Commonwealth v. Espinal

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SJC–12597
COMMONWEALTH vs. ARISMENDY ESPINAL.
Essex. December 6, 2018. - May 6, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Indecent Assault and Battery. Jury and Jurors. Interpreter.
Practice, Criminal, Jury and jurors, Empanelment of jury,
Examination of jurors, Voir dire, Interpreter, Instructions
to jury. Evidence, Inflammatory evidence, First complaint.
Complaint received and sworn to in the Lawrence Division of
the District Court Department on December 14, 2015.
The case was tried before Michael A. Uhlarik, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.
Catherine Patrick Sullivan, Assistant District Attorney,
for the Commonwealth.
J. Anthony Downs, for Lawyers for Civil Rights & others,
amici curiae, was present but did not argue.
LENK, J. A jury in the District Court convicted the
defendant of indecent assault and battery on a twelve year old
2
child. On appeal, the defendant, whose native language is
Spanish, maintains that the judge erred in denying his request
that a question be posed collectively to potential jurors about
bias toward non-English speakers. He argues further that the
judge abused his discretion by allowing the introduction of
prejudicial testimony from an investigator and testimony that
amounted to improper bolstering by the first complaint witness.
Finally, the defendant contends that the judge should have given
the jury a modified form of the first complaint instruction.
While we recognize that there may well be bias toward non-
English speakers, and that a thorough voir dire is necessary to
ensure an unbiased jury, in the circumstances here, we discern
no abuse of discretion by the trial judge in declining to ask
the requested question. We conclude further that the
defendant's other arguments are unavailing, and affirm the
conviction. Going forward, however, we anticipate that where a
defendant is entitled to the services of a translator because of
an inability to speak English, the judge will, on request,
ordinarily pose a question to the venire regarding language-
related bias.1
1. Facts. We summarize the facts that the jury could have
found, reserving additional details for discussion of specific
1 We acknowledge the amicus brief submitted by Lawyers for
Civil Rights, Centro Presente, and Brazilian Workers Center.
3
issues. See Commonwealth v. Clemente, 452 Mass. 295, 299
(2008), cert. denied, 555 U.S. 1181 (2009).
a. Assault. At the time of the complaint, the victim,
Sofia2 was twelve years old. She recently had moved to the
United States from Spain and was living with her single father
in Lawrence. When her father was at work, the victim often was
looked after by her father's friend, Eusabia Magali Concepcion.
Concepcion was like a "grandmother" or "mother" to Sofia.
Concepcion babysat her over the course of approximately one
year.
When Concepcion looked after Sofia, Sofia would go to
Concepcion's apartment. Concepcion shared the apartment with
the defendant, her romantic partner. When the victim was at the
apartment, the defendant sometimes was there, too.
In January 2015, Concepcion left the defendant and the
victim alone while Concepcion took a shower. The victim had
been left alone with the defendant before, and there were no
allegations that anything improper had taken place during those
times. This time, however, the defendant gave the victim wine
and insisted that she drink it, at one point "forc[ing]" her,
despite her protests. The wine made her feel dizzy. The
defendant then told her to stick out her tongue, and he "sucked
2 A pseudonym.
4
[her] tongue" with his mouth. He asked her to stick out her
tongue again, but she refused.
When Concepcion returned from the shower, the victim said
nothing about what had happened because she was "scared that
[the defendant] was going to do something to [her]." Instead,
she went into the bathroom and washed out her mouth. She called
her father to pick her up and take her home. The victim's
father testified that, when she got into his vehicle, he "knew
something was wrong because I know her. . . . She's my
daughter. I'm a father and a mother. I know her. I know when
she is worried and I know when she is not worried."
The automobile was being driven by Sofia's father's boss.
Because the boss was in the vehicle, she said nothing about the
incident during the ride home. When the victim and her father
got out of the car and entered their house, however, she began
crying "a lot" and told her father what had happened. She spent
much of the night washing out her mouth.
The defendant was charged with indecent assault and battery
on a child under the age of fourteen, in violation of G. L.
c. 265, § 13B.
5
b. Trial. The case was tried in the District Court in
June of 2017. Throughout trial, the defendant required the use
of a Spanish-speaking interpreter.3
Before trial, the defendant submitted a written request
that certain questions be posed to the venire, collectively,
during voir dire. The requested questions were "mostly standard
questions," with the exception of the final question: "Do you
have any problem with a defendant that requires the services of
a Spanish-speaking interpreter?" The Commonwealth did not
object to the final question being asked. Defense counsel
explained the reasons the question should be asked as follows:
"I do think that the question about a witness or a
defendant that requires the services of the Spanish-
speaking interpreter is important . . . . The concern is a
racial bias, or some sort of ethnic bias. There's a lot of
people that believe that if you're in this country and you
don't speak English, that you've done something wrong,
period. My client is a naturalized citizen of the United
States. I think that that is a huge bias."
