Commonwealth v. Asenjo (Lawyers Weekly No. 10-131-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12227 COMMONWEALTH vs. GAUDY ASENJO. Essex. February 6, 2017. – August 15, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Budd, JJ. Rape. Evidence, First complaint, Expert opinion. Witness, Expert. Battered Woman Syndrome. 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. 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 […]