Commonwealth v. Calixto

82 Mass.App.Ct. 1112

972 N.E.2d 1064

COMMONWEALTH

v.Ismael CALIXTO.

No. 10–P–620.

Appeals Court of Massachusetts.

August 29, 2012.

OPINION TEXT STARTS HEREBy the Court (MILLS, BROWN & SIKORA, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

At the conclusion of a six-day trial, a Superior Court jury found the defendant, Ismael Calixto, guilty on three counts of rape and one count of indecent assault and battery on a person over age fourteen. The defendant appeals upon claims of (1) ineffective assistance of counsel, (2) violation of the first complaint rule, and (3) improper rebuttal testimony. For the following reasons, we affirm.

Background. The evidence permitted the jury to find the following facts. The defendant and the victim, Jane,¹ met in the spring of 2007. At the time, Jane was living in Salem, New Hampshire, with her boyfriend Alden and his parents. Alden was working at Walmart, where he met the defendant and his girlfriend Amanda. They discussed the possibility of an apprenticeship for Alden in the tattoo business of the defendant. The next day, Alden, Jane, the defendant, and Amanda spent the day together at the beach. They again discussed the tattoo business. In the following days, Jane and Alden spent more time with the defendant and Amanda at his apartment in Haverhill. The defendant discussed the possible employment of Jane also. On the morning of June 10, 2009, Jane received a call from Amanda stating that the defendant had been in a car accident and needed money for his prescriptions. Jane did not have the money, but she told Amanda she could get it from a friend. Jane arranged with her friends to get the money and to get a ride to the defendant's apartment.

When Jane arrived at the apartment, the defendant—in bandages—said that he had been in an accident and had instructions to stay in bed. At this point, Amanda and Jane's friends left the apartment, so that Jane was alone with the defendant.

The defendant raised the idea of Jane's employment and asked whether he could trust her.² At this point, the sexual assault began. The defendant forced Jane, while holding the back of her head, to perform oral sex on him. He then pulled up her shirt and licked her breasts, and then pulled down her pants and performed oral sex on her. Finally, the defendant forced Jane to have sexual intercourse with him. Throughout these events the defendant continued to say that he needed to trust Jane and that the whole encounter was “strictly business.” Jane screamed, punched the defendant, and resisted. The assault lasted fifteen to twenty minutes.

Immediately afterward, the defendant told Jane to take a shower and threatened to kill her if she told anyone. She went to the bathroom, but did not clean herself. At this point, Jane's friends and Amanda returned to the apartment. The group smoked pot for the rest of the afternoon and evening. Jane did not tell her friends of the encounter with the defendant. The friends left that night and Jane stayed behind. Alden was unable to pick her up, so she spent the night at the apartment.

The next morning Jane woke up in the bed with Amanda and the defendant. (Jane testified that she had gone to sleep in another room.) Alden stopped by in the morning to drop off their baby on his way to work. Jane stayed at the apartment all day; her friends and Alden returned again that evening. At some point Jane and the defendant went into the bedroom and in loud voices argued about the earlier encounter with the defendant. The defendant again insisted that it was strictly business and that he would kill Alden if he were to find out. Jane left the apartment that evening and went home with Alden.

The next morning, Tuesday, June 11, Jane told Alden of the encounter. She informed the Salem, New Hampshire, police and then the Haverhill police. Haverhill police personnel advised her to go to a hospital to create a “rape kit.” The rape kit procedure and testing identified the defendant's DNA in both Jane's vaginal cavity and her underwear.

Meanwhile, the Haverhill police interviewed the defendant about the assault. The interview at the police station was videotaped and later published to the jury at trial. During the interview, the defendant flatly denied sexual activity with Jane, consensual or otherwise.

Q: “Did you have sex with [Jane] at all?”

A: “Nah, man, that's what pisses me off, man.”

Q: “Consensual sex?”

A: “Nah, no nothing, that's what fucking pisses me off.” The defendant later said, “I didn't have no sex with that bitch.”

At trial, defense counsel called Amanda to the stand as an alibi witness. She testified to prior consensual sexual encounters between the defendant and Jane at a time six days before the conduct of the rape kit test.

