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16-P-257 Appeals Court
COMMONWEALTH vs. JEFFREY LEWIS.
No. 16-P-257.
Essex. December 12, 2016. - June 7, 2017.
Present: Hanlon, Carhart, & Neyman, JJ.1
Rape. Assault and Battery. Evidence, First complaint. Practice, Criminal, Instructions to jury.
Indictments found and returned in the Superior Court Department on September 5, 2013.
The cases were tried before Joshua I. Wall, J.
James P. Vander Salm for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.
HANLON, J. After a jury trial, the defendant was convicted
of four counts of rape, in violation of G. L. c. 265, § 22(b),
and one count of assault and battery in violation of G. L.
1 Justice Carhart participated in the deliberation on this case prior to his retirement. 2
c. 265, § 13A.2 He appeals, arguing that his convictions should
be reversed because evidence was admitted improperly in
violation of the first complaint doctrine. See Mass. G. Evid.
§ 413 (2017). This error, he argues, combined with what he
describes as inadequate limiting instructions, resulted in
prejudicial error. For the reasons that follow, we affirm.
Background. The jury could have found the following facts.
In September, 2012, the victim met the defendant at a "club" in
Lawrence; they had a "whirl wind romance really. He said all
the right things, and [she] fell in love with him within a
week." A little more than a month into the relationship,
however, things began to change. The defendant began to drink
heavily, and, when he was drinking, he became rude and mean to
the victim, as well as controlling -- particularly in public.3
The victim would sometimes not see the defendant for days at a
time when he was drinking; he would "basically disappear" and
she would "end up having to find him." During this time, the
victim was living in North Andover with her three children, and
the defendant was living on a friend's couch. Despite the
2 The defendant was charged with assault and battery by means of a dangerous weapon (to wit, a wall), in violation of G. L. c. 265, § 15A(b), but was convicted of the lesser included offense of assault and battery. 3 The victim testified that, in public, the defendant wanted her to be subservient, calling him "sir," and keeping quiet in front of his friends so that "they knew, you know, he was the man." At home, she was permitted to speak freely. 3
defendant's behavior when he was drinking, their relationship
continued because, according to the victim, she was in love with
him and he did not behave that way all the time.
a. January 1, 2013, rape. By New Year's Eve, 2012, the
relationship between the victim and the defendant was "rocky,"
but they had made plans to go out and celebrate that evening.
The victim picked up the defendant from work at approximately
4:00 P.M. and left him at his friend's house to shower and
dress. Afterwards, she was unable to get in touch with him
during the rest of the evening; she believed that he had turned
his cellular telephone off because the calls went directly to
voice mail. Eventually, at approximately 1:00 A.M. on January
1, she found him at his sister's house in Haverhill, sitting on
the porch.
The victim was upset and angry, and the "clearly drunk"
defendant apologized and told her that his telephone had died.
He invited her into the house to talk and, when they went
inside, no one appeared to be home. They went into his mother's
bedroom and the victim was "crying still."4 The defendant then
pulled down his pants and instructed the victim to "lick his
ass," saying that, if she would not do it, he would find someone
else. The victim testified that nothing like that had happened
4 The defendant's mother was not home at the time. 4
before in their relationship and she told him "to go ahead and
find somebody else."
She stood up to walk out the door and the defendant grabbed
her, pulled her underwear and pantyhose down, turned her around
and threw her to the ground face down. He shoved her face into
the carpet and put his penis into her vagina. The victim told
him to stop, that she could not breathe, and that he was hurting
her. The defendant responded that she was his and he would do
whatever he wanted. After ejaculating inside of her, the
defendant fell asleep on his mother's bed. The victim
eventually fell asleep at the end of the bed still crying.5 The
next day, the victim saw on the defendant's cellular telephone
that he had been conversing with another woman the previous
night when he was supposed to be out with her; she then ended
the relationship. The victim did not report the rape to the
police at that time because she "didn't really think anything at
the time of it. [They] had had rough sex before." She
testified, "It just didn't -- I don't know. Nothing really
clicked at the time."
