NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-30
COMMONWEALTH
vs.
JEFFREY HANSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of two
counts of aggravated rape of a child under the age of sixteen,1
and one count of incest. On appeal, he claims the first
complaint witness's testimony about the investigative process
was irrelevant and prejudicial, the evidence of the defendant's
past drug use was improper character and bad act evidence, and
the prosecutor's closing argument improperly appealed to the
jury's sympathy and vouched for the victim's and a witness's
credibility. We affirm.
1The aggravating factor was the more than five-year difference in the ages of the defendant and victim, who was under twelve years old. See G. L. c. 265, § 23A (a). 1. First complaint testimony. At the time of the
offenses, the victim was five years old. The victim's mother
was the first complaint witness. For the first time on appeal,
the defendant claims that the mother's testimony regarding what
she did in the aftermath of the victim's disclosure violated the
first complaint rule. In particular, the defendant takes issue
with the mother's testimony that she: (1) contacted the
victim's pediatrician; (2) met with a social worker who assisted
her with reporting the matter to the Department of Children and
Families; and (3) reported the assaults to the police. None of
these claims were preserved by an objection at trial, so we
review to determine whether this evidence created a substantial
risk of a miscarriage of justice. See Commonwealth v. Freeman,
352 Mass. 556, 563–564 (1967).
In Commonwealth v. King, 445 Mass. 217, 246-247 (2005),
cert. denied, 546 U.S. 1216 (2006), the Supreme Judicial Court
announced the first complaint rule, and explained its purpose as
follows:
"[t]he goal of this new first complaint doctrine is to give the jury as complete a picture as possible of how the accusation of sexual assault first arose. That complete picture will allow them to make a fairer and more accurate assessment of the validity of that accusation, based on specific information about the people involved rather than on outdated stereotypes and generalities."
2 Indeed, "a first complaint witness may testify to the
circumstances surrounding the initial complaint." Id. at 246.
Moreover, "[f]irst complaint testimony, including the details
and circumstances of the complaint, will be considered
presumptively relevant to a [victim's] credibility in most
sexual assault cases where the fact of the assault or the issue
of consent is contested." Id. at 247.
Here, the mother's testimony regarding the steps she took
following the victim's disclosure did not violate the first
complaint rule because it was relevant to the circumstances of
the complaint, and it tended to negate the defense theory of
fabrication.2 The mother's testimony about her reactions and the
steps she took were relevant to whether she had influenced the
victim, or manufactured the allegations. See Commonwealth v.
McCoy, 456 Mass. 838, 845 (2010), quoting King, 445 Mass. at 246
(first complaint witness may testify to "other relevant
conditions that might help a jury assess the veracity of the
[victim's] allegations or assess the specific defense theories
as to why the [victim] is making a false allegation").
2 The defense maintained that the defendant never sexually assaulted the victim, and that the allegations were entirely fabricated by the victim's mother, who the defense claimed "hated" the defendant.
3 To the extent this evidence touched on matters that
preceded an investigation, it was not an improper introduction
of how the Commonwealth brought its resources to bear on the
incident, Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008).
Rather, it was a proper response to the theory of defense, see
Commonwealth v. Espinal, 482 Mass. 190, 202 (2019); Commonwealth
v. Santos, 465 Mass. 689, 700-701 (2013), particularly in this
case with a child victim. See King, 445 Mass. at 239-240. The
admission of the mother's first complaint testimony, including
that now complained of, provided the jury with information that
permitted them to make a fair assessment of the victim's
credibility. See Commonwealth v. Hartnett, 72 Mass. App. Ct.
467, 472 (2008). There was no error, and thus, no risk that
justice miscarried. See Commonwealth v. Randolph, 438 Mass.
290, 297 (2002).
2. The defendant's past drug use. The defendant also
claims that the admission of evidence of his past drug use was
improper character and bad act evidence which resulted in
prejudicial error. We disagree.
