Commonwealth v. Kevin Murphy.

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

23-P-1248

COMMONWEALTH

vs.

KEVIN MURPHY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury in the Superior Court convicted the defendant of two

counts of indecent assault and battery on a child under the age

of fourteen.1 The victim, whom we shall call "Sarah," is a

relative of the defendant. On appeal, the defendant contends

1The defendant was charged with three counts of indecent
assault and battery on a child under the age of fourteen, one
count of aggravated rape of a child, and one count of enticing a
child under the age of sixteen. The Commonwealth entered a
nolle prosequi on the charge of enticing a child and the case
proceeded to trial before a jury on the remaining charges in
February 2020. That jury acquitted the defendant of rape and
one count of indecent assault and battery and did not reach a
verdict on two counts of indecent assault and battery. The
judge declared a mistrial as to those two counts, and a second
trial was held almost three years later in May 2023. The
convictions at issue in this appeal stem from the defendant's
second trial.
that the judge erred by admitting testimony that exceeded the

scope of the first complaint doctrine and that the prosecutor's

misstatement of the evidence in closing argument constituted

prejudicial error. We affirm.

Background. We summarize the facts the jury reasonably

could have found. When Sarah was between eight and nine years

old, she was living with her mother and two great aunts, Helen,

and Celeste.2 She regularly visited the defendant and often

stayed overnight at his home. Sarah testified that one night

she was lying in the defendant's bed when he touched her breasts

and vagina with his hands and his penis. The defendant told

Sarah that what happened "was supposed to be [their] secret."

On another occasion, the defendant raped Sarah by inserting his

penis into her vagina. Sarah testified that it hurt, and she

was bleeding.

Sometime after the rape occurred, Sarah told Helen that the

defendant had inappropriately touched her, but did not disclose

that the defendant had raped her. Sarah, who was nineteen years

old at the time of trial, did not remember much of her

conversation with Helen. She recalled that the conversation

took place in the kitchen, and that she had a "knot in [her]

2 Because the victim and her great aunts share a last name,
we refer to them by pseudonyms.

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stomach" and felt "disgust." She also remembered that when she

told Helen that the defendant had touched her breasts and

vagina, Helen was shocked and rushed down the hallway to tell

Sarah's mother. Sarah testified that she didn't say anything

about the rape at that time because she was worried that her

family would be angry with her and that she would get in

trouble.

About five years later, Sarah revealed that the defendant

had done more than inappropriately touch her and that he had

also raped her. This disclosure followed a heated argument

between Sarah and the defendant, who, at Sarah's mother's

request, went to pick up Sarah, after she reportedly was about

to get in a fight with some other girls. Although someone else

also was in the car, Sarah did not want to leave with the

defendant. At trial she acknowledged that she and the defendant

screamed at one another. It was after this altercation that

Sarah told her family that the defendant had raped her.

Helen, who had been designated as the Commonwealth's first

complaint witness, testified about Sarah's disclosure to her.

She said that she overheard Sarah saying that she was trying to

do something "sneaky" by using an application on her cell phone

that her mother did not approve of. Helen told Sarah that she

should not keep secrets, after which Sarah told her that she and

the defendant had a secret, which was that he had tried to pull

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her legs open while she was sleeping. Helen became upset and

pressed Sarah for details, which Sarah did not provide. Helen

asked Sarah why she had not said anything earlier to which Sarah

responded that she was scared and did not want to get anyone in

trouble. Helen asked Sarah specifically whether the defendant

had put "his fingers or anything" in between her legs. Sarah,

who also had become upset, said that he had not. Helen further

testified that at one point the two were crying and screaming

and Helen told Sarah that she would kill the defendant if he had

touched her. Helen testified that she never should have said

that to Sarah and described her threat as a "big[] mistake"

because she believed that Sarah "would have [come] out and told

[her] sooner if [she] hadn't said that." Helen then called

Sarah's mother and told her about the allegation. The mother

arrived home within a couple of minutes and spoke with Sarah in

her room. The mother then had a telephone conversation with the

defendant during which she relayed her "serious concerns" about

his misconduct. The mother testified the defendant was "very

apologetic" and was "sorry for whatever [Sarah] thought

happened." The family did not report the incident to the police

and instead decided that Sarah would no longer stay overnight at

the defendant's house.

The defense theory was that Sarah was not credible and had

accused the defendant of sexual abuse to avoid getting in

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trouble and to "excuse her own misbehavior." The defendant

testified on his own behalf and denied the allegations. The

defendant's wife also testified in support of the defendant and

claimed that he always slept on the couch when Sarah stayed

overnight.

Discussion. a. First complaint testimony. "The first

complaint doctrine permits a judge to admit testimony from the

recipient of a complainant's initial report of sexual assault."

Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 583 (2013). The

first complaint witness may testify "to the circumstances

surrounding the complaint, including her observations of the

complainant during the complaint; the events or conversations

that culminated in the complaint; the timing of the complaint;

and other relevant conditions that might help a jury assess the

[complainant's] veracity" (quotation and citation omitted). Id.