5 The victim testified that prior to this incident, she and the defendant had a consensual sexual relationship, and she "had never told him to stop before"; this sexual encounter "was mean . . . [and] seemed cruel." 5
b. July 8, 2013, rape. In February, 2013, the victim and
the defendant resumed their relationship.6 On May 1, 2013, they
moved together into an apartment in Haverhill; the victim's two
youngest children moved in with them full time by July, 2013.
Shortly thereafter, the defendant began going out frequently and
coming home drunk early the next morning. During the evening of
July 7, 2013, the victim telephoned the defendant and sent text
messages to him, but she received no response; she then sent him
a text message telling him not to come home because she was
tired of his behavior -- specifically, going out every night.
The defendant responded that he would leave when he was ready.
In the early morning hours of July 8, 2013, while the
victim and her daughters were sleeping, the defendant came home
drunk and attempted to get into the bed with the victim. As she
was trying to push him out, the defendant slapped her in the
face, and she slapped him back. The defendant then straddled
her, sitting on her stomach, pinning her arms down with his
knees, and "started hitting [her] over and over and over again"
in the face, calling her a "slut," and saying that she "deserved
it." The victim was crying and telling the defendant to stop;
at some point, she was able to get her hand free and scratch
6 The victim testified, "He was sweet again. He tried. He started spending time with me. He was making an effort spending time with my kids. We spent time together with his son. We started doing things together." 6
him. The defendant then flipped her onto her stomach and put
his penis in her vagina; he was holding the victim's hands above
her head with one hand, with his other hand around her neck.
While he was raping the victim, the defendant was telling her
that, if she did not say she liked this treatment, he would hit
her again. The victim did not report the incident to the police
at that time because, she testified, she loved him and "probably
would have tried to work anything out with him. And . . . [she]
wanted to see if when he sobered up, it was different."
c. July 11, 2013, rapes. A few nights later, the
defendant was out all night and came home at 6:00 A.M. with his
friend Adrian. They were both drunk, and Adrian slept on the
living room couch. In response to the defendant's demand, the
victim got Adrian a blanket and pillow, and then went back into
their bedroom where she had been asleep. The defendant came
into the bedroom where the victim was sitting on the edge of the
bed; he then forced his penis into her mouth, pushing the back
of her head forward and up and down with his hands. The victim
was able to pull away, and then ran to the bathroom and vomited.
When the victim returned to the bedroom, the defendant told
her to take off her clothes. She told him that she did not feel
well; he responded that if she did not do so, he would. In
response, she began, hesitantly, to remove her top, but the
defendant became impatient and grabbed the victim. He pulled 7
off her pants so that she was lying "sideways" on the bed; he
then put his penis into her vagina while keeping one hand around
her neck. Afterwards, the defendant went out to the living room
and fell asleep on the other couch. The victim did not at that
time call the police because she "didn't look at it as rape
still at that point."
Later that morning when the defendant woke up, the victim
told him to pay her his half of the rent and to move out. The
defendant started to put his clothes in a laundry basket to take
with him; the victim sat in the basket so that he could not take
his belongings until he paid her. Instead, the defendant threw
the basket, with the victim in it, across the room causing the
victim to hit her head on the door frame and her knee on the
wall. They continued to argue, and the defendant called the
police, saying, according to the victim's testimony, that
"[i]t's going to be so funny watching you get taken away from
your kids, I'm going to sit there and smile and laugh as you're
being hauled off in handcuffs right in front of your children."
Eventually, after speaking with the victim, the responding
police officers arrested the defendant for assaulting the
victim.
Later that same day, July 11, 2013, the victim went to the
Haverhill Division of the District Court Department to file an
application for an abuse prevention order against the defendant 8
pursuant to G. L. c. 209A (restraining order).7 During the
process of completing the necessary paperwork, the victim spoke
with a victim witness advocate. She was given a sheet posing
questions, including the question whether the person she was
with had ever forced her to have sexual intercourse when she did
not want it. After reading the questions, the victim began to
cry, realizing, she said, that the defendant had done that to
her several times. The victim's affidavit in support of her
restraining order application was admitted at trial as an
exhibit. It mirrored her testimony about what she said had
occurred on July 8, and she testified that the affidavit was the
first time that she had "disclosed in any fashion what had
happened on July 8 of 2013." After completing the paperwork,
the victim was sent to the Haverhill police station, where she
met with Detective Joseph Benedetti. In that meeting, she
disclosed to Detective Benedetti the details of the July 11
rapes.
