Commonwealth v. Florencio Mendez, July 2, 2010
77 Mass. App. Ct. 905
First Complaint Doctrine, Hearsay, Cross-Examination, Sexual Assault
In October 2007, defendant was tried and convicted on indictments charging that he sexually assaulted two of his wife's nieces, Alice (10 years old) and Betty (14 years old). The victims' mother testified as the Commonwealth's designated first complaint witness with respect to Alice. Commonwealth offered no 1st complaint witness as to Betty. Defendant appealed, arguing that additional complaint evidence was admitted erroneously. The Appeals Court affirmed the judgments.
At issue: (1) Testimony of victims' mother concerning Betty's appearance and behavior immediately after returning from defendant's house; (2) testimony of investigating police officer about her interviews of the victims and the actions that she took in response; and (3) testimony of Betty that, upon returning home, she spoke with her mother and older sister about the assault at the defendant's house. Defendant did not object at trial, so the Appeals Court considered whether the testimony was properly admitted and, if not, whether it created a substantial risk of a miscarriage of justice.
(1) The Appeals Court held that the mother's testimony concerning Betty's demeanor was “neither inadmissible hearsay nor first complaint evidence,” and was properly admitted.
(2) The Appeals Court held that there was no substantial risk of a miscarriage of justice with respect to the police officer's testimony, because any error in allowing the testimony was overcome by the benefits received in cross-examination, and the error in admitting this testimony did not prejudice the defendant's case.
(3) Defense counsel “opened the door” in the opening argument for the admittance of Betty's testimony, because defense counsel referred to descriptions of Betty's behavior upon returning home from the defendant's house.
Judgments affirmed.
- Prepared by AYK