The judge denied the request; counsel objected, citing the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and arts. 12 and 14 of the Massachusetts
3 As noted, the defendant's native language is Spanish. He
does not speak English. The proceedings took place in English.
Two witnesses testified for the Commonwealth in English (the
victim and an investigator from the Department of Children and
Families), and one witness testified in Spanish (the victim's
father). The defense also called one witness, who testified in
Spanish. The witnesses who testified in Spanish made use of a
Spanish-language interpreter.
6
Declaration of Rights. Counsel asserted further, "I think that
racial bias is something that should be explored when the
defendant is of a minority race, in this case, Latino." The
judge clarified:
The court: "Is the complainant a different ethnicity?"
The prosecutor: "No."
The court: "Okay. No. I'm not going to give it to you."
The attorneys for both sides were introduced to the members of
the venire. The witnesses, as well as the defendant, were asked
to stand when their names were called. The interpreter was not
introduced.
The judge posed several questions to the collective venire
regarding bias, including, "[A]re any of you aware of any bias
or prejudice that you have toward either the defendant or the
prosecution?" and "[D]o any of you know of any reason why you
would not be impartial in this case and be able to render a true
and just verdict based solely on the evidence and the law?" No
prospective juror indicated an affirmative response to either
question.4
The jury were sworn, and trial commenced. Throughout the
trial, the jury heard testimony from four witnesses. Among
4 During individual voir dire, the judge also asked, "[I]s
there anything about this charge that would make it difficult
for you to be impartial?"
7
them, the victim's father testified as the first complaint
witness, and an investigator for the Department of Children and
Families (DCF) testified as to statements made by the defendant
during an interview.
The jury returned a verdict of guilty. The defendant
commenced a timely appeal, and we allowed his motion for direct
appellate review.
2. Discussion. The defendant claims that four errors at
trial warrant a new trial: (1) the judge improperly denied his
request to pose a question to the venire regarding language-
related bias; (2) the judge permitted prejudicial testimony from
the DCF investigator; (3) the judge permitted improper
bolstering of the victim's credibility through the first
complaint witness; and (4) the judge improperly instructed the
jury regarding first complaint testimony. We discern no error
warranting a new trial.
a. Jury voir dire. The defendant maintains that the judge
erred in denying his request to ask the members of the venire,
collectively, "Do you have any problem with a defendant that
requires the services of a Spanish-speaking interpreter?"
"A criminal defendant is entitled to a trial by an
impartial jury pursuant to the Sixth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights." Commonwealth v. Williams, 481 Mass. 443, 447
8
(2019). "[P]art of the guarantee of a defendant's right to an
impartial jury is an adequate voir dire to identify unqualified
jurors" (citation omitted). Commonwealth v. Dabney, 478 Mass.
839, 848, cert. denied, 139 S. Ct. 127 (2018). Following voir
dire, a judge's determination that a jury are impartial will not
be disturbed absent a clear error of law or abuse of discretion.
Id.
General Laws c. 234A, § 67A, governs the examination of
jurors during voir dire. The first paragraph of that statute
provides, in relevant part:
"Upon motion of either party, the court shall . . . examine
on oath a person who is called as a juror, to learn whether
the juror . . . has expressed or formed an opinion, or is
sensible of any bias or prejudice."
We have not required, however, that judges ask every question
requested by a defendant. See Commonwealth v. Morales, 440
Mass. 536, 548–549 (2003), quoting Commonwealth v. Sanders, 383
Mass. 637, 341 (1981) ("[a] judge has broad discretion as to the
questions to be asked, and need not put the specific questions
proposed by the defendant"). Rather, in most cases, the proper
scope of jury voir dire is left to the sound discretion of the
trial judge. See Commonwealth v. Silva, 455 Mass. 503, 512
(2009). "A trial judge, who is aware of the facts of a
particular case and can observe firsthand the demeanor of each
prospective juror, is in the best position to determine what
9
questions are necessary reasonably to ensure that a particular
jury can weigh and view the evidence impartially." Commonwealth
v. Lopes, 440 Mass. 731, 736 (2004).
i. Mandatory questions. Certain categories of questions,
however, must be asked. See Silva, 455 Mass. at 512. General
Laws c. 234A, § 22, for example, established the confidential
juror questionnaire, which requires that prospective jurors be
asked to respond, in writing, to a series of personal questions
concerning, among other things, their home address, birthdate,
family members, and jobs.5 The first paragraph of G. L. c. 234A,
§ 67A, moreover, establishes a separate set of topics about
which a trial judge must examine prospective jurors in all
criminal cases.6 Neither statute explicitly requires questions
concerning language-related biases.
