MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants first jury trial ended in a mistrial because the trial prosecutor failed to timely provide mandatory discovery materials. The defendants motion to dismiss based on the untimely disclosure was denied after a hearing. The defendant appeals from that order. Following a second jury trial, the defendant was convicted of three counts of indecent assault and battery on a child under fourteen. See G. L. c. 265, § 13B. The defendant also challenges his convictions, arguing that errors in the second trial were so prejudicial that he is entitled to a new trial. We affirm.
Discussion. 1. Motion to dismiss. The defendant claims error in the denial of his motion to dismiss on double jeopardy grounds. In essence, he contends that the Commonwealth goaded him into moving for a mistrial and, therefore, principles of double jeopardy barred a retrial. We disagree.
On the evening of January 28, 2020, after jury empanelment had begun, the trial prosecutor found an e-mail addressed to the prior assistant district attorney indicating that a “Pedi-SANE”
1
examination had been performed on the victim. The trial prosecutor doubted that a “Pedi-SANE” examination had in fact been conducted because the examination was reported to have taken place six years after the last of the incidents in question and the prior prosecutor had never obtained the record. Rather than immediately inform the court or defense counsel of the e-mail, the trial prosecutor contacted the “District Attorneys Special Victims Unit” for more information. Only after receiving confirmation that a “Pedi-SANE” examination had been performed did the trial prosecutor disclose the evidence. The trial prosecutor disclosed the existence of the examination to defense counsel during the lunch break on January 29, 2020, and to the judge immediately after the break. By that time, the jury had been sworn, opening statements had been made, and the victims testimony had been completed.
The defendant claims that the trial prosecutor delayed disclosure in order to provoke a mistrial. As an initial matter, we emphasize that the trial prosecutor should not have kept the possibility of a “Pedi-SANE” report to herself. We specifically reject the Commonwealths argument that it was “understandable that [the prosecutor] should try to confirm such an exam had been done before discussing it with counsel and the judge.” The prosecutors reasoning to question whether a “Pedi-SANE” examination had occurred is no excuse for the failure to disclose the possibility of this information. Withholding the possible existence of this examination was not consistent with her obligation to the court or defense counsel and prevented the court from managing its resources. See Commonwealth v. Taylor, 469 Mass. 516, 521 (2014) (Commonwealth has ongoing obligation to produce discovery materials pursuant to Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 [2004]); Mass R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005) (obligatory discovery that Commonwealth must produce includes “reports of physical examinations of any person”).
Turning to the merits of the argument, “[a] defendant, who has successfully moved for a mistrial, is not entitled to the dismissal of the [criminal complaint] against him unless there has occurred prosecutorial misconduct intended to goad or provoke him into moving for the mistrial.” Donavan v. Commonwealth, 426 Mass. 13, 14-15 (1997). See Oregon v. Kennedy, 456 U.S. 667, 675-676 (1982). “The burden is on the defendant to show prosecutorial goading,” such as arises when the prosecutor engages in “overreaching, harassment, or other intentional misconduct” (citation omitted). Commonwealth v. Cobb, 45 Mass. App. Ct. 271, 274 (1998). “The question whether a prosecutor intentionally provoked the defendant into moving for a mistrial is one of fact and requires either that the judge make such a finding or that the provocation be apparent on the record.” Id. Here, the trial judge stated that he “[did] not find any prosecutorial misconduct to implicate double jeopardy protection. The late disclosure was unfortunate but was not intentional.” Nor does our review of the record show that the misconduct was designed to cause a mistrial.
2
“[D]ismissal with prejudice is a remedy of last resort because it precludes a public trial and terminates criminal proceedings” (citation omitted). Commonwealth v. Edwards, 491 Mass. 1, 9-10 (2022) (though “the Commonwealth was at the very least negligent in failing to provide, during the more than one year of discovery, the sole exhibit it planned to rely upon at trial, its actions did not reach the high threshold of egregious misconduct” warranting dismissal with prejudice; judge could have remedied discovery violation in some other way); Commonwealth v. Gallarelli, 399 Mass. 17, 24 (1987) (“The grant of a mistrial followed by a new trial is the relief typically granted where a defendant is prejudiced by a prosecutors failure to disclose properly exculpatory, material evidence” [citation omitted]); Commonwealth v. Lam Hue To, 391 Mass. 301, 311-312 (1984) (prosecutors failure to disclose discovery of potential murder weapon and “bungled” police investigation did not warrant dismissal). Here, the defendant does not explain how his defense was prejudiced, and our review of the record does not reveal prejudice sufficient to bar retrial.
2. First complaint testimony. The defendant claims various violations of the first complaint doctrine set forth in Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006), and its progeny. Under the first complaint doctrine, a victim of a sexual assault and the first person they told of the sexual assault may testify to the details of the victims first complaint as part of the Commonwealths case-in-chief. Id. at 244-245. The Commonwealth is limited to one first complaint witness. Id. at 242-243.
