Commonwealth v. Rivera (Lawyers Weekly No. 11-058-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11‑P‑1674 Appeals Court COMMONWEALTH vs. JOHNNY RIVERA. No. 11‑P‑1674. Middlesex. February 6, 2013. ‑ May 7, 2013. Present: Trainor, Katzmann, & Sikora, JJ. Rape. Evidence, First complaint, Hearsay, Medical record, Relevancy and materiality. Practice, Criminal, Hearsay, Subpoena. Subpoena. Indictment found and returned in the Superior Court Department on November 29, 2007. A pretrial motion for the production of records was heard by Thomas A. Connors, J., and the case was tried before Thomas P. Billings, J. Amy M. Belger for the defendant. John T. Mulcahy, Assistant District Attorney, for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant on one indictment charging rape, G. L. c. 265, § 22(b).[1] The main issue of this appeal is the admissibility of first complaint testimony in circumstances in which the alleged victim had complained initially about the defendant’s physical abuse but then waited one week to complain about sexual abuse. The defendant contests also the trial judge’s admission of purported hearsay evidence and a separate judge’s pretrial denial of the defendant’s motion to subpoena the victim’s treatment records from a community health center. For the following reasons, we affirm. Background. The jury heard the following testimony. The victim and the defendant began dating in October, 2006. They moved into a hotel in December, 2006, and the next month into an apartment in Melrose. The victim paid for the furnishings of the apartment and paid all of the rent. Her young son lived with the couple. From December onward, the defendant asserted control over the victim. He took possession of her money, credit cards, identification cards, and keys. He would accompany her to the bank and force her to give him money. He took possession also of her cellular telephone and monitored her conversations by forcing her to talk on the “speaker phone.” The victim described a course of mental, verbal, physical, and sexual abuse. In February, 2007, he began to coerce sexual relations, including oral, vaginal, anal, and, on one occasion, digital penetration. The physical abuse included punching, kicking, and slapping, and resulted in bruises to her ribs, back, and head. The physical and sexual abuse continued even after the victim became pregnant in or about early May of 2007. On May 12, the defendant agreed to travel to the […]