MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged in the Boston Municipal Court with two counts of indecent assault and battery; it was alleged that he approached the victim on the street and rubbed his groin against her leg, then touched her breast. After a jury-waived trial, the defendant was acquitted on the first charge and convicted of the second. The judge denied the defendants subsequent motion for new trial. The defendant appealed both his conviction and the denial of his motion for new trial. Considering his consolidated appeals, we affirm.
Discussion. 1. First complaint testimony. The charges arose from an incident that took place on July 15, 2013, while the victim, a student, was in Bostons Chinatown area on her school lunch break. When, on its fourth trial date,
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the case was called for trial, the Commonwealth represented that the first complaint witness -- the victims school counselor, who had admitted the victim into the school building when she returned from the lunch break during which she was assaulted -- had moved to New York and was unavailable for trial.
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On that basis, the Commonwealth moved in limine to present a substitute first complaint witness -- the schools principal, to whom the counselor had taken the victim immediately after hearing the victims account of the assault, and to whom the victim also described the incident.
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The judge allowed the motion in limine over the defendants objection.
“We review the judges decision [allowing a substitute first complaint witness] for an abuse of discretion.” Commonwealth v. Alce, 96 Mass. App. Ct. 851, 853 (2020), quoting Commonwealth v. Lewis, 91 Mass. App. Ct. 651, 657 (2017). 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.’ ” Alce, supra at 854, quoting King, supra at 243. The definition of “unavailability” for first complaint purposes affords a judge broad discretion. See Alce, supra at 854-855.
We discern no abuse of that discretion here. We need not linger on the defendants claim that the judge erred in failing to conduct a voir dire to ascertain the identity of the first complaint witness. There was no ambiguity in the record about the order in which the victim made her complaints. Contrast Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008) (voir dire required where judge presented with contradictory evidence about recipient of victims first complaint). To the extent that the defendant argues that a voir dire was required “to properly assess the evidence,” he offers no legal support for his position. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
As to the substitution itself, where the witness had moved out of State and represented that she was unable to be present “under any circumstances,” the judge acted within her discretion in allowing the motion. See Commonwealth v. Murungu, 450 Mass. 441, 445 (2008). Consistent with the limited purposes for which first complaint testimony may be used, the showing required to establish a first complaint witnesss unavailability is less demanding than that required to show unavailability to establish a hearsay exception. Alce, 96 Mass. App. Ct. at 854. Although the Commonwealth would have been well advised to have made additional efforts to contact the counselor closer to the actual trial date, we discern no abuse of discretion in the judges implicit conclusion that the Commonwealths efforts here were reasonable and that the counselor was unavailable.
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See id. at 855.
We are likewise unpersuaded by the defendants reliance on Commonwealth v. McGee, 75 Mass. App. Ct. 499 (2009), to support his contention that, because the substitute first complaint witness was arguably more favorable to the Commonwealth, the judge erred in allowing the Commonwealth to call her instead of the less cooperative, actual first complaint witness.
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Although a judge may not replace the first complaint witness with a substitute “simply because the latter is the one ‘with the most complete memory, the one to whom the complainant related the most details, or the one who is likely to be the most effective witness’ ” (citation omitted; emphasis added), id. at 501, nothing in McGee precludes the judge from substituting an available first complaint witness for an unavailable one on the grounds that the substitution may incidentally result in a benefit to the Commonwealth. Indeed, McGee affirmatively recognizes the judges ability to substitute based on unavailability. See id., quoting King, 445 Mass. at 243-244 (“In unusual circumstances, a judge has discretion to designate a substitute witness -- e.g., where the first person to hear the complaint is ‘unavailable’ ”).
Finally, even had the judge erred in allowing the substitution (a conclusion we do not reach), there was no resulting prejudice to the defendant. See McGee, 79 Mass. App. Ct. at 502 (reviewing improper admission of substitute first complaint testimony for prejudicial error). The defendant was not convicted of any crime based on the first complaint as the principal recounted it -- in fact, given the limited purpose for which the judge was permitted to consider the first complaint evidence, he could not have been. See King, 445 Mass. at 247-248 (factfinder may not consider first complaint witness testimony “as evidence that the assault in fact occurred”); Alce, 96 Mass. App. Ct. at 854, quoting Commonwealth v. Pena, 96 Mass. App. Ct. 655, 659 (2019) (“first complaint evidence may be considered only for specific limited purposes and not for the truth of the matter asserted, namely, that the assault in fact occurred”). See also Commonwealth v. Garvey, 99 Mass. App. Ct. 139, 143 (2021) (judge hearing jury-waived trial presumed to instruct self correctly on law). Indeed, despite the principals testimony that the victim reported that the defendant rubbed his genitals on her leg, the defendant was acquitted of that charge, and although he was convicted of putting his hand on the victims breast, the principals account of the victims first complaint did not corroborate that allegation.