5 General Laws c. 234A, § 22, requires that the
questionnaire elicit
"the juror's name, sex, age, residence, marital status,
number and ages of children, education level, occupation,
employment address, spouse's occupation, spouse's
employment address, previous service as a juror, present or
past involvement as a party to civil or criminal
litigation, relationship to a police or law enforcement
officer, and such other information as the jury
commissioner deems appropriate."
6 General Laws c. 234A, § 67A, inserted by St. 2016, c. 36,
§ 4 (formerly G. L. c. 234, § 28), mandates that several
categories of questions be asked in every criminal case,
including questions regarding the presumption of innocence, the
Commonwealth's burden of proof, and the absence of any burden on
the defendant.
10
The second paragraph of G. L. c. 234A, § 67A, requires
additional inquiry of prospective jurors,
"[where] it appears that . . . a decision [may] be made in
whole or in part upon issues extraneous to the case,
including, but not limited to, community attitudes,
possible exposure to potentially prejudicial material or
possible preconceived opinions toward the credibility of
certain classes of persons."
We have interpreted this language to mean that, where a
defendant can show that "there exists a substantial risk of
extraneous issues that might influence the jury," additional
questioning is required. See Lopes, 440 Mass. at 736. In such
circumstances, the questions are to be posed to each prospective
juror "individually and outside the presence of other persons."
See G. L. c. 234A, § 67A.
Under our superintendence powers, we have determined that a
substantial risk of extraneous influence exists, as a matter of
law, whenever the victim and the defendant are of different
races or ethnicities, and the crime charged is murder, rape, or
sexual offenses against children.7 Accordingly, on the request
of a defendant, judges are required to conduct individual voir
dire regarding race and ethnicity in such cases. See
Commonwealth v. Young, 401 Mass. 390, 398 (1987) (murder);
7 Individual voir dire also is required, upon request, when
a defendant indicates that lack of criminal responsibility may
be at issue. See Commonwealth v. Seguin, 421 Mass. 243, 249
(1995), cert. denied, 516 U.S. 1180 (1996).
11
Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982) (sexual
offenses against children); Sanders, 383 Mass. at 640-641
(rape). See also Commonwealth v. Colon, 482 Mass. 162,
(2019) (expanding requirement to include not only "race," but
also "ethnicity").
The defendant does not maintain that he was of a different
race or ethnicity from that of the victim, and indeed, both the
victim and the defendant appear to have been of Hispanic origin.8
Nor does the defendant argue that a substantial risk of an
extraneous influence was present in this case.
Rather, the defendant suggests that a collective question
should be required upon a showing of something less than a
8 Of course, questions related to race and ethnicity may be
appropriate even in situations where there is no racial or
ethnic difference between a defendant and a victim. For
example, a defendant may be constitutionally entitled to a
collective question, upon request, where such a question is
"aimed at revealing racial bias or any similarly indurated and
pervasive prejudice" (quotation and citation omitted). See
Commonwealth v. Sheline, 391 Mass. 279, 289 (1984). See also
Commonwealth v. McCowen, 458 Mass. 461, 493 n.34 (2010)
("unconscious racial bias is most effectively addressed by
recognizing it and addressing it," including in "voir dire
questions and jury instructions").
In Commonwealth v. Colon, 482 Mass. 162, (2019), which
was decided after the trial in this case, we recognized the
pervasiveness of ethnic, as well as racial, biases. Here,
however, while defense counsel noted that the defendant was
"Latino," he did not request a collective question regarding
bias toward individuals of particular ethnic or racial
backgrounds, but solely as to the use of an interpreter. The
defendant does not argue that the two are equivalent.
12
substantial risk of extraneous influence. He emphasizes that he
requested collective questioning, as opposed to individual
questioning, and contends that posing a "single collective
question" would require relatively little additional time during
empanelment. See Lopes, 440 Mass. at 737.
General Laws c. 234A, § 67A, contains no requirement
regarding voir dire on the use of interpreters, and we decline
to read into the statute a new standard for mandatory collective
questioning. We understand the statute to require that, where a
defendant demonstrates a substantial risk of an extraneous
influence, a judge must include the subject of that extraneous
influence within the questions posed to the venire, and must do
so in the form of individual voir dire. See Lopes, 440 Mass.
at 737. Where the subject of requested questioning is not
enumerated in G. L. c. 234A, § 22, or G. L. c. 234A, § 67A, and
where, as here, no substantial risk of extraneous influence has
been shown, both the scope and form of such questioning are left
to the sound discretion of the trial judge. See Silva, 455
Mass. at 512-513; Lopes, supra at 737-738; Commonwealth v.
