Commonwealth v. Torres

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12-P-1733 Appeals Court
COMMONWEALTH vs. FELIX TORRES.
No. 12-P-1733.
Worcester. March 7, 2014. - September 10, 2014.
Present: Katzmann, Rubin, & Carhart, JJ.
Rape. Indecent Assault and Battery. Practice, Criminal, Public
trial, Severance, Trial of indictments together, Mistrial.
Constitutional Law, Public trial. Evidence, First
complaint, Prior misconduct, Pattern of conduct, Relevancy
and materiality, Redirect examination.
Indictments found and returned in the Superior Court
Department on September 12, 2006.
The cases were tried before Bruce R. Henry, J.; a motion
for a new trial, filed on January 21, 2011, was heard by him;
and a motion for reconsideration was considered by him.
Angela G. Lehman for the defendant.
Stephen J. Carley, Assistant District Attorney, for the
Commonwealth.
CARHART, J. The defendant appeals from his convictions of
seven counts of indecent assault and battery on a child and
eight counts of rape of a child, and from the denials of his
2
motions for a new trial and to reconsider. The defendant argues
that the trial judge erred in concluding that the court room was
not closed to the public, failing to sever the counts sua
sponte, admitting improper first complaint testimony, and making
various evidentiary rulings. We affirm.
Background. The jury were presented with the following
evidence. The defendant was in an intermittent relationship
with Sonia Nieves. They had two children together, Kim1 and
David.2 Nieves also had a child from a different relationship,
Sara.3 Nieves's three sisters, Nina,4 Ann,5 and Beth,6
occasionally lived with her and the defendant. The victims,
Kim, Nina, and Ann, all testified at trial.
Kim testified that the defendant touched her for the first
time when she was seven or eight years old. He entered her
bedroom while Sara was sleeping in the room and touched Kim's
breast, buttocks, and vagina with his hand. On another
occasion, the defendant climbed into Kim's bed, again while Sara
was in the room, touched Kim's vagina with his penis, and put
1
A pseudonym.
2
A pseudonym.
3
A pseudonym.
4
A pseudonym.
5
A pseudonym.
6
A pseudonym.
3
his penis inside Kim's mouth. He was silent during both
incidents.
Nina testified that the defendant touched her for the first
time when she was eight years old. On that occasion, he
approached Nina while she was doing laundry and put his penis
inside her buttocks and vagina. Then, when Nina was eleven
years old, the defendant entered her bedroom and put his penis
inside her vagina. He was silent during both incidents.
Ann testified that the defendant touched her for the first
time when she was six or seven years old. He entered her
bedroom while she was playing with her brother and, without
saying anything, put his finger inside her vagina. When she was
between ten and fourteen years old, the defendant called Ann
into her brother's bedroom at a family barbeque, sucked on her
breast, and then performed oral sex on her. Again, the
defendant was silent during the incident. Ann also testified to
three other incidents where the defendant put his fingers inside
her vagina while other children were in the room, put his penis
inside her vagina while she was sleeping on a couch, and put his
penis inside her vagina while she was napping on Nieves's bed.
In 2006, after learning that Sara had been abused by her
maternal grandfather, the family gathered together to discuss
the situation. At some point, Kim told Ann that she had been
abused by the defendant. This disclosure prompted Nieves, Ann,
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Nina, and Beth to meet privately and discuss the defendant.
During this meeting, Ann and Nina told the group that they had
also been abused by the defendant. The sisters ultimately
called the police two times, once regarding their father and
once regarding the defendant.
Discussion. 1. Closure. The defendant claims that the
trial judge erred in denying his motions for a new trial and to
reconsider. After the guilty verdicts, the defendant moved for
a new trial, alleging that his right to a public trial was
violated because the court room was improperly closed during
jury selection and that he was denied the effective assistance
of counsel. The judge held a two-day evidentiary hearing, at
which two court officers, the defendant's trial counsel, two of
the defendant's family members, and the defendant testified.
Some of the witnesses testified to the "culture" of jury
selection in the Worcester County Superior Court, as well as the
seating capacity for jurors in the court room in which the jury
were empanelled.
After hearing the evidence, the judge issued a thoughtful
decision in which he concluded that, notwithstanding the
"culture" in Worcester County to "typically" clear the court
room for empanelment, there was also a practice of permitting
admittance during empanelment when seats were available. By
comparing the seating capacity of the court room with the number
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of jurors called during the empanelment process, the judge
concluded that the court room was not closed to the public in
this case. We also note that the judge discredited the
defendant's two family members who claimed that they were
excluded. Accordingly, the motion for new trial was denied.
The defendant filed a motion to reconsider, which was also
denied.
