COMMONWEALTH vs. LINDA MAYOTTE.
Worcester.
Supreme Judicial Court of Massachusetts
August 19, 2016
475 Mass. 254 (2016)
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
Worcester. January 7, 2016. - August 19, 2016.
At a rape trial, the judge erred in denying the defendant‘s motion to present “first complaint” testimony in support of her defense that she was the victim of a sexual assault by the juvenile complainant rather than the perpetrator, where the defendant is no less entitled than the Commonwealth to the benefit of a principle intended to mitigate the inherent obstacles to establishing the credibility of a sexual assault allegation [258-261]; however, the error did not influence the jury or had but very slight effect, given that the defendant‘s proffer did not specify any details of the proposed testimony, and the Commonwealth‘s questions to various witnesses did not open the door to the admission of the first complaint testimony [261-263].
At a rape trial, the judge properly excluded testimony from the victim‘s grandfather regarding a statement made by the victim, where the statement did not relate to either the victim‘s or the defendant‘s state of mind; however, although the judge should have allowed defense counsel to impeach the victim with his statement to the grandfather, the defendant did not suffer prejudice from the limitation on impeachment, where the judge did not preclude all inquiry on the issue. [263-264]
This court reversed a conviction of reckless endangerment of a child, where the Commonwealth presented no evidence at trial regarding serious bodily injury to the victim, and where the judge in his instructions to the jury improperly expanded the indictment to encompass the alternative theory of sexual abuse of a child. [264-265]
Although, in a criminal trial, the prosecutor made numerous improper statements at sentencing, this court was not persuaded that the judge considered the prosecutor‘s comments or deviated from his duty. [265]
INDICTMENTS found and returned in the Superior Court Department on March 18, 2010.
The cases were tried before Richard T. Tucker, J.
1Eric S. Brandt, Committee for Public Counsel Services, for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.
HINES, J. A jury convicted the defendant, Linda Mayotte, of rape of a child,
For the reasons explained below, we conclude that the first complaint rule is a neutral rule of evidence that permits such testimony whenever the credibility of a sexual assault allegation is at issue. Although the judge erred in ruling that the defendant‘s first complaint evidence was inadmissible as a matter of law, no prejudice resulted from the exclusion of the evidence. We also reject the defendant‘s claim of error in the exclusion of D.M.‘s statement, proffered as evidence of his state of mind, as it was not probative of or admissible as evidence of the defendant‘s state of mind. We vacate the conviction of reckless endangerment, however, because we agree that the conduct proved at trial — that the defendant recklessly exposed V.M. to the risk of sexual abuse by Joseph Mayotte — was insufficient to establish the element of “serious bodily injury” required under the indictment. Notwithstanding any impropriety in the prosecutor‘s sentencing remarks, we discern no basis to conclude that the judge was influenced by those remarks in sentencing the defendant, and therefore, resentencing is not necessary.
Background. Based on evidence presented at trial, the jury could have found the following facts. The defendant and her husband, Joseph, married in 1987. After attempting to have biological children, the Mayottes decided to adopt in 2003. Approximately one year later, they adopted D.M. and V.M., siblings living in an orphanage in Kazakhstan. D.M. and V.M. moved into the Mayotte home in August, 2004. D.M. was twelve years of age, and V.M. was eight years of age.
After the Mayottes told the children that Joseph‘s parents had died in the house, and that ghosts remained in the house, V.M. became scared of sleeping in her own room. V.M. started to sleep with Joseph; the defendant no longer slept in the bedroom. On a regular basis, Joseph touched V.M.‘s private areas, penetrated her vagina and anus, and made her touch his penis. Joseph also showed V.M. pornographic videotapes.
D.M., who struggled to learn English and felt alienated at school, had chronic stomach pains.4 The defendant would massage his stomach to help him sleep. Starting in January, 2005, the defendant began initiating sexual contact with D.M., including sexual intercourse. According to D.M., sexual contact occurred more than one hundred times between January, 2005, and the spring of 2007. During this time, D.M. made no complaint of sexual abuse to the social worker who conducted home visits on behalf of the adoption agency or the counsellor he saw for twelve sessions. D.M. did not disclose the alleged abuse to his best friend or even his sister, V.M. The sexual contact ceased when the de
On June 15, 2007, V.M. told two neighbor siblings that her father, Joseph, had been touching her “private areas.” The neighbors’ mother called the Department of Children and Families (DCF), and that night, a police officer and a social worker arrived at the Mayotte house to investigate. Each child was asked separately if he or she had been or was being inappropriately touched by a parent. Both children denied any such conduct. The denials continued throughout DCF‘s follow-up visits to the house during 2007. During one such visit, D.M. told an investigator that he “thought the whole thing was BS.”