Campbell, 378 Mass. 680, 695 (1979) (where there is no
substantial risk, "a judge may propound voir dire questions
collectively").9
9 Had this case been tried in the Superior Court, we note
that defense counsel could have posed such a question during
13
ii. Abuse of discretion. Where a requested question is
not mandated by statute or constitutional requirements, a trial
judge's decision not to ask the venire the question is reviewed
for abuse of discretion. Lopes, 440 Mass. at 736. It is not an
abuse of discretion "simply because a reviewing court would have
reached a different result"; rather, an abuse of discretion
occurs "where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision, such
that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014). A judge need not
probe into every conceivable bias imagined by counsel. "Absent
some reason to suspect that jurors may be so prejudiced, . . . a
attorney-conducted voir dire. See G. L. c. 234A, § 67D,
inserted by St. 2016, c. 36, § 4. Where attorney-conducted voir
dire takes place, judges should approve questions designed to
ascertain "preconceptions or biases relating to the identity of
the parties . . . or issues expected to arise in the case," in
order to ferret out "explicit and implicit bias." See Rule 6(1)
and (3)(c) of the Superior Court Rules (2019). While not
mandatory, attorney-conducted voir dire is permissible in the
District Court, and judges have been encouraged to allow
requests for the practice. Although "the empanelment process
takes somewhat longer when attorneys participate in voir dire,
the consensus is that [attorney participation in voir dire] has
improved the process of jury selection. As a result, judges and
attorneys should have greater confidence that the jurors who are
ultimately empaneled are more likely to be impartial." See
Commonwealth v. Dabney, 478 Mass. 839, 848, cert. denied, 139 S.
Ct. 127 (2018), quoting Supreme Judicial Court Committee on
Juror Voir Dire, Final Report to the Justices, at 5 (July 12,
2016).
14
judge is warranted in relying upon his [or her] final charge to
the jury to purge any bias from the jurors prior to their
deliberations." Commonwealth v. Estremera, 383 Mass. 382, 388
(1981).
In this case, it was evident at the outset that the jury
would learn that the defendant did not speak English. Whether
an interpreter sat near the defendant and whispered to him, or
spoke to him remotely through headphones,10 the jury likely would
have been able to discern his use of interpretation throughout
the trial. Had the interpreter needed to interrupt the
proceedings to ask for a repetition or clarification, the
defendant's use of an interpreter also would have become
apparent.11 Moreover, had the defendant wished to exercise his
right to testify, it would have become evident that he spoke in
Spanish.
The defendant notes on appeal that, in the court room,
perception of an individual as a noncitizen -- whether correctly
or incorrectly associated with the ability to speak English --
10On the record before us, there is not sufficient evidence
to determine which method was employed in this case.
11The interpreters in this case in fact did interrupt the
proceedings on several occasions (e.g., "I'm sorry. The
interpreter said [the wrong name]"; "Your honor, may the
interpreter have just one moment?"; "I'm sorry. The interpreter
needs clarification").
15
can result in an increased likelihood that the individual will
be found guilty, as well as the likelihood of a more severe
sentence.12 See Espinoza, Willis-Esqueda, Toascano, & Coons, The
Impact of Ethnicity, Immigration Status, and Socioeconomic
Status on Juror Decision Making, 13 J. Ethnicity in Crim. Just.
197 (2015). The amici also note that a defendant who testifies
in Spanish may be perceived by non-Spanish speakers to be more
guilty than one who testifies in English. See Maeder &
Yamamoto, Culture in the Courtroom: Ethnocentrism and Juror
Decision-Making, 10 PLoS ONE, no. 9, Sept. 2015, at 4, citing
Stephan & Stephan, Habla Ingles? The Effects of Language
Translation on Simulated Juror Decisions, 16 J. Applied Soc.
Psychol. 577 (1986).
The record on appeal contains a significant number of
studies that indicate disparities in rates of conviction and the
severity of sentences imposed between defendants who used
interpreters and those who did not. Given these disparities, we
recognize the importance, in appropriate circumstances, of
12The defendant also cites surveys showing that the
overwhelming majority of Americans believe it is "essential" or
"important" for immigrants living in the United States to learn
and speak English, see, e.g., Most in U.S. Say It's Essential
that Immigrants Learn English, Gallup News, Aug. 9, 2013, while
a majority believe that English proficiency should be a
requirement for an individual being allowed to remain in the
United States. See, e.g., Hispanics Support Requiring English
Proficiency for Immigrants, Gallup News, July 5, 2007.
