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-1248
COMMONWEALTH
vs.
KEVIN MURPHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury in the Superior Court convicted the defendant of two
counts of indecent assault and battery on a child under the age
of fourteen.1 The victim, whom we shall call "Sarah," is a
relative of the defendant. On appeal, the defendant contends
1The defendant was charged with three counts of indecent assault and battery on a child under the age of fourteen, one count of aggravated rape of a child, and one count of enticing a child under the age of sixteen. The Commonwealth entered a nolle prosequi on the charge of enticing a child and the case proceeded to trial before a jury on the remaining charges in February 2020. That jury acquitted the defendant of rape and one count of indecent assault and battery and did not reach a verdict on two counts of indecent assault and battery. The judge declared a mistrial as to those two counts, and a second trial was held almost three years later in May 2023. The convictions at issue in this appeal stem from the defendant's second trial. that the judge erred by admitting testimony that exceeded the
scope of the first complaint doctrine and that the prosecutor's
misstatement of the evidence in closing argument constituted
prejudicial error. We affirm.
Background. We summarize the facts the jury reasonably
could have found. When Sarah was between eight and nine years
old, she was living with her mother and two great aunts, Helen,
and Celeste.2 She regularly visited the defendant and often
stayed overnight at his home. Sarah testified that one night
she was lying in the defendant's bed when he touched her breasts
and vagina with his hands and his penis. The defendant told
Sarah that what happened "was supposed to be [their] secret."
On another occasion, the defendant raped Sarah by inserting his
penis into her vagina. Sarah testified that it hurt, and she
was bleeding.
Sometime after the rape occurred, Sarah told Helen that the
defendant had inappropriately touched her, but did not disclose
that the defendant had raped her. Sarah, who was nineteen years
old at the time of trial, did not remember much of her
conversation with Helen. She recalled that the conversation
took place in the kitchen, and that she had a "knot in [her]
2 Because the victim and her great aunts share a last name, we refer to them by pseudonyms.
2 stomach" and felt "disgust." She also remembered that when she
told Helen that the defendant had touched her breasts and
vagina, Helen was shocked and rushed down the hallway to tell
Sarah's mother. Sarah testified that she didn't say anything
about the rape at that time because she was worried that her
family would be angry with her and that she would get in
trouble.
About five years later, Sarah revealed that the defendant
had done more than inappropriately touch her and that he had
also raped her. This disclosure followed a heated argument
between Sarah and the defendant, who, at Sarah's mother's
request, went to pick up Sarah, after she reportedly was about
to get in a fight with some other girls. Although someone else
also was in the car, Sarah did not want to leave with the
defendant. At trial she acknowledged that she and the defendant
screamed at one another. It was after this altercation that
Sarah told her family that the defendant had raped her.
Helen, who had been designated as the Commonwealth's first
complaint witness, testified about Sarah's disclosure to her.
She said that she overheard Sarah saying that she was trying to
do something "sneaky" by using an application on her cell phone
that her mother did not approve of. Helen told Sarah that she
should not keep secrets, after which Sarah told her that she and
the defendant had a secret, which was that he had tried to pull
3 her legs open while she was sleeping. Helen became upset and
pressed Sarah for details, which Sarah did not provide. Helen
asked Sarah why she had not said anything earlier to which Sarah
responded that she was scared and did not want to get anyone in
trouble. Helen asked Sarah specifically whether the defendant
had put "his fingers or anything" in between her legs. Sarah,
who also had become upset, said that he had not. Helen further
testified that at one point the two were crying and screaming
and Helen told Sarah that she would kill the defendant if he had
touched her. Helen testified that she never should have said
that to Sarah and described her threat as a "big[] mistake"
because she believed that Sarah "would have [come] out and told
[her] sooner if [she] hadn't said that." Helen then called
Sarah's mother and told her about the allegation. The mother
arrived home within a couple of minutes and spoke with Sarah in
her room. The mother then had a telephone conversation with the
defendant during which she relayed her "serious concerns" about
his misconduct. The mother testified the defendant was "very
apologetic" and was "sorry for whatever [Sarah] thought
happened." The family did not report the incident to the police
and instead decided that Sarah would no longer stay overnight at
the defendant's house.
The defense theory was that Sarah was not credible and had
accused the defendant of sexual abuse to avoid getting in
4 trouble and to "excuse her own misbehavior." The defendant
testified on his own behalf and denied the allegations. The
defendant's wife also testified in support of the defendant and
claimed that he always slept on the couch when Sarah stayed
overnight.
Discussion. a. First complaint testimony. "The first
complaint doctrine permits a judge to admit testimony from the
recipient of a complainant's initial report of sexual assault."
Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 583 (2013). The
first complaint witness may testify "to the circumstances
surrounding the complaint, including 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
[complainant's] veracity" (quotation and citation omitted). Id.
See Mass. G. Evid. § 413(a) (2024).
