Commonwealth v. Parnel Bogard.

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-1345

COMMONWEALTH

vs.

PARNEL BOGARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

On appeal, the defendant claims errors in: the admission of

evidence that he maintains violated the first complaint rule;

the absence of a contemporaneous first complaint jury

instruction; the admission of evidence regarding his indictment;

and the prosecutor's closing argument. Although none of these

claims were preserved at trial, the defendant claims they

resulted in a substantial risk of miscarriage of justice. We

affirm.

1. First complaint. The defendant claims that several

portions of the first complaint testimony violated the first

complaint doctrine. The first claimed violation is that the
first complaint witness's testimony contained details that

exceeded the scope of the victim's testimony. In particular,

the defendant claims that the witness reported that the victim

told the defendant "no," to "stop," and to "get off," but the

victim herself did not testify to these details. At oral

argument, defense counsel essentially withdrew this claim as it

was not supported by the record. The victim actually did

testify to having said these words to the defendant. In any

event, first complaint testimony need not replicate precisely

the victim's own testimony as the rule tolerates some

inconsistency. Commonwealth v. Rivera, 83 Mass. App. Ct. 581,

586-587 (2013). See Commonwealth v. King, 445 Mass. 217, 235

(2005), cert. denied, 546 U.S. 1216 (2006).

The defendant next claims that the first complaint witness

impermissibly testified to the victim's complaints to other

people. Specifically, the witness testified that after hearing

the victim's complaint they contacted a "lawyer friend" to

discuss the victim's "options." Thereafter, they went to the

police station, and both gave statements to the police. The

defendant claims this testimony enhanced the victim's

credibility and prejudiced him. We need not determine whether

it was error to admit this testimony where its admission did not

create a substantial risk of a miscarriage of justice.

2
In light of the defense of fabrication, the first complaint

witness's explanation of the discussions that occurred in the

aftermath of the complaint, i.e., speaking to an attorney about

the available "options," without ever going so far as to testify

that they "told" the lawyer, or said "what happened," would have

had little if any impact in bolstering the victim's credibility.

Contrast Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009)

(witness testified that he spoke to victim nightly "about what

happened"). Relative to reporting the matter to the police, the

first complaint witness testified to only limited details of

what was said to the police, i.e., that she told the police that

the victim said she had been raped. However, this was no more

than what defense counsel told the jury in her opening

statement.

Despite this, the defendant also claims that the first

complaint witness put details of the investigative process

before the jury. However, the defendant put the investigative

details before the jury in his opening statement and his closing

argument to maintain that, despite experienced detectives

conducting a thorough investigation, police chose not to charge

the defendant. This further illustrates how the defendant

suffered no prejudice, and no substantial risk of a miscarriage

of justice was created.

3
The defendant next claims that the first complaint witness

improperly described her response to the victim's complaint. In

particular, he claims that the testimony that the witness was

"in shock" when the victim made the complaint was irrelevant and

improperly appealed to the jury's sympathies. We disagree.

In general, a first complaint witness's emotional response

to a victim's disclosure of a sexual assault is not relevant.

See Commonwealth v. Quincy Q., 434 Mass. 859, 875 (2001).

However, if there is an independent purpose for the evidence, it

may be admitted. Here, the witness stated that "I was just in

shock, and was just listening to what she had to say, but I

don't really remember the details, it's been a long time."

Thus, in context, the witness's testimony regarding her shock

was relevant to her inability to recall the details of the

complaint, and was not an attempt to buttress the victim's

credibility. 1

2. Lack of a contemporaneous jury instruction. The

defendant also claims that the lack of a contemporaneous first

complaint limiting instruction prior to the victim's or the

first complaint witness's testimony resulted in a substantial

risk of miscarriage of justice. We disagree.

1 The defendant also claims the cumulative effect of the
first complaint violations created a substantial risk of a
miscarriage of justice. Having found no individual violation
created such a risk, the argument is without merit.

4
"[A]lthough a contemporaneous [first] complaint instruction

is recommended, it is 'not a strict requirement.'" Commonwealth

v. Lewis, 91 Mass. App. Ct. 651, 663 (2017), quoting

Commonwealth v. Edward, 75 Mass. App. Ct. 162, 166 (2009).

Here, the victim's testimony regarding her report of the rape to

the first complaint witness was very brief, and without detail.

The first complaint witness's testimony was also brief and

focused primarily on the victim's demeanor at the time of her

complaint. Her account was devoid of any details of the

victim's complaint because she did not "remember the details,

[and it had] been a long time." When asked if the victim stated

it was consensual, the witness could not remember the "exact

words" the victim used, but it was likely the victim gave her a

description. Given the victim's demeanor, the witness

understood it was not consensual, but she did not "recall the

specifics of what [the victim] described."

The first complaint witness was the last witness to testify

at the defendant's trial. After closing arguments, the judge

gave his final instructions to the jury. Those instructions

included a limiting instruction on the proper use of first

complaint evidence, and the defendant does not claim otherwise.

Although the instruction was not contemporaneous with the first

complaint testimony, it occurred in fewer than two hours after

that witness testified. Even though the victim's brief account

5
of telling her roommate what had occurred was evidence the jury

heard earlier in the trial, we still must presume the jury

followed the judge's instruction limiting the proper use of that

evidence. Lewis, 91 Mass. App. Ct. at 664. To the extent it

was error to not give the instruction contemporaneously with the

first complaint testimony, that error did not create a

substantial risk of a miscarriage of justice. Contrast

Commonwealth v. Lyons, 71 Mass. App. Ct. 671, 674 n.3, 675-676

(2008) (multiple complaints without contemporaneous first

complaint instruction plus another error created substantial

risk of miscarriage of justice).