In April, 2009, V.M. told D.M.‘s girl friend about her father‘s abuse. The girl friend‘s mother spoke to the defendant and notified DCF. The defendant and the defendant‘s friend, Edward Kassor, questioned V.M. in front of the girl friend and the girl friend‘s mother. DCF initiated a second investigation of the family, and during a May, 2009, house visit, D.M. again told DCF representatives that he was not being abused.
After two years of denying sexual abuse, D.M. made his first complaint on June 4, 2009. He made the disclosure after the defendant sent him a text message threatening to report him to the police because he had stolen items of her jewelry. D.M. was visibly upset after receiving the message and fought with his girl friend. When pressed, D.M. told his girlfriend about the defendant‘s sexual acts. The girl friend insisted that D.M. inform the authorities. That same evening, DCF removed D.M. and V.M. from the Mayotte home.
The defendant testified that she did not rape D.M. and that D.M. used physical force and threats to force her participation in sexual acts with him. According to her testimony, D.M. became sexually “aggressive” in the spring of 2005. On separate occasions, D.M. threw her down on the bed and pinned her arms to her body; grabbed her arm and forced her to the bed; and threw her against a bureau after she bit him while attempting to get away. The defendant testified that she was “trying to still say no” but that “things would escalate very quickly.” She claimed that D.M. put his hands on her throat, placed a knife to her throat, and punched her. As for the alleged threats, the defendant testified that D.M.‘s “favorite” threat was that he would “go to the police and
Discussion. 1. First complaint doctrine. The defendant filed a pretrial motion to present “first complaint” testimony from Kassor, in support of her theory of defense that D.M., “wise beyond his years,” raped the defendant and controlled her behavior by threatening to make a false allegation of rape. After a hearing, the trial judge denied the motion, reasoning that “[t]he first complaint protocol and doctrine [were] not to curb any abuses of defendants being prejudiced by not explaining themselves. They don‘t have to explain themselves. The law doesn‘t require it, and every judge instructs a jury that they do not have to explain themselves. So there‘s no prejudice if she never made a statement.”
On appeal, the defendant urges us to permit the application of the first complaint doctrine to a sexual assault defendant whose defense at trial is that she was the victim of a sexual assault by the complainant rather than the perpetrator. She argues that the first complaint doctrine applies for the benefit of any party who makes an allegation of sexual assault that is contested by the alleged perpetrator. In the alternative, she argues that the proffered evidence is independently admissible as the Commonwealth “opened the door” by eliciting testimony from multiple witnesses that the defendant “never” complained to anyone about her charge that she was raped by the complainant. The Commonwealth counters that (1) the doctrine of first complaint applies only to statements made by a complaining witness in a sexual assault prosecution, and (2) the defendant‘s statement was inadmissible hearsay.
We agree with the defendant that the first complaint rule is a neutral rule of evidence, applicable whenever the credibility of a sexual assault allegation is at issue. In the circumstances of this case, however, the judge‘s error in excluding the defendant‘s first complaint as a matter of law did not result in prejudice to the defendant. Because the defendant‘s first complaint proffer would have been insufficient in any event to rebut the Commonwealth‘s assertion that she “never” complained of rape by the complainant,
a. Origin of first complaint doctrine. In resolving the issue before us, we are guided by what we have understood to be the rationale underlying the first complaint doctrine. Previously termed the “fresh complaint” rule, the first complaint doctrine is based on an English common-law assumption that a rape victim who did not immediately speak out about the sexual assault “was in effect [asserting] that nothing violent had been done.” Commonwealth v. King, 445 Mass. 217, 228-229 (2005), cert. denied, 546 U.S. 1216 (2006), quoting Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U. L. Rev. 945, 978 & n.198 (2004). “American courts, in turn, endorsed the belief that the failure of a rape victim to make a prompt complaint of a sexual assault was akin to an inconsistent statement at odds with the complainant‘s court room testimony about the rape.” King, supra at 229. The fresh complaint doctrine addressed three concerns regarding potential juror bias in a rape prosecution: that jurors may still believe that a true rape victim immediately discloses the assault; that jurors may draw adverse inferences from the absence of evidence suggesting a prompt complaint; and that jurors remain skeptical of rape allegations. Id. at 230. As a result, prosecutors are permitted to rebut any inference of fabrication with witness testimony that the complainant did in fact tell someone, and that the complaint was prompt or “fresh.” Id. at 229.
