Commonwealth v. McKinnonCommonwealth v. McKinnon
- Reporters:
- , ,
- Before:
- Gillerman
Alice (a fictitious name) was the defendant’s stepdaughter. At the defendant’s trial, Alice testified that when she was seven the defendant raped her, and her mother (Kathy), now deceased, testified in a video deposition taken at the Brockton Hospital, where she was under treatment for cancer, that Alice first mentioned the rape to her two years and ten months after the event. There was no other
1. Fresh complaint. The admission of fresh complaint testimony, which lies within the sound discretion of the trial judge, see Commonwealth v. Montanino, 409 Mass. 500, 508 (1991), “allows rape victims who . . . complain promptly to eliminate any unwarranted skepticism arising from lack of evidence of a prompt complaint.” Commonwealth v. Licata, 412 Mass. 654, 658 (1992) (emphasis added). When Commonwealth v. Dion, 30 Mass. App. Ct. 406 (1991), and Commonwealth v. Gardner, 30 Mass. App. Ct. 515 (1991), were decided, we noted that before 1979, no more than one day was allowed to pass between the attack and the complaint, Dion, supra at 413, but that after 1979, particularly in the case of children where additional factors are present such as explicit threats, a gap of as much as eighteen months did not disqualify the evidence. Dion, supra at 414. Gardner, supra at 525. Later that same year we decided, in the case of a complainant aged thirteen, that in the circumstances there presented a delay of two years was “reasonably prompt,” in spite of a concern that “[s]o long a period between the event and the complaint as two years provokes unease about the possibility of ‘twist of memory, fantasizing, contrivance.’ ” Commonwealth v. Hyatt, 31 Mass. App. Ct. 488, 491-492 (1991), quoting from Dion, supra at 413. See Commonwealth v. Bishop, 416 Mass. 169, 188 (1993) (citing Hyatt with approval).
While there is no bright line test for the timeliness of a complaint, see
Commonwealth
v.
Bishop, supra
at 187, there are limits beyond which a complaint will be “pronounced stale.”
Commonwealth
v.
Johnson, ante
211, 216 (1993). See also
Dion, supra
at 413 (“ ‘freshness’ is not solely a question
These decisions point directly to the need to focus on the circumstances attending Alice’s explanation for the delay in reporting the alleged abusive episodes. Here the delay is thirty-four months — enough to provoke “unease,” but not enough, standing alone, for the judge to reject the complaint where there is evidence of explanation and justification for the delayed disclosure. But if the judge could not reasonably have concluded that the delay in disclosure was the product of Alice’s understandable and credible fear of retaliation, or of some other circumstance that would explain satisfactorily her failure to disclose the alleged rape shortly after it occurred, then we may conclude that the judge abused his discretion in admitting the evidence, and there must be a new trial, for most certainly the error would be prejudicial to the substantial rights of the defendant. We turn, then, to the events surrounding the alleged assault, the delay in reporting, and the disclosure.
Alice was born July 24, 1979. At the trial in May, 1992, she was almost thirteen years old. Alice’s mother, Kathy, married the defendant in 1984, Alice being the child of a previous marriage. The family (which included a newborn child of the defendant and Kathy) first lived in Houston, Texas. There Alice saw the defendant’s violent and abusive
In November, 1986, the defendant, alone, returned to his parents’ house in Norwell, Massachusetts. About one month later, acting on the belief that things might work out if she lived with the defendant and his family in Massachusetts, Kathy, together with her children, including Alice, followed the defendant to Massachusetts. Kathy described the circumstances. “I had to sell the cars, sell all my furniture, everything in my home stuff like that. I would have done anything to try to make sure that he was calmed down and not going to hurt me any more. I would have sold the shirt off my back.”
