COMMONWEALTH vs. PEDRO COSTA.

GRAHAM, J. The defendant, Pedro Costa, was convicted by a Superior Court jury of statutory rape of a child (G. L. c. 265, § 23). On appeal, he argues that the motion judge erred in denying his motion to suppress evidence and that the trial judge erred in denying his motion for mistrial and by denying him the right to cross-examine the victim regarding an alleged prior false allegation of sexual assault. In addition, he contends that a portion of the prosecutor's argument was improper and prejudicial. We affirm.

Facts. The jury permissibly could have found the following facts. [Note 1] The defendant and the fifteen year old victim met in November, 2001, through a telephone chat line intended for use by teenagers. At the time, the defendant, who was twenty-six years old, arranged to pick up the victim at her home in New Bedford on November 23, 2001, at 8 A.M. After the defendant arrived at the victim's home that morning, the victim told her grandmother that she was leaving the house but would return shortly. Instead, the defendant drove her to Division Street in Fall River, where he parked the car on the street and began kissing her.

Shortly thereafter, Fall River police Officer Robert Costa, Sr., who was on routine patrol in the Division Street area of Fall River, received a communication from the police station directing him to 222 Division Street to investigate an automobile parked on the street in front of that address. When he arrived at the address, Officer Costa observed the defendant in the driver's seat and the victim in the passenger seat. During a twenty minute field investigation, Officer Costa learned the names, dates of birth, and addresses of the defendant and victim, and determined that neither had any outstanding warrants or was the subject of a missing-person report. [Note 2] The defendant claimed that he had been dropped off at that location by a friend and was

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waiting for the friend to return. Officer Costa, suspicious of the defendant's story, transported both the defendant and the victim to the Fall River police station.

At the station, the police attempted to contact members of the victim's family, but were unsuccessful. The police would not allow the defendant to drive his vehicle, [Note 3] so the defendant called his parents for a ride home. When the defendant's family arrived at the police station, the victim was allowed to leave the station with the defendant and his parents. She accompanied them to the parents' home in New Bedford. The victim remained at the parents' home for the following five days, spending the nights with the defendant in his bedroom. [Note 4]

On November 26, 2001, the victim's family reported her as a runaway to the New Bedford police department. Detective James Jose, who was assigned to the case, quickly learned that the victim had been involved recently with the Fall River police department. Through the Fall River police, Jose obtained the defendant's address and went to the defendant's home the following day. His knock on the door of the defendant's home was answered by the defendant's mother. Jose asked her if the defendant was home. In response, the defendant's mother pointed down the hall. [Note 5] When Jose asked the defendant's mother if the victim was also present in the home, she nodded and pointed again down the hall. At that point, Jose asked her if he could "go and see [the defendant]." In response, the defendant's mother walked further into the house and "pointed into a bedroom."

Jose entered the home and went to the bedroom, where he observed that blankets were covering the bedroom windows and the victim was sitting on the defendant's bed, with the defendant

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standing near her. Upon seeing Jose, the defendant became belligerent, asking Jose, "[W]hat the fuck are you doing in my house?" When Jose asked the defendant what he was doing with a fifteen year old girl, the defendant responded "because I fucking like her" or "because I feel like it." Jose then removed the victim from the home in handcuffs and took her to the New Bedford police station. He did not place the defendant under arrest at that time.

At the police station, the victim told Jose that the defendant had digitally penetrated her and wanted to have intercourse with her but she refused. Jose had the victim complete a written statement, then took photographs of "hickeys" on several parts of her body. After the interview, Jose contacted the victim's parents, and the victim's father picked her up from the police station.

The following week, the victim disclosed the rape to a teacher, who brought the victim to a local hospital where a rape kit was performed. A copy of the rape kit report was forwarded to Jose, [Note 6] who brought the victim back to the police station for a second interview on December 5, 2001. At the second interview, the victim informed Jose that she had left certain details out of her first interview, including that the defendant had penetrated her with a lollipop and a banana.

