Commonwealth v. Ralph Sanchez.

• Court: Massachusetts Appeals Court
• Decided: February 15, 2024
• Docket: 22-P-1096
• Status: Unpublished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

22-P-1096

COMMONWEALTH

VS.

RALPH SANCHEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of indecent assault and battery on a person who

has attained the age of fourteen, in violation of G. L. c. 265,

§ 13H; violation of an abuse prevention order, under G. L.

c. 209A, § 7; and assault and battery on a family or household

member, in violation of G. L. c. 265, § 13M (a).1 On appeal, the

defendant argues that the judge abused his discretion by

admitting testimony under the first complaint doctrine from a

witness (a police officer) who was not the first person to whom

1 The defendant also was charged with attempt to commit a crime, in violation of G. L. c. 274, § 6; and assault with the intent to commit rape, in violation of G. L. c. 265, § 24. However, both charges were dismissed prior to trial. In addition, the jury acquitted the defendant of an additional charge of assault and battery on a family member, in violation of G. L. c. 265, § 13M (a); and witness intimidation, in violation of G. L. c. 268, § 13B. the victim spoke about the sexual assault. The judge permitted

the substitution after determining that the true first complaint

witness, the victim's cousin, was incarcerated out of State and

was unavailable to testify. However, as the jury were

deliberating, defense counsel learned that the cousin had been

extradited to Massachusetts and was present in the court house

in connection with an unrelated matter. Although he did not

request that the judge declare a mistrial at that time, the

defendant now claims that the circumstances required the judge

to declare a mistrial sua sponte. We affirm.

1. Background. a. Facts. The defendant and the victim

had been in a romantic relationship for a number of years and

were the parents of one child. Their relationship deteriorated

and, at the time the offenses were committed, there was an abuse

prevention order in place prohibiting the defendant from

contacting the victim. Notwithstanding the discord between

them, the defendant and the victim made an agreement whereby the

defendant provided her with child support. The two "would meet

somewhere" on Fridays and the defendant would give the victim

between $150 and $200.

On Friday, August 11, 2017, the defendant told the victim

he could not meet her that day and asked her to come to his

residence the following morning to pick up money for the child.

The victim agreed to do so and arrived at the defendant's home

2 alone. When the victim arrived, the defendant said, "[I]f you

want the money, you're going to give me ass." The defendant

then took the victim's phone, wallet, and keys and walked into

the house. The victim followed in order to retrieve her

belongings. Once inside, the defendant forced the victim into

his bedroom, pinned her down on the bed, and hit her when she

began to yell. The defendant then ripped the victim's pants and

pulled them down. The victim bit and hit the defendant after

which she escaped into the living room where the defendant

continued the assault. The victim testified that the defendant

"tr[ied] to grope . . . my vagina area from behind."

Once the victim found her belongings, she ran to her car

and drove away. She stopped briefly to call her cousin, Luis

Oliva, and then drove to the police station in Revere where she

reported the assault to Sergeant Joseph Internicola. At trial,

Sergeant Internicola testified as the Commonwealth's first

complaint witness. He recounted that he "spoke to [the victim]

in private" and that the victim told him the defendant "stopped

her at the front door, removed his clothes, forcibly ripped her

pants off of her, and groped her by touching her vagina."

While the victim was at the station, the defendant arrived

with his sister. According to Sergeant Internicola, the

defendant "wanted to give his version of what took place and

transpired." The defendant told Sergeant Internicola that he

3 had been sleeping when the victim entered his apartment. He

explained that the victim woke him up and the two had an

argument after the victim accused him of cheating. The victim

began yelling and when she would not stop, the defendant hit her

and tackled her onto the bed. The defendant said he then put

his hand over the victim's mouth to prevent her from screaming,

which prompted the victim to bite him and hit him. The

defendant also admitted that he had ripped the victim's pants

but denied that he sexually assaulted her. He said that he

ripped the victim's pants only to show her what he would do if

he was going to rape her.

