45 Mass. App. Ct. 192 | Mass. App. Ct. | 1998
On his appeal from convictions by a jury on indictments charging him with forcible rape of a child and indecent assault and battery on a child under fourteen, the defendant argues that the trial judge erred in excluding evidence
1. The evidence. According to the testimony of Rebekah (the mother of the victims, Joyce and James
Sometime in May or June, 1992, the defendant and Conaghan moved out of the apartment. About six weeks later, the defendant returned.
According to Rebekah, although she was denied free access to her former apartment, she would return there to visit the children and to turn her checks and food stamps over to the defendant. Rebekah testified that, during those visits, she saw the defendant administer physically abusive punishment to both her children. She was also present when the defendant told Joyce that, if she wished to be his daughter, he would have to
Rebekah acknowledged that she too had been charged with sexually abusing Joyce and that she had agreed to cooperate with the Commonwealth. She had pled guilty to indictments charging her with rape and indecent assault and battery, and was awaiting sentencing. It was her understanding that the Commonwealth intended to recommend a period of incarceration of from five to seven years at M.C.I., Framingham.
Both Joyce and James testified. Joyce told the jury of the indecent touchings and rapes of her by the defendant which began soon after he had moved into the apartment and which sometimes occurred in her mother’s presence. She described how the defendant had told her that it was part of American-Indian tradition for a father to be the first to have sex with his daughter and how her mother explained to her that it was permissible for her to engage in sexual acts with the defendant.
Joyce described how she was afraid but nonetheless did as the defendant told her because she wanted to be his daughter. When she told the defendant during intercourse that he was hurting her, he simply told her not to scream. Joyce also described the spankings given to her and James by the defendant, sometimes with a belt on their bare flesh. She explained that she told no one about the defendant’s abuse of her because he had warned that should she do so he would have to go to jail. When, in March, 1993, the Department of Social Services (DSS) removed James and her from the apartment and the defendant’s custody, the last statement that the defendant made to her, as related by Joyce, was “don’t tell.” About four months later, Joyce told her foster mother about the defendant’s acts upon her.
James told of the defendant’s physical abuse of him, which included an incident in which the defendant held a lit cigarette lighter to his penis. Both children testified that they had seen a gun in the defendant’s briefcase.
Conaghan testified that she lived with the defendant from
Another woman, Susan Coury, testified that she met the defendant, in December, 1992, through a telephone dating service and that she frequently visited him at his apartment in Taunton until the relationship ended about three months later. She déscribed how, during those visits, the defendant was always punishing James. She saw the defendant slap James across the face on two occasions and make the children kneel on pencils. She described James and Joyce as always attempting to please him. Coury also told how one of the defendant’s friends, Melissa Hadley, would sometimes be at the apartment. Although the defendant would criticize and ridicule Hadley’s appearance in her absence, it appeared to Coury that he and Hadley were romantically involved. Coury never said anything to the defendant about his treatment of the children because she was afraid of him. He had told her that he had a friend, “Tony,” who belonged to a “vigilante-type group” that “took care of people who would hurt other people.”
The doctor who examined Joyce testified that she was brought to her office on April 16, 1993, by two DSS social workers who provided her with background information. The doctor testified that her examination of Joyce revealed that she had a healed tear on the lower edge of her hymen, which was consistent with penile penetration.
Called to testify by the defendant, Melissa Hadley stated that she met the defendant in 1991. From June, 1992, through March, 1993, she would be at the Taunton apartment with the defendant, Joyce, and James on a daily basis. She never saw the defendant harm either of the children. He would discipline them by mak
Testifying on his own behalf, the defendant described how, while living with and being supported by Conaghan, he met Rebekah through a telephone dating service. He denied ever telling Rebekah that Conaghan was his sister. He also stated that it was Rebekah’s idea that he and Conaghan move in with her so that they could share expenses. He and Conaghan moved out of Rebekah’s apartment in May because he did not approve of the way Rebekah was raising her children. She never disciplined them, and she allowed them to watch too much television. After he left, Rebekah continuously called and begged him to come back, saying that the children missed him. He returned, without Conaghan, about six weeks after he had left.
Soon after his return, Rebekah told him that she could no longer deal with the children and needed a break from them. When her mother became ill and needed her help, he agreed to take care of Joyce and James for a few days. When Rebekah’s absence became prolonged, he began asking her to come back, but she would say that she wasn’t ready. Because of Rebekah’s absence, he had to assume full responsibility for the children as well as all the household chores. A friend, Melissa Hadley, would sometimes help him with the children and assist with various errands.