3
In this case, as indicated in note 3, supra, the first complaint witness, the victims sister, appeared at the first trial but was unavailable for the second trial, and no substitute was appointed. See, e.g., Commonwealth v. Murungu, 450 Mass. 441, 445 (2008).
a. Victims testimony. The defendant takes issue with three portions of the victims trial testimony.
First, on direct examination, the victim began to testify that her sister told her mother of the sexual assault by saying, “I just came home and I just -- everyone was upset. And, I guess, because my sister told my mom -- [.]” Defense counsel objected and moved for a mistrial. The judge sustained the objection, struck the statement, and denied the motion for a mistrial.
Because defense counsel objected, we review for prejudicial error. See Commonwealth v. Aviles, 461 Mass. 60, 72 (2011). The judge immediately struck the inadmissible portion of the answer and further emphasized, “As soon as she says sister, we have to move on with her.” Additionally, in the final charge, the judge instructed the jury that stricken testimony was not evidence and was unreliable. Given that the testimony was not entered in evidence and because “[w]e presume that the jury follow the judges instructions,” Commonwealth v. Cortez, 438 Mass. 123, 130 (2002), we discern no error.
Second, on cross-examination, defense counsel asked the victim, “And, it was that conversation, August 12th of 2019, when you first told somebody that Mr. Lima had ejaculated on you?” To which the victim responded, “No. No. That doesnt make sense. I confided in what he had did to me to my sister.” The defendant objected and moved for a mistrial. The judge overruled the objection and denied the motion for a mistrial.
There was no error, let alone prejudicial error, where defense counsel elicited the testimony on cross-examination of the victim. See Commonwealth v. Dumas, 83 Mass. App. Ct. 536, 540 (2013) (no error where defense counsel drew out victims testimony); Commonwealth v. Morris, 82 Mass. App. Ct. 427, 439-440 (2012) (no prejudice where defense counsel drew out testimony of multiple complaints on cross-examination as part of trial strategy). Therefore, we discern no abuse of discretion in the judges denial of the motion for a mistrial. See Commonwealth v. Silva, 93 Mass. App. Ct. 609, 614 (2018).
Third, on redirect, the victim was asked, “Did you ever talk to a police officer about this?” The victim responded, “I think when they sent one to the school to make sure that it gets reported to [the Department of Children and Families], I had to.” The defendant did not object, therefore our review is limited to determining whether an error occurred and, if so, whether it created a substantial risk of a miscarriage of justice.
4
See Aviles, 461 Mass. at 72.
On cross-examination, the victim said that she did not think she told a police officer about the defendant peeing on her. Then on redirect, the trial prosecutor asked the victim whether she talked to police about feeling the defendant ejaculate on her. Where the defendant opened the door to the victim testifying that she did not complain to law enforcement, the prosecutor was permitted to follow up on redirect. See Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009) (“Once the defendant opened the door on cross-examination, the Commonwealth was entitled to attempt to rehabilitate the witness”). We discern no error.
b. Victims mothers testimony. The defendant also challenges a portion of the victims mothers testimony. On direct examination, the victims mother testified to statements made by the defendant, in response to being asked whether the defendant touched the victim. Defense counsel objected on hearsay grounds and argued that the testimony amounted to first complaint evidence since it implied that someone had told the victims mother about the abuse. The trial judge overruled both objections.
Statements made, adopted, or authorized by a party opponent are not hearsay and are admissible unless barred by another rule of evidence. See Mass. G. Evid. § 801(d)(2) (2024). The mother testified to statements made by the defendant, which are not hearsay. Moreover, the first complaint doctrine does not prohibit testimony that, though it constitutes or describes a subsequent complaint, “is otherwise independently admissible” and “serves [a] purpose other than to repeat the fact of a complaint and thereby corroborate the complainants accusations.” Commonwealth v. Arana, 453 Mass. 214, 220-221, 229 (2009). The testimony at issue here was independently admissible because it served to provide context as to why the abuse continued. See Kebreau, 454 Mass. at 300 (no error where “testimony was not offered as first complaint testimony, but rather to provide context for the defendants admissions”).
Furthermore, even assuming the first complaint violation was obliquely raised, testimony suggesting that the mother eventually learned of the abuse and confronted the defendant did not create a substantial risk of a miscarriage of justice, and “did not influence the jury, or had but very slight effect” (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. McCoy, 456 Mass. 838, 852 (2010).
c. Rebuttal testimony. At the close of the defendants case, which focused primarily on attacking the credibility of the victim, the trial prosecutor was permitted to recall the victims mother as a rebuttal witness. The victims mother testified that, “all [the victim] said was that he touched her and that he peed on her.” Defense counsel objected, requested a limiting instruction, and moved for a mistrial. The trial judge overruled the objection, initially denied the limiting instruction, and denied the motion for a mistrial. After further objection from defense counsel and a lengthy sidebar, the judge gave a limiting instruction.