16
questioning the venire, at least collectively, concerning
language-related bias. Nor is such questioning limited to
situations where a defendant speaks Spanish. Our courts serve
individuals who communicate in many diverse languages from all
parts of the world. See, e.g., Commonwealth v. Jules, 464 Mass.
478, 487 (2013) (Haitian Creole); Adoption of Roni, 56 Mass.
App. Ct. 52, 55 & n.6 (2002) (Mandarin Chinese). Whether an
individual requires the use of interpretation from Arabic,
Vietnamese, or any other language, there is potential for
preconceived notions among jurors with respect to an inability
to speak English.
The determination we must make, however, is not whether,
sitting in review after the fact, we have reason to believe that
prospective jurors might harbor biases toward non-English-
speaking defendants, but, rather, whether the trial judge had
reason to believe that they did. In requesting that a question
be posed to the venire, the burden is on the defendant to "fully
inform the judge of the basis for the request." Commonwealth v.
LaFaille, 430 Mass. 44, 51 (1999). See Estremera, 383 Mass.
at 388. The surveys and studies that the defendant proffers on
appeal were not before the trial judge. Nor did the defendant
draw the judge's attention to any cases that recognized
language-related bias. See, e.g., Hernandez v. New York, 500
U.S. 352, 371 (1991) (observing that language elicits range of
17
reactions, from "admiration and respect, to distance and
alienation, to ridicule and scorn. Reactions of the latter type
all too often result from or initiate racial hostility").
Rather, counsel relied on her assertion that "[t]here's a lot of
people that believe that if you're in this country and you don't
speak English, that you've done something wrong, period."13 A
defendant's "bare allegation" that there exists a "widespread
belief" that could result in bias is not sufficient to cause us
to conclude that the judge abused his discretion by declining to
conduct voir dire on the issue. See Commonwealth v. Sheline,
391 Mass. 279, 290-291 (1984) (no abuse of discretion where
judge declined to pose requested questions regarding propensity
to believe police witnesses). Cf. Toney v. Zarynoff's, Inc., 52
Mass. App. Ct. 554, 561 (2001).
Moreover, defense counsel's argument was intertwined with
arguments about racial and ethnic differences, which tended to
detract from the specific language-related concern. The judge
attempted to discern whether the defendant and the victim were
of different races or ethnicities, and the prosecutor responded
that they were not. These were reasonable considerations with
13"The ultimate decision as to whether the question should
be asked lies within the judge's sound discretion, but the judge
must be assisted in this decision by the party seeking the
inquiry." See Toney v. Zarynoff's, Inc., 52 Mass. App. Ct. 554,
561 (2001).
18
respect to the individual voir dire determination required by
G. L. c. 234A, § 67A. On the limited information presented to
the trial judge, therefore, we discern no abuse of discretion in
his decision not to pose the requested question on the use of
interpreters.
That being said, we note the long-standing recommendation
that, "[w]hen an interpreter for a witness or party is
necessary, the judge should describe the role of the interpreter
for the jury. This includes a brief statement of the underlying
need for the interpreter's service . . . ."14 See P.M. Lauriat &
D.H. Wilkins, Massachusetts Jury Trial Benchbook § 3.1.1.5, at
81 (3d ed. 2016). See also P.M. Lauriat, Massachusetts Jury
Trial Benchbook § 3.1.4, at 65-66 (2d ed. 2004); P.M. Lauriat &
T.L. Pomeroy, Massachusetts Jury Trial Benchbook § 3.1.4, at 41-
42 (1996). Subsequent questions regarding "any bias or
14General Laws c. 221, § 92, provides that "[t]he justices
of the Superior Court may appoint such official interpreters as
they may deem necessary for the sessions of the court." Rule 41
of the Massachusetts Rules of Criminal Procedure, 378 Mass. 918
(1979), states that a "judge may appoint an interpreter or
expert if justice so requires." While the question has not been
squarely presented to the United States Supreme Court, Federal
Courts of Appeals have concluded that the rights of a defendant
to be present at trial, to consult meaningfully with counsel,
and to confront adverse witnesses "mandate that an interpreter
be available to the defendant or witness who cannot effectively
communicate." See Reporter's Notes to Mass. R. Crim. P. 41,
Massachusetts Rules of Court, at 222 (Thomson Reuters 2019),
citing United States ex rel. Negron v. New York, 434 F.2d 386
(2d Cir. 1970), and cases cited.