In King, 445 Mass. at 237-238, this court replaced the “fresh complaint” rule with the “first complaint” doctrine, in recognition of empirical studies showing that immediate disclosure of sexual assault is not universal. We determined that “ostensible ‘delay’ in
b. Scope of first complaint doctrine. Although the issue has arisen solely in the context of a jury‘s assessment of the credibility of a complaining witness in a sexual assault prosecution, nothing in our jurisprudence precludes the application of the first complaint doctrine to a defendant in a sexual assault prosecution. As demonstrated by our cases, the first complaint rule owes its genesis to the confluence of two factors: (1) that the central issue is a sexual assault rather than some other nonsexual crime; and (2) the need to provide to the jury “as complete a picture as possible of how the accusation of sexual assault first arose.” King, 445 Mass. at 247. At its core, therefore, the doctrine exists to facilitate credibility determinations where an allegation of sexual assault is at issue. This purpose is no less important when a jury is called upon to assess such an allegation made by a defendant.
Even when the first complaint rule was assumed to be available only to the named complainant in a sexual assault prosecution, we stressed the importance of an informed determination of credibility: “The doctrine . . . is not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth‘s case-in-chief.” Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009). In a similar vein, we ask whether the application of the doctrine to a defendant in a sexual assault prosecution undermines or otherwise perverts this purpose. It does not. The issue of witness credibility is the same whether the person claiming such assault is the defendant or the complainant. A defendant in a sexual assault prosecution, who claims to have been so assaulted by the complainant, faces the same credibility obstacle in proving his or her defense as the Commonwealth faces in proving the indictment. In our view, therefore, the identity of the party making the allegation of sexual assault does not dictate the application of the doctrine. The defendant is no less entitled than the Commonwealth to the benefit of a principle
Our reluctance to limit the application of this doctrine for the benefit of the Commonwealth reflects the concern we expressed in Commonwealth v. Morales, 464 Mass. 302, 308-310 (2013), that one-sided evidentiary rules are inherently unfair. In Morales, we rejected the defendant‘s argument that the rule we articulated in Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005) (permitting defendant to show prior acts of violence by victim), should apply only to the defendant. Morales, supra at 309. We noted that if evidence of “prior acts of violence by the victim will assist a jury . . . , it follows that evidence of [such acts] committed by the defendant will do the same.” Id. Thus, in deference to the same fairness concerns, we are persuaded that the first complaint doctrine must be neutral, and that it may apply whenever the credibility of a sexual assault allegation is a live issue in the case.
The Commonwealth argues that application of the first complaint doctrine to defendants will cause jury confusion as well as create a trial within a trial. We agree with the defendant, however, that such concerns do not militate against allowing a defendant in a sexual assault prosecution to proffer first complaint evidence. The matter properly may be relegated to the trial judge who, in the exercise of his or her discretion, is adequately equipped by the existing rules of evidence to prevent any such confusion. See generally
2. The defendant‘s first complaint evidence. Having determined that a defendant in a sexual assault prosecution may offer first complaint evidence as part of the defense to the charge, we review the judge‘s ruling to determine if it resulted in prejudice to the defendant. Here, defense counsel objected numerous times to the judge‘s rulings on the defendant‘s proffer of first complaint evidence. Counsel objected at the motion hearing and the judge affirmatively recognized the objection on the record. Counsel then renewed the objection at trial. Because the issue was preserved, we review the decision “to ensure ‘that the error[s] did not influence the jury or had but very slight effect.‘” Arana, 453 Mass. at 228, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Reviewing the error under this standard, we discern no prejudice to the defendant. The defendant‘s proffer did not specify any
As to the defendant‘s claim that her first complaint testimony was independently admissible because the Commonwealth “opened the door” with its questions to various witnesses, see Commonwealth v. Kebreau, 454 Mass. 287, 298-299 (2009) (admitting statement of sexual assault for purpose of rehabilitation), we discern no error in the judge‘s exclusion of her statement on this ground.
