Commonwealth v. Joshua Dargon, July 29, 2010
Rape, Indecent Assault and Battery, Admissibility of Records challenged under G.L.c. 233 § 79, First Complaint, Closing Argument, Ineffective Assistance of Counsel
The defendant was found guilty of aggravated rape, indecent assault and battery on a person over the age of fourteen, assault and battery, and assault and battery by means of a dangerous weapon. The defendant appeals his convictions claiming that evidence in written form that was part of the sexual assault evidence kit included statements made by the victim that should not have been allowed, that the prosecutor’s closing argument was improper, and that his counsel was ineffective. The SJC affirmed the defendant’s convictions.
Facts
The victim was returning home from work to her apartment building and was about to open the interior door from the lobby to the stairs when she was grabbed from behind by the Dargon. He hit the victim several times about the head and face, knocked her to the ground and pinned her arm down with his knee. He stuck his hand under her shirt and grabbed her breasts and then stuck his hand in the victim’s pants where he digitally penetrated the victim for a few seconds. The victim attempted to free herself, scratching Dargon on the neck with her free hand, and pulling off a necklace he was wearing. A neighbor heard the commotion and ran down the stairs and shouted at Dargon to stop. Dargon ran from the scene, and left the victim’s purse on the ground.
After the victim’s husband called 911 the victim described the details of her attack and a description of the attacker. The victim did not tell the 911 operator about the penetration. Police sent out a description of the assailant and a patrolling officer spotted Dargon walking down the street a mile from the crime scene. Dargon agreed to enter the car and talk with the officer and after Dargon was brought back to the scene for identification, and after his family had identified the necklace as belonging to him, he was arrested.
Later that night, Mary Griffin, a Sexual assault nurse examiner was called to the hospital to examine the victim. She wrote down her observations, collected evidence, and noted some of the victim’s statements about what had happened to her which were needed to complete a sexual assault examination.
At trial a tape recording of the victim’s 911 call was entered into evidence and played for the jury. This tape was admitted as first complaint evidence. The SANE nurse was also called to testify about her examination of the victim, and during her testimony the prosecutor used the nurse’s examination sheet to refresh her memory and it was admitted into evidence despite the defense counsel’s objections to it on the grounds that the report did not fall under the hospital records exception to the hearsay rule, and that even if it did, the victim’s statements about the attack and what was said and done were inadmissible. The judge overruled the objections and allowed a slightly redacted form of the victim’s statements in as evidence.
Challenge under G.L. c. 233, § 79
The SJC noted that the defense’s objections were only to the victim’s statements that were written down on the report during the examination, and thus those statements would be reviewed under the prejudicial standard. The SJC agreed with the trial judge that the exam’s purpose was both to gather information for the crime lab and also to determine whether a sexual assault victim needs treatment, but that the dual purpose of the exam does not render it inadmissible. The court noted that the victim’s statement’s were redacted to remove the victim’s statements about Dargon being bigger than her and that he told her to shut up. The court stated that Section 79 of G.L. c. 233 permits the admission in evidence, in the judge's discretion, of certified hospital records so far as such records relate to the treatment and medical history with the proviso that nothing therein contained shall be admissible as evidence which has reference to the question of liability”, and liability includes criminal culpability. The victim’s statements were in response to questions to determine whether she needed medical attention, and because they were redacted the court found no prejudice in their being allowed.
The SJC then discussed that the real problem with the form was not the victim’s statements but the language of the form itself, which had several sections which used the words “assault” and “assailant”, and that portions of the form that related solely to the criminal investigation were not redacted. However, because the defense did not object to it, it was reviewed for a substantial risk of a miscarriage of justice. The SJC found that there was error, that failing to object was not a tactical move, that the defendant was prejudiced by this error, but did not conclude that considering the error in the context of the entire trial, it would be reasonable to conclude that the error materially influenced the verdict. The Commonwealth’s case against the defendant was very strong including the victim’s statements, identification of the defendant, and the defendant’s own admission to having assaulted the victim while denying the sexual aspects. Because of these factors the court concluded that failure to redact more of the form did not result in a substantial risk of a miscarriage of justice.
First Complaint
The defendant argued that the SANE nurse’s testimony, given after the playing of the 911 tape, was a violation of the first complaint doctrine. As the defense counsel preserved his objection, it was reviewed under a prejudicial error standard. The SJC noted that in King
It was declared that Massachusetts would "no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of ... the first person told of the assault." The court went on to say that the first complaint doctrine is not intended to bar the jury from obtaining a fair and accurate picture of the Commonwealth’s case and evidence of a subsequent complaint may be admissible under an evidentiary rubric other than first complaint. If independently admissible evidence, other than first complaint testimony, serves no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations, it is inadmissible. However, if that evidence does serve a purpose separate and apart from the first complaint doctrine, the judge may admit it "after careful balancing of the testimony's probative and prejudicial value.
The SJC determined that the SANE nurse’s testimony about the exam, and the evidence collected was very important to a fair understanding of the Commonwealth's case and that its probative value outweighed potential prejudice to the defendant. The SJC found that the judge did not abuse his discretion by allowing the testimony.
Closing Arguments
The defendant alleged that the prosecutor made improper remarks in his closing arguments that require reversal of the convictions. The prosecutor commented on the defense’s suggestion that the police should have done a DNA test on the defendant’s fingernails, but presented no DNA expert or any reasonable suggestion that such testing would have exonerated him. The prosecutor called the defense a “red herring” and a “classic blame the police” argument. The SJC said that while a prosecutor may not “fight fire with fire” when defense counsel makes an improper or excessive argument, they may properly comment to correct an erroneous impression created by opposing counsel. The SJC also disagreed with the defendant’s argument that the prosecutor characterized the defendant’s statement as a “full confession” because taken incontext it became clear that the prosecutor was trying to argue that the confession was not full and was instead a self-serving account of what the defendant claimed happened.
Ineffective Assistance of Counsel
The defendant argued that his counsel was ineffective for failing to file a motion to suppress the evidence gathered as a result of an illegal search. The SJC found that a motion to suppress was not likely to have been successful in this case because the necklace recovered was not found during the search but was found at the crime scene. The SJC also did not agree with the defendant that his counsel jettisoned the theory of defense by classifying the rape as an impulse act, but rather was saying how it wasn’t a rape and was just an impulsive act of violence.
- Prepared by AEK
- Prepared by AEK