19
prejudice" and "any reason why [prospective jurors] would not be
impartial" thereafter could help to unearth bias against non-
English speakers.15 Cf. Commonwealth v. Lao, 443 Mass. 770, 775-
776 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011)
(no error where individual question regarding experience with
domestic abuse was denied, but judge "agreed to make clear the
nature of the charge against the defendant and to specify that
if any jurors were uncertain about their ability to be fair and
impartial, they should speak with the judge at sidebar"); Lopes,
440 Mass. at 738 (no error where collective question regarding
experience with crime was denied, but "panel was sufficiently
advised as to the nature of the case and the charge against the
defendant" and asked if they could be impartial).16
15See, e.g., Colon, 482 Mass. at n.16 (following
affirmative response to collective question regarding general
bias, juror was removed for stating, "Does [the defendant] not
understand English? . . . [H]e's an American citizen, and he
can't understand and speak English, so that's why I've formed an
opinion [about his culpability]").
16At argument before us, the Commonwealth maintained that,
by the time the judge made a general inquiry as to whether any
member of the venire harbored any general biases, it should have
been evident to them that the defendant was using an
interpreter. We cannot say that this was so in the brief time
that elapsed between the venire being sworn and the judge
inquiring as to their ability to be impartial. Among other
things, the interpreter does not appear to have been introduced.
Nor is there evidence that indicates whether the defendant was
wearing a listening device at that point or that the
significance of such a device was explained to the venire.
20
Given this, where the fact of a defendant's inability to
speak English is reasonably likely to become known to the jury,
we urge the trial judge to inquire, upon the request of the
defendant,17 whether any prospective juror harbors bias toward
non-English speakers. "[A]s a practical matter, when a motion
that prospective jurors be interrogated as to possible prejudice
is presented, we believe the trial judge should grant that
motion." Commonwealth v. Lumley, 367 Mass. 213, 216 (1975).
Doing so is consistent with the trial judge's duty, under G. L.
c. 234A, § 67A, to learn whether any juror "is sensible of any
bias or prejudice." Such a question may be posed through
individual voir dire, collective voir dire, or a written
questionnaire. See Silva, 455 Mass. at 513 (no error where
individual questions were denied but written questionnaire
"covered much of what the defendant had sought"); Lopes, 440
Mass. at 735, 737-738 (no error where collective question was
denied but subject was included on written questionnaire). See
also Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 844-845
(2016). While posing a question on possible language bias may,
17In calling attention to his or her inability to speak
English, a defendant "runs the risk" of "activat[ing] latent
. . . bias in certain prospective jurors . . . . However, the
opposite choice is not without risk" (quotation and citation
omitted). Cf. Commonwealth v. Prunty, 462 Mass. 295, 314 (2012)
(defendant controls whether to request individual voir dire on
racial issues).
21
in some cases, increase the time required to seat a jury, "it
would be far more injurious to permit it to be thought that
persons entertaining a disqualifying prejudice were allowed to
serve as jurors and that inquiries designed to elicit the fact
of disqualification were barred. No surer way could be devised
to bring the processes of justice into disrepute" (citation
omitted). See Rosales-Lopez v. United States, 451 U.S. 182, 191
(1981). See also Lopes, 440 Mass. at 737 ("We do not consider
the time it might take particularly to inquire further to assess
bias on the part of prospective jurors who respond positively as
persuasive justification to forgo the practice").
b. Testimony of DCF investigator. The defendant maintains
that a portion of the DCF investigator's testimony was
substantially more prejudicial than probative, and should not
have been admitted. Over the defendant's objection, the
investigator was permitted to testify that he "talked to a lot
of individuals, people who are part of the family, people who
are involved in the allegation, and people who are working
professionally with the minor in question." He also explained
that he spoke to the defendant, and proceeded to recount the
defendant's statements.
Testimony detailing an investigation "generally is not
allowed unless it is from the first complaint witness or in
response to a defense theory." Commonwealth v. McCoy, 456 Mass.
22
838, 847 (2010). "The fact that the Commonwealth brought its
resources to bear on this incident creates the imprimatur of
official belief in the complainant." Commonwealth v. Stuckich,
450 Mass. 449, 457 (2008). Where evidence of an investigation
"has no relevance to whether the defendant in fact committed the
acts charged," its probative value is substantially outweighed
by the extreme risk of prejudice. See id.
Here, however, the fact of the investigation had relevance
in providing a foundation for the admission of the defendant's
statements to the investigator. Cf. McCoy, 456 Mass. at 847
(testimony detailing investigation permitted as foundation for
admission of physical evidence collected during investigation).
Although the jury learned that the Commonwealth had investigated
the case, we cannot say that the effect thereof substantially
outweighed the probative value in laying a foundation for the
defendant's subsequent statements to the investigator. See
Mass. G. Evid. § 403 (2019).