“If ․ the witnesss trial testimony is impeached by a claim of recent contrivance or inducement, a prior statement made before the witness had incentive to fabricate testimony is admissible to rebut the claim of recent fabrication, but not to prove the truth of the matter.” Commonwealth v. Wright, 444 Mass. 576, 583 (2005). The mothers testimony was properly admitted as prior consistent statements to rebut the claim of contrivance and accompanied by an appropriate limiting instruction.
5
We therefore discern no error.
3. Closing argument. Lastly, the defendant takes issue with the trial prosecutors closing argument, arguing that she (1) improperly shifted the burden of proof to the defendant by asking the jurors to consider whether the victim had a motive to lie, (2) improperly vouched for the victims credibility, and (3) improperly appealed to the sympathy of the jurors.
a. Burden shifting. A prosecutor “cannot make statements that shift the burden of proof from the Commonwealth to the defendant.” Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 363 (2018), quoting Commonwealth v. Johnson, 463 Mass. 95, 112 (2012). Burden shifting occurs where the prosecutor “signal[s] to the jury that the defendant has an affirmative duty to bring forth evidence of his innocence,” such as by calling the jurys attention to a defendants failure to call witnesses or contradict testimony. Commonwealth v. Tu Trinh, 458 Mass. 776, 787 (2011).
Here, to respond to the defenses closing argument, wherein counsel stated, “[s]hes lying about that in her testimony,” the trial prosecutor pointed to the victims lack of motivation to lie. The statements merely invited the jury to consider lack of motive to lie in response to a challenge to the victims credibility. We discern no error. See Commonwealth v. Dirgo, 474 Mass. 1012, 1014 (2016) (where “defense counsel in closing argument challenges the credibility of the complainant, it is proper for the prosecutor to invite the jury to consider whether the complainant had a motive to lie and to identify evidence that demonstrates that the complainants testimony is reliable”). Contrast Johnson, 463 Mass. at 113 (improper for prosecutor to ponder, “How is [defense counsel] going to deal with that?” in closing argument).
b. Credibility. We are similarly unpersuaded by the defendants argument that the prosecutor engaged in impermissible vouching in closing argument. “A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant.” Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). “Improper vouching occurs if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). See Mass. G. Evid. § 1113(b)(3)(B) (2024).
Here, defense counsel heavily argued the victims lack of memory in his closing. In rebuttal, the trial prosecutor called the jurys attention to the victims young age at the time of the assaults, her recollection of the events fifteen years after the abuse, the specificity of the claims, and the length of the testimony. These statements merely responded to the defendants attack on the witnesss credibility and did not impermissibly imply that the victim inherently should be believed. Thus, we discern no error and no substantial risk of a miscarriage of justice. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 11 (2019).
c. Appeal to emotion. “Although prosecutors may use dramatic descriptions of the facts, an overt appeal to emotions may cause a jury to decide the case based on considerations other than the weight of the evidence.” Commonwealth v. Leary, 92 Mass. App. Ct. 332, 339 (2017). Here, the trial prosecutor said, “[I]nstead of being a father figure, instead of being a protector, he preyed on her,” and “[the victim] got lucky that the defendant and her mother broke up, and he left the home.” Defense counsel objected to the second statement. While the trial prosecutors remarks were strong, they served to explain why the abuse was reported years later and not for the purpose of overtly appealing to emotions. See Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 808 (2009) (“We recognize that the line between improper appeals to juror emotions and proper explanations of difficulties witnesses may have had in testifying is not always clear, particularly with regard to young children in sexual assault cases”). See also Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 545 (2009) (stating that defendant left “a firefighter lying on the cold, wet street” and stating four times that defendant “took out a firefighter” was improper emotional appeal). Furthermore, “[i]nstructions may mitigate any prejudice in the final argument.” Commonwealth v. Rivera, 482 Mass. 259, 270 (2019), quoting Commonwealth v. Carriere, 470 Mass. 1, 19 (2014). Here, the judge properly instructed the jury that they “may not permit sympathy to affect [their] verdicts.”
Order dated November 27, 2020, denying motion to dismiss, affirmed.
Judgments affirmed.
FOOTNOTES
1
. We understand “Pedi-SANE” to mean pediatric sexual assault nurse examiner. The prosecutor explained that the “Pedi-SANE” examination was a physical examination of the victims vagina.
2
. In fact, the Commonwealth potentially harmed its own case because it lost the first complaint witness between the first and second trials. That witness had moved to California before the first trial but flew back to testify for the first trial. She did not return to testify at the second trial.
3
. This is to prevent repetition of the fact that there were multiple complaints, which “may unfairly enhance a complainants credibility as well as prejudice the defendant.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008), quoting King, 445 Mass. at 242-243.
4
. “A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
5
. Trial defense counsel objected to the timeliness of the limiting instructions given; appellate counsel does not raise the issue on appeal.