Prior to trial, the defendant moved in limine to prohibit
the Commonwealth's witnesses from testifying relative to, among
other things, the defendant's past sale or use of drugs. At the
hearing on the motion, the prosecutor agreed that he would not
4 introduce such evidence in his case-in-chief, but expressed
concern that he not be subject to the same limitation if defense
counsel opened the door to its admission. Ultimately, the judge
ruled that if the defense opened the door, the prosecutor would
be required to seek the judge's permission before pursuing the
matter.
At trial, the prosecutor heeded the evidentiary limitation
and did not introduce any evidence of the defendant's past drug
use in his direct examination of the witnesses. The
Commonwealth called the defendant's brother as a prosecution
witness. He testified that after the defendant was arrested on
the charges at issue here, the defendant asked him to meet; at
the meeting, the defendant admitted to having abused the victim
as she described. On cross-examination of the defendant's
brother, defense counsel asked whether he had drifted apart from
the defendant over the past couple of years, and he replied that
he now only got together with the defendant "reluctantly" a few
times a year. On redirect, the prosecutor asked why the two had
drifted apart, and the brother responded, "Part of it is this
issue, I think, . . . he has a drug problem, and I don't want
that around my -- my family."3 The defendant did not object.
3 Although the prosecutor did not seek a sidebar conference before asking this question, it is not clear, on this record,
5 As an initial matter, the parties disagree on whether the
motion in limine preserved the defendant's claim. We need not
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-30
COMMONWEALTH
vs.
JEFFREY HANSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of two
counts of aggravated rape of a child under the age of sixteen,1
and one count of incest. On appeal, he claims the first
complaint witness's testimony about the investigative process
was irrelevant and prejudicial, the evidence of the defendant's
past drug use was improper character and bad act evidence, and
the prosecutor's closing argument improperly appealed to the
jury's sympathy and vouched for the victim's and a witness's
credibility. We affirm.
1The aggravating factor was the more than five-year difference in the ages of the defendant and victim, who was under twelve years old. See G. L. c. 265, § 23A (a). 1. First complaint testimony. At the time of the
offenses, the victim was five years old. The victim's mother
was the first complaint witness. For the first time on appeal,
the defendant claims that the mother's testimony regarding what
she did in the aftermath of the victim's disclosure violated the
first complaint rule. In particular, the defendant takes issue
with the mother's testimony that she: (1) contacted the
victim's pediatrician; (2) met with a social worker who assisted
her with reporting the matter to the Department of Children and
Families; and (3) reported the assaults to the police. None of
these claims were preserved by an objection at trial, so we
review to determine whether this evidence created a substantial
risk of a miscarriage of justice. See Commonwealth v. Freeman,
352 Mass. 556, 563–564 (1967).
In Commonwealth v. King, 445 Mass. 217, 246-247 (2005),
cert. denied, 546 U.S. 1216 (2006), the Supreme Judicial Court
announced the first complaint rule, and explained its purpose as
follows:
"[t]he goal of this new first complaint doctrine is to give the jury as complete a picture as possible of how the accusation of sexual assault first arose. That complete picture will allow them to make a fairer and more accurate assessment of the validity of that accusation, based on specific information about the people involved rather than on outdated stereotypes and generalities."
2 Indeed, "a first complaint witness may testify to the
circumstances surrounding the initial complaint." Id. at 246.
Moreover, "[f]irst complaint testimony, including the details
and circumstances of the complaint, will be considered
presumptively relevant to a [victim's] credibility in most
sexual assault cases where the fact of the assault or the issue
of consent is contested." Id. at 247.
Here, the mother's testimony regarding the steps she took
following the victim's disclosure did not violate the first
complaint rule because it was relevant to the circumstances of
the complaint, and it tended to negate the defense theory of
fabrication.2 The mother's testimony about her reactions and the
steps she took were relevant to whether she had influenced the
victim, or manufactured the allegations. See Commonwealth v.