In response, the Commonwealth called a DNA analyst as a rebuttal witness. His testimony addressed the age of the sperm cells recovered by the test and the probable time of their deposit.

After entry of judgments upon the convictions, the defendant noticed a timely appeal, and subsequently filed a motion for a new trial upon a claim, among others, of ineffective assistance of counsel. The trial judge denied the motion by a detailed memorandum of decision. We address all issues presented by the direct appeal from the judgments and the collateral appeal from the denial of the motion: (1) claimed ineffective assistance; (2) violations of the first complaint rule; and (3) improper admission of rebuttal testimony.

Analysis. 1. Denial of motion for new trial; ineffective assistance of counsel. The defendant must show (1) that there has been “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” and the likely deprivation “of an otherwise available, substantial ground of defen [s]e.” Commonwealth v. Bell, 460 Mass. 294, 303 (2011), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974). We assess claims of ineffective assistance under the deferential standard of abuse of discretion. Commonwealth v. Murray, 461 Mass. 10, 21 (2011). The decision of a motion judge who has served also as the trial judge receives “special deference.” Ibid. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

As specifications of ineffectiveness, the defendant contends (1) that counsel failed to pursue a “consent” defense during closing argument; (2) that counsel called Amanda as a witness; and (3) that he failed to introduce a videotape made in the defendant's apartment after the alleged sexual assault. The judge's disposal of each contention was emphatic.

As he pointed out, the stark contradiction between the defendant's vulgar, recorded, station house denial of any intercourse with Jane, on the one hand, and the DNA evidence of the presence of his sperm cells, on the other, left defense counsel in an irreparable tactical position. The pursuit of a “consent” defense would have negated the defendant's station house denial and branded him as a liar.

The use of Amanda as a defense witness offered the possibility of an explanation of the presence of the defendant's sperm cells. It implicitly accepted the defendant's station house denial as a lie, perhaps a panicked lie. Counsel could not know that Amanda would place the alleged consensual intercourse at a time six days, rather than three days, before the rape kit recovery process, as discussed below.

Counsel's decision not to offer a videotape of the visitors to the defendant's apartment in relaxed postures shortly after the assault was harmless. The putative harm was the failure to show the jury the casual atmosphere of the group and inferably the absence of any anger or distress. However, Jane does not appear on the tape. The defendant's placid appearance would expose him to portrayal by the prosecutor as a cunning and callous dissembler. As the judge observed, the evidence left defense counsel “with few cards to play .” None of the challenged tactical choices was “manifestly unreasonable.” Commonwealth v. White, 409 Mass. 266, 272–273 (1991). Commonwealth v. Agbanyo, 69 Mass.App.Ct. 841, 849 (2007).

2. First complaint testimony. The defendant argues that seven elements ³ of testimony, beyond valid first complaint testimony by Alden, served improperly to bolster or corroborate Jane's account of events in violation of the first complaint limitation. See Commonwealth v. Stuckich 450 Mass. 449, 456–457 (2008). We review the trial judge's admission of first complaint evidence under the standard of abuse of discretion. Commonwealth v.. Aviles, 461 Mass. 60, 73 (2011).

The first complaint doctrine does not “permit in evidence testimony from multiple complaint witnesses, [and limits] testimony to that of one witness [who, where feasible, will be] the first person told of the sexual assault.” Commonwealth v. King, 445 Mass. 217, 242–243 (2005). The first complaint doctrine does not, however, “prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible.” Commonwealth v. Arana, 453 Mass. 214, 220–221 (2009). See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010); Commonwealth v. Dargon, 457 Mass. 387, 399 (2010). See also Mass. G. Evid. § 413(b) (2011). If the testimony is relevant and admissible for reasons independent of the first complaint doctrine, the judge may admit it “after careful balancing of the testimony's probative and prejudicial value.” Commonwealth v. Arana, supra at 229. See Commonwealth v. Dargon, supra at 400. “In this way, the jury will be able to make a fairer and more accurate assessment of the...