Discussion. a. Motion to declare mistrial. During the presentation of the Commonwealth's case, Jose gave certain testimony which prompted the defense counsel to object and request a mistrial. During his testimony, Jose informed the jury that the victim had reported that the defendant had digitally penetrated her while she was in his automobile in Fall River. In addition, Jose testified that the victim had informed him that during one of her walks with the defendant, the defendant had purchased illegal drugs. The judge sustained each objection and ordered the statements struck from the record. The defendant contends that the statements were highly prejudicial and that the judge abused his discretion in denying his motion for a mistrial.

"The declaring of a mistrial is ordinarily within the discretion of the trial judge, who is in the best position to determine

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whether or not anything has happened likely to affect the justice of the verdict." Curley v. Boston Herald-Traveler Corp., 314 Mass. 31 , 31-32 (1943). See Commonwealth v. Early, 349 Mass. 636 , 637 (1965). "Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may 'correctly rel[y] on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant.' " Commonwealth v. Kilburn, 426 Mass. 31 , 37- 38 (1997), quoting from Commonwealth v. Amirault, 404 Mass. 221 , 232 (1989). "Generally, as long as the judge's instructions are prompt and the jury do not hear the inadmissible evidence again, a mistrial is unnecessary." Id. at 38.

Here, the judge sustained the defendant's objections to Jose's improper testimony and ordered it struck from the record. Moreover, the judge gave a prompt curative instruction that was adequate to cure any possible prejudice stemming from both the narcotics testimony and the challenged testimony regarding digital penetration. [Note 7] See Commonwealth v. Chubbuck, 384 Mass. 746 , 753 (1981) ("By striking the testimony and promptly instructing the jury to disregard it, the judge did all that was necessary to cure any possible error from the admission of the statement"). There was no error.

b. Motion to suppress. The defendant alleges that the judge erred in denying his motion to suppress the statements he made when Jose entered his bedroom and the observations Jose made while in the bedroom. He argues that the evidence was obtained as a result of an illegal entry and search of his home by Jose. "Warrantless entries into the home are prohibited by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights absent either probable cause and exigent circumstances, or consent." Commonwealth v. Rogers, 444 Mass. 234 , 236 (2005). In this case, the Commonwealth

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relies on the consent of the defendant's mother to justify Jose's entry into the defendant's home.

"When the police rely on consent to justify a warrantless entry, under both the Fourth Amendment and art. 14, the prosecution 'has the burden of proving that the consent was, in fact, freely and voluntarily given.' " Id. at 237, quoting from Bumper v. North Carolina, 391 U.S. 543, 548 (1968). As entry based on consent is an exception to the constitutional warrant requirement, the Commonwealth must demonstrate "consent unfettered by coercion, express or implied, and also something more than mere 'acquiescence to a claim of lawful authority.' " Commonwealth v. Voisine, 414 Mass. 772 , 783 (1993), quoting from Commonwealth v. Walker, 370 Mass. 548 , 555, cert. denied, 429 U.S. 943 (1976). Specifically, the Supreme Judicial Court in Commonwealth v. Rogers, supra at 238-239 (citations omitted), ruled that:

"The voluntariness of an individual's consent to a warrantless entry is an issue of fact, and must be examined in light of the totality of the circumstances of the case. Ordinarily, in cases involving consent to enter a defendant's home, entry is preceded by an exchange in which a police officer makes some type of inquiry of an occupant, and in response, the occupant verbally or physically reacts in a manner that is interpreted as 'consent.' Whether consent is voluntary depends on the nature of this interaction between the police and the occupant. In meeting its burden of establishing voluntary consent to enter, the Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant's words or actions. If either the officer's request or the occupant's response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to entry, our inquiry will be over and the entry must be deemed unlawful."

Further, "we accept the judge's subsidiary findings of fact unless not warranted by the evidence," and while open to review, we afford the judge's "ultimate findings . . . 'substantial deference.' " Commonwealth v. Raymond, 424 Mass. 382 , 395 (1997), quoting from Commonwealth v. Tavares, 385 Mass. 140 , 145, cert. denied, 457 U.S. 1137 (1982).