McCoy, 456 Mass. 838, 845 (2010), quoting King, 445 Mass. at 246
(first complaint witness may testify to "other relevant
conditions that might help a jury assess the veracity of the
[victim's] allegations or assess the specific defense theories
as to why the [victim] is making a false allegation").
2 The defense maintained that the defendant never sexually assaulted the victim, and that the allegations were entirely fabricated by the victim's mother, who the defense claimed "hated" the defendant.
3 To the extent this evidence touched on matters that
preceded an investigation, it was not an improper introduction
of how the Commonwealth brought its resources to bear on the
incident, Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008).
Rather, it was a proper response to the theory of defense, see
Commonwealth v. Espinal, 482 Mass. 190, 202 (2019); Commonwealth
v. Santos, 465 Mass. 689, 700-701 (2013), particularly in this
case with a child victim. See King, 445 Mass. at 239-240. The
admission of the mother's first complaint testimony, including
that now complained of, provided the jury with information that
permitted them to make a fair assessment of the victim's
credibility. See Commonwealth v. Hartnett, 72 Mass. App. Ct.
467, 472 (2008). There was no error, and thus, no risk that
justice miscarried. See Commonwealth v. Randolph, 438 Mass.
290, 297 (2002).
2. The defendant's past drug use. The defendant also
claims that the admission of evidence of his past drug use was
improper character and bad act evidence which resulted in
prejudicial error. We disagree.
Prior to trial, the defendant moved in limine to prohibit
the Commonwealth's witnesses from testifying relative to, among
other things, the defendant's past sale or use of drugs. At the
hearing on the motion, the prosecutor agreed that he would not
4 introduce such evidence in his case-in-chief, but expressed
concern that he not be subject to the same limitation if defense
counsel opened the door to its admission. Ultimately, the judge
ruled that if the defense opened the door, the prosecutor would
be required to seek the judge's permission before pursuing the
matter.
At trial, the prosecutor heeded the evidentiary limitation
and did not introduce any evidence of the defendant's past drug
use in his direct examination of the witnesses. The
Commonwealth called the defendant's brother as a prosecution
witness. He testified that after the defendant was arrested on
the charges at issue here, the defendant asked him to meet; at
the meeting, the defendant admitted to having abused the victim
as she described. On cross-examination of the defendant's
brother, defense counsel asked whether he had drifted apart from
the defendant over the past couple of years, and he replied that
he now only got together with the defendant "reluctantly" a few
times a year. On redirect, the prosecutor asked why the two had
drifted apart, and the brother responded, "Part of it is this
issue, I think, . . . he has a drug problem, and I don't want
that around my -- my family."3 The defendant did not object.
3 Although the prosecutor did not seek a sidebar conference before asking this question, it is not clear, on this record,
5 As an initial matter, the parties disagree on whether the
motion in limine preserved the defendant's claim. We need not
resolve that dispute because even if the claim is preserved, we
review for an abuse of discretion. Commonwealth v. McCowen, 458
Mass. 461, 478 (2010). "[E]vidence of prior bad acts 'is not
admissible to show a defendant's bad character or propensity to
commit the charged crime.'" Commonwealth v. Facella, 478 Mass.
393, 403 (2017), quoting Commonwealth v. Dwyer, 448 Mass. 122,
128 (2006). "[S]uch evidence is admissible when offered for
another purpose . . ., so long as its probative value for that
purpose is not outweighed by its prejudicial effect."
Commonwealth v. Welch, 487 Mass. 425, 442-443 (2021), quoting
Commonwealth v. Hall, 485 Mass. 145, 163 (2020).
Here, defense counsel opened the door by asking whether the
brothers had drifted apart. On redirect, the prosecutor was
entitled to seek an explanation of the matter. See Commonwealth
v. Garcia, 470 Mass. 24, 36 (2014). In any event, the reference
to the defendant's drug use was fleeting, was not solicited, and
gave the jury an understanding of why the brothers were no
longer close. This was particularly relevant because the
defendant denied that he admitted his crimes to his brother, and
that he believed the answer would refer to the defendant's drug use.