The defendant testified on his own behalf and provided a

slightly different version of events than the one he had given

to the sergeant. Although he acknowledged, as he had to

Sergeant Internicola, that he hit the victim, he now claimed

that the victim had hit him first and that he had acted in self-

defense. He also testified that the victim wanted to have sex

with him and denied that he had ripped the victim's pants.

b. Motion in limine. Just before the trial commenced, the

Commonwealth filed a motion in limine seeking permission to

present first complaint testimony from Sergeant Internicola.2 At

2 On the day of trial, the Commonwealth filed a motion to continue and requested additional time to identify the first complaint witness. The motion was denied by a judge, who was

4 that time, the Commonwealth's position was that Sergeant

Internicola was the first complaint witness. Before ruling on

the motion, the judge held a voir dire of the victim. The

victim testified that the first person she told about the sexual

assault was her cousin, Oliva, who, she alleged, was in custody

possibly in Virginia. The victim told Oliva that the defendant

"tried to have sex with me." The victim also spoke with another

cousin who called her after she spoke with Oliva. At the

conclusion of the voir dire, the prosecutor argued that the

sergeant should be designated as the first complaint witness

because the victim had disclosed the details of the incident to

him and not to either cousin. Defense counsel disagreed,

contending that the first complaint witness was Oliva. The

judge agreed that Oliva was the first person to whom the victim

disclosed the assault. However, because Oliva was not

available, he allowed the Commonwealth to substitute Sergeant

Internicola as the first complaint witness.3

c. The discovery that Oliva was in the court house. The

trial proceeded and while the jury were deliberating, defense

counsel learned that that a person by the name of Jose Oliva was

not the trial judge, noting that the Commonwealth "had four to five months to prepare this case for trial." 3 Specifically, the judge stated that "[i]t's really . . . Mr.

Oliva [that is] the first complaint [witness]" but due to his unavailability, "I am going to allow Sergeant Internicola to testify as to the first complaint."

5 present in another court room where he was being arraigned for

an unrelated crime and that he was the victim's cousin and the

original first complaint witness.4 Defense counsel immediately

notified the judge of his discovery. The prosecutor also had

just learned that Oliva was present. She described the timing

of Oliva's appearance in court as "incredibly coincidental[]."

She explained that Oliva had not agreed to be extradited and the

Commonwealth had attempted to obtain a governor's warrant to

bring him to Massachusetts. The prosecutor further stated that

unbeknownst to the Commonwealth, Oliva had changed his mind,

agreed to extradition, and had just arrived from Virginia where

he had been incarcerated. The judge then asked defense counsel

how he wanted to proceed to which he replied that he did not

know if he was "in a position to ask for a mistrial" and that he

had not yet spoken with his client. By this time, the jury had

reached a verdict. The judge then indicated that he would take

the jury's verdict and that the defendant could file a motion

for a new trial. The judge stated,

"This is what I'm going to do. I'm going to take the verdict right now. You still have . . . -- you have a motion for new trial, possibly. I don't know what the -- I don't know enough -- it would require . . . further evidentiary hearings to see to what extent the complainant knew about this or whether there was some other reason or delay in the trial would have been possible. There [are] a

4 Coincidently, defense counsel had been asked to represent Oliva and during an introductory conversation he learned that Oliva was the victim's cousin and the true first complaint witness.

6 lot of different issues that it could raise. As of now I think, considering I've got jurors sit -- that are sitting there, ready to come back with a verdict, you've brought it to the Court's attention, your right[s] are preserved at the moment."

The judge then explicitly asked defense counsel if he was

"asking [the judge] to do anything" to which defense counsel

responded, "No, . . . . Not at this point."

2. Discussion. a. Admission of substitute first

complaint testimony. Although, ordinarily, the first complaint

doctrine permits only the "very 'first' complaint witness" to

testify, Commonwealth v. King, 445 Mass. 217, 243 (2005), cert.

denied, 546 U.S. 1216 (2006), a judge may make an exception

where "the first person told of the assault is 'unavailable.'"

