51 Mass. App. Ct. 715 | Mass. App. Ct. | 2001
Following an eight-day trial, a jury convicted the defendant on two indictments for rape of one child under the age of sixteen, G. L. c. 265, § 23, and one indictment for assault with intent to rape a second child under the age of sixteen, G. L. c. 265, § 24B.
The jury could have found the following facts. The complainants, Helen and Sally,
Each one testified to separate sexual encounters with him, with Helen testifying to as many as seven encounters during the summer. The lurid details need not be recited. It is enough to say that the complainants testified to a variety of sexual acts which they described as having been engaged in voluntarily on their part. As things developed, the complainants became obsessively jealous of the defendant. At one point, Sally threw rocks at the house while the defendant was engaging in intercourse with Helen. The complainants called him on the telephone and on one occasion chalked the sidewalk in front of his home with love notes. There were breaks into his home while he was not there, and the complainants placed insulting messages about the defendant’s girlfriend beneath bis porch.
The upshot was an argument in July, 1994, which, warmed by alcohol, burst into violence. The defendant shoved Helen against a wall when she refused to leave the house. After both girls left, they ran into Carla Freeland, an adult neighbor. She noticed that they were crying. Helen explained what had hap
A few months later, Helen’s mother contacted the police. Detective Jeffrey Peck interviewed the complainants and the defendant, who denied any wrongdoing. Based on this investigation, charges were brought against the defendant.
The appeal has to do, in part, with testimony given by Helen, Freeland, and Peck, who were called as witnesses for the prosecution. Over the defendant’s objection, Helen testified that she had had a conversation with Freeland after the incident mentioned above, in which she (Helen) told Freeland that she “had been having sex with [the defendant].” In response to defense counsel’s objection, the judge asked the district attorney whether Freeland was going to be a fresh complaint witness, to which the prosecutor answered, “Yes,” and whether she was planning to ask the witness “any more”; to that, the prosecutor replied, “No.”
During a sidebar conference at which certain motions were discussed, prior to the completion of cross-examination of Helen and prior to Freeland’s and Peck’s testimony, the judge raised the issue of fresh complaint, saying it had “been troubling [her].” Referring to Commonwealth v. LeBeau, 42 Mass. App. Ct. 945, 946 (1997), which involved the admission of fresh
The trial judge ultimately did admit the evidence, ruling at the sidebar that even if the statements were not admissible as fresh complaints, they could come in as prior consistent statements.
The defendant contends, however, that such testimony is anomalous because the purpose of fresh complaint is to permit evidence of a victim’s “hue and cry” as might be expected of a victim who had been violently raped.
We agree with the defendant that the situation here is not quite the same as in LeBeau. Helen’s complaint to Freeland was not clearly the result of fear or self-condemnation concerning her sexual relationship with the defendant and appeared more to be the result of being rebuffed and rejected. Even so, we do not see a reason to depart from the rule of Commonwealth v. Cleary, 172 Mass. at 176-177, in this case. The complainants were only fourteen years old, and the defendant was substantially older. Despite their initial “consent,” the complainants here were likely — especially because of their lack of understanding of all the ramifications of their acts before they engaged in them — to be affected, in the aftermath of their experiences and rejection, by various emotions, including a sense of betrayal and ambivalence toward the defendant, that would lead them to confide in someone else, as happened in LeBeau and also here. In addition, the statute outlawing intercourse with a child under
Even if we were to decide that the rule of Commonwealth v. Cleary, supra, permitting fresh complaint testimony in statutory rape cases should not be applied here, we would conclude that Helen’s anger and frustration, whatever their source, support admission of the statement on a different ground from that given by the trial judge. See Commonwealth v. King, 389 Mass. 233, 234 (1983); Barry v. Commonwealth, 390 Mass. 285, 299 n.18 (1983) (appellate court may “affirm a ruling below on a ground not relied upon by the judge”). A precocious sexual relationship with an adult is undoubtedly confusing; it sets an adolescent apart from her peers and can be expected to evoke strong feelings. In our society, we have labeled such activity criminal with respect to the adult participant, even if the minor consented. In point of fact, the prosecutor elicited sufficient foundational testimony regarding Helen’s state of mind after the assault and her ejection from the defendant’s house to permit not only her testimony as to the statement she made to the neighbor, but also that of the neighbor, Freeland, to be deemed admissible under the rubric of spontaneous utterance, rather than fresh complaint. See Commonwealth v. Fuller, 399 Mass. 678, 681-682 (1987) (admitting child rape victim’s post-attack statements as spontaneous utterances); Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 110 (1999). Contrast Commonwealth v. O’Connor, 407 Mass. 663, 670 (1990) (rejecting spontaneous utterance grounds where the record failed to show how much time had elapsed between the exciting event and the
The testimony of Peck pertained to interviews he conducted with both complainants several months after the traumatic influence of the assault and their ejection from the house had subsided. Before Peck’s testimony regarding the statements made to him by Helen and Sally, the judge again instructed the jury on the fresh complaint doctrine, stressing that Peck’s testimony was admitted only for corroborative purposes and that it was not to be considered for its substantive value. We conclude that the trial judge did not abuse her wide discretion in permitting Peck to repeat the complainants’ statements describing their sexual encounters with the defendant in benign terms. The testimony was not prejudicial. The fresh complaint evidence Peck gave contained the same details as those described by the complainants in their own testimony. See Commonwealth v. Scanlon, 412 Mass. 664, 670-671 (1992) (noting that fresh complaint testimony cannot be used to fill gaps in the prosecution’s case).
In the defendant’s final claim, he asserts that he was denied effective assistance of counsel. He argues that defense counsel’s cross-examination of Helen was flawed because it led to her admitting that she had underreported the number of times she had had sexual intercourse with the defendant. To cover himself, defense counsel informed the judge at a sidebar conference that he was “on the verge of requesting a mistrial.” The judge responded, “[Y]ou brought the whole thing out,” because the Commonwealth had not introduced any evidence that the
Judgments affirmed.
The defendant was acquitted on one indictment for rape of the first child by sexual intercourse, G. L. c. 265, § 23. He was sentenced to two years in a
We use pseudonyms.
A complainant in a sexual assault case may testify to the fact that a fresh complaint was made and to whom it was made but not about the details of the complaint. Commonwealth v. Peters, 429 Mass. 22, 30 (1999). See Liacos, Massachusetts Evidence § 6.19.2, at 357-358 (Brodin & Avery 7th ed. 1999).
The defendant argues that fresh complaint testimony should not have been permitted in this case (see discussion below) and that this testimony by the complainant was improper self-corroboration. Unlike the complainant in Commonwealth v. Peters, 429 Mass. at 30-31, however, Helen did not testify to the details of the complaint.
Our concerns focus primarily on the use of the Massachusetts rule allowing fresh complaint testimony in a statutory rape case where the complainant has been a consenting partner to the sexual encounters. Because of the result we reach on this point, we need not decide whether the testimony here would be admissible on the alternative ground upon which the judge relied.
Over a century ago, in Commonwealth v. Cleary, 172 Mass. 175 (1898), Justice Oliver Wendell Holmes criticized the fresh complaint doctrine as a “perverted survival of the ancient requirement that [a woman] should make hue and cry as a preliminary to bringing her appeal” and “an arbitrary rule in the particular case.” Id. at 176. (Cleary, however, applied the rule, in a case involving statutory rape.) Until recently, however, the cases that followed Cleary did not seriously call into further question the original rationale for the