It is well settled that the First and Sixth Amendments to
the United States Constitution guarantee criminal defendants the
right to a public trial. Commonwealth v. Cohen (No. 1), 456
Mass. 94, 106 (2010) (adding that "[t]he public trial right
applies to jury selection proceedings"). A defendant who claims
that his right to a public trial has been violated bears the
burden of proving that the court room was closed. Id. at 107.
Such a violation is a constitutional issue and constitutes
structural error. Id. at 105. Accordingly, we "exercise [our]
own judgment on the ultimate factual as well as legal
conclusions." Ibid., quoting from Commonwealth v. Tucceri, 412
Mass. 401, 409 (1992). After a careful review of the record and
the judge's credibility determinations, we cannot say that we
disagree with the judge's ultimate factual findings or
conclusions. Indeed, the judge's finding, that the court room
was not closed to the public, is amply supported by the evidence
and reflects a diligent analysis of the circumstances that lay
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at the heart of the defendant's claims. We conclude that the
judge did not err in denying the defendant's motions for a new
trial and to reconsider.
2. Joinder. The defendant next argues that the judge
erred in failing to sever the counts sua sponte, pursuant to
Mass.R.Crim.P. 9(d), 378 Mass. 860 (1979). Rule 9 of the
Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979),
governs joinder, and rule 9(a)(1) provides that "[t]wo or more
offenses are related offenses if they are based on the same
criminal conduct or episode or arise out of a course of criminal
conduct or series of criminal episodes connected together or
constituting parts of a single scheme or plan." Rule 9(a)(2)
states, "If two or more related offenses are of the same or
similar character, they may be charged in the same indictment or
complaint, with each offense stated in a separate count."
Finally, rule 9(d)(1) provides, "If it appears that a joinder of
offenses or of defendants is not in the best interests of
justice, the judge may upon his own motion or the motion of
either party order an election of separate trials of counts,
grant a severance of defendants, or provide whatever other
relief justice may require." It is against this backdrop that
we consider the defendant's claim that the judge erred in
failing to sever the counts.
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We begin this analysis by noting that a decision to sever
counts of an indictment is one left to the "sound discretion of
the judge." Commonwealth v. Allison, 434 Mass. 670, 679 (2001).
Absent "a clear abuse of discretion," we will not disturb the
judge's ruling in this regard. Ibid. The defendant "bears the
burden of demonstrating that the offenses were unrelated, and
that prejudice from joinder was so compelling that it prevented
him from obtaining a fair trial." Commonwealth v. Pillai, 445
Mass. 175, 180 (2005), quoting from Commonwealth v. Gaynor, 445
Mass. 245, 260 (2005). In showing that the offenses are
unrelated under rule 9(a), the defendant must show that the
offenses lack "factual similarities." Ibid., citing
Commonwealth v. Ferraro, 424 Mass. 87, 89-91 (1997). See
Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995) ("Offenses
are related if 'the evidence in its totality shows a common
scheme and pattern of operation that tends to prove' each of the
complaints"). In showing prejudice, the defendant must prove
that he was foreclosed from pursuing a "particular tactic or
right" at trial. Commonwealth v. Spray, 467 Mass. 456, 469
(2014).
In this case, we note that the evidence offered in support
of each count was similar, if not identical. Although the
incidents occurred over many years, there was overlap among the
incidents, which took place in similar locations and in
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factually similar ways. Thus, the mandates of rule 9 were met
as to each count, warranting joinder. Moreover, we note that
experienced trial counsel did not move to sever the counts, and
we cannot say that the failure to seek severance was not a sound
tactical decision. See Commonwealth v. Teti, 60 Mass. App. Ct.
279, 289 (2004) (attorney may strategically choose not to seek
severance). Indeed, the defendant was not foreclosed by the
joinder from pursuing a "particular tactic" at trial, as his
theory of the case was that the allegations were concocted
through collusion among the victims, which was best played out
through a trial in which all of the victims testified. The fact
that this tactical decision did not result in an acquittal does
nothing to support an appellate argument that the defendant was
prejudiced and the counts should have been severed. See
Commonwealth v. Spray, supra. We conclude that there was a
sound basis for trial counsel to refrain from seeking a
severance of the counts and that the judge did not abuse his
discretion, considering the parameters of rule 9, in deciding
that severance was not "in the best interests of justice."