At trial, the defendant objected, arguing that this was a
second complaint, not admissible under the first complaint
doctrine. The judge overruled the objection, saying, "I still
regard it as a first complaint as to the July 11th" incident,
cautioning that no further complaint testimony about the July 8
7 The jurors were not permitted to hear that the victim went to court to obtain a restraining order against the defendant. 9
incident would be permitted. He then gave a thorough limiting
instruction to the jury; the defendant did not object to the
instruction. The victim then testified very briefly about what
she had told the detective regarding the July 11 incidents.8 In
the next question, the prosecutor said, "Okay. And after you
spoke with Detective Benedetti -- strike that. When you spoke
with Detective Benedetti, did you tell him about what had
happened on New Year's Eve?" The victim responded, "I did."9
She gave no details and there was no objection or motion to
strike. The prosecutor then moved on to a different line of
questioning with no follow up. On cross-examination, defense
counsel questioned the victim extensively about the timing of
that report and the victim conceded that she may have told the
detective about the January 1 rape in a later meeting.
Detective Benedetti testified that he spoke with the victim
at the police station on July 11, 2013, and that she spoke to
him about both the July 8 and July 11 rapes; he took pictures of
8 When asked what she had told the detective, the victim responded, "The same thing that I -- that I just testified about here, about him coming home, trying to force me to perform oral sex on him, him grabbing me, pulling me down on the bed, penetrating me, threatening me, choking me." 9 The prosecutor told the judge that she had expected the answer to her question to be no -- that the victim had not told the detective about the rape on New Year's Eve. The prosecutor had informed the judge earlier that there would be no first complaint testimony for the January 1, 2013, rape because the victim's first disclosure of that incident occurred during her grand jury testimony. 10
bruising and cuts on her body from the rapes that had occurred
earlier that day. Benedetti himself recounted the specifics
only of what the victim had told him about the July 11
incidents.10 He denied that the victim had told him about the
January 1 rape at all.
Immediately after this testimony, the judge gave an
abbreviated limiting instruction, referring back to the first
complaint instruction that the jury had heard the day before
when the victim testified.11 The defendant did not object to
that instruction. The following day, at the end of the trial,
as part of his final charge to the jury, the judge provided a
full instruction on the use of first complaint evidence relating
10 The judge carefully limited any testimony about whether the victim had spoken with the detective about the July 8 rape; the detective was permitted to answer only "Yes or no" to that question. There was no objection. Even though, as the defendant argues, the fact that the detective answered "yes" to the question whether the victim had told him about the July 8 rape could be considered a subsequent complaint, we see no abuse of discretion. 11 Specifically, the judge said, "So the information that the detective was just recounting about what [the victim] told him, that is information that you received an instruction on yesterday. So that rather complicated instruction applies to this as well as the information yesterday. So your -- the gist of the instruction is that you're to use this information to evaluate the timing of the complaint, when did the person make the complaint, and under what circumstances did the person make the complaint. And then you can evaluate whether the complaint affects the credibility of the person either positively or negatively." There was no objection. 11
only to the July 8 and July 11 rapes; the defendant did not
object to any part of the judge's final instructions.
Discussion. The defendant contends that his trial was
"rife with violations of the first complaint doctrine" and that,
as a result, his convictions should be reversed.
a. Admission of first complaint testimony. The defendant
first argues that the judge, improperly and over objection,
permitted Detective Benedetti to testify about the victim's
complaint of the July 11 rapes. In the defendant's view, this
was a second "first complaint" witness whose testimony unfairly
bolstered the victim's credibility.12 We review the judge's
decision for an abuse of discretion, see Commonwealth v. Aviles,
461 Mass. 60, 73 (2011), and we conclude that, in the
circumstances presented in this case, where the two proffered
complaints related to two separately charged offenses that took
place on separate, specified dates, their admission did not
constitute an abuse of discretion.