Kathy testified that things in Massachusetts were “still terrible, it got worse ... Oh God, it was kicking, hitting, spitting in my face, saying I was diseased, kicks to the body, punches.” She explained, “Well, now he was with everyone he grew up with, he could party more. He could do more drugs, he could leave me and the kids home and know that nothing would really happen because, you know, I was in a strange state, I had no transportation, I did not know anybody at all to contact for any kind of help whatsoever.” The judge, in exercising his discretion, was entitled to infer that Alice, who, as described below, lived in the same basement with her parents, was a witness to the defendant’s increased brutality.
Alice’s testimony about events in Massachusetts contained few embellishments. The McKinnon family all slept in the basement of the house belonging to the defendant’s parents.
By February, Kathy decided to return the two older children to their father in Texas, and Alice left Massachusetts on February 14, 1987. One month after the children left Massachusetts, Kathy was diagnosed with breast cancer, and underwent surgery. She recovered, returned briefly to the defendant, then left and never again lived with the defendant. Meanwhile the children spent their 1987 and 1988 summer vacations with Kathy in Massachusetts; Kathy visited with the children in Texas during the summer of 1989, and the children often came to Massachusetts during their Christmas vacations to visit with Kathy. In addition, Kathy spoke to the children by telephone at least biweekly, and often weekly. Until December 10, 1989, Alice did not mention the alleged rapes on any of these occasions.
On December 10, 1989, Kathy spoke to Alice on the telephone. It was not Kathy’s regular call; this time, Alice called Kathy. Kathy testified that she was concerned by the unusual call, and asked if anything was wrong; Alice replied that she had experienced the onset of menses. That subject was discussed and then, according to Kathy, Alice, who was only ten, said, “[I]s it because of what Michael your husband did to me when I was little?” Further on in the conversation, after Kathy told Alice she did not know what Alice was talking about, Alice said, according to Kathy, that the defendant “stuck his penis in her mouth, and touched all over her body, put his fingers inside of her.” On direct examination, Alice,
At the trial in May, 1992, the judge, after reading the transcript of Kathy’s video deposition, ruled that “[tjhere is abundant motivation on the part of this child to say nothing to anybody.” After the videotape was played to the jury, the judge instructed the jury at considerable length about the need for them to determine whether the complaint was fresh, after taking into consideration whether, in the circumstances, the child was deterred by fear from reporting the episode. The judge went on to instruct that if the jury concluded that the complaint was fresh, then Kathy’s testimony could only be used to corroborate that of Alice.
We conclude that there was no error in the admission of the fresh complaint testimony. Most striking of all is the evidence of an environment of fear and violence created by the defendant, particularly from the perspective of a young child. In Texas, when no more than seven, Alice witnessed the defendant, gun in hand, pursuing her humiliated, unclothed mother out of their house in her mother’s effort to protect her own life. In Massachusetts, she witnessed more violence, and she saw it more frequently: the defendant kicking, hitting, spitting at, and punching her mother. Exposure to this continuing environment of abuse and the defendant’s uncontrolled rage can be more effective than any single direct threat. The fact that Alice was not in the defendant’s control and was not immediately threatened by violence from the defendant is not critical where, as here, the child could reasonably perceive a serious risk of yet more violence toward her mother. The defendant repeatedly demonstrated his cruelty, and the judge could have concluded that a child would understandably believe that retaliation to either or both of Alice and Kathy would quickly be forthcoming if Alice dared challenge the defendant’s conduct. Contrast
Commonwealth
The circumstances of Alice’s disclosure are equally understandable. Alice, prematurely it seems, was experiencing the onset of menses. Upset and confused, relieved by the knowledge that the defendant was then in Arizona while at the same time mistakenly believing that her mother must have had some knowledge of the abuse that had occurred in Massachusetts, 3 Alice called her mother for reassurance. Alice offered her own explanation of the early onset of menses: the defendant’s sexual abuse of her years earlier. What she said was not accusatory; it was her effort to understand what was happening to her. There was no reason to fabricate, embellish, please, or displease. She was not being interrogated by the police or a social worker or a physician. Alice was having an intimate conversation with her mother, that “had a naturalness that . . . [was] not suggestive of contrivance.” Commonwealth v. Hyatt, 31 Mass. App. Ct. at 492. The judge made no error.
