Commonwealth v. Jeffrey S. Foley.

• Court: Massachusetts Appeals Court
• Decided: June 27, 2024
• Docket: 23-P-0335
• Status: Unpublished

Opinion

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

23-P-335

COMMONWEALTH

vs.

JEFFREY S. FOLEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted by a District Court jury of

indecent assault and battery on a person over fourteen, in

violation of G. L. c. 265, § 13H. This is his direct appeal.

The facts of the case are well known to the parties and will not

be repeated here, except to the extent necessary to our

discussion. In her statement to the police, the victim

identified a man with whom she worked as the person to whom she

made her first complaint. Before trial, the Commonwealth moved

to designate that person as its first complaint witness. See

Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert.

denied, 546 U.S. 1216 (2006) (holding that in sexual assault

cases, the first person told about alleged sexual assault may

testify about details and circumstances of initial complaint,

but that no additional complaint witnesses may testify). At the beginning of trial, however, it withdrew that motion, informing

the judge that that witness was not present at trial.

During trial, the victim testified on cross-examination

that she had called her mother from her car immediately after

the incident with the defendant and told her about it. Defense

counsel, surprised by this, orally moved for a mistrial. The

motion was denied. On appeal, the defendant argues that this

constituted a discovery violation, and that a mistrial should

have been granted.

To begin with, there is no evidence in the record that

anyone on the Commonwealth's prosecution team, including the

police, was aware before trial either of the alleged

conversation with the mother, or of the victim's intent to

testify as she did. Without such evidence, which is not

available in part because of the posture of this case as a

direct appeal, the defendant cannot make out a case of a

discovery violation. See Commonwealth v. Beal, 429 Mass. 530,

532 (1999) (holding that "prosecutor's duty does not extend

beyond information held by agents of the prosecution team,"

which does not include complainants).

In any event, even if he could show such a violation, the

defendant cannot on this record show prejudice. That would

require a proffer of the testimony the mother might have given,

as it is unclear whether it would have bolstered the victim's

2 credibility or detracted from it. Cf. King, 445 Mass. at 219

(noting that first complaint testimony is not used to prove

truth of allegations, but rather to "assist the jury in

determining whether to credit the complainant's testimony about

the alleged sexual assault"). Additionally, defense counsel

effectively utilized the victim's inconsistent testimony

regarding the first complaint, as well as other inconsistencies

in her testimony, to attack the victim's credibility.

At the end of the defendant's brief, he cursorily mentions

the judge's failure to order some other remedial measure short

of a mistrial. At trial, defense counsel did not request any

such remedial measure, and so, to the extent the defendant

raises this claim now, we review it for a substantial risk of a

miscarriage of justice. See Commonwealth v. Schoener, 491 Mass.

706, 722 (2023).

3 As described above, in the absence of any evidence

indicating prejudice, the defendant cannot sustain his burden of

demonstrating any such risk.

Judgment affirmed.

By the Court (Vuono, Rubin & Smyth, JJ.1),

Clerk

Entered: June 27, 2024.

1 The panelists are listed in order of seniority.