In Commonwealth v. King, 445 Mass. 217 (2005), cert.
denied, 546 U.S. 1216 (2006), the Supreme Judicial Court
"replaced the doctrine of 'fresh complaint' with the doctrine of
'first complaint' to reflect 'a contemporary understanding of
12 The initial first complaint evidence was the affidavit, filed in support of the victim's application for a restraining order and redacted so that it described only the July 8 rape. As noted, the affidavit was admitted without objection at trial. 12
information that [would] permit jurors to make a fair assessment
of a sexual assault complainant's credibility.' King, 445 Mass.
at 237. See generally Mass. G. Evid. § 413 (2011). Pursuant to
the first complaint doctrine, [the courts] 'no longer permit in
evidence testimony from multiple complaint witnesses, limiting
the testimony to that of one witness' who, where feasible, will
be the first person told of the sexual assault. King, supra at
242-243. Such witness 'may testify 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.' Id. at 243. Where a first
complaint witness testifies at trial regarding the complaint,
the [alleged victim] also may testify about the details of the
first complaint and the reasons why it was made at that
particular time. See id. at 245. What the [alleged victim] may
not do, however, is testify to the fact that she 'told' others,
apart from the first complaint witness, about the sexual
assault, even where the details of the conversation have been
omitted. See Commonwealth v. Arana, 453 Mass. 214, 223 (2009)
. . . ; Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 493
(2009)." Aviles, supra at 67-68.
Since King, the cases have permitted the admission of more
than one complaint witness in a number of specified 13
circumstances.13 In King itself, the court stated that the
"testimony of a complaint witness other than, and in lieu of,
the very 'first' complaint witness" is permitted where "the
first person told of the alleged assault is unavailable,
incompetent, or too young to testify meaningfully." King, supra
at 243-244. There, the judge had exercised discretion in
allowing two "fresh" complaint witnesses to testify so as to
corroborate that the child victim's complaints of sexual abuse
were "reasonably prompt." Id. at 233. The court saw no error.
Id. at 235-236. See Commonwealth v. Murungu, 450 Mass. 441,
445-446 (2008) ("The present case provides us an opportunity to
detail two such additional exceptions. The first is when the
encounter that the victim has with the first person does not
constitute a complaint, when, for example, the victim expresses
to that person unhappiness, upset or other such feelings, but
does not actually state that she has been sexually assaulted.
The second is when there is such a complaint, but the listener
has an obvious bias or motive to minimize or distort the
victim's remarks").
13 In addition, "while the first complaint testimony prohibits the 'piling on' of multiple complaint witnesses, Commonwealth v. Murungu, 450 Mass. 441, 442-443 (2008), it does not exclude testimony that 'is otherwise independently admissible' and serves a purpose 'other than to repeat the fact of a complaint and thereby corroborate the [alleged victim's] accusations.' Commonwealth v. Arana, 453 Mass. [at] 220-221, 229." Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). See Commonwealth v. Aviles, 461 Mass. at 69. 14
In Commonwealth v. Kebreau, 454 Mass. 287, 294 (2009), the
court held that the judge properly had allowed two first
complaint witnesses to testify because "the disclosures involved
multiple and increasingly more serious assaults during a lengthy
period. The two disclosures were made separately, one toward
the beginning and the other at the end of this period, and they
concerned significantly different types of assault." There, the
victim's mother was allowed to testify about her daughter's
complaint at the very beginning of the defendant's sexual abuse
of his daughter. At the time of the complaint, the victim was
in seventh or eighth grade and the offense itself was less
serious than what would follow. Because the abuse escalated
over a lengthy period, into the victim's college years, her
college academic advisor was permitted to testify about a
complaint of rape that the victim made at the end of that
period. Id. at 290. The court noted that "[t]he defendant was
charged separately with different offenses arising out of the
different circumstances," id. at 294, and that the "prosecutor
described with specificity the different acts encompassed by
each disclosure and the time period in which those acts
occurred." Id. at 296.
