Commonwealth v. Thomas L. Bergeron.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-1110

COMMONWEALTH

vs.

THOMAS L. BERGERON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of

aggravated rape of a child, G. L. c. 265, § 23A; two counts of

rape of a child with force, G. L. c. 265, § 22A; and two counts

of indecent assault and battery on a child under fourteen, G. L.

c. 265, § 13B. On appeal, the defendant claims that (1) the

motion judge erred by denying his motion for a new trial because

his trial counsel provided ineffective assistance when he failed

to request a voir dire on the identity of the first complaint

witness, and (2) the trial judge erroneously denied his motion

for a required finding of not guilty as to the two counts of

rape of a child with force because the evidence of force was

insufficient. Discerning no error, we affirm.

Discussion. 1. First complaint witness. The defendant

claims he is entitled to a new trial because his trial counsel
provided ineffective assistance by not requesting a voir dire

when the Commonwealth designated its first complaint witness

shortly before trial. We review the denial of a motion for a

new trial "to determine whether there has been a significant

error of law or other abuse of discretion." Commonwealth v.

Grace, 397 Mass. 303, 307 (1986).

The evidence at trial was that the defendant sexually

assaulted and raped his grandniece multiple times when she was

between five and twelve years of age. The victim told her

mother about the abuse in July 2012, at which time the mother,

the victim, and the victim's cousin reported it to police.

During the initial police interview, the mother said that the

victim first disclosed the abuse to her cousin approximately two

months before the interview. The cousin confirmed this account.

During her Sexual Assault Intervention Network (SAIN) interview

two days later, however, the victim stated that she first

confided in two friends during the fall of 2011, and only told

her cousin in 2012.1 One week before trial, both sides filed

motions in limine, the defendant seeking to clarify who would be

the first complaint witness and the Commonwealth designating the

1 The SAIN interviewer testified to the grand jury that the
victim first disclosed the abuse to her two friends. As a
result, the defendant's trial counsel attested that his trial
preparation assumed one of the friends would be the first
complaint witness.

2
victim's cousin as such. Defense counsel accepted the

designation of the cousin without objection.2 The victim

testified on direct that she was unsure when she first told her

cousin about the abuse, and when confronted with the SAIN

interview on cross examination, she stated that the conversation

likely took place two months before the July 2012 interview.

The cousin testified that she first heard of the abuse before

her great-grandmother's death in 2010.

The defendant argues that his trial counsel should have

requested a voir dire to address why the Commonwealth designated

the cousin as the first complaint witness. The argument is

unpersuasive. Where the defendant claims ineffective

assistance, a new trial is warranted only if the defendant shows

that (1) his trial counsel's conduct fell measurably below the

standard of an ordinary, fallible lawyer, and (2) that

shortcoming deprived him of "an otherwise available, substantial

ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96

2 The defendant's appellate brief alludes to a claim of
prosecutorial misconduct but without supporting legal
authorities or explanation. See Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019). We are therefore not
required to address the claim, but we note that the motion judge
considered it and found that the Commonwealth should have
disclosed newly discovered information about the timing of the
first complaint to the defense because it had impeachment value
and was thus exculpatory. However, the judge also found no
prejudice to the defendant, because even without advance notice,
defense counsel effectively used the inconsistent timeline to
impeach the victim and her cousin at trial.

3
(1974). "Where the claimed ineffectiveness is the result of a

strategic or tactical decision of trial counsel, the decision

must have been 'manifestly unreasonable' to be considered an

error." Commonwealth v. Ayala, 481 Mass. 46, 62 (2018), citing

Commonwealth v. Kolenovic, 478 Mass. 189, 193 (2017). Here,

trial counsel stated during the motion in limine hearing that

the defense was content with the Commonwealth's designation of

the cousin as the first complaint witness in lieu of one of the

victim's two friends. In an affidavit accompanying the

defendant's motion for a new trial, his lead trial counsel again

indicated he was pleasantly surprised with the designation.3

Moreover, as far as trial counsel was aware, the cousin's

factual account of what the victim disclosed was substantially

the same as that of two friends; the main difference was the

timing. These circumstances indicate that trial counsel

strategically chose not to challenge the designation of the

first complaint witness and indeed, in his affidavit, he stated

that he gave no further consideration to a request for voir

dire. Trial counsel's strategy was not manifestly unreasonable

because it aligned with the overall defense goal of undermining

the victim's and her cousin's credibility. See Ayala, supra at

3 Counsel believed the cousin was a less problematic witness for
the defendant because she and the victim gave inconsistent
timeframes for the disclosure, the cousin was a close family
member, and the cousin was younger than the friends.

4
63 ("Only strategic and tactical decisions which lawyers of

ordinary training and skill in criminal law would not consider

competent are manifestly unreasonable" [quotations and citation

omitted]).

Relying on Commonwealth v. Stuckich, and Commonwealth v.

Murungu, the defendant argues that a voir dire was nevertheless

required to determine who was the proper first complaint

witness. See Commonwealth v. Stuckich, 450 Mass. 449, 455

(2008); Commonwealth v. Murungu, 450 Mass. 441, 446-447 (2008).

The argument misses the mark. In Stuckich, the Supreme Judicial

Court (SJC) required a voir dire where there was a factual

dispute about the identity of the first complaint witness that

could not be resolved without the presentation of evidence. See

Stuckich, supra. And in Murungu, the SJC outlined two

additional exceptions to the first complaint rule addressing

instances when a second complaint witness may stand in the shoes

of the first complaint witness, noting that a voir dire would

generally be needed to determine whether those exceptions apply.

