Commonwealth v. Jose Martinez.

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

22-P-819

COMMONWEALTH

vs.

JOSE MARTINEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of rape and

indecent assault and battery on a person over the age of

fourteen. On appeal, he claims that the judge (1) abused her

discretion by excluding his statement to the police; and (2)

erred by failing to give jury instructions on indecent assault

and battery as a lesser included offense to rape. We affirm.

Discussion. 1. Excluded statement. Prior to trial, the

Commonwealth moved to admit as consciousness of guilt evidence

the defendant's June 24, 2018, statement to the victim to

"cancel" all the charges that were against him, to forgive him

and forget everything, and to do that for her younger brother.

In response, the defendant moved to exclude this statement, or

alternatively, to admit his March 2, 2018, statement to police

in which he denied the victim's allegations. The judge allowed
the Commonwealth's motion and denied the defendant's motion. On

appeal, the defendant claims that the judge should have admitted

the March statement under the doctrine of verbal completeness or

to rebut the Commonwealth's consciousness of guilt evidence. We

disagree.

We review the judge's exclusion of the defendant's

statement, whether offered under the doctrine of verbal

completeness or as a rebuttal to consciousness of guilt

evidence, for abuse of discretion. See Commonwealth v. Crayton,

470 Mass. 228, 247-248 (2014) (doctrine of verbal completeness);

Commonwealth v. Cassidy, 470 Mass. 201, 218 (2014) (rebuttal to

consciousness of guilt evidence). "[A] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made 'a clear error of judgment in weighing' the

factors relevant to the decision . . . such that the decision

falls outside the range of reasonable alternatives." Dolan v.

Dolan, 99 Mass. App. Ct. 284, 290 n.6 (2021), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"Under the doctrine of verbal completeness, [w]hen a party

introduces a portion of a statement or writing in evidence, a

judge has the discretion to allow[] admission of other relevant

portions of the same statement or writing which serve to clarify

the context of the admitted portion" (quotations and citations

omitted). Commonwealth v. Aviles, 461 Mass. 60, 75 (2011). "To

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be admitted, the additional portions of the statement must be

(1) on the same subject as the admitted statement; (2) part of

the same conversation as the admitted statement; and (3)

necessary to the understanding of the admitted statement"

(quotations and citations omitted). Id.

"Our doctrine of verbal completeness exception is limited

in scope to instances where otherwise inadmissible hearsay on

the same subject is necessary to prevent a presentation of a

misleading version of events through admission of selected

fragments of a single conversation or document. As such, the

doctrine directly specifies temporal and subject factors as

determinative of the equivalent, but more general, relevancy

standard incorporated into Fed. R. Evid. 106" (citation

omitted). Commonwealth v. Steeves, 490 Mass. 270, 282 (2022).

Here, the defendant's March statement was not "part of the

same conversation" as the June statement because they were both

"temporally separate" and made to two different people. See

Steeves, 490 Mass. at 278 (statements made during interview with

detective and trooper "not part of the 'same conversation'" as

confession to desk officer and lieutenant made more than two

hours prior). See also Commonwealth v. Schoener, 491 Mass. 706,

728 (2023) ("The defendant's August 6 statements were not part

of the 'same conversation' as those on July 24. The two

conversations were 'temporally separate'"). Nor was the March

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statement "necessary to the understanding of" the June

statement, as the defendant's unequivocal denial of the rape

allegations to police would not serve to "clarify the context"

of the statement he made to the victim months later. See

Commonwealth v. Eugene, 438 Mass. 343, 351 (2003); Commonwealth

v. Watson, 377 Mass. 814, 833 (1979). Therefore, the doctrine

of verbal completeness is inapplicable to the defendant's March

statement, and the judge did not abuse her discretion by

excluding it.

Nor was it an abuse of discretion for the judge to refuse

to admit the March statement to rebut the Commonwealth's

consciousness of guilt evidence. "When the Commonwealth has

introduced consciousness of guilt evidence, a defendant may

rebut it. To the extent a defendant offers consciousness of

innocence evidence, '[s]uch evidence is [typically] of little

value' because of the variety of possible motives behind the

conduct" (quotations and citations omitted). Cassidy, 470 Mass.

at 217-218. Even if the defendant's statement to police does

not constitute hearsay, it is a long-standing rule in the

Commonwealth that a defendant's unequivocal denial of a criminal

accusation is not admissible. See Commonwealth v. Nawn, 394

Mass. 1, 4 (1985). At the hearing on the motions in limine, the

judge accurately expressed how admitting such evidence would be

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contrary to this rule, and the admission of consciousness of

guilt evidence should not afford a defendant a way to bypass it.

2. Jury instructions. The defendant also claims the judge

erred in failing to instruct the jury on indecent assault and

battery as a lesser included offense to rape. As the defendant

requested this instruction prior to the close of all evidence,

we review for prejudicial error. See Commonwealth v. Carrillo,

483 Mass. 269, 288 (2019).

"If the evidence is sufficiently disputed at trial so the

jury may rationally find the defendant not guilty of the greater

and guilty of the lesser offense, the judge should give the

lesser included offense instruction." Commonwealth v. Donlan,

436 Mass. 329, 335 (2002). But "even when evidence is

introduced that would justify conviction for a lesser included

offense, the defendant is not entitled to an instruction

thereupon unless the proof on the 'elements differentiating the

two crimes is sufficiently in dispute so that the jury may

consistently find the defendant innocent of the greater and

guilty of the lesser included offense.'" Id., quoting

Commonwealth v. Souza, 428 Mass. 478, 494 (1998). The only

element differentiating rape from indecent assault and battery

is penetration; thus, this element must be sufficiently in

dispute for the defendant to be entitled to the lesser included

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instruction. See Commonwealth v. Walker, 426 Mass. 301, 304

(1997).

Here, the only evidence supporting the penetration element

was the victim's testimony, which was not challenged on cross-

examination in a manner that put penetration sufficiently in

dispute. If the jury credited the victim's testimony, the

evidence would support "only a conviction of rape, and not of

the lesser included offense of indecent assault and battery."

Donlan, 436 Mass. at 336. The "evidence that disputes or puts

into question the element of penetration. . . . in ordinary

circumstances, cannot be the mere possibility that the jury

might not credit a portion of the Commonwealth's evidence, which

of course they are always free to do." Id. at 337. Moreover,

the defense presented at trial was that the victim fabricated

the rape allegation, which if the jury had credited would have

required an acquittal, not a conviction on a lesser included.

See Commonwealth v. Egerton, 396 Mass. 499, 504 (1986).

Therefore, we discern no prejudicial error in the judge's

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refusal to instruct the jury on the lesser included offense.

Judgments affirmed.

By the Court (Meade,
Hershfang & D'Angelo, JJ. 1),

Clerk

Entered: October 5, 2023.

1 The panelists are listed in order of seniority.

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