It was not necessary, however, for the investigator to
describe the various parties to whom he spoke, apart from the
defendant. The defendant contends that, by testifying that he
spoke to "a lot of individuals," including "people who are
working professionally with the minor," the investigator created
the impression that other people, who would not be testifying in
23
court, including medical "professional[s]," had taken the
victim's allegations seriously.
Because the issue was properly preserved,18 we review to
ensure that, if there were error, "the error[] did not influence
the jury or had but very slight effect" (citation omitted). See
Commonwealth v. Mayotte, 475 Mass. 254, 261 (2016). We conclude
that, even if this testimony was admitted erroneously, there was
no prejudice warranting a new trial.
The investigator mentioned other "professional[s]" only
once, and did not elaborate. Nor did the investigator convey
that these professionals had heard the allegations, or had
believed them. Moreover, the singular reference to
18 The Commonwealth argues that this claim is not preserved,
because defense counsel objected to "relevanc[e]," but not
"prejudice." At the outset, we note that the two determinations
often go hand in hand. See Commonwealth v. Bin, 480
Mass. 665, 678 (2018) ("Even where evidence may be relevant and
otherwise admissible, a trial judge has discretion to exclude it
if its probative value is substantially outweighed by the risk
of confusion"). See also Mass. G. Evid. § 403 (2019). Here,
counsel had previously moved in limine to exclude "a description
of the investigative process, which is irrelevant to guilt and
unfairly prejudicial." See Commonwealth v. Grady, 474 Mass.
715, 719 (2016) (objection at motion in limine stage preserves
appellate rights "if what is objectionable at trial was
specifically the subject of the motion in limine"). Although
the word "prejudicial" was not used in making the objection
during trial, "[p]erfection is not the standard by which we
measure the adequacy of an objection." Commonwealth v.
McDonagh, 480 Mass. 131, 138 (2018). This is all the more true
where, as here, the judge did not permit counsel to complete her
explanation. See id. at 139 (grounds imperfectly explained
"perhaps because the judge interrupted counsel in the midst of
the objection").
24
"individuals" and "professional[s]" played little role in the
Commonwealth's case. The prosecutor asked no follow-up
questions, and made no mention of the testimony during closing
argument. Thus, we are confident that the effect of the
testimony, if any, was "very slight" (citation omitted). See
Mayotte, 475 Mass. at 261.
c. Testimony of victim's father. The defendant argues
that the victim's father, who was the first complaint witness,
see Commonwealth v. King, 445 Mass. 217, 246 (2005), cert.
denied, 546 U.S. 1216 (2006), improperly bolstered her
credibility. He testified that, upon collecting the victim from
the defendant's apartment, she was "nervous," and that
"I knew there was something wrong because I know her. . . .
I know her. I know when she is worried and I know when she
is not worried."
In closing, the Commonwealth relied on the father's testimony;
the prosecutor argued,
"A father knows his daughter. He stood there and testified
to you, she's my daughter, I know her. When he picked her
up at the house that night, he knew immediately something
was wrong."
Because the defendant did not object either to the
witness's testimony or to the closing argument, we review to
determine whether the testimony and argument were improper and,
if so, whether they created a substantial risk of a miscarriage
of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
25
We first announced the doctrine of first complaint under
our superintendence power to regulate the presentation of
evidence in court proceedings. A first complaint witness "may
not testify to belief in the witness's truthfulness or otherwise
supplant the fact finder's function in determining credibility."
King, 445 Mass. at 246 & n.26. Such a witness may, however,
testify as to the "circumstances surrounding the initial
complaint." Id. at 246.
"By 'circumstances,' we mean that the witness may testify
to his or her observations of the complainant during the
complaint; the events or conversations that culminated in
the complaint; the timing of the complaint; and other
relevant conditions that might help a jury assess the
veracity of the complainant's allegations or assess the
specific defense theories as to why the complainant is
making a false allegation."
Id. Moreover, evidence of the demeanor of a complainant at or
around the time of the incident is permissible to rebut a claim
of fabrication. See Commonwealth v. Santos, 465 Mass. 689, 699-
700 (2013) (parent permitted to testify that child victim was
"pale," "clammy," "like he had seen a ghost," and that this was
"unusual" for him); Commonwealth v. Arana, 453 Mass. 214, 221,
225-226 (2009) (parent permitted to testify that child victim
was "upset," "crying," "sad," and "need[ing] help").
