defendant objected to the first instance, and at
defense counsel's request, the judge permitted a voir dire of
the victim, who explained that her conversation with her mother
happened after her disclosure to her cousin. The defendant did
not object to the second instance. Although this would lower
our standard of review for the second instance, see Commonwealth
v. Santos, 95 Mass. App. Ct. 791, 795 (2019) (waived claims of
error still subject to review for substantial risk of
miscarriage of justice), we need not differentiate, as we
conclude that neither instance meets the higher prejudicial
error standard.
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mother explained to the jury why, after several years, the "same
routine" of abuse suddenly stopped on or about August 15, 2016,
the date specified in the indictments. It also put her
complaint to her cousin in Guatemala in temporal context. Thus,
in both instances where the victim referenced having "told" her
mother, it was to place events in time, not to bolster her
credibility. See, e.g., Dargon, 457 Mass. at 400 (statements
served independent purpose where they "provided a complete
picture of the timing of the complaint," which was "particularly
important" given challenge to victim's credibility). Moreover,
in context, we discern little risk of unfair prejudice from the
victim's vague and fleeting testimony that she "told [her]
mother about what [the defendant] was doing." Contrast Arana,
453 Mass. at 227 (victim's testimony about disclosures of sexual
assaults to her parents had no direct relevance to defense
accusations of police bias and "served only the impermissible
purpose . . . of shoring up the credibility of a critical
witness against the defendant").
4. The defendant's statements to the victim. The
defendant argues that his statements to the victim during the
video telephone call were not admissible because they were not
sufficiently indicative of his guilt without more evidence of
the context in which they arose. We review the judge's
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evidentiary ruling for abuse of discretion. See Commonwealth v.
Babcock, 100 Mass. App. Ct. 527, 528 (2021).
The defendant cites Commonwealth v. Andrade, 488 Mass. 522,
535-537 (2021), which discusses the requirements for admissions
by silence. However, the defendant's statements here were not
admissions by silence -– they were statements made by a party
opponent. See Mass. G. Evid. § 801(d)(2)(A) (2023). See also
Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) (extrajudicial
statement by party opponent exception to rule against
introduction of hearsay). Contrary to the defendant's argument,
there is no special or heightened requirement for admitting a
defendant's statement under the party opponent exception when it
might constitute an admission of guilt. See Commonwealth v.
Anderson, 448 Mass. 548, 563 (2007).
We are not persuaded by the defendant's related argument
that his statements were so ambiguous that they were unfairly
prejudicial. Evidence is unfairly prejudicial "only if it has
an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one" (quotation
and citation omitted). Commonwealth v. Kindell, 84 Mass. App.
Ct. 183, 188 (2013). In this case, to the extent the
defendant's statements were ambiguous, it was for the jury to
determine their meaning. The defendant's statements were
"equivocal response[s] that could be construed as self-
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incriminating," and their "meaning properly was a question of
fact for the jury." Commonwealth v. Lewis, 465 Mass. 119, 127
(2013).4
5. Prosecutor's closing argument. Finally, the defendant
raises several issues with the prosecutor's remarks during
closing arguments. The defendant did not object to the closing
argument at trial. Thus, "[w]e must determine whether there was
an error that created a substantial risk of a miscarriage of
justice. We appraise the closing argument as a whole as well as
the judge's instructions to the jury." Commonwealth v.
Grandison, 433 Mass. 135, 142 (2001).
After reviewing the full transcript of the closing argument
and focusing on the challenged portions, we conclude that only
one statement exceeded proper bounds. The prosecutor told the
jury the following after noting that it was "unfortunate" that
the examination of the victim did not reveal any physical
evidence of sexual assault:
"[Y]ou are still left with evidence. The testimony is
evidence. Her Honor will tell you that. And when you
decide to answer those questions and you'll ask those
4 For largely the same reasons, we are not persuaded that
the prosecutor erred in suggesting during closing argument that
the jury make the inference that the statements were admissions.
Separately, the defendant additionally argues that the admission
of his statements violated various constitutional rights, but he
cites no cases to support his contention. We are not required
to consider arguments not properly raised in the parties'
briefs, and we decline to do so here. Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
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questions, can you be fair, can you have an open mind, can
you judge all of the evidence, and that includes testimony.
Because that child is also entitled to a fair and just
trial, just like he is. Everybody is. And that means for
you to weigh the evidence which is testimony." (Emphasis
added.)
"It is improper for a prosecutor to characterize a criminal
trial as a dispute between a . . . victim on the one hand, and
the defendant on the other, and to exhort the jury to dispense
justice evenly between them." Commonwealth v. Niemic, 472 Mass.
665, 676 (2015), S.C., 483 Mass. 571 (2019). Nevertheless, we
do not perceive this statement as part of a larger strategy to
improperly influence the jury. See, e.g., Commonwealth v.
Judge, 420 Mass. 433, 451-452 (1995) (single improper sentence
appealing to sympathy did not require new trial). Where there
was no objection to the prosecutor's closing at trial, the
improper comment was fleeting, and the judge clearly and
forcefully instructed the jury on the Commonwealth's burden of
proof and the jury's obligation to consider the evidence
impartially, there was no risk that justice was miscarried. See
Grandison, 433 Mass. at 142.
Judgments affirmed.