We review a judge's decision to admit first complaint
evidence for abuse of discretion. Commonwealth v. Aviles, 461
Mass. 60, 73 (2011). Although the defendant did not object to
Helen's testimony at trial, he now argues that portions of the
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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
23-P-1248
COMMONWEALTH
vs.
KEVIN MURPHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury in the Superior Court convicted the defendant of two
counts of indecent assault and battery on a child under the age
of fourteen.1 The victim, whom we shall call "Sarah," is a
relative of the defendant. On appeal, the defendant contends
1The defendant was charged with three counts of indecent assault and battery on a child under the age of fourteen, one count of aggravated rape of a child, and one count of enticing a child under the age of sixteen. The Commonwealth entered a nolle prosequi on the charge of enticing a child and the case proceeded to trial before a jury on the remaining charges in February 2020. That jury acquitted the defendant of rape and one count of indecent assault and battery and did not reach a verdict on two counts of indecent assault and battery. The judge declared a mistrial as to those two counts, and a second trial was held almost three years later in May 2023. The convictions at issue in this appeal stem from the defendant's second trial. that the judge erred by admitting testimony that exceeded the
scope of the first complaint doctrine and that the prosecutor's
misstatement of the evidence in closing argument constituted
prejudicial error. We affirm.
Background. We summarize the facts the jury reasonably
could have found. When Sarah was between eight and nine years
old, she was living with her mother and two great aunts, Helen,
and Celeste.2 She regularly visited the defendant and often
stayed overnight at his home. Sarah testified that one night
she was lying in the defendant's bed when he touched her breasts
and vagina with his hands and his penis. The defendant told
Sarah that what happened "was supposed to be [their] secret."
On another occasion, the defendant raped Sarah by inserting his
penis into her vagina. Sarah testified that it hurt, and she
was bleeding.
Sometime after the rape occurred, Sarah told Helen that the
defendant had inappropriately touched her, but did not disclose
that the defendant had raped her. Sarah, who was nineteen years
old at the time of trial, did not remember much of her
conversation with Helen. She recalled that the conversation
took place in the kitchen, and that she had a "knot in [her]
2 Because the victim and her great aunts share a last name, we refer to them by pseudonyms.
2 stomach" and felt "disgust." She also remembered that when she
told Helen that the defendant had touched her breasts and
vagina, Helen was shocked and rushed down the hallway to tell
Sarah's mother. Sarah testified that she didn't say anything
about the rape at that time because she was worried that her
family would be angry with her and that she would get in
trouble.
About five years later, Sarah revealed that the defendant
had done more than inappropriately touch her and that he had
also raped her. This disclosure followed a heated argument
between Sarah and the defendant, who, at Sarah's mother's
request, went to pick up Sarah, after she reportedly was about
to get in a fight with some other girls. Although someone else
also was in the car, Sarah did not want to leave with the
defendant. At trial she acknowledged that she and the defendant
screamed at one another. It was after this altercation that
Sarah told her family that the defendant had raped her.
Helen, who had been designated as the Commonwealth's first
complaint witness, testified about Sarah's disclosure to her.
She said that she overheard Sarah saying that she was trying to
do something "sneaky" by using an application on her cell phone
that her mother did not approve of. Helen told Sarah that she
should not keep secrets, after which Sarah told her that she and
the defendant had a secret, which was that he had tried to pull
3 her legs open while she was sleeping. Helen became upset and
pressed Sarah for details, which Sarah did not provide. Helen
asked Sarah why she had not said anything earlier to which Sarah
responded that she was scared and did not want to get anyone in
trouble. Helen asked Sarah specifically whether the defendant
had put "his fingers or anything" in between her legs. Sarah,
who also had become upset, said that he had not. Helen further
testified that at one point the two were crying and screaming
and Helen told Sarah that she would kill the defendant if he had
touched her. Helen testified that she never should have said
that to Sarah and described her threat as a "big[] mistake"
because she believed that Sarah "would have [come] out and told
[her] sooner if [she] hadn't said that." Helen then called
Sarah's mother and told her about the allegation. The mother
arrived home within a couple of minutes and spoke with Sarah in
her room. The mother then had a telephone conversation with the
defendant during which she relayed her "serious concerns" about
his misconduct. The mother testified the defendant was "very
apologetic" and was "sorry for whatever [Sarah] thought
happened." The family did not report the incident to the police
and instead decided that Sarah would no longer stay overnight at
the defendant's house.
The defense theory was that Sarah was not credible and had
accused the defendant of sexual abuse to avoid getting in
4 trouble and to "excuse her own misbehavior." The defendant
testified on his own behalf and denied the allegations. The
defendant's wife also testified in support of the defendant and
claimed that he always slept on the couch when Sarah stayed
overnight.
Discussion. a. First complaint testimony. "The first
complaint doctrine permits a judge to admit testimony from the
recipient of a complainant's initial report of sexual assault."
Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 583 (2013). The
first complaint witness may testify "to the circumstances
surrounding the complaint, including 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
[complainant's] veracity" (quotation and citation omitted). Id.
See Mass. G. Evid. § 413(a) (2024).
