Commonwealth v. HowardCommonwealth v. Howard
- Reporters:
- , ,
- Before:
- Greenberg
In a two-count indictment the defendant was accused of forcible rape of a child (
The jury could have found the following facts. The victim was living with her mother in the town of Athol at the time of the incident. After having been asleep for some time, she was rudely awakened by the defendant, in whose care the victim’s mother had left her. He was standing near her bed with his jeans “a little above his knees.” He wore no underwear and she could see his penis “sticking straight up.” While she was still in bed, the defendant leaned over and covered her mouth to prevent her from crying out. He placed his penis inside her vagina “a little” while his body moved “sort of back and forth.” She indicated that she felt some pain when he penetrated her.
Just after this occurred, the victim told the defendant that she had to go to the bathroom. Instead, she wеnt downstairs to seek help from her mother’s friend who was asleep on the couch in the living room. At that point, the defendant fled from the house. Next, the victim’s mother returned home with a friend. The victim told her mother the entire story. After the police were summoned, her mother took her to the local hospital.
In addition to the victim’s testimony about the event, and the fresh complaint testimony of several witnesses, a physician testified that at the time he examined her at the hospital, there was “some redness” outside the victim’s vagina extending “a centimeter or more inside.” He opined that the discolor? tion had been caused by some sort of friction and was possibly “consistent with ... an attempt [to] insertf ] a . . . penis [in the] vaginal area.” He added that it could well
1. The improper admission of incompetent evidence. At trial, the prosecutor called Athol police detective, Robert F. Bou-chаrd, as a witness. He testified that he spoke with the victim at the police station the day after the incident. During the course of the interview, he received a telephone call from “[a] person identifying himself as Billy Howard.” The caller inquired about thé case. Although Bouchard had previous contact with the defendаnt, he did riot recognize the caller’s voice on the telephone. The officer told the caller that he was conducting “a sexual assault investigation, and that the [caller] should turn himself’ into the police. According to Bou-chard, the caller responded “that he was going to turn himself in later in the day.” The caller did not come to the police station. The defendant objected to Bouchard’s testifying as to what the caller said after Bouchard stated that he did not recognize the caller’s voice.1
Bouchard’s testimony about the caller’s response, i.e., that he would come to the police station, can be read as evidence of consciousness of guilt. It amounted to an admission that he did, indeed, sexually abuse the complainant. The admission in evidence of the contents of the telephone call was error.
A caller’s mere self-identification, without more, is insufficient authentication to admit thе substance of a telephone conversation. That principle was adopted in Commonwealth v. Harris, 232 Mass. 588, 591 (1919), where the Supreme Judicial Court quoted Professor Wigmore: “No one has ever contended that, if the person first calling up is the very one to be identified, his mere purporting to be A is sufficient, any more than the mere purporting signature of A to a letter would be sufficient.” Ibid., quoting from 7 Wigmore, Evidence § 2155, at 760 (Chadboum rev. 1978). Later, in Commonwealth v. Hartford, 346 Mass. 482, 488 (1963), the court set forth the basic rule that “the mere fact that the speaker said he was the defendant [is] not enough to render the conversation admissible.” It follows that, standing alone,
Here, because Bouchard testified that he did not recognize the voice on the telephone as that of the defendant, authentication must derive from other confirming circumstances. Commonwealth v. Hartford, supra. See Rich v. Weeks, 279 Mass. 452, 455-456 (1932) (substance of telephone conversation admitted based on circumstantial identification of defendant); Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) (defendant was only male resident at telephone number dialed by witness, and statements made by speaker tended to confirm identity as defendant).
The Commonwealth argues that the following circumstances suppоrt the identification of the defendant as the caller. First, only ten hours elapsed between the incident and the telephone call, making it unlikely that anyone would have learned of the incident and formulated a plan to trap the defendant. Second, after agreeing to look after the complаinant until her mother returned, the defendant fled the premises before the mother returned, thereby demonstrating consciousness of guilt. Third, there is no indication that anyone other than the defendant had any reason to place such a call to the police station.
These factors are not enough to support admission of this testimony; they are simply circumstances that the jury might consider to draw an inference that the defendant was the perpetrator. Here, the caller did not reveal any special knowledge about the events under investigation that the defendant alone would have possessed. The сaller merely identified himself as Billy Howard, asked what was going on at the police station, and’ claimed that he would go there later in the day. There was error in the admission of Bouchard’s testimony regarding this conversation.
