Commonwealth v. Torres (Lawyers Weekly No. 11-113-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12-P-1733 Appeals Court COMMONWEALTH vs. FELIX TORRES. No. 12-P-1733. Worcester. March 7, 2014. – September 10, 2014. Present: Katzmann, Rubin, & Carhart, JJ. Rape. Indecent Assault and Battery. Practice, Criminal, Public trial, Severance, Trial of indictments together, Mistrial. Constitutional Law, Public trial. Evidence, First complaint, Prior misconduct, Pattern of conduct, Relevancy and materiality, Redirect examination. Indictments found and returned in the Superior Court Department on September 12, 2006. The cases were tried before Bruce R. Henry, J.; a motion for a new trial, filed on January 21, 2011, was heard by him; and a motion for reconsideration was considered by him. Angela G. Lehman for the defendant. Stephen J. Carley, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from his convictions of seven counts of indecent assault and battery on a child and eight counts of rape of a child, and from the denials of his motions for a new trial and to reconsider. The defendant argues that the trial judge erred in concluding that the court room was not closed to the public, failing to sever the counts sua sponte, admitting improper first complaint testimony, and making various evidentiary rulings. We affirm. Background. The jury were presented with the following evidence. The defendant was in an intermittent relationship with Sonia Nieves. They had two children together, Kim[1] and David.[2] Nieves also had a child from a different relationship, Sara.[3] Nieves’s three sisters, Nina,[4] Ann,[5] and Beth,[6] occasionally lived with her and the defendant. The victims, Kim, Nina, and Ann, all testified at trial. Kim testified that the defendant touched her for the first time when she was seven or eight years old. He entered her bedroom while Sara was sleeping in the room and touched Kim’s breast, buttocks, and vagina with his hand. On another occasion, the defendant climbed into Kim’s bed, again while Sara was in the room, touched Kim’s vagina with his penis, and put his penis inside Kim’s mouth. He was silent during both incidents. Nina testified that the defendant touched her for the first time when she was eight years old. On that occasion, he approached Nina while she was doing laundry and put his penis inside her buttocks and vagina. Then, when Nina was eleven years old, the defendant entered her bedroom […]