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-1345
COMMONWEALTH
vs.
PARNEL BOGARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of rape.
On appeal, the defendant claims errors in: the admission of
evidence that he maintains violated the first complaint rule;
the absence of a contemporaneous first complaint jury
instruction; the admission of evidence regarding his indictment;
and the prosecutor's closing argument. Although none of these
claims were preserved at trial, the defendant claims they
resulted in a substantial risk of miscarriage of justice. We
affirm.
1. First complaint. The defendant claims that several
portions of the first complaint testimony violated the first
complaint doctrine. The first claimed violation is that the first complaint witness's testimony contained details that
exceeded the scope of the victim's testimony. In particular,
the defendant claims that the witness reported that the victim
told the defendant "no," to "stop," and to "get off," but the
victim herself did not testify to these details. At oral
argument, defense counsel essentially withdrew this claim as it
was not supported by the record. The victim actually did
testify to having said these words to the defendant. In any
event, first complaint testimony need not replicate precisely
the victim's own testimony as the rule tolerates some
inconsistency. Commonwealth v. Rivera, 83 Mass. App. Ct. 581,
586-587 (2013). See Commonwealth v. King, 445 Mass. 217, 235
(2005), cert. denied, 546 U.S. 1216 (2006).
The defendant next claims that the first complaint witness
impermissibly testified to the victim's complaints to other
people. Specifically, the witness testified that after hearing
the victim's complaint they contacted a "lawyer friend" to
discuss the victim's "options." Thereafter, they went to the
police station, and both gave statements to the police. The
defendant claims this testimony enhanced the victim's
credibility and prejudiced him. We need not determine whether
it was error to admit this testimony where its admission did not
create a substantial risk of a miscarriage of justice.
2 In light of the defense of fabrication, the first complaint
witness's explanation of the discussions that occurred in the
aftermath of the complaint, i.e., speaking to an attorney about
the available "options," without ever going so far as to testify
that they "told" the lawyer, or said "what happened," would have
had little if any impact in bolstering the victim's credibility.
Contrast Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009)
(witness testified that he spoke to victim nightly "about what
happened"). Relative to reporting the matter to the police, the
first complaint witness testified to only limited details of
what was said to the police, i.e., that she told the police that
the victim said she had been raped. However, this was no more
than what defense counsel told the jury in her opening
statement.
Despite this, the defendant also claims that the first
complaint witness put details of the investigative process
before the jury. However, the defendant put the investigative
details before the jury in his opening statement and his closing
argument to maintain that, despite experienced detectives
conducting a thorough investigation, police chose not to charge
the defendant. This further illustrates how the defendant
suffered no prejudice, and no substantial risk of a miscarriage
of justice was created.
3 The defendant next claims that the first complaint witness
improperly described her response to the victim's complaint. In
particular, he claims that the testimony that the witness was
"in shock" when the victim made the complaint was irrelevant and
improperly appealed to the jury's sympathies. We disagree.
In general, a first complaint witness's emotional response
to a victim's disclosure of a sexual assault is not relevant.
See Commonwealth v. Quincy Q., 434 Mass. 859, 875 (2001).
However, if there is an independent purpose for the evidence, it
may be admitted. Here, the witness stated that "I was just in
shock, and was just listening to what she had to say, but I
don't really remember the details, it's been a long time."
Thus, in context, the witness's testimony regarding her shock
was relevant to her inability to recall the details of the
complaint, and was not an attempt to buttress the victim's
credibility. 1
2. Lack of a contemporaneous jury instruction. The
defendant also claims that the lack of a contemporaneous first
complaint limiting instruction prior to the victim's or the
first complaint witness's testimony resulted in a substantial
risk of miscarriage of justice. We disagree.
1 The defendant also claims the cumulative effect of the first complaint violations created a substantial risk of a miscarriage of justice. Having found no individual violation created such a risk, the argument is without merit.