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Here, the motion judge concluded that the defendant's mother voluntarily allowed Jose to enter the home. Essentially, the motion judge found that the defendant's mother invited Jose into the home in a setting that was noncoercive, without influence by orders or threats. There are no findings that the defendant's mother appeared confused or unable to understand the officer's request. The evidence presented amply supports these findings. Jose testified that, after ascertaining that the defendant was at home and with the victim, he asked the defendant's mother if he could "go and see [the defendant]." The defendant's mother, who understands English, [Note 8] gave Jose permission to enter the house and directed him to the bedroom occupied by the defendant and the victim. We therefore conclude that there was no error in the judge's determination that Jose entered the defendant's home with the consent of the defendant's mother. Accordingly, the judge did not err in denying the defendant's motion to suppress.

c. Exclusion of evidence of another accusation claimed to be false. The defendant claims that the trial judge erred in precluding his counsel from presenting evidence that the victim made a false prior accusation of sexual assault. He argued before the judge, and now here, that he was entitled to use the victim's prior accusation to impeach her credibility. He also suggests, for the first time on appeal, that evidence of the prior accusation was relevant to show the victim's state of mind, bias, or a common scheme, and that its exclusion, in relation to those purposes, resulted in a substantial risk of a miscarriage of justice.

i. The prior allegation. In the spring of 2001, the victim reported to one of her teachers that a school bus driver had touched her breasts and buttocks as she entered the bus. A school official contacted the New Bedford police department, which set up an interview with the victim in coordination with the Department of Social Services. According to the initial report completed by a detective assigned to the case, the victim made several inconsistent statements related to the time of the incident and the conduct of the bus driver. Specifically, the victim stated during the interview that the bus driver did not touch a private part of her body, but rather "snapped" her thong

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underwear five times, which was contrary to what she initially reported to her teacher. [Note 9] The detective also learned that the victim told her mother that the driver had "touched her all over," but then told her father that the driver touched her breasts and tried to put his hand up her skirt. Citing the "inconsistencies" in the victim's allegations, the investigating officer chose not to file any charges. Instead, she placed the case on file with the possibility of reopening it at a later time.

ii. Bohannon analysis. "The well-established rule in Massachusetts is that '[s]pecific acts of prior misconduct of the witness . . . not material to the case in which he testifies cannot be shown by the testimony of impeaching witnesses or other extrinsic evidence to affect [the witness's] credibility.' " Commonwealth v. LaVelle, 414 Mass. 146 , 151 (1993), quoting from Liacos, Massachusetts Evidence 149 (5th ed. 1981). However, in Commonwealth v. Bohannon, 376 Mass. 90 , 94 (1978), the court carved a narrow exception to the general rule to be applied in unusual fact situations where "the interest of justice forbids strict application of the rule." Commonwealth v. LaVelle, supra. The court emphasized the narrowness of the exception to the general rule in Commonwealth v. LaVelle, supra. It stated:

"We have applied this exception in only one case, Commonwealth v. Bohannon, where we allowed evidence of prior false accusations of rape to impeach a witness's credibility. Specifically, the special circumstances included: 'the witness was the victim in the case on trial, her consent was the central issue, she was the only Commonwealth witness on that issue, her testimony was inconsistent and confused, and there was a basis in independent third-party

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records for concluding that the prior accusations of the same type of crime had been made and were false.' "