3. Police testimony on the indictment process. The

defendant next claims that the admission of evidence related to

the Commonwealth seeking an indictment, and testimony regarding

the investigative process underlying that indictment, created a

substantial risk of a miscarriage of justice. We disagree.

During her opening statement, defense counsel told the jury

that the allegations against the defendant were investigated by

the Boston police department's "sexual assault unit," a group of

police officers "trained [in] investigating sexual assaults."

She then informed the jury that the defendant was "not charged

by the police following that investigation," but, instead, was

"charged by means of [an] [i]ndictment" and that the "indictment

is not evidence."

6
As a result of defense counsel's opening statement, the

judge concluded that counsel opened the door to permit the

Commonwealth to elicit testimony regarding the initiation of

criminal proceedings against the defendant. In furtherance of

that, a Boston police detective briefly explained on direct

examination that an investigative team decided to directly

indict the defendant by presenting the matter to a grand jury.

On cross-examination, the detective clarified that the decision

to directly indict the defendant was made by the district

attorney's office.

Contrary to the defendant's claim, the detective's

testimony did not improperly place the "imprimatur of the State

on the decision to arrest or to charge" him. Commonwealth v.

DaSilva 471 Mass. 71, 81 (2015). Nor did it improperly show

that the "Commonwealth brought its resources to bear on this

incident" to bolster the victim's credibility. Commonwealth v.

Stuckich, 450 Mass. 449, 457 (2008). Rather, the detective's

testimony merely clarified the investigative process after the

defendant opened the door by implying that the police chose not

to arrest the defendant because the victim's story was not

credible. In any event, the judge later instructed the jury, as

he had at the beginning of the trial, that an indictment is a

7
means to formally charge a defendant with a crime and it is not

evidence that he committed a crime. 2

4. The prosecutor's closing argument. Finally, the

defendant claims that the prosecutor's closing argument

improperly suggested that the victim was credible because she

was willing to report the crime to the police and to testify at

trial. This, he claims, was an error that created a substantial

risk of a miscarriage of justice. We disagree.

"A prosecutor can address, in a closing argument, a

witness's demeanor, motive for testifying, and believability,

provided that such remarks are based on the evidence, or fair

inferences drawn from it, and are not based on the prosecutor's

personal beliefs. . . . When credibility is an issue before the

2 In the alternative, the defendant claims that defense
counsel provided ineffective assistance for raising the fact
that the police chose not to arrest the defendant, and thereby
opening the door for the Commonwealth to present evidence about
the investigative process. As an initial matter, it is far from
clear that counsel's performance was constitutionally deficient.
This is particularly so when the case is before us on direct
appeal with no record to explain defense counsel's strategic
decisions or findings on the matter from the trial judge. See
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006); Commonwealth
v. Keon K., 70 Mass. App. Ct. 568, 573–574 (2007). With that
said, we note that the standard for determining a substantial
risk of a miscarriage of justice is "essentially the same" as
the standard for determining prejudice on an ineffective
assistance of counsel claim. Commonwealth v. LaChance, 469
Mass. 854, 858 (2014), cert. denied, 577 U.S. 922 (2015).
Having determined that the investigative process evidence did
not create a substantial risk of a miscarriage of justice, the
ineffective assistance of counsel claim must fail.

8
jury, 'it is certainly proper for counsel to argue from the

evidence why a witness should be believed.'" Commonwealth v.

Freeman, 430 Mass. 111, 118–119 (1999), quoting Commonwealth v.

Raymond, 424 Mass. 382, 391 (1997).

The defendant's argument centers, in part, 3 on the following

argument the prosecutor made in her closing:

"Now, counsel wants you to believe that she had laid in bed
next to Bogard for hours twiddling her thumbs and
concocting a story about how she did not consent. That she
sat in her room waiting for hours with her roommate while
she planned this whole story. That she decided to go to
the police station, wait for years for this trial, and then
come before you and testify because she regretted having
sex with him. That does not make sense. It is
unbelievable."

This argument was made in response the defendant's closing

argument that the victim was not credible and that she

fabricated the rape because she was unhappy with her

relationship with the defendant. The prosecutor did not suggest

that she held personal knowledge outside of the evidence as to

why the victim should be believed. Nor did she suggest that the

victim was credible because she came to court and testified.

Instead, the argument was a refutation of the defendant's theory

3 The defendant also apparently takes issue with the
prosecutor's description of the victim as "shaken," or that her
testimony was "emotional," "raw," and "real," and that the
victim had to "look[] down" while testifying, or that she
"struggled" to identify the defendant. However, these were all
proper arguments, based on the victim's demeanor, why the jury
should find her credible. See Freeman, 430 Mass. at 118-119;
Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 495 (1999).

9
that the victim took her time after having consensual sex with

the defendant to concoct a story that she was raped. The

prosecutor was entitled to "comment on the trial tactics of the

defence," Commonwealth v. Grimshaw, 412 Mass. 505, 507 (1992),

and to respond to the defendant's closing argument. See

Commonwealth v. Smith, 404 Mass. 1, 7 (1989); Commonwealth v.

Chambers, 93 Mass. App. Ct. 806, 822 (2018). See also

Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008)

("there is no categorical prohibition against suggestion by a

prosecutor that a prosecution witness has no motive to lie").

We add that the judge gave unchallenged and specific instruction

relative to the nonevidentiary nature of closing arguments. See

Commonwealth v. Kozec, 399 Mass. 514, 518 (1987); Commonwealth

10
v. Lawton, 82 Mass. App. Ct. 528, 542 (2012). There was no

error, let alone a risk that justice miscarried.

Judgment affirmed.

By the Court (Meade, Sacks &
Hodgens, JJ. 4),

Clerk

Entered: January 29, 2025.

4 The panelists are listed in order of seniority.

11