4 "[A]lthough a contemporaneous [first] complaint instruction
is recommended, it is 'not a strict requirement.'" Commonwealth
v. Lewis, 91 Mass. App. Ct. 651, 663 (2017), quoting
Commonwealth v. Edward, 75 Mass. App. Ct. 162, 166 (2009).
Here, the victim's testimony regarding her report of the rape to
the first complaint witness was very brief, and without detail.
The first complaint witness's testimony was also brief and
focused primarily on the victim's demeanor at the time of her
complaint. Her account was devoid of any details of the
victim's complaint because she did not "remember the details,
[and it had] been a long time." When asked if the victim stated
it was consensual, the witness could not remember the "exact
words" the victim used, but it was likely the victim gave her a
description. Given the victim's demeanor, the witness
understood it was not consensual, but she did not "recall the
specifics of what [the victim] described."
The first complaint witness was the last witness to testify
at the defendant's trial. After closing arguments, the judge
gave his final instructions to the jury. Those instructions
included a limiting instruction on the proper use of first
complaint evidence, and the defendant does not claim otherwise.
Although the instruction was not contemporaneous with the first
complaint testimony, it occurred in fewer than two hours after
that witness testified.
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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-1345
COMMONWEALTH
vs.
PARNEL BOGARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of rape.
On appeal, the defendant claims errors in: the admission of
evidence that he maintains violated the first complaint rule;
the absence of a contemporaneous first complaint jury
instruction; the admission of evidence regarding his indictment;
and the prosecutor's closing argument. Although none of these
claims were preserved at trial, the defendant claims they
resulted in a substantial risk of miscarriage of justice. We
affirm.
1. First complaint. The defendant claims that several
portions of the first complaint testimony violated the first
complaint doctrine. The first claimed violation is that the first complaint witness's testimony contained details that
exceeded the scope of the victim's testimony. In particular,
the defendant claims that the witness reported that the victim
told the defendant "no," to "stop," and to "get off," but the
victim herself did not testify to these details. At oral
argument, defense counsel essentially withdrew this claim as it
was not supported by the record. The victim actually did
testify to having said these words to the defendant. In any
event, first complaint testimony need not replicate precisely
the victim's own testimony as the rule tolerates some
inconsistency. Commonwealth v. Rivera, 83 Mass. App. Ct. 581,
586-587 (2013). See Commonwealth v. King, 445 Mass. 217, 235
(2005), cert. denied, 546 U.S. 1216 (2006).
The defendant next claims that the first complaint witness
impermissibly testified to the victim's complaints to other
people. Specifically, the witness testified that after hearing
the victim's complaint they contacted a "lawyer friend" to
discuss the victim's "options." Thereafter, they went to the
police station, and both gave statements to the police. The
defendant claims this testimony enhanced the victim's
credibility and prejudiced him. We need not determine whether
it was error to admit this testimony where its admission did not
create a substantial risk of a miscarriage of justice.
2 In light of the defense of fabrication, the first complaint
witness's explanation of the discussions that occurred in the
aftermath of the complaint, i.e., speaking to an attorney about
the available "options," without ever going so far as to testify
that they "told" the lawyer, or said "what happened," would have
had little if any impact in bolstering the victim's credibility.
Contrast Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009)
(witness testified that he spoke to victim nightly "about what
happened"). Relative to reporting the matter to the police, the
first complaint witness testified to only limited details of
what was said to the police, i.e., that she told the police that
the victim said she had been raped. However, this was no more
than what defense counsel told the jury in her opening
statement.
Despite this, the defendant also claims that the first
complaint witness put details of the investigative process
before the jury. However, the defendant put the investigative
details before the jury in his opening statement and his closing
argument to maintain that, despite experienced detectives
conducting a thorough investigation, police chose not to charge
the defendant. This further illustrates how the defendant
suffered no prejudice, and no substantial risk of a miscarriage
of justice was created.
3 The defendant next claims that the first complaint witness
improperly described her response to the victim's complaint. In
particular, he claims that the testimony that the witness was
"in shock" when the victim made the complaint was irrelevant and
improperly appealed to the jury's sympathies. We disagree.