6 the brother's credibility was a live issue at trial. See
Commonwealth v. Foster, 411 Mass. 762, 767-768 (1992). See also
Commonwealth v. Rebello, 450 Mass. 118, 129 (2007) (defendant
not prejudiced by erroneously admitted but fleeting testimony
that he had sold heroin). There was no abuse of discretion.
In the defendant's case, the topic of drug use reappeared
during the prosecutor's cross-examination of the defendant. The
underlying purpose of the prosecutor's examination was to
impeach the defendant's testimony through his ability to
perceive. In this vein, and without objection, the defendant
agreed that his past abuse of opiates did not improve his memory
of events or his ability to perceive them. However, the
defendant denied using opiates after the victim was born, but
his heroin use increased after he lost custody of her. He also
admitted to using cocaine, but only after the assaults had been
reported to the police.
The defendant claims the motion in limine preserved this
claim, but the defendant's testimony, of course, occurred in his
defense, and not as part of the agreed-to limitation on the
Commonwealth's case-in-chief. In that posture, this claim of
error was not the subject of the motion in limine, and thus, it
is not preserved. See Commonwealth v. Grady, 474 Mass. 715, 719
(2016). Accordingly, to the extent that we discern error in the
7 admission of this evidence, we review to determine whether the
prosecutor's cross-examination created a substantial risk of a
miscarriage of justice. See Freeman, 352 Mass. at 563–564.
Here, the prosecutor was not attempting to elicit bad act
or propensity evidence, but rather was endeavoring to establish
that the defendant's drug use had a deleterious effect on his
ability to perceive and remember the events about which he was
testifying. A witness may be impeached with matters that
challenge his testimonial facilities even if that evidence
reveals an otherwise inadmissible fact, like criminal activity
not related to the charged crime. See Commonwealth v. Daley,
439 Mass. 558, 564 (2003). This may properly include a
witness's use of narcotics. Commonwealth v. Carrion, 407 Mass.
263, 273-274 (1990). Here, the prosecutor was properly
attempting to determine whether the defendant's drug use
overlapped with the period during which the victim was sexually
assaulted. In the end, the defendant largely denied that his
past drug use affected his faculties, and defense counsel
declined the judge's offer for a curative instruction. There
was no error, and thus, no risk that justice miscarried.
Randolph, 438 Mass. at 297.
3. The prosecutor's closing argument. Finally, the
defendant claims for the first time on appeal that the
8 prosecutor's closing argument improperly vouched for the
victim's and a witness's credibility, and impermissibly appealed
to the jury's sympathy. Because the defendant did not object to
the claims he now raises on appeal, we review to determine
whether there was error, and if so, whether it created a
substantial risk of a miscarriage of justice. "Errors of this
magnitude are extraordinary events and relief is seldom
granted." Randolph, 438 Mass. at 297.
"A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs. . . . When credibility is an issue before the jury, 'it is certainly proper for counsel to argue from the evidence why a witness should be believed.'"
Commonwealth v. Freeman, 430 Mass. 111, 118–119 (1999), quoting
Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). Here, the
prosecutor properly urged the jury to believe the victim and the
witness, who was the defendant's brother. He stated that,
"On cross-examination, [the victim] says this wasn't easy for her, and you can see why. She's a nine-year-old girl who took the stand and had to talk about some terrible things that happened to her. She told you in detail where this happened at the defendant's home. She told you in detail inside the home where it happened in the defendant's bedroom on the bed."
Relative to the defendant's brother, the prosecutor argued
that,
9 "[i]t was clear from his demeanor on the stand that this was hard on him. He had to take the stand to testify against his own flesh and blood, his brother, and he was emotional. He got emotional talking about some of the good times in the family, some of the stories that he had having a younger brother being about [ten] years older than the defendant.