Several years after King, in Aviles, 461 Mass. at 72-73,
the court observed that "it ha[d] become apparent that trial
judges need greater flexibility to deal with the myriad factual 15
scenarios that arise in the context of purported first complaint
evidence. Rules, because of their inherent inflexibility, tend
to break down when it becomes necessary to address factual
circumstances not yet contemplated by the established rubric.
Rather than considering the first complaint doctrine as an
evidentiary 'rule,' it makes greater sense to view the doctrine
as a body of governing principles to guide a trial judge on the
admissibility of first complaint evidence. . . . 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,
our established first complaint jurisprudence, and our
guidelines for admitting or excluding relevant evidence. See
Mass. G. Evid. §§ 401-403 (2011)."
In this case, the defendant was charged with three separate
incidents of rape on July 8 and 11, each occurring under
different circumstances. The victim first disclosed the details
of the July 8 rape in her affidavit filed with the District
Court in support of her application for a restraining order.
The details of the July 11 rapes were first disclosed to
Detective Benedetti during his meeting with the victim on that
same day. To be sure, the court in Kebreau "emphasize[d] that
the Commonwealth may not introduce a 'parade of multiple
complaint witnesses' in a case involving repeated instances of 16
abuse by a single defendant." 454 Mass. at 296, citing
Commonwealth v. Stuckich, 450 Mass. 449, 457 n.11 (2008).
However, this is not such a case.
Here, there were two types of first complaint evidence --
the restraining order affidavit and the detective's testimony --
each describing the victim's disclosure of separate rapes, on
different days, and each charged separately in indictments then
on trial. The July 8 and 11 rapes could have been tried
separately, and there is no question that, in individual trials,
first complaint evidence would have been permitted for each. In
addition, the trial judge carefully limited each piece of first
complaint evidence to the facts of one rape, thus forestalling
any multiple complaints about the same rape.
What happened in this case is therefore very different from
the "piling on" practice that was the focus of the court's
concern in King, 445 Mass. at 235-236.14 Nor did this case
14 "While attentive to the potential dangers of the prejudicial 'piling on' of fresh complaint testimony, . . . our courts have permitted two or more fresh complaint witnesses to testify concerning the details of the complaint. See, e.g., Commonwealth v. Kirkpatrick, 423 Mass. 436, 444 (1996) (five fresh complaint witnesses); Commonwealth v. Licata, 412 Mass. 654, 656 n.4, 660 (1992) (two fresh complaint witnesses); Commonwealth v. Lavalley, [410 Mass. 641], 642 [(1991)] (five fresh complaint witnesses and videotape of victim's complaint to police not prejudicial); Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 457 n.15 (1996) (four witnesses in case involving two complainants and two defendants 'not in itself impermissible'). Contrast Commonwealth v. Swain, 36 Mass. App. Ct. 433, 442 (1994) (six witnesses prejudicial). [Under the 17
present the situation that the court described in Kebreau and
many other cases, that is, ongoing abuse of a child victim with
many assaults on divers unspecified dates over a period of
years, charged in one or two complaints (or indictments).
"The primary goals of the first complaint doctrine were,
and still are, to 'refute any false inference that silence is
evidence of a lack of credibility on the part of [rape]
complainants,' . . . and 'to give the jury as complete a picture
as possible of how the accusation of [rape] first arose.'"
Aviles, 461 Mass. at 72, quoting from King, 445 Mass. at 243,
247. "[B]y allowing in evidence all the details of the first
complaint, the doctrine gives the fact finder 'the maximum
amount of information with which to assess the credibility of
the . . . complaint evidence as well as the over-all credibility
of the victim.'" Aviles, supra, quoting from Commonwealth v.
Licata, 412 Mass. 654, 659 (1992). See generally Mass. G. Evid.