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2. Motion for new trial. The defendants direct appeal was stayed to permit him to file a motion for new trial. The trial judge heard the motion, which was premised on the defendants claim that trial counsel was ineffective in failing to object to certain questions by the prosecutor to the substitute first complaint witness (the principal) and to the admission of improper first complaint testimony, and denied it without a hearing. Our review is for an abuse of discretion. See Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015). In conducting that review, we give “special deference” to the trial judges ruling on the motion, id. at 672-673, mindful that “[j]udges are to apply the rule 30 (b) standard rigorously and should grant [a motion for new trial] only if the defendant comes forward with a credible reason that outweighs the risk of prejudice to the Commonwealth.” Id. at 672.
There was no abuse of discretion in the judges ruling. As an initial matter, where the motion judge also heard the trial, and the issues raised in the defendants motion could be resolved on the record, there was no error in the judges failure to hold an evidentiary hearing. See Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001) (judge may rule on new trial motion without holding evidentiary hearing if, in judges discretion, “no substantial issue is raised by the motion or affidavits”).
Turning to the substance of the motion, and applying the familiar test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we conclude that even assuming without deciding that trial counsels performance fell below accepted standards of practice,
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the defendant was not prejudiced as a result. The defendants argument that trial counsel was ineffective in “allowing the Commonwealth to establish an element of the crime through leading questions during direct examination” of the substitute complaint witness fails for two reasons. First, as we have noted, the first complaint evidence was not admissible to prove that an assault occurred. See King, 445 Mass. at 247-248; Garvey, 99 Mass. App. Ct. at 143. Second, it is apparent from the judges findings
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that it was the victims testimony, and not that of the principal, that established the indecent touching on which the defendants conviction here was based.
The defendants second argument -- that counsel was ineffective in failing to object to “backdoor” first complaint evidence, specifically, the investigating police officers testimony that when he spoke with the victim ten days after the assault she was “upset about what had happened and was angry that she had been touched in that manner without an invitation or without her consent” -- is no more persuasive. The first complaint doctrine makes a victims first “report of the assault” admissible for limited purposes and as an exception to the usual prohibition on the admission of prior consistent statements. Commonwealth v. Hatzigiannis, 88 Mass. App. Ct. 395, 401 (2015). The officers testimony did not include any “report of the assault,” only the victims statement of her feelings about that incident.
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Even if, arguendo, the evidence should not have been admitted, the defendant has failed to show that he was prejudiced. See Saferian, 366 Mass. at 96. As we have discussed, the judges findings are explicit about the basis of the defendants conviction: the judge credited the victims specific testimony about where and how the defendant placed his hand on her breast. Nothing in those findings suggests that any first complaint testimony, and particularly not the testimony of the investigating officer, influenced the verdicts.
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. The case had been scheduled for trial in February, May, and July 2014; it was tried on November 17, 2014.
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. The counselor had told the Commonwealth that she was a single parent and unable to appear for trial because of her childcare obligations.
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. In response to defense counsels objection on the basis of unfair surprise, the prosecutor represented that she had removed the counselors name from the Commonwealths witness lists before the first trial date and had indicated from that time on that the principal was on call as a trial witness instead.
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. While we consider the unreported decisions cited in the defendants brief on this point, they are not binding on us. To the extent the panels reached different conclusions about the propriety of substitution in those cases than we do here, the cases are factually distinguishable.
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. When the police contacted the counselor in 2014, approximately a year after the assault, the counselor initially indicated that “she vaguely remembered an incident during which the victim had informed her that ‘somebody tried to touch’ her,” but remembered that she had completed an incident report. In addition, “[t]he [counselor] repeatedly voiced her displeasure with having to go to court and reported that she had been told by the principal ․ that the matter was ‘not a big deal.’ ” The principal, by contrast, appeared for trial and, as we discuss infra, provided a detailed account of what the victim told her about the alleged assaults.
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. The principal testified that the victim reported only that the defendant tried to touch her breast and that he touched “[the victims] side by her breast.”
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. In support of the defendants motion for new trial, his trial counsel filed an affidavit in which he averred that he should have objected to the testimony highlighted here by the defendant, and that his failure to do so was not the result of a strategic choice.
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. After filing notice of his direct appeal, but before filing his motion for new trial, the defendant moved for written findings. Although she was not required to do so, the judge allowed the motion and prepared those findings.
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. The defendant does not challenge the relevancy of that evidence, and we need not reach that question.