In general, a first complaint witness's emotional response
to a victim's disclosure of a sexual assault is not relevant.
See Commonwealth v. Quincy Q., 434 Mass. 859, 875 (2001).
However, if there is an independent purpose for the evidence, it
may be admitted. Here, the witness stated that "I was just in
shock, and was just listening to what she had to say, but I
don't really remember the details, it's been a long time."
Thus, in context, the witness's testimony regarding her shock
was relevant to her inability to recall the details of the
complaint, and was not an attempt to buttress the victim's
credibility. 1
2. Lack of a contemporaneous jury instruction. The
defendant also claims that the lack of a contemporaneous first
complaint limiting instruction prior to the victim's or the
first complaint witness's testimony resulted in a substantial
risk of miscarriage of justice. We disagree.
1 The defendant also claims the cumulative effect of the first complaint violations created a substantial risk of a miscarriage of justice. Having found no individual violation created such a risk, the argument is without merit.
4 "[A]lthough a contemporaneous [first] complaint instruction
is recommended, it is 'not a strict requirement.'" Commonwealth
v. Lewis, 91 Mass. App. Ct. 651, 663 (2017), quoting
Commonwealth v. Edward, 75 Mass. App. Ct. 162, 166 (2009).
Here, the victim's testimony regarding her report of the rape to
the first complaint witness was very brief, and without detail.
The first complaint witness's testimony was also brief and
focused primarily on the victim's demeanor at the time of her
complaint. Her account was devoid of any details of the
victim's complaint because she did not "remember the details,
[and it had] been a long time." When asked if the victim stated
it was consensual, the witness could not remember the "exact
words" the victim used, but it was likely the victim gave her a
description. Given the victim's demeanor, the witness
understood it was not consensual, but she did not "recall the
specifics of what [the victim] described."
The first complaint witness was the last witness to testify
at the defendant's trial. After closing arguments, the judge
gave his final instructions to the jury. Those instructions
included a limiting instruction on the proper use of first
complaint evidence, and the defendant does not claim otherwise.
Although the instruction was not contemporaneous with the first
complaint testimony, it occurred in fewer than two hours after
that witness testified. Even though the victim's brief account
5 of telling her roommate what had occurred was evidence the jury
heard earlier in the trial, we still must presume the jury
followed the judge's instruction limiting the proper use of that
evidence. Lewis, 91 Mass. App. Ct. at 664. To the extent it
was error to not give the instruction contemporaneously with the
first complaint testimony, that error did not create a
substantial risk of a miscarriage of justice. Contrast
Commonwealth v. Lyons, 71 Mass. App. Ct. 671, 674 n.3, 675-676
(2008) (multiple complaints without contemporaneous first
complaint instruction plus another error created substantial
risk of miscarriage of justice).
3. Police testimony on the indictment process. The
defendant next claims that the admission of evidence related to
the Commonwealth seeking an indictment, and testimony regarding
the investigative process underlying that indictment, created a
substantial risk of a miscarriage of justice. We disagree.
During her opening statement, defense counsel told the jury
that the allegations against the defendant were investigated by
the Boston police department's "sexual assault unit," a group of
police officers "trained [in] investigating sexual assaults."
She then informed the jury that the defendant was "not charged
by the police following that investigation," but, instead, was
"charged by means of [an] [i]ndictment" and that the "indictment
is not evidence."
6 As a result of defense counsel's opening statement, the
judge concluded that counsel opened the door to permit the
Commonwealth to elicit testimony regarding the initiation of
criminal proceedings against the defendant. In furtherance of
that, a Boston police detective briefly explained on direct
examination that an investigative team decided to directly
indict the defendant by presenting the matter to a grand jury.
On cross-examination, the detective clarified that the decision
to directly indict the defendant was made by the district
attorney's office.
Contrary to the defendant's claim, the detective's
testimony did not improperly place the "imprimatur of the State
on the decision to arrest or to charge" him. Commonwealth v.