§ 413 (2017). "The fact finder should not be left to speculate
on the evidence or to draw erroneous inferences due to
incomplete information." Aviles, supra, citing King, supra at
244-245.
then existing 'fresh' complaint rule,] [t]here was no error in permitting two fresh complaint witnesses, especially where the testimony of the two was minimally cumulative." King, 445 Mass. at 235-236. 18
Here, we are satisfied that the judge did not abuse his
discretion in admitting the evidence. See Commonwealth v. Roby,
462 Mass. 398, 410 (2012) ("The testimony furthered the goal of
the first complaint doctrine 'to give the jury as complete a
picture as possible of how the accusation of sexual assault
first arose.' [King, supra] at 247. 'That complete picture
. . . allow[ed] 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.' Id.").
b. Victim's testimony regarding January 1 and July 8
rapes. For the first time on appeal, the defendant argues that
the proper first complaint witness for the July 8 rape was the
victim witness advocate with whom the victim spoke, and not the
affidavit the victim filed in support of her restraining order
application. In the defendant's view, because the advocate did
not testify, the victim should not have been permitted to
testify about that conversation -- when she said that she
realized for the first time that what had happened to her was
wrong. See King, supra at 245 n.24 ("The [alleged victim] may
testify [to the details of the complaint] only if a first
complaint witness or a 'substitute' complaint witness . . . is
produced at trial who testifies regarding the complaint"). 19
This argument fails. First, the question which complaint
actually was the first complaint was properly addressed at a
pretrial hearing. See Stuckich, 450 Mass. at 455. At that
hearing, the judge determined that the victim's restraining
order affidavit filed in the District Court constituted her
first complaint about the July 8 rape. The defendant did not
object, and the redacted affidavit was admitted in evidence
without objection.15 Indeed, when the victim testified about the
July 8 rape, she agreed that the affidavit was "the first time
that [she] had disclosed in any fashion what had happened on
July 8 of 2013." Because the affidavit was the first disclosure
of the July 8 rape, it was admitted properly as first complaint
evidence.
Nonetheless, the defendant now claims that the advocate was
the proper first complaint witness as to the July 8 rape, as she
assisted the victim in filling out the paperwork and actually
"induced" the complaint of rape against the defendant. For this
argument, he relies on Commonwealth v. Revells, 78 Mass. App.
15 At the pretrial hearing, defense counsel agreed that a redacted version of the affidavit should be admitted, eliminating any mention of the July 11, 2013, rapes; however, he went on to argue that, in the event the victim provided contradictory testimony that expanded his cross-examination about the July 11 rapes, he would not object to admission of the entire affidavit. Defense counsel also objected to any subsequent first complaint witness or testimony being admitted, arguing it would be repetitive in nature and that it was the prosecutor's choice to use only the affidavit as the first complaint evidence for the July 8 rape. 20
Ct. 492, 496 (2010), where the court permitted, but did not
require, introduction of intertwined oral and written complaint
evidence. Revells does not assist him. In the present case,
the victim's conversation with the advocate did not include the
complaint at issue, and the victim did not so testify at trial.
While the advocate's testimony might very well have been
admissible if proffered, there is no reason to suggest it was
mandatory in place of the affidavit.
Particularly having in mind that the defendant agreed to
the admission of the affidavit, we are satisfied that it was
"properly admitted 'to give the jury as complete a picture as
possible of how the accusation of sexual assault first arose.'"
Ibid., quoting from King, 445 Mass. at 247. As the defendant
did not object at any time to the admission of the affidavit --
or to testimony about the circumstances under which that
statement was made -- the argument that it should not have been
admitted is waived. We see no error and certainly no
substantial risk of a miscarriage of justice. See Roby, 462
Mass. at 409-410.
In addition, also for the first time, the defendant now
contends that the victim should not have been permitted to
testify that she told Detective Benedetti about the January 1
rape, because there was no corresponding first complaint 21
testimony. As noted, the defendant did not object to that
testimony during the trial.
