Commonwealth v. Monzon

744 N.E.2d 1131, 51 Mass. App. Ct. 245, 2001 Mass. App. LEXIS 213
CourtMassachusetts Appeals Court
DecidedApril 4, 2001
DocketNo. 98-P-851
StatusPublished
Cited by18 cases

This text of 744 N.E.2d 1131 (Commonwealth v. Monzon) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Monzon, 744 N.E.2d 1131, 51 Mass. App. Ct. 245, 2001 Mass. App. LEXIS 213 (Mass. Ct. App. 2001).

Opinion

Smith, J.

The defendant was the subject of a series of indict-[246]*246meats charging him with various sexual assaults on his three young daughters.1 The indictments included the following: (1) three counts of rape of Eliza, a child under the age of sixteen, and four counts of indecent assault and battery on Eliza, a child under the age of fourteen; (2) two counts of indecent assault and battery on Pamela, a child under the age of fourteen; (3) two counts of rape of Carol, a child under the age of sixteen, and two counts of indecent assault and battery on Carol, a child under the age of fourteen.

A Superior Court judge allowed the Commonwealth’s motion to join all the indictments. After a jury trial, the defendant was found guilty on all the indictments except for one count charging him with indecent assault and battery on Pamela.

On appeal, the defendant claims that the judge’s ruling that Carol and Pamela were competent to testify constituted reversible error. He also contends that certain remarks made by the prosecutor in his closing argument were erroneous. Finally, he claims that he was denied the effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.

We summarize the evidence presented by the Commonwealth at trial. Eliza was bom on February 15, 1984, in Houston, Texas. When she was three or four years old, the family moved to East Boston, and she lived there with her mother, the defendant, and her grandmother. Eliza shared a bedroom with her parents but had her own bed in that room.

Shortly after the family moved to East Boston, the defendant began touching and rubbing Eliza’s chest and vagina with his hands. On one occasion, when Eliza was four or five years old, she complained to her grandmother that her vagina hurt. The grandmother checked Eliza’s vagina and found a penny. Eliza then told her grandmother that the defendant had been touching her. The grandmother recorded that conversation and left the . tape with the Department of Social Services (DSS), but no investigation was initiated at that time. The grandmother also told Eliza’s mother about the sexual abuse, but the mother did [247]*247nothing to stop it. Shortly after Eliza told her grandmother that the defendant had been touching her, Eliza and her parents moved out of her grandmother’s house. During the next few years, the family moved to various residences. The defendant continued to touch Eliza’s chest and vagina throughout this time period. When Eliza was nine years old, the defendant began having intercourse with her. Those episodes included penetration of Eliza’s vagina with the defendant’s fingers and tongue.

After the defendant began having intercourse with Eliza, a son and two daughters, Carol and Pamela, were bom to him and his wife. Carol was bom on February 26, 1990, and Pamela was bom on May 29, 1991.

During the same time period that the defendant was having intercourse with Eliza, he began molesting Carol and Pamela. He touched Carol’s vagina with his hands and his mouth, and he put his hands and his tongue in Carol’s vagina. The defendant touched Pamela’s vagina with his hands and his mouth.

On July 27, 1993, the defendant went to the East Boston Health Center (health center) complaining of “body rash.” The physician who examined him observed “small crusts” on the defendant’s penis and made a diagnosis that the defendant had genital herpes.

In May of 1994, Carol and Pamela complained that their vaginas hurt, and as a result, the mother checked Eliza’s vagina and noticed “little white balls inside.” The mother took the girls to the health center, where Eliza was diagnosed with genital herpes. Eliza told her mother that her father had been touching her. Even after Eliza was diagnosed with genital herpes, the defendant continued to have sexual intercourse with her.

The health center filed a G. L. c. 119, § 51 A, report with DSS, and Eliza began therapy that was arranged by that agency. After some period of time, Eliza informed her counselor of the sexual conduct of the defendant.

The defendant was arrested and DSS removed the children from their mother’s care. Carol and Pamela were placed in foster care with one Wanda Lopez (Wanda), a fresh complaint witness at trial. Carol told Wanda that the defendant had touched [248]*248her vagina with his mouth and hands. Pamela also told Wanda that the defendant had touched her vagina with his hand.

In his defense, both the defendant and the children’s mother testified that no sexual abuse took place.

1. The competency of Pamela and Carol to testify. Pamela was five years old at the time of the trial and Carol was six years old. Prior to the children testifying as witnesses, the judge conducted competency hearings as to both. After the hearings, the judge ruled that both were competent to testify. The defendant objected and requested that the judge inquire further of both children. The judge overruled the objections. After Carol testified at trial, the defendant moved to strike her testimony on the ground that she did not know the difference between the truth and a he. The judge denied the motion.

General Laws c. 233, § 20, provides that any person of “sufficient understanding” may testify as a witness. In this Commonwealth, courts apply “a two-prong test to determine competency: (1) whether the witness has the general ability or capacity to ‘observe, remember, and give expression to that which she ha[s] seen, heard, or experienced’; and (2) whether she has ‘understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment.’ ” Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986), quoting from Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921). See Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 216 (1997). The same test applies, regardless of whether the witness is an adult, child, or subject to some disability. Commonwealth v. Whitehead, 379 Mass. 640, 656 (1980). The party who presents a child as a witness has the burden of establishing that “the child is able to differentiate fact from fiction and has some sense of the immorality of lying.” Commonwealth v. Murphy, 48 Mass. App. Ct. 143, 145 (1999).

Whether a witness is competent is first determined by the judge. Commonwealth v. Widrick, 392 Mass. 884, 888 (1984). See 6 Wigmore, Evidence § 1821 (Chadbourn rev. ed. 1976). The judge’s determination will usually survive appellate scrutiny, Commonwealth v. Whitehead, 379 Mass, at 656, [249]*249because “ ‘[m]uch which cannot be reproduced by the printed word depends on the child’s appearance and manner.’ ” Commonwealth v. LeFave, 407 Mass. 927, 942 (1990), quoting from Commonwealth v. Tatisos, 238 Mass. at 325. Therefore, “ ‘[i]t is seldom that the discretion of the trial judge can be revised; its exercise must have been clearly erroneous to justify such action.’ ” Commonwealth v. LeFave, 407 Mass. at 942, quoting from Commonwealth v. Tatisos, 238 Mass. at 325.

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Bluebook (online)
744 N.E.2d 1131, 51 Mass. App. Ct. 245, 2001 Mass. App. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-monzon-massappct-2001.