In caring for the children, the defendant restricted the amount of time that they could watch television, and he disciplined them when they misbehaved. However, he never beat or kicked James, nor did he ever hold a cigarette lighter to his penis. Rather, the defendant explained, James accidentally sat on a soldering iron that burned through his thin pajamas. The defendant also stated that he and the landlord changed the locks
The defendant also denied ever telling Joyce that it was Indian custom for a father to introduce his daughter to sex. He explained that he had discussed with Joyce and his son
On cross-examination, the defendant stated that he never abused Joyce or James and that he never engaged in any sexual activity with Joyce. Although he knew Hadley loved him, he did not reciprocate those feelings and had told her so. He acknowledged that Hadley would loan him money on occasion, but he denied that he ever ridiculed her to anyone. The defendant also stated that he had known Debra Smith previously and became reacquainted with her through a telephone dating service. He also stated that it was he and not she who ended their brief marriage by an annulment. When asked whether he had a friend named Tony, the defendant stated that he knew several people with that name, but he never told anyone that he had a friend by that name who would take care of anyone causing him (the defendant) a problem.
2. The false allegation of rape. In the course of pretrial discovery, the defendant was furnished with a DSS document that was alleged to contain a one-line reference to a statement, made by Joyce to a DSS social worker, that her stepgrandfather had inserted a carrot into her vagina.
There the matter stood until the doctor, the last of the Commonwealth’s witnesses, became available. Joyce testified on voir dire that she never had an independent memory of her stepgrandfather molesting her with a carrot. Rather, she had told the DSS social worker that Rebekah and the defendant had told her that she (Joyce) would awaken in the middle of the night and “write things down on a piece of paper, what’s in my subconscious” and that one of the things they told her that she had written down was that her stepgrandfather had molested her with a carrot. She explained that she now believed it never happened because neither Rebekah nor the defendant ever showed her any of her supposed writings and she was certain that had such a thing been done to her she would remember.
Joyce acknowledged that she had told the pediatrician that she was not a virgin and that her stepgrandfather had molested her. She testified that she made this statement to the doctor because she knew she was about to be examined and, at that time, she still trusted the defendant and did not want to get him in trouble.
Based upon the testimony elicited during the voir dire, the trial judge concluded that, because there was nothing to show that the alleged act of the stepgrandfather could have caused Joyce’s condition, her statements concerning that act were inadmissible under G. L. c. 233, § 21B. On appeal, the defendant does not challenge that conclusion and, instead, argues that, because Joyce’s statements constituted false allegations of rape, they were admissible under the Bohannon exception to the general rule of exclusion of evidence of prior false allegations.
We do not agree. This case involves none of the “special circumstances” necessary for an application of the Bohannon exception. “ ‘[T]he exception to the general rule barring evidence of prior false accusations is a narrow one. Bohannon . . . involved “special circumstances,” Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979) . . . and is applicable only in “unusual fact situations where justice demands.” Commonwealth v. Trenholm, 14 Mass. App. Ct. 1038, 1039 (1982).’ Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 489 (1987).” Commonwealth v. McDonough, 400 Mass. 639, 650 (1987).
First, we do not regard Joyce’s statement as being a false accusation within the true sense of the Bohannon exception. “Essentially, this exception acts as a ‘crying wolf’ defense. The defendant is entitled to cross-examine an alleged victim about a pattern of false accusations or ‘crying wolf’ . . . .” Commonwealth v. LaVelle, 414 Mass. 146, 152 n.4 (1993). Joyce testified that, at the time she made the statement to the DSS social worker, she believed it because she believed her mother and the defendant. Further, the statement was not shown to be, in fact, false. Rather, all that was shown was that, because
According to Joyce’s testimony, Rebekah and the defendant told her that the molestation by the stepgrandfather occurred while he was taking care of her after the defendant left the apartment in May, 1992, for six weeks. Further, the “allegation of sexual misconduct against a single individual, . . . [the stepgrandfather], ‘fell short of suggesting [the] pattern of similar accusations’ in Bohannon.” Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 490 (1987).
Lastly, we do not think that the excluded statement would have had any significant impact on a central issue of the trial. The defendant’s theory of defense was that the acts set out in the indictments never happened. He argues that, because Joyce’s statement about the act of her stepgrandfather would have provided the jury with a plausible alternative explanation for the tear in her hymen, he was severely prejudiced by its exclusion. This argument, however, ignores the fact that, because of the trial judge’s ruling concerning the inadmissibility of the statement under § 21B (about which the defendant makes no argument), evidence of Joyce’s statement could not have been used substantively to explain that condition. Rather, evidence of a false allegation of rape is relevant only on the issue of a witness’s “ability, readiness, or proclivity to lie and fabricate.” Commonwealth v. Nichols, 37 Mass. App. Ct. 332, 336 (1994).