“[A] prior consistent statement made before the witness had incentive to fabricate may be admitted for the limited purpose of rebutting the claim of recent fabrication.” Commonwealth v. Tennison, 440 Mass. 553, 563 (2003). See
The defendant complains that the prosecutor elicited testimony from numerous witnesses, establishing that the defendant did not disclose the alleged rape to them individually. The substance and the timing of the statement are dispositive of this claim. First, the statement allegedly made to Kassor was ambiguous, and thus not a prior consistent statement in that it did not explicitly assert a claim of rape. Indeed, the proffered statement was neither a first complaint nor corroboration of a first complaint. See Murungu,
3. Exclusion of D.M.‘s statement. The defendant filed a separate motion in limine, seeking to introduce D.M.‘s statement to his grandfather, “I can beat any system,” as evidence probative of the defendant‘s state of mind. More specifically, the defendant proffered the statement to establish that she felt “powerless” in her parental relationship with D.M., such that she succumbed to his threats and was forced into sexual conduct with him. Citing Commonwealth v. Benjamin, 430 Mass. 673, 679 (2000), the judge denied the motion on the ground that “[p]rior bad acts of the victim and its effect on the state of mind of a defendant is allowed only in self-defense cases.” The judge ruled that defense counsel was permitted to ask D.M., “Do you believe you can beat any system?” However, after D.M. responded, “No,” counsel was not allowed to impeach him by calling the grandfather as a witness for that purpose.
The judge properly excluded the grandfather‘s testimony as hearsay because it was not shown to relate to either D.M.‘s or the defendant‘s state of mind. Admissibility required a demonstrated nexus between D.M.‘s statement and the defendant‘s state of mind. On this record, however, the defendant failed to make an adequate showing that D.M.‘s statement was related to the rape prosecution, that the defendant was aware of it, and that it was a factor in the charged conduct. In the absence of these facts as a foundation for admissibility, we do not fault the judge‘s ruling that D.M.‘s statement did not bear on the defendant‘s state of mind.
However, we agree with the defendant that the judge should have allowed defense counsel to impeach D.M. with his statement to the grandfather. See Commonwealth v. Mahar, 430 Mass. 643, 649-650 (2000) (adopting proposed
4. Reckless endangerment indictment. The defendant claims the indictment charging reckless endangerment of a child on the basis of serious bodily injury was not proved and, therefore, the resulting conviction must be reversed. We agree.
“[A]rticle 12 of the [Massachusetts Declaration] of Rights . . . requires only such particularity of allegation as may be of service to a person charged with crime in enabling him [or her] to understand the charge and prepare his [or her] defense.” Commonwealth v. Farmer, 218 Mass. 507, 509 (1914). See
Here, a grand jury indicted the defendant on one charge of recklessly exposing V.M. to “a substantial risk of serious bodily injury,” pursuant to
5. Sentencing. The defendant requests resentencing because the prosecutor made numerous improper statements at sentencing that potentially could have influenced the judge‘s determinations. Specifically, the prosecution urged the court to “send a message to the defendants in the community of Worcester County” that crimes against children would not be tolerated. The prosecutor also stated that the defendant had “lied” and had “falsely accused” the victims. Without comment, the judge sentenced the defendant to three concurrent terms of from eighteen to twenty-two years in State prison — lower than the sentence of from thirty to thirty-three years requested by the Commonwealth and higher than the sentence of from five to seven years recommended by the defendant.
A sentencing judge enjoys significant latitude in sentencing. Commonwealth v. Celeste, 358 Mass. 307, 310 (1970). We will not vacate a sentence “unless we have been able to identify clear legal error.” Commonwealth v. Woodward, 427 Mass. 659, 685 (1998). Where there is a “suggestion of impropriety,” Commonwealth v. Stuckich, 450 Mass. 449, 462 (2008), the judge may voluntarily and explicitly reject reliance on improper arguments. See Commonwealth v. Goodwin, 414 Mass. 88, 91-92 & n.3 (1993). However, a judge‘s decision not to disavow such arguments explicitly does not in and of itself provide evidence that a judge deviated from his or her duty. Id. at 92.
Although the Commonwealth concedes that it was improper to ask the judge to “send a message” to the Worcester County community regarding crimes against children, we are not persuaded that the judge considered the prosecutor‘s comments. We affirm the defendant‘s sentences, except as to that imposed on the reckless endangerment conviction.
Conclusion. We conclude that a defendant may proffer first complaint evidence where the defendant claims to be the victim of sexual assault and that claim is a live issue in the case. The
So ordered.