Commonwealth v. Alce, 96 Mass. App. Ct. 851, 854 (2020), quoting

King, supra. "We review the judge's decision [allowing a

substitute first complaint witness] for an abuse of discretion."

Alce, supra at 853, quoting Commonwealth v. Lewis, 91 Mass. App.

Ct. 651, 657 (2017).

The defendant argues that the judge abused his discretion

in allowing Sergeant Internicola to substitute as the first

complaint witness because -– given Oliva's presence in the court

house on the second day of trial -- it is clear that the

Commonwealth's efforts to secure Oliva's presence were

inadequate. However, the fact that Oliva was eventually

extradited does not necessarily establish that the

7 Commonwealth's efforts to locate him were insufficient. As the

judge noted, the questions raised by Oliva's presence, who was

being arraigned under a different name, could only be resolved

after a hearing. Moreover, at the time the judge made his

ruling, he accepted the Commonwealth's representation that Oliva

was out of State and in custody. The judge reasoned that

because Oliva's unavailability left the Commonwealth "without

the ability to call a first complaint [witness] under the

circumstances through no-fault of their own," a substitution was

warranted. The judge further noted the absence of any

indication that the Commonwealth sought to introduce Sergeant

Internicola's first complaint testimony for strategic purposes.

See Alce, 96 Mass. App. Ct. at 855. Given these circumstances,

we conclude there was no abuse of discretion.5

b. Mistrial. As previously noted, the defendant contends

that the judge should have declared a mistrial sua sponte upon

learning that Oliva was in the court house. The decision

whether a mistrial is required is within the discretion of the

trial judge. See Commonwealth v. Roman, 470 Mass 85, 97 (2014).

5 We note also that Sergeant Internicola was the next person to whom the victim reported the sexual assault. See Commonwealth v. Murungu, 450 Mass. 441, 446 (2008) ("The substituted witness should in most cases be the next complaint witness"). Additionally, we note that nothing in King, 445 Mass. at 243, or its progeny prohibits a law enforcement officer from testifying as a substitute first complaint witness.

8 Contrary to the defendant's assertion, we discern no error of

law or abuse of discretion in the decision of the judge not to

declare a mistrial.

To begin with, the judge gave defense counsel two

opportunities to request some form of remedial action and he

chose instead to do nothing.6 More importantly, the judge

properly addressed the issue by inviting defense counsel to file

a motion for a new trial.7 The judge noted that the question

whether the Commonwealth had used reasonable efforts to obtain

Oliva's presence at trial would require an evidentiary hearing.

Given these circumstances, the judge did not err or abuse his

discretion.8

Lastly, the defendant argues that he was denied his right

to due process because the judge did not permit defense counsel

to confer with him before ruling that the jury would return

6 In addition, the defendant had an incentive to have the verdict returned. If he was found not guilty, that would be the end of the matter. If, as happened here, he was found guilty of some of the offenses, he still had the option of filing a motion for a new trial to challenge the first complaint testimony. 7 It appears that the defendant has not filed a motion for a new

trial. 8 Furthermore, there is nothing in the record to indicate whether

Oliva had any recollection of speaking with the victim and, consequently, a mistrial might not have achieved any meaningful result. At the same time, Oliva may have been a more effective first complaint witness than the sergeant thereby mitigating any prejudice resulting from Oliva's absence. Both these issues could have been addressed at a hearing had the defendant chosen to file a motion for a new trial.

9 their verdict. Although it is true that counsel initially

indicated that he had not yet spoken with the defendant, it is

unclear whether the two had the opportunity to communicate

thereafter. Without more in the record to support the

defendant's claim, we are constrained to reject it.

Judgments affirmed.

By the Court (Vuono, Milkey & Hand, JJ.9),

Assistant Clerk

Entered: February 15, 2024.

9 The panelists are listed in order of seniority.