See Mass. G. Evid. § 413(a) (2024).

We review a judge's decision to admit first complaint

evidence for abuse of discretion. Commonwealth v. Aviles, 461

Mass. 60, 73 (2011). Although the defendant did not object to

Helen's testimony at trial, he now argues that portions of the

testimony, which he describes in his brief as "emotionally

charged exaggerations of the evidence," were inadmissible

because it went beyond the proper scope of the first complaint

doctrine. We agree with the defendant that Helen's testimony

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exceeded the scope of Sarah's testimony and, in addition, her

testimony was inconsistent with Sarah's in many respects.

However, the challenged testimony did not "exceed[] any rational

consideration of the rule," as the defendant claims. To the

contrary, our cases permit some discrepancy between the

testimony of the complainant and the first complaint witness.

See Commonwealth v. King, 445 Mass. 217, 235 (2005) ("Fresh

complaint testimony need not replicate precisely the victim's

own testimony, nor must it be sanitized to match the victim's

testimony exactly"); Rivera, 83 Mass. App. Ct. at 586-587

(admitting first complaint testimony that included two

allegations absent from the complainant's testimony);

Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 414-415 (2010)

(admitting more detailed first complaint testimony on

defendant's sexual misconduct where complainant only remembered

disclosing that "bad things" had occurred). Furthermore, we

note, as we did in Rivera, supra at 587, that inconsistencies

between the testimony of the first complaint witness and the

victim go to weight of the evidence not its admissibility.

Here, defense counsel exploited these discrepancies during

cross-examination and closing argument. Lastly, the judge

properly instructed the jury on the limited purpose of first

complaint testimony before Helen testified and again during the

final instructions to the jury. In light of these

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circumstances, the differences between Sarah and Helen's

testimony do not warrant a new trial.

b. Prosecutor's closing argument. As previously noted,

Sarah's mother testified that she had a telephone conversation

with the defendant, after she spoke with Sarah, during which she

expressed "serious concerns" and that the defendant responded by

stating he was "sorry for whatever [Sarah] thought happened."

When the defendant was asked about the conversation during

cross-examination, he stated that Sarah's mother asked him about

an alleged touching of Sarah's chest. In her closing argument,

the prosecutor referred to the conversation and stated:

"[Sarah's mother] told you she called [the defendant] after
learning this information and confronted him. [She] told
him [Sarah] says you touched her breasts and her vagina,
and his response was this: I'm sorry for anything she
thinks happened. He didn't say I would never touch [Sarah]
inappropriately; I wasn't alone with her that day. . . I'm
sorry for anything she thinks happened. Would an innocent
man say that?"

The Commonwealth concedes that the prosecutor misstated the

evidence when she said that Sarah's mother accused the defendant

of touching Sarah's vagina. The defendant objected to the

comment and, therefore, we review for prejudicial error. See

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

In determining whether an error made during closing

argument is prejudicial, we consider four factors: "(1)whether

the defendant seasonably objected; (2) whether the error was

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limited to collateral issues or went to the heart of the case;

(3) what specific or general instructions the judge gave the

jury which may have mitigated the mistake; and (4) whether the

error, in the circumstances, possibly made a difference in the

jury's conclusions." Commonwealth v. Lester, 486 Mass. 239, 248

(2020), quoting Commonwealth v. Alvarez, 480 Mass. 299, 306

(2018). As previously noted, the prosecutor misstated the

evidence, and the defendant made a timely objection. In

addition, because the defendant's response could reasonably be

viewed as an admission, the misstatement was not limited to a

collateral issue. That said, the prosecutor's error did not

prejudice the defendant. The point of the prosecutor's argument

was to ask the jury to draw a negative inference from the

defendant's response to an allegation of sexual assault.

Whether that response was prompted by an allegation of touching

Sarah's chest (breasts), her vagina, or both, could not have

"possibly made a difference in the jury's conclusions,"

particularly in view of the fact the jury was well aware that

the defendant was accused of touching Sarah's breasts and

vagina. Lastly, the judge's instruction to the jury that

closing arguments are not evidence was sufficient to mitigate

any prejudicial effect.3 Given the error, a specific curative

3 The judge stated: "More importantly, the opening
statements and closing arguments of the lawyers [are] not

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instruction might have been the better course, but defense

counsel did not request one, nor did he object to the judge's

general instructions. See Lester, 486 Mass. at 248-249

("general" instruction sufficiently mitigated error when defense

counsel failed to request specific instruction and failed to

object to given instruction). We presume the jury understood

and followed the judge's instruction and conclude that the error

did not prejudice the defendant such that he is entitled to

reversal of his convictions. Id.

Judgments affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ.4),

Clerk

Entered: January 24, 2025.

evidence. They're only intended to assist you in understanding
the evidence and the contentions of the parties. My
instructions and anything that I've said in passing during
trial, [are] not evidence. In your memory -- if your memory of
the testimony [] differs [] from any reference to the evidence
that the attorneys or I have made, you are to follow your own
recollection."

4 The panelists are listed in order of seniority.

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