450 Mass. 449 | Mass. | 2008
The defendant, Peter Stuckich, was charged with four counts of indecent assault and battery on his daughter, a child under fourteen years of age, between January 1, 1995, and December 7, 1997, and one count of rape of a child (also his daughter) by force between January 1, 1995 and December 7, 1997. A jury acquitted him of the rape charge and convicted him of the assault and battery charges. He was sentenced to a State prison term of from five to seven years followed by probation of twenty years. The defendant filed a timely notice of appeal in the Appeals Court and we granted his application for direct appellate review.
On appeal, the defendant makes several claims. He alleges that the judge erred by instructing the jury regarding consciousness of guilt. He contends further that the judge failed to conduct a voir dire to identify the first complaint witness; improperly permitted evidence that effectively served as additional “fresh complaint” testimony; and improperly admitted evidence from a prior care and protection proceeding. In addition, the defendant claims that the prosecutor improperly (a) attacked his character, (b) asked witnesses to comment on the credibility of other witnesses, and (c) argued consciousness of guilt based on the defendant’s retention of legal counsel. The defendant maintains also that his trial counsel was ineffective for failing to object to the admission of an abuse prevention order against him that the defendant’s daughter had previously obtained.
Shortly after Nancy spoke with Horan, she told her mother about the abuse,
The defendant and his wife were divorced at some point following the allegations of abuse.
In 2002, when Nancy turned eighteen, she obtained a restraining order against her father. She stated that she was “being threatened on the telephone” and “being followed.” Nancy told
Consciousness of guilt. The defendant claims that there was no basis in the evidence to support a consciousness of guilt instruction. Detective Egy testified that, after complaints had issued against