Even if, in the absence of a corroborating first complaint
witness, the victim should not have been permitted to testify
that she made a complaint, we see no substantial risk of a
miscarriage of justice. The victim's extremely brief testimony
about when she disclosed the January 1 rape was contradicted
both by the detective and, on cross-examination, by her own
admission that she was not sure when she had disclosed that
incident. That contradiction likely inured to the defendant's
benefit and he exploited it forcefully, as he did all of the
first complaint evidence.16 Under these circumstances, it is
unlikely that the statement affected the defendant adversely at
all. See Commonwealth v. McCoy, 456 Mass. 838, 851 (2010)
("Where the inconsistencies contained in the cumulative first
complaint testimony were more important to the defense than the
Commonwealth, there is no harm to the defendant. See
16 For example, in his closing argument, counsel said, "[The victim's] story was never one that stayed the same. It changed from telling to telling. It evolved and it became greater and it added more details and it added other incidents as time went on. It was never a consistent whole form. . . . Though she testified on the stand, 'I didn't know even what he did was rape,' which is her attempt at explaining why, when the police come there, why they're separated, the police are in her apartment, her alone, allowing her to describe what is the problem. She never tells them that she was sexually assaulted. She never mentioned that until later. Then the story grew and grew and grew. That's why we're here today." 22
Commonwealth v. Nardi, 452 Mass. 379, 395-396 [2008] [where
testimony erroneously admitted was equally, if not more,
important to defense, admission did not create substantial
likelihood of miscarriage of justice]"). See also Roby, 462
Mass. at 409 ("We add, in considering whether the admission of
the testimony created a substantial risk of a miscarriage of
justice, . . . that the testimony was brief and provided no
details of the alleged sexual encounter[]"). In addition, as it
relates to first complaint testimony, some inconsistency "is
expected, and will often aid the jury in determining whether the
[first] complaint testimony ultimately supports the
complainant's story." King, 445 Mass. at 235. "The weight and
credibility of the witnesses' testimony are solely for the fact
finder and are not proper subjects for appeal." Ibid.
c. Limiting instructions. Although the defendant did not
object at trial, he now claims that the judge erred, on two
occasions: (1) by not giving a limiting instruction on the use
of first complaint testimony at the time the victim testified
that she told Detective Benedetti about the January 1 rape, and
(2) by providing an incomplete instruction when Detective
Benedetti testified. We review his claim of error to determine
whether any omission created a substantial risk of a miscarriage
of justice. See Aviles, 461 Mass. at 72, citing McCoy, 456
Mass. at 850-852. 23
King, supra at 248, teaches that limiting "instructions
should be given to the jury contemporaneously with the first
complaint testimony, and again during the final instructions."
However, "although a contemporaneous [first] complaint
instruction is recommended, it is 'not a strict requirement.'"
Commonwealth v. Edward, 75 Mass. App. Ct. 162, 166 (2009),
abrogated on other grounds by Commonwealth v. Lavoie, 464 Mass.
83, 88-89 (2013), quoting from Commonwealth v. Vieux, 41 Mass.
App. Ct. 526, 533 (1996), cert. denied, 520 U.S. 1245 (1997).
Here, before the victim testified about the July 11 rapes,
the judge gave a thorough limiting instruction about the use of
first complaint testimony. The defendant did not object. The
victim then testified briefly that, on July 11, 2013, she had
told Detective Benedetti about the circumstances of the rapes
that had occurred earlier that day. Immediately afterward, in
answer to the prosecutor's question, she said that she also had
told Benedetti about the January 1 rape. The argument that the
judge, minutes after giving a complete instruction (occupying
three pages of the transcript), should have repeated that same
instruction after two more questions is simply frivolous.
As to the defendant's second argument, prior to Benedetti's
testimony, the judge gave an abbreviated first complaint
instruction, referring to the "rather complicated" instruction
he had given the previous day. Again, while reciting the entire 24
model instruction might have been preferable, because the
limiting instruction was given contemporaneously with the
detective's testimony, and referred to the full instruction
given the day before, it was sufficient, particularly in light
of the judge's thorough instruction in the final charge to the
jury the following day.
As we have said, in each instance, the instructions were
given without any objection. Nor did the defendant object to
the first complaint instruction in the final charge to the jury;
he does not challenge it here. We presume that the jury
followed the judge's proper instructions in assessing the first
complaint testimony. See Commonwealth v. Andrade, 468 Mass.
543, 549 (2014).
Conclusion. We are satisfied that the trial judge did not
abuse his discretion in admitting the challenged first complaint
evidence, and that proper instructions were provided timely to
the jury. The judgments are affirmed.
So ordered.