See Murungu, supra. In this case, there was ambiguity about

when and to whom the victim first disclosed the abuse. However,

as previously discussed, finding the Commonwealth's final

designation more favorable to his case, defense counsel made the

reasonable strategic decision not to challenge the change. As a

result, both Stuckich and Murungu are inapt, and on these facts,

5
no voir dire was required. See Commonwealth v. Kebreau, 454

Mass. 287, 295-296 (2009) (where facts surrounding victim's

multiple disclosures were undisputed, judge properly determined

which complaint witnesses to admit based on counsel's

representations and without voir dire); Commonwealth v. Revells,

78 Mass. App. Ct. 492, 496 (2010) (no voir dire required where

no factual dispute existed about identity of first complaint

witness).

The defendant further asserts that his trial counsel should

have made better use of the inconsistencies between the victim's

SAIN interview, her trial testimony, and the cousin's testimony.

However, as the motion judge found, counsel's limited use of the

SAIN interview was a reasonable tactic. More focus on the

statements obtained from the interview, including statements

indicating that the victim had not only reported the rapes and

abuse to her cousin but also to two friends, would arguably have

strengthened the Commonwealth's case and prejudiced the

defendant. See Commonwealth v. Asenjo, 477 Mass. 599, 605-606

(2017) (first complaint doctrine's purpose is to eliminate

prejudicial piling on of witnesses); Commonwealth v. King, 445

Mass. 217, 243 (2005) (testimony of multiple complaint witnesses

"may unfairly enhance a complainant's credibility as well as

prejudice the defendant by repeating for the jury the often

horrific details of an alleged crime"). Additionally, as stated

6
supra, defense counsel effectively used the inconsistencies to

impeach both the victim and her cousin.4 Like the strategic

decision not to challenge the chosen first complaint witness,

counsel's use of the inconsistent testimony was both reasonable

and effective. See Ayala, 481 Mass. at 62. As a result, it was

not an abuse of discretion for the motion judge to deny the

defendant a new trial on this basis.

2. Sufficiency of evidence of force. The defendant claims

the Commonwealth failed to prove that he used force to compel

the victim to submit to a sexual act, as required to sustain his

convictions of rape of a child with force.5 In reviewing a claim

of insufficient evidence, we view the evidence in the light most

favorable to the Commonwealth to determine whether "any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979).

4 The defendant further claims that his trial counsel's closing
argument improperly assumed the burden of persuading the jury
that the cousin was not the first complaint witness. We
disagree. As the motion judge found, trial counsel's closing
argument sought to cast doubt on the victim's credibility but
did not shift any burden.
5 The defendant moved for a required finding of not guilty at the

close of the Commonwealth's case and again at the close of all
the evidence. The judge denied the motion as it pertained to
the counts of rape of a child by force, among others.

7
The defendant claims the evidence of force was insufficient

because when he threatened to harm the victim's family, he did

so to prevent the victim from disclosing the abuse, not to

coerce her into a sexual act. The argument is unavailing and

relies on a mistaken understanding of the force element required

for rape of a child. See G. L. c. 265, § 22A. "[T]he force

needed for rape may, depending on the circumstances, be

constructive force, as well as physical force, violence, or the

threat of bodily harm." Commonwealth v. Caracciola, 409 Mass.

648, 653 (1991). "Constructive force requires proof that the

victim was afraid or that she submitted to the defendant because

his conduct intimidated her" (quotation and citation omitted).

Commonwealth v. Vasquez, 462 Mass. 827, 846 (2012). A

determination of constructive force requires "examination of the

circumstances or fear in which the victim is placed, the impact

of those circumstances or fear on the victim's power to resist

and the defendant's conduct." Caracciola, supra at 651.

Factors supporting constructive force include whether the

defendant was an authority figure, whether the victim was in the

defendant's care, whether a familial or other relationship of

trust existed, and whether there was a disparity in age and

physical size. See Commonwealth v. Armstrong, 73 Mass. App. Ct.

245, 255 (2008).

8
Here, the victim testified that the defendant threatened to

hurt her family if she told anyone about the abuse. She did not

say when the threat occurred but stated that she did not tell

her mother before 2012 because she was afraid. The cousin, as

the first complaint witness, also testified that the victim

looked afraid when she spoke about the abuse. Moreover, the

defendant was the victim's great-uncle, she was regularly left

in his care, and the abuse took place when she was between five

and twelve years of age.6 The defendant's explicit threat of

harm was therefore just one of several factors that,

6 Given the disparity in age, the difference in physical size can
be presumed to have been significant as well. See e.g.,
Commonwealth v. Melchionno, 29 Mass. App. Ct. 939, 940 (1990)
(jury could reasonably infer sexual intercourse took place by
force and against minor victim's consent by considering her age
and size).

9
taken together, were more than sufficient to prove the element

of force.7 See Armstrong, 73 Mass. App. Ct. at 255.

Judgments and order denying
new trial motion affirmed.

By the Court (Neyman,
Desmond & Smyth, JJ.8),

Clerk

Entered: August 11, 2023.

7 To the extent that we have not specifically addressed
subsidiary arguments in the parties' briefs, they have been
considered, and do not warrant further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

8 The panelists are listed in order of seniority.

10