We review a judge's decision to admit first complaint
evidence for abuse of discretion. Commonwealth v. Aviles, 461
Mass. 60, 73 (2011). Although the defendant did not object to
Helen's testimony at trial, he now argues that portions of the
testimony, which he describes in his brief as "emotionally
charged exaggerations of the evidence," were inadmissible
because it went beyond the proper scope of the first complaint
doctrine. We agree with the defendant that Helen's testimony
5 exceeded the scope of Sarah's testimony and, in addition, her
testimony was inconsistent with Sarah's in many respects.
However, the challenged testimony did not "exceed[] any rational
consideration of the rule," as the defendant claims. To the
contrary, our cases permit some discrepancy between the
testimony of the complainant and the first complaint witness.
See Commonwealth v. King, 445 Mass. 217, 235 (2005) ("Fresh
complaint testimony need not replicate precisely the victim's
own testimony, nor must it be sanitized to match the victim's
testimony exactly"); Rivera, 83 Mass. App. Ct. at 586-587
(admitting first complaint testimony that included two
allegations absent from the complainant's testimony);
Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 414-415 (2010)
(admitting more detailed first complaint testimony on
defendant's sexual misconduct where complainant only remembered
disclosing that "bad things" had occurred). Furthermore, we
note, as we did in Rivera, supra at 587, that inconsistencies
between the testimony of the first complaint witness and the
victim go to weight of the evidence not its admissibility.
Here, defense counsel exploited these discrepancies during
cross-examination and closing argument. Lastly, the judge
properly instructed the jury on the limited purpose of first
complaint testimony before Helen testified and again during the
final instructions to the jury. In light of these
6 circumstances, the differences between Sarah and Helen's
testimony do not warrant a new trial.
b. Prosecutor's closing argument. As previously noted,
Sarah's mother testified that she had a telephone conversation
with the defendant, after she spoke with Sarah, during which she
expressed "serious concerns" and that the defendant responded by
stating he was "sorry for whatever [Sarah] thought happened."
When the defendant was asked about the conversation during
cross-examination, he stated that Sarah's mother asked him about
an alleged touching of Sarah's chest. In her closing argument,
the prosecutor referred to the conversation and stated:
"[Sarah's mother] told you she called [the defendant] after learning this information and confronted him. [She] told him [Sarah] says you touched her breasts and her vagina, and his response was this: I'm sorry for anything she thinks happened. He didn't say I would never touch [Sarah] inappropriately; I wasn't alone with her that day. . . I'm sorry for anything she thinks happened. Would an innocent man say that?"
The Commonwealth concedes that the prosecutor misstated the
evidence when she said that Sarah's mother accused the defendant
of touching Sarah's vagina. The defendant objected to the
comment and, therefore, we review for prejudicial error. See
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
In determining whether an error made during closing
argument is prejudicial, we consider four factors: "(1)whether
the defendant seasonably objected; (2) whether the error was
7 limited to collateral issues or went to the heart of the case;
(3) what specific or general instructions the judge gave the
jury which may have mitigated the mistake; and (4) whether the
error, in the circumstances, possibly made a difference in the
jury's conclusions." Commonwealth v. Lester, 486 Mass. 239, 248
(2020), quoting Commonwealth v. Alvarez, 480 Mass. 299, 306
(2018). As previously noted, the prosecutor misstated the
evidence, and the defendant made a timely objection. In
addition, because the defendant's response could reasonably be
viewed as an admission, the misstatement was not limited to a
collateral issue. That said, the prosecutor's error did not
prejudice the defendant. The point of the prosecutor's argument
was to ask the jury to draw a negative inference from the
defendant's response to an allegation of sexual assault.
Whether that response was prompted by an allegation of touching
Sarah's chest (breasts), her vagina, or both, could not have
"possibly made a difference in the jury's conclusions,"
particularly in view of the fact the jury was well aware that
the defendant was accused of touching Sarah's breasts and
vagina. Lastly, the judge's instruction to the jury that
closing arguments are not evidence was sufficient to mitigate
any prejudicial effect.3 Given the error, a specific curative
3 The judge stated: "More importantly, the opening statements and closing arguments of the lawyers [are] not
8 instruction might have been the better course, but defense
counsel did not request one, nor did he object to the judge's
general instructions. See Lester, 486 Mass. at 248-249
("general" instruction sufficiently mitigated error when defense
counsel failed to request specific instruction and failed to
object to given instruction). We presume the jury understood
and followed the judge's instruction and conclude that the error
did not prejudice the defendant such that he is entitled to
reversal of his convictions. Id.
Judgments affirmed.
By the Court (Vuono, Englander & Hodgens, JJ.4),
Clerk
Entered: January 24, 2025.
evidence. They're only intended to assist you in understanding the evidence and the contentions of the parties. My instructions and anything that I've said in passing during trial, [are] not evidence. In your memory -- if your memory of the testimony [] differs [] from any reference to the evidence that the attorneys or I have made, you are to follow your own recollection."
4 The panelists are listed in order of seniority.