Joyce’s testimony concerning the specific crimes that were the subject of the trial was neither inconsistent nor confused. Her assertions that she had experienced intercourse were supported by the doctor’s testimony that the tear in Joyce’s hymen was consistent with penile penetration. Joyce’s account of the defendant’s sexual misconduct was corroborated by Rebekah, and her testimony concerning other facts about the defendant, some more significant than others but all denied by him, was substantiated by several other witnesses who were not shown to have any particular bias or motive to lie. Also, as earlier noted, Joyce’s statement to the DSS social worker was not that she
We see nothing in the circumstances of this case that leads us to conclude that justice demands application of the Bohannon exception and a reversal of the defendant’s convictions.
3. Sufficiency of the evidence. Claiming a lack of evidence of physical force or threats of bodily harm, the defendant argues that he was entitled to a required finding of not guilty on the charge of forcible rape.
4. The jury instructions. At the close of the evidence, the trial judge informed the Commonwealth and the defendant that he was not going to instruct the jury on the lesser included offense of statutory rape. The Commonwealth objected and argued that if the instruction were not given and the jury were to find that intercourse had occurred but without force, they could find the defendant not guilty. The trial judge stood firm in his refusal to give an instruction on the lesser offense, and defense counsel remained silent.
In his jury instructions on the indictment charging the
On appeal, the defendant argues that, because the issue of consent was raised by the evidence, the trial judge’s failure to instmct on the lesser included offense and his erroneous instruction, that a minor is incapable of consenting, created a substantial risk of a miscarriage of justice. See Commonwealth v. Woodward, 427 Mass. 659, 664 (1998).
Consent was never an issue raised at trial by the defendant. From the opening statement through the closing argument, the theory of defense was that none of the acts against Joyce or James ever occurred, and the defendant so testified. See Commonwealth v. Tatro, 42 Mass. App. Ct. at 921. Further, when defense counsel moved for a required finding of not guilty at the close of the Commonwealth’s evidence, he declined even to address the lesser included offense, see note 10, supra. Additionally, defense counsel remained silent in the face of the Commonwealth’s request for and argument in support of an instruction on the lesser included offense of statutory rape, compare Commonwealth v. Woodward, 427 Mass. at 662 (defendant objected to Commonwealth’s request for jury instruction), and he neither objected to nor sought correction of the erroneous instruction given on the consent element of forcible rape. See Commonwealth v. Roberts, 407 Mass. 731, 737-739 (1990) (no substantial risk of miscarriage of justice in refusal to instruct on lesser included offense where such an instruction was not requested and would have been inconsistent with trial strategy seeking complete acquittal). See also Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 790-792 (1994).
Judgments affirmed.
The defendant’s conviction on an indictment charging him with assault and battery was placed on file with his consent, and he makes no argument on appeal concerning his conviction on an indictment charging him with assault and battery by means of a dangerous weapon, a cigarette lighter.
The victims’ names are fictitious. Joyce, the subject of the rape and indecent assault and battery indictments, was born on June 23, 1980, and James, the victim of the assault and battery by means of a dangerous weapon, was bom on December 27, 1982.
The defendant’s twelve year old son also came to live in the apartment in the summer of 1992.
The foster mother gave “fresh complaint” testimony.
See note 3, supra.
Neither the prosecutor nor defense counsel could find the DSS report which, consequently, was never produced for the trial judge.
As amended by St. 1983, c. 367, the statute provides in relevant part: “Evidence of specific instances of a victim’s sexual conduct. . . shall not be admissible except. . . evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim; provided, however, that such evidence shall be admissible only after an in camera hearing on a written motion for admission of same and an offer of proof.”
Nor is the allegation brought within the scope of Bohannon by the fact that Joyce, soon after speaking with the DSS social worker, may have repeated her statement to the doctor who, on voir dire, did not corroborate the repetition and testified that all her information about Joyce, other than her lack of virginity, had been provided by DSS.
The defendant argues for the first time on appeal that Joyce’s statement to the doctor, that anything revealed by the examination was because of her stepgrandfather, was inconsistent with her testimony at trial. The same circumstances that lead us to conclude that the statements were not admissible under the Bohannon exception also lead us to conclude that any error in refusing to allow Joyce’s statement to the doctor to be used as evidence of a prior inconsistent statement does not rise to the level of a substantial risk of a miscarriage of justice.
When the trial judge asked defense counsel whether he also had a motion on the lesser included offense, he responded, “I may. I don’t want to be heard now.”
Another error, unnoticed by defense counsel or the Commonwealth below or on appeal, is in the first quoted sentence. Obviously, it was the consent of the victim, not the defendant, that was at issue, and we have no doubt that the jury could not have been misled.