The defense at trial was that the victim fabricated the
allegations, perhaps in order to avoid having to be cared for by
Concepcion. The victim's father testified that, before he
26
talked to his daughter, he observed "something was wrong," and
believed that she appeared "nervous" and "worried."19 Such
testimony is not a reflection whether he believed her subsequent
statements but, rather, a description of how she appeared prior
to making those statements, close in time to the assault. That
the jury might use this description to corroborate the timeline
of the victim's allegations is not the same as her father
substituting his credibility determination for that of the fact
finder.20
19This testimony may have constituted a lay opinion. Lay
opinion testimony is admissible only if it is "(a) rationally
based on the witness's perception; (b) helpful to a clear
understanding of the witness's testimony or in determining a
fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge." See Mass. G. Evid. § 701 (2019).
To the extent that the victim's father's testimony might not
have been "based on [his own] perception," or that he lacked
personal knowledge, the defendant does not raise the issue
before us, nor was it raised at trial. See Commonwealth v.
Millyan, 399 Mass. 171, 183 (1987) ("The general rule is that a
witness may testify only to facts that he observed and may not
give an opinion on those facts"); Commonwealth v. Carver, 33
Mass. App. Ct. 378, 383 (1992) (witnesses not permitted to offer
"mere opinion or speculation as to another person's state of
mind"). See also H.P. Carroll & W.C. Flanagan, Trial Practice
§ 13:61, at 592 n.34 (3d ed. 2017), quoting Mauet & Wolfson,
Trial Evidence § 4.7 (4th ed. 2009) ("non-expert witnesses
generally cannot testify to what someone else thinks, feels, or
intends"). Contrast Commonwealth v. Santos, 465 Mass. 689, 700
(2013) (parent described child's physical appearance).
20By contrast, had the victim's father testified that, upon
hearing the allegations, he believed her, that testimony would
have been impermissible.
27
There was no error in allowing the admission of this
testimony. Accordingly, the Commonwealth was permitted to rely
on it during closing argument. See Commonwealth v. Andrade, 468
Mass. 543, 552 (2014) ("Arguments based on testimony submitted
at trial . . . are proper"); Commonwealth v. Kebreau, 454 Mass.
287, 304 (2009) (prosecutor permitted to "argue strenuously from
the evidence that the Commonwealth's witnesses were credible").21
d. Jury instructions. The judge denied the defendant's
request to limit or substitute the standard instruction
concerning first complaint testimony. On appeal, the defendant
contends that providing the standard instruction was error. The
portion of the instruction, first defined in King, 445 Mass. at
247-248, that the defendant sought to exclude provides:
"The length of time between the alleged crime and the
report of the complainant to this witness is one factor you
may consider in evaluating the complainant's testimony, but
you may also consider that sexual assault complainants may
delay reporting the crime for a variety of reasons."
21The victim's father also testified that he told his
sister "what had happened." We agree with the defendant that
the statement should not have been admitted. Willingness to
tell another individual about an allegation implies a belief in
the allegation. We do not, however, consider the issue
preserved. Although counsel initially objected to the line of
questioning, no grounds were stated, and the judge reasonably
could have understood the objection as being to hearsay. When
the question was rephrased ("Without saying what you said or
what they said back to you, who did you tell?"), defense counsel
made no further objection. The single admission, "I told my
sister," does not, in the circumstances of this case, generate a
substantial risk of a miscarriage of justice. See Commonwealth
v. Alphas, 430 Mass. 8, 13 (1999).
28
Id. at 248.
The defendant argues that, in this case, the instruction
was unnecessary, and, worse, prejudicial. Delay was not at
issue; the victim reported the incident to her father shortly
after arriving home. The defendant argues, essentially, that
the instruction drew the jury's attention to the possibility
that the victim could have "delay[ed] reporting the crime," but
did not, thereby injecting delay as an issue and bolstering her
credibility.
In King, 445 Mass. at 242, we recognized that "victims
often do not promptly report a sexual assault for a variety of
reasons that have nothing to do with the validity of the claim
of assault." We sought to disabuse the jury of the
misapprehensions that "'real' victims will promptly disclose a
sexual attack" and that "the absence of a timely complaint
suggests fabrication." See id. at 238, 240. Nonetheless, we
determined that "the timing of a complaint is [still] . . . one
factor the jury may consider in weighing the complainant's
testimony." See id. at 242. It was not improper, therefore,
for the jury to be instructed that they could consider a delay,
or lack thereof.
Moreover, some jurors may have perceived a delay, albeit a
short one, in this case. The victim did not report the
allegations immediately; she waited until after her father's
29
boss had left her and her father at their apartment. The jury
were permitted to consider this evidence, and the instruction
appropriately contextualized the passage of time between the
incident and the report. We discern no error in the judge's
decision to instruct using the standard instruction set forth in
King, 445 Mass. at 247-248.
Judgment affirmed.