We conclude, however, that the error was not prejudicial. Cf. Commonwealth v. LaPlante, 416 Mass. 433, 441 (1993) (in light of other evidence, lаck of foundation for admission of a business record was not prejudicial). The victim was a highly competent witness displaying a familiarity with details of sexual conduct not likely known to an eight year old child; the defendant exhibited a consciousness of guilt when he fled the premises prior to the return of the victim’s mother; and a
2. The prosecutor’s closing argument. We briefly review the remarks of the prosecutor in her closing argument to the jury, to which the defendant made no objection, to determine whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Daigle, 379 Mass. 548, 549 (1980). We perceive no such risk. The prosecutor misstated certain еvidence during part of her closing argument by telling the jury that the victim consistently related to three fresh complaint witnesses that the defendant had penetrated her. In fact, the victim specifically mentioned penetration only to the physician who examined her at the hospital. This remark and others of which thе defendant now complains were not, as we have noted, subjects of objections, and defense counsel did not ask that a curative instruction be given. The judge, in fact, did give a curative instruction insofar as he told the jury that arguments of counsel were not evidence.
3. Whether the judge relied on improper factors in sentencing the defendant. The defendant received a sentence that exceeded the sentencing guidelines established by the Superior Court. Twelve days later, the judge issued a formal “Sentencing Memorandum” that set forth his reasons. Among others, he recited that:
“In my judgment, the nature of this rape . . ., by this defendant who [has] not shown his willingness to correct his behavior when given a chance on probation [for a previous offense], for purpose of punishment and deterrence in the Athol area called for a sentence above the guidelines. The Athol area seems to have more than its share of child abuse cases and a large number of young shiftless men who have little or no regard for the personal or property rights of others.”
The first ground of appeal on this point is that the judge undertook to punish the defendant for conduct of others and
A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence. See Commonwealth v. Celeste, 358 Mass. 307, 309-310 (1970). It remains to determine, however, whether it is permissible to target a message to residents of a particular town for the object of deterrence. It is clear that this was the judge’s object. The transcript of the sentencing hearing bears evidence that the judge was affected by his рerception of child abuse in the Athol area. His remarks had a prosecutorial bent, as if harsh punishment of the defendant would discourage sexual abuse from the community.
Of the authorities we have examined from other States, there being nothing on the point here, none has afforded
4. Access to rape counselling records. Prior to trial, the defendant moved under Commonwealth v. Bishop, 416 Mass. 169, 181-182 (1983), for access to records of the victim concerning counselling she received after the rape. The request, issued by defense counsel, specifically asked for review of the recоrds by the trial judge, in camera. These records were in the possession of a mental health clinic which is part of the Human Resources Center for communities located in the north central area of Massachusetts. The clinic claimed that the records contained confidential communications, as defined in
After the appeal was entered, appellate counsel renewed the motion for access to the withheld counselling records. A single justice of this court denied appellate counsel’s unusual request, precipitating a separate appeаl of that ruling which has been consolidated with the appeal from the conviction. A second look by the single justice at the privileged records which the trial judge ruled were not relevant is not a remedy ordinarily available to an aggrieved party. Based on the principles discussed in Commonwealth v. O’Brien, 27 Mass. App. Ct. 184, 190 (1989), denial of the motion wаs not an abuse of the single justice’s discretion.
The defendant’s conviction is affirmed. The sentence imposed is vacated, and the case is remanded to the Superior Court for resentencing before another judge.
So ordered.
Notes
The objection was sufficient to inform the judge that the defendant’s concern was that no foundation existed for Bouchard’s testifying as to what the caller said during the telephone conversation. Thus, appellate review of the issue was preserved. Cf. Commonwealth v. Barnes, 40 Mass. App. Ct. 666, 673 n.3 (1996).
Recently in United States v. Watts, 117 S. Ct. 633 (1997), the United States Supreme Court held that when imposing sentences on convicted defendants, Federal judges may consider not only the crimes for which the defendant was convicted, but also the conduct underlying any charges for which the defendant was acquitted, as long as that conduct was proven by a preponderance of the evidence. This would not change our analysis in the case at bar. Watts is grounded in both
Beno v. State, 581 N.E.2d 922, 924 (Ind. 1991) (where judge aggravated sentence to make example of defendant to other drug dealers, court stated, “We do not believe . . . that a trial judge should be allowed to use the sentencing process as a method of sending а personal philosophical or political message. A trial judge’s desire to send a message is not a proper reason to aggravate a sentence”). Ragland v. State, 670 N.E.2d 51 (Ind. Ct. App. 1996) (same). See State v. Richardson, 256 Kan. 69, 79 (1994) (where trial judge imposed harsh sentence declaring, “I’ve determined that my sentence is a sentence for you personally and a mеssage to send out to the citizens of our state and county . . .,” court stated that “message to community” was improper, though sentence affirmed on other grounds).
“ [Information transmitted in confidence by and between a victim of sexual assault and a sexual assault counsellor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom the disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the sexual assault counsellor which arises out of and in the course of such counseling and assisting, including, but not limited to reports, records, working papers or memoranda.”