DaSilva 471 Mass. 71, 81 (2015). Nor did it improperly show
that the "Commonwealth brought its resources to bear on this
incident" to bolster the victim's credibility. Commonwealth v.
Stuckich, 450 Mass. 449, 457 (2008). Rather, the detective's
testimony merely clarified the investigative process after the
defendant opened the door by implying that the police chose not
to arrest the defendant because the victim's story was not
credible. In any event, the judge later instructed the jury, as
he had at the beginning of the trial, that an indictment is a
7 means to formally charge a defendant with a crime and it is not
evidence that he committed a crime. 2
4. The prosecutor's closing argument. Finally, the
defendant claims that the prosecutor's closing argument
improperly suggested that the victim was credible because she
was willing to report the crime to the police and to testify at
trial. This, he claims, was an error that created a substantial
risk of a miscarriage of justice. We disagree.
"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
2 In the alternative, the defendant claims that defense counsel provided ineffective assistance for raising the fact that the police chose not to arrest the defendant, and thereby opening the door for the Commonwealth to present evidence about the investigative process. As an initial matter, it is far from clear that counsel's performance was constitutionally deficient. This is particularly so when the case is before us on direct appeal with no record to explain defense counsel's strategic decisions or findings on the matter from the trial judge. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006); Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573–574 (2007). With that said, we note that the standard for determining a substantial risk of a miscarriage of justice is "essentially the same" as the standard for determining prejudice on an ineffective assistance of counsel claim. Commonwealth v. LaChance, 469 Mass. 854, 858 (2014), cert. denied, 577 U.S. 922 (2015). Having determined that the investigative process evidence did not create a substantial risk of a miscarriage of justice, the ineffective assistance of counsel claim must fail.
8 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).
The defendant's argument centers, in part, 3 on the following
argument the prosecutor made in her closing:
"Now, counsel wants you to believe that she had laid in bed next to Bogard for hours twiddling her thumbs and concocting a story about how she did not consent. That she sat in her room waiting for hours with her roommate while she planned this whole story. That she decided to go to the police station, wait for years for this trial, and then come before you and testify because she regretted having sex with him. That does not make sense. It is unbelievable."
This argument was made in response the defendant's closing
argument that the victim was not credible and that she
fabricated the rape because she was unhappy with her
relationship with the defendant. The prosecutor did not suggest
that she held personal knowledge outside of the evidence as to
why the victim should be believed. Nor did she suggest that the
victim was credible because she came to court and testified.
Instead, the argument was a refutation of the defendant's theory
3 The defendant also apparently takes issue with the prosecutor's description of the victim as "shaken," or that her testimony was "emotional," "raw," and "real," and that the victim had to "look[] down" while testifying, or that she "struggled" to identify the defendant. However, these were all proper arguments, based on the victim's demeanor, why the jury should find her credible. See Freeman, 430 Mass. at 118-119; Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 495 (1999).
9 that the victim took her time after having consensual sex with
the defendant to concoct a story that she was raped. The
prosecutor was entitled to "comment on the trial tactics of the
defence," Commonwealth v. Grimshaw, 412 Mass. 505, 507 (1992),
and to respond to the defendant's closing argument. See
Commonwealth v. Smith, 404 Mass. 1, 7 (1989); Commonwealth v.
Chambers, 93 Mass. App. Ct. 806, 822 (2018). See also
Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008)
("there is no categorical prohibition against suggestion by a
prosecutor that a prosecution witness has no motive to lie").
We add that the judge gave unchallenged and specific instruction
relative to the nonevidentiary nature of closing arguments. See
Commonwealth v. Kozec, 399 Mass. 514, 518 (1987); Commonwealth
10 v. Lawton, 82 Mass. App. Ct. 528, 542 (2012). There was no
error, let alone a risk that justice miscarried.
Judgment affirmed.
By the Court (Meade, Sacks & Hodgens, JJ. 4),
Clerk
Entered: January 29, 2025.
4 The panelists are listed in order of seniority.