2. Prior “bad acts.” Alice, on direct examination over defendant’s objection, testified to the episode in Texas during which the defendant abused Kathy and threatened her with a gun. The defendant argues that the judge was in error, and that his ruling was highly prejudicial to the defendant’s rights. We disagree.
Evidence of the defendant’s past misbehavior may be admissible in an appropriate case, but only if relevant for a purpose such as the defendant’s pattern of conduct or his motive, or, on the other hand, the victim’s state of mind.
Commonwealth
v.
Chalifoux,
362 Mass. 811, 816 (1973).
Commonwealth
v.
Drew,
397 Mass. 65, 80 (1986). See also Liacos, Massachusetts Evidence 421-422 (5th ed. 1981 & Supp. 1985) (cases collected). Here the evidence was admissible to show Alice’s state of mind — the explanation for her long-delayed disclosure of what had happened to her: fear of
There- was prosecutorial necessity for the direct examination of Alice on the Texas episode. On the decided cases, outlined above, a delay, without explanation or justification, of two years and ten months was plainly too long to permit the introduction of the fresh complaint testimony by Kathy. It was essential for the prosecutor — by way of background, as the judge ruled — to introduce evidence of the circumstances which both explained and justified the delay. Compare Commonwealth v. Errington, 390 Mass. 875 (1984) (admission of evidence of victim’s state of mind justified by prosecutor’s need to rehabilitate the witness). The judge, in response to the defendant’s objection, offered to give a limiting instruction; the defendant requested such an instruction, and the request was granted. As noted above, the judge gave extensive limiting instructions about the fresh complaint doctrine immediately before Kathy’s video deposition was shown to the jury. Those instructions stated that acts of violence committed in Alice’s presence were relevant only to the issue of whether Alice’s complaint was fresh. There was no objection to that portion of the judge’s instructions, and there was no error in admitting the evidence.
4. Prosecutor’s closing argument. The defendant’s final contention, which challenges the prosecutor’s closing argument, also has no merit. The prosecutor’s remarks, commenting on the defendant’s physical appearance in the courtroom — “seated there in a shirt and tie” — inappropriate though it may be, could not be “fairly understood as permitting the jury to draw an inference adverse to the defendant from the fact of his failure to testify.” Commonwealth v. Sherick, 23 Mass. App. Ct. 338, 344 n.7, S.C., 401 Mass. 302 (1987), quoting from Commonwealth v. Goulet, 374 Mass. 404, 412 (1974). The defendant’s remaining concerns about the prosecutor’s closing argument are equally unavailing.
Judgment affirmed.
Notes
The defendant did not testify; his mother testified briefly that she observed none of the behavior of which complaint is made.
Kathy’s memory was that on December 10 the defendant was living in Massachusetts, but that on that date “he was going to Arizona for a job.”
Alice testified that she thought her mother “knew” of the alleged sexual abuse because “it was going on for a little while and I thought she’d have to know.”
The defendant’s reliance on Commonwealth v. Montanino, 409 Mass. at 505-507, is misplaced. There the evidence objected to was unlawful sexual conduct not involving the same parties and which occurred four years after the event with which the defendant was charged, and thus fell outside the “exception” described in Commonwealth v. Johnson, supra at 217. While the evidence in Montanino was offered under the guise of the victim’s “state of mind,” plainly it could have been taken by the jury as bearing on the defendant’s propensity to commit the crime charged, and thus was inadmissible because it was too prejudicial. Montanino, supra at 505-507. Here, the acts had to do with acts of violence and cruelty, other than sexual abuse, which occurred a reasonable time before the events charged, and the evidence was relevant to show — not the defendant’s propensity to commit the crime charged — but, as we have said, the victim’s state of mind.