3. First complaint testimony. The defendant next argues
that the judge abused his discretion in allowing witnesses to
testify to statements beyond the scope of the first complaint
doctrine. This argument lacks merit. The Commonwealth called a
first complaint witness for each victim, and the judge gave a
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first complaint curative instruction for each witness. In
defense counsel's opening and in his cross-examination of the
victims, he alluded to and introduced information that exceeded
the scope of the first complaint doctrine in an effort to
establish that the victims had colluded, or been manipulated, to
accuse the defendant. For example, when cross-examining Kim,
defense counsel asked whether her aunts told her that the
defendant had abused them and whether Kim told a police officer
that something came out of the defendant's penis during one of
the assaults. In response, the Commonwealth presented evidence
that exceeded the bounds of the first complaint doctrine.
Defense counsel did not object, except in one instance.
We review the admission of first complaint testimony for
abuse of discretion. Commonwealth v. Aviles, 461 Mass. 60, 73
(2011) ("The judge who is evaluating the facts of a particular
case is in the best position to determine the scope of
admissible evidence, keeping in mind the underlying goals of the
first complaint doctrine"). It is undisputed that first
complaint testimony is limited to the "details of the alleged
victim's first complaint of sexual assault and the circumstances
surrounding that first complaint as part of the prosecution's
case-in-chief." Commonwealth v. King, 445 Mass. 217, 243, 246
(2005), cert. denied, 546 U.S. 1216 (2006) (explaining that a
first complaint witness may testify to her observations during
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the complaint and conversations or events "that culminated in
the complaint"). The Commonwealth may not present multiple
first complaint witnesses or introduce "[e]vidence that a
complainant repeatedly complained of a sexual assault to several
different persons." Id. at 243. The trial judge is required to
give a standard limiting instruction to the jury to the effect
that first complaint testimony is not to be considered as
evidence that the crime occurred. Id. at 247-248.
In this case, the judge followed first complaint protocol
and gave the required limiting instructions. It was defense
counsel who alleged that the victims fabricated their
accusations and first brought out statements that exceeded
permissible first complaint testimony, which opened the door to
further testimony beyond the scope of the first complaint
doctrine. A review of the record leads us to conclude that this
was a reasonable trial tactic in marshalling a defense. Once
the defendant "opened the door" to these statements, the
Commonwealth was appropriately permitted to explore the contents
and the context of the statements in more detail. See
Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009)
(testimony beyond scope of first complaint doctrine is
admissible "for the independent purpose of rebutting the
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inferences raised by the defendant's inquiries"). We find no
abuse of discretion.7
4. Evidentiary rulings. The defendant argues that a
series of evidentiary rulings by the judge deprived him of a
fair trial. The defendant first claims that the judge erred in
allowing the Commonwealth's motion in limine to admit testimony
that the defendant abused his stepdaughter, Sara, in order to
show the defendant's intent, state of mind, and a common pattern
or course of conduct toward the young women in his family. We
disagree. We review evidentiary rulings, such as a ruling on a
motion in limine, for abuse of discretion, and we will only find
error if the defendant shows that "no conscientious judge,
acting intelligently, could honestly have taken the view
expressed by him." Commonwealth v. Spencer, 465 Mass. 32, 48
(2013), quoting from Davis v. Boston Elevated Ry. Co., 235 Mass.
482, 502 (1920).
Although evidence of bad acts is inadmissible to show a
person's propensity to commit "the crime charged," Commonwealth
v. King, 387 Mass. 464, 469 (1982), it may be "admissible for
7
The defendant also argues that Ann, in serving as a first
complaint witness for Kim, was improperly permitted to testify
that Kim looked upset about going to visit the defendant right
before she disclosed her abuse. Defense counsel objected. As
the first complaint doctrine permits a first complaint witness
to testify to "circumstances surrounding that first complaint,"
we find no abuse of discretion. Commonwealth v. King, 445 Mass.
at 243.
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other purposes," Mass. G. Evid. § 404(b) (2014). For example,
"such evidence 'may be admissible, if relevant, to show a common
scheme or course of conduct, a pattern of operation, absence of
accident or mistake, intent, or motive,'" so long as the
evidence is "related in time, place, and/or form to the charges
being tried." Commonwealth v. Walker, 442 Mass. 185, 202
(2004), quoting from Commonwealth v. Barrett, 418 Mass. 788,
793-794 (1994), and Liacos, Brodin, & Avery, Massachusetts
Evidence § 4.4.6, at 155 (7th ed. 1999). In this case, the bad
acts evidence and the crime for which the defendant was charged
were certainly not unrelated. Sara testified that when she was
around eleven years old, the defendant touched her vagina with
his hand while Kim was asleep in the room. The defendant was
silent during the incident. The victims were at a similar age
at the time of abuse, had family connections to the defendant,
and were abused in similar environments and in similar ways.
Such commonalities might indicate that the defendant was engaged
in a "pattern" or "common scheme or course of conduct." The
incidents were certainly related in "place" and "form." Thus,
the evidence was relevant and admissible for a permissible
purpose.
