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Commonwealth v. Asenjo

Supreme Judicial Court of Massachusetts, Essex

August 15, 2017

COMMONWEALTH
v.
GAUDY ASENJO.

          Heard: February 6, 2017.

         Indictments found and returned in the Superior Court Department on May 22, 2013. The cases were tried before James F. Lang, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Emily A. Cardy, Committee for Public Counsel Services, for the defendant.

          David F. O'Sullivan, Assistant District Attorney (Jennifer S. Kirshenbaum, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, & Budd, JJ.

          HINES, J.

         In January, 2015, the defendant, Gaudy Asenjo, was convicted by a Superior Court jury of three counts of aggravated[1] rape of a child.[2] The complainant was the defendant's niece, Sara, [3] who was fourteen years of age at the time of the rape. The defendant appeals from the convictions, claiming that the judge erred in (1) interpreting the first complaint rule to require the disclosure of the perpetrator's identity to the first complaint witness and allowing a police officer to testify as the first complaint witness; (2) allowing the complainant to testify to multiple disclosures of the sexual assault in violation of Commonwealth v. King, 445 Mass. 217 (2005), cert, denied, 546 U.S. 1216 (2006), and its progeny; and (3) precluding expert testimony in support of her defense based on battered woman syndrome. We conclude that the essential feature of first complaint evidence is the report of a sexual assault, not the identity of the perpetrator. Consequently, the admission of the police officer's testimony as first complaint evidence was error, which, after viewing the evidence as a whole, was prejudicial. We conclude also that the judge erred in admitting the complainant's testimony as to her multiple disclosures of the rape. Last, we conclude that a defendant asserting duress under G. L. c. 233, § 23F, based on battered woman syndrome, is not required to present affirmative evidence of abuse as a predicate to the defense. The judge erred in excluding the proffered expert testimony on this ground. Therefore, based on the foregoing, we reverse and order a new trial.

         Background.

         We summarize the evidence the jury could have found. In February, 2011, Sara and her twin sister spent most of their February school vacation at the home of the defendant, their maternal aunt. One evening, toward the end of the week, Sara, Sara's sister, the defendant's daughter, the defendant, and the defendant's then boy friend, Luis Rivera, were present in the home socializing and drinking alcohol. Rivera and the defendant had been in a relationship for a long time, such that Sara considered him an uncle. That evening, Sara was upset with her sister and the defendant's daughter. Although they were all drinking alcohol, the other girls were also smoking marijuana without including Sara.

         After the other two girls went upstairs to go to bed, Sara stayed downstairs talking with the defendant. At the time, Sara was "really close" with the defendant and thought of her as a "second mom." During the conversation, the defendant inquired about Sara's sexual experience and told Sara how satisfying her sexual relationship with Rivera was. Later that evening, the defendant telephoned Rivera, who had left the residence earlier, and asked him to return because Sara wanted him to come back. After the defendant told Sara that Rivera was returning, Sara stated that she had not showered that day. The defendant instructed Sara to go into the bathroom and wipe her vagina clean. The defendant helped Sara remove her pants, and Sara cleaned herself. As the defendant inspected Sara's vagina, she told Sara that Rivera would like it and that he would be "really happy."

         Approximately ten minutes later, Rivera arrived at the defendant's home. The defendant suggested that the three of them go into the bathroom, where Sara was instructed to lie down on the floor on her back. After the door was closed and locked, the defendant turned off the lights and illuminated the room with the flashlight application on her cellular telephone. Rivera pulled Sara's pants and underwear down, but left her shirt on. Rivera performed oral sex on Sara, as the defendant sat on the edge of the bathtub watching and asking Sara whether she liked it. Sara did not answer, and instead focused on her upcoming birthday so that she would not have to think about what was happening to her. A few minutes later, Rivera inserted something into Sara's vagina that hurt her. Sara did not know whether it was his finger or his penis. Rivera directed the defendant to perform oral sex on Sara while he had vaginal intercourse with the defendant.

         After the assault ended, Sara went upstairs, where her sister and the defendant's daughter were sleeping. Sara was scared because Rivera was still in the home, but she eventually went back downstairs to use the bathroom. Rivera asked Sara whether she wanted to do it again, but she ignored him, used the bathroom, and ran back upstairs without incident. Sara was hurt and confused, thinking that it was her fault and that she could have done something to stop it. The next morning, the defendant did not speak about the assault, and Rivera returned to the home to bring everyone breakfast. Although Rivera did not speak to Sara that morning, he touched her backside each time he was alone with her.

         Sara continued to visit the defendant's home after the assault. Each time Sara visited, she tried to ensure that Rivera was not present. A few weeks after the assault, Sara asked the defendant whether it was possible that Sara was pregnant because she was having stomach pains and had not menstruated that month. The defendant stated that she did not know whether Sara was pregnant, but that if Sara were, she should tell her parents that the father was a boy from school, rather than Rivera.

         Over a period of two years after the rape, Sara disclosed the attack on four different occasions. Sara first disclosed the assault within weeks of the incident when she told her cousin Mary[4] that Rivera had raped her at the defendant's home. Sara mentioned the defendant's presence during the rape, but did not disclose her participation. Sara did not mention the defendant's participation because Sara still loved her and did not want to get her into trouble. In December, 2012, Sara disclosed the rape for the second time to her sister and some of their friends at a sleepover while playing a game they called "if you really knew me." Sara revealed that the defendant was present when it happened but again did not disclose her participation. Sara made the third disclosure to her mother within days of the sleepover without mentioning the defendant's role in the rape. Finally, Sara repeated the details of the rape to Detective Ashley Sanborn of the Danvers police department, revealing for the first time the defendant's participation.[5]

         Sanborn appeared as the Commonwealth's first complaint witness and testified that on January 2, 2013, she spoke with Sara and Sara's family, at the family's request, at the Danvers police station. After Sara's father left the room, Sara disclosed that she had been raped by the defendant and Rivera. Sara's sister also testified regarding Sara's December, 2012, disclosure.

         D ...


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