"That they were brothers. They were -- they loved each other. He told you about taking the defendant out when he got his license. He told you about being the best man at his wedding. Things that he had done to help the defendant through the years. This is (indiscernible) the defendant, and despite all of that, he got up there and told you in great detail about the conversation he had with the defendant, where the defendant admitted to the crime."
The prosecutor then recounted how the brother's testimony was a
detailed account of his conversation with the defendant. He
noted how the defendant struggled, and was emotional, in the
course of the admission he made to his brother. The prosecutor
then added,
"[t]his is a family member he cares about and still cares about, but despite that, he got up there and told you that the defendant admitted that he did what [the victim] said he did. Why would [the defendant's brother] make that up? He was the best man at the defendant's wedding. They had been brothers for [forty] years; why would he make that up?"
In short, we find no merit in the defendant's claim that in
these selected portions of the closing argument, the prosecutor
was urging the jury to believe the victim and the witness
because they were able to overcome the difficulty of having to
testify. Rather than vouching for their credibility or seeking
their testimony to be credited for simply having the wherewithal
10 to testify, the prosecutor was arguing the witnesses were
credible based on facts developed at trial, and highlighted
their demeanor as a reason to credit their testimony. In fact,
the prosecutor expressly told the jury that "[i]t was clear from
his demeanor on the stand that this was hard on him." In other
words, the prosecutor used the emotional nature of his testimony
about his own brother to illustrate that he had no motive to
lie. See Freeman, 430 Mass. at 118–119.
Similarly with respect to the victim, when the prosecutor
argued that "it wasn't easy" for her to testify, in context, was
an appropriate comment on her demeanor and the content of her
testimony, rather than a suggestion that the victim "was
credible because of her willingness to testify." Commonwealth
v. Dirgo, 474 Mass. 1012, 1014 (2016). The argument was used as
a backdrop to the reality of the difficult nature of the case
and the victim's young age -- all matters that were grounded in
evidence -- to argue why the victim was credible. Importantly,
the prosecutor did so by stressing not the victim's age or the
nature of the allegations, but by emphasizing how the victim
testified in great detail. See Commonwealth v. Deloney, 59
Mass. App. Ct. 47, 52 (2003).
Furthermore, and contrary to the defendant's claim, the
prosecutor's closing argument did not make an inappropriate
11 appeal to sympathy. The prosecutor's use of the term "gut
wrenching" to describe the victim's and the witness's testimony
was not an appeal to sympathy as much as it was an overall
characterization of the difficult subject matter of the case,
i.e., rape and incest. In fact, defense counsel also described
the case in his opening statement and closing argument as "ugly"
and "gut-wrenching." Although the prosecutor's repeated
references to the brother as the defendant's "flesh and blood"
were unnecessary rhetorical flourishes, they were simply used to
maintain that the brother had no motive to lie about what his
own brother had admitted to him.
Finally, it was not an appeal to sympathy for the
prosecutor to describe the victim's first complaint to her
mother as "an emotional moment where [the victim], at age five,
after bathing, decides to open up to her only real caretaker,
her mother, an only child," or shortly thereafter, to state,
"[i]t makes sense that [the victim] would open up to her mother.
She's a five-year-old. Her mother is the only real parent she
(indiscernible) love. Who else would she disclose this to?"
This portion of the argument merely addressed the reality
of the victim's circumstances as it was developed in the
evidence and responded to the defense of fabrication. Indeed,
because the defense had made the victim's and her mother's
12 credibility an issue on both cross-examination and in closing
argument, "the prosecutor was entitled to respond within the
limits of the evidence and to provide the jury with reasons for
believing [them]." Commonwealth v. Kapaia, 490 Mass. 787, 803
(2022). As there was no error, there was no risk that justice
miscarried.
Judgments affirmed.
By the Court (Vuono, Meade & Hand, JJ.4),
Clerk
Entered: December 24, 2024.
4 The panelists are listed in order of seniority.