Additionally, bad acts evidence is only admissible where
its prejudicial effect does not outweigh its probative value.
Commonwealth v. Butler, 445 Mass. 568, 576 (2005). Here, the
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judge instructed the jury that Sara's testimony "may not and
indeed must not be considered . . . as any evidence that [the
defendant] has a bad character or as evidence that he has a
propensity to commit the crimes that have been charged in this
case" and that the jury should only consider the bad acts
evidence if the jury found it believable, relevant, and
probative "of the issue of the defendant's intent or state of
mind at the time of the alleged rapes and indecent assaults and
batteries and on the issue of whether he demonstrate[d] a
pattern or a common course of conduct." The judge repeated a
similar instruction in his final instructions to the jury.
Given these repeated curative instructions and our review of the
record, we conclude that the prejudicial value of the evidence
did not outweigh its probative value. See Commonwealth v.
Walker, supra. We further conclude that the judge did not abuse
his discretion in allowing the motion in limine.
The defendant also claims that the judge erred in
permitting Beth to testify during redirect examination that the
defendant attempted to kiss her. "The scope of redirect
examination is within the sound discretion of the trial judge,"
and the defendant bears "a heavy burden" to show an abuse of
that discretion. Commonwealth v. Arriaga, 438 Mass. 556, 577
(2003), quoting from Commonwealth v. Mattais, 387 Mass. 79, 92
(1982). We will not find such abuse where the defendant "opened
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the door" for the Commonwealth's rebuttal. Ibid. In this case,
the Commonwealth did not elicit testimony about the kiss until
after defense counsel elicited testimony that the witness did
not like the defendant. Thus, the rebuttal testimony was
permissible during redirect examination in order to explain why
the witness disliked the defendant. We find no abuse of
discretion.
Next, the defendant argues that the judge erred in refusing
to grant a mistrial after Beth extemporaneously testified that
the maternal grandfather received an eight-year sentence for
sexually abusing children. After denying the motion for a
mistrial, the judge immediately struck the testimony from the
record and gave a curative instruction. "The decision whether
to declare a mistrial is within the discretion of the trial
judge." Commonwealth v. Bryant, 447 Mass. 494, 503 (2006).
Indeed, "[w]here a party seeks a mistrial in response to the
jury's exposure to inadmissible evidence, the judge may
'correctly rel[y] on curative instructions as an adequate means
to correct any error and to remedy any prejudice to the
defendant.'" Ibid., quoting from Commonwealth v. Kilburn, 426
Mass. 31, 37-38 (1997). In deciding the appropriate cure for
improper testimony, the judge may have considered, among other
factors, that the testimony did not bear on the charged conduct,
that the testimony was a surprise to both parties, and that
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"[j]urors are presumed to follow a judge's instructions,
including instructions to disregard certain testimony."
Commonwealth v. Roby, 462 Mass. 398, 413 (2012), quoting from
Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Given
these considerations and our review of the record, we conclude
that there was no abuse of discretion.
The defendant also argues that the Commonwealth improperly
questioned him as to whether Sara lied when she testified that
Nina was the first person she told about her grandfather abusing
her. Defense counsel objected, the judge sustained the
objection, and the defendant did not answer the question. "It
is well-established, and we have repeatedly stated, that it is
improper to ask a witness at trial to assess the credibility of
other witnesses' testimony." Commonwealth v. Colon, 64 Mass.
App. Ct. 303, 306-307 (2005). Thus, we review the prosecutor's
improper question, to which defense counsel objected, for
prejudicial error. See Commonwealth v. Ward, 15 Mass. App. Ct.
400, 401-402 (1983). We consider that the error here consisted
of just a single question, the defendant did not answer the
question, and the judge gave a curative instruction. See id. at
402. Accordingly, we conclude that there was no prejudice.
Finally, the defendant argues that the prosecutor
improperly gave witnesses signals as to how they should answer
questions while testifying. At trial, defense counsel raised
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the objection about improper signaling during an unrelated side-
bar discussion. The judge responded to defense counsel's
concern by stating to the prosecutor, "[C]ounsel, if -- I should
point out to you yesterday you signaled the witness with two
fingers up when you asked her about a certain number of years,
all right? So let's not get into this nonsense." The defendant
did not renew his objection. On appeal, the defendant does not
provide any evidence as to what the prosecutor allegedly did at
trial or as to how this "signaling" affected the trial. Rather,
the defendant simply suggests that such signaling occurred, it
was error, and that it, along with other alleged errors
throughout the trial, made the trial fundamentally unfair. On
this record, we decline to find that the trial was fundamentally
unfair.
Judgments affirmed.
Orders denying motion for new
trial and to reconsider
affirmed.