"[T]o open the gate to cross-examination, the evidence of falsity of an accusation must be solid, as when the accusing witness has recanted the other allegation." Commonwealth v. Wise, 39 Mass. App. Ct. 922 , 923 (1995). See Commonwealth v. Hicks, 23 Mass. App. Ct. 487 , 490-492 (1987). The victim's mere failure to prosecute or confirm prior allegations of sexual assault, or the Commonwealth's decision not to move forward with criminal charges, are insufficient bases for inferring that the allegations in question are false. Commonwealth v. Hrycenko, 417 Mass. 309 , 319 (1994) ("Evidence that the victim failed to pursue a claim is not evidence that the claim was falsely made"); Commonwealth v. Talbot, 444 Mass. 586 , 591 (2005) ("mere fact that the witness had said she was joking does not establish that her statement was false"); Commonwealth v. Hicks, supra at 490-491 (falsity of allegations not proven by victim simply dropping charges against alleged assailant); Commonwealth v. Rathburn, 26 Mass. App. Ct. 699 , 709-710 (1988) (victim's failure to confirm previous allegations of abuse does not constitute "concrete evidence" that allegations were false); Commonwealth v. Wise, supra (authorities' decision not to initiate prosecution based on prior allegations insufficient basis to establish that they were false). Contrast Commonwealth v. Nichols, 37 Mass. App. Ct. 332 , 333-335 (1994) (complaining party's admission that allegations were false sufficient to establish their falsity for Bohannon purposes).

We find no abuse of discretion in the present case. As in Bohannon, there was only one eyewitness, the victim. Here, however, the evidence failed to establish that the victim's prior accusation against the bus driver was false. The detective assigned to investigate the victim's allegation against the bus driver concluded merely that the victim's statements were "inconsistent." This conclusion, and the detective's decision not to file charges, does not establish that the accusation was false. See Commonwealth v. Talbot, supra; Commonwealth v. Wise, supra. Moreover, unlike Bohannon, consent of the victim was not a central issue in the present case, the victim's testimony was not

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inconsistent and confused, nor was there a pattern of false allegations of the specific crime which was the subject of the trial. Given this factual predicate, we hold that the trial judge did not abuse his discretion in refusing to permit the defendant to cross-examine the victim about the allegedly false accusation made by her against a school bus driver.

The defendant also argues, for the first time on appeal, that evidence of the victim's prior accusation was admissible to prove her state of mind, bias, or a common scheme. Again, it has not been shown that the victim's prior accusation was false. See Commonwealth v. Hicks, 23 Mass. App. Ct. at 492 ("Not only did the defendant not raise this issue at trial, but, here again, the questions were pertinent only if there was threshold evidence warranting a conclusion that the allegations were false"). Moreover, the defendant has failed to point to any evidence demonstrating that the victim was biased against him or that she was engaging in a common scheme. Nor has he made any cogent argument relating to the victim's state of mind and how that state of mind is relevant to any issue at trial. Rather, he has simply repackaged his Bohannon argument under another name. In sum, we find no merit to this argument.

d. Prosecutor's closing argument. Finally, the defendant alleges that a portion of the prosecutor's closing argument was improper since she called upon the jury to speculate on the evidence with the following comment: "Now, if they are making out in a public place in Fall River, what do you think is going on in a private place in his bedroom?" We will assume, without deciding, that the statement was improper because it had the effect of encouraging the jury to speculate that the defendant committed the criminal acts charged while the victim was in his bedroom. We evaluate a prosecutor's improper remarks to the jury to determine whether those statements constituted prejudicial error. Commonwealth v. Santiago, 425 Mass. 491 , 500 (1997).

In making this determination, we consider "[t]he cumulative effect of all the errors in the context of the entire argument and the case as a whole." Ibid. In addition, the following factors are considered: "whether the defense counsel seasonably objected to the arguments at trial; whether the judge's instructions mitigated the error; whether the errors in the arguments went to

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the heart of the issues at trial or concerned collateral matters; whether the jury would be able to sort out the excessive claims made by the prosecutor; and whether the Commonwealth's case was so overwhelming that the errors did not prejudice the defendant." Ibid. (citations omitted).

After a careful review of the prosecutor's entire closing argument, we conclude that any impropriety in the challenged statement was not prejudicial. The prosecutor's remark was brief, not repeated, and neutralized by the judge's instructions that the jury were not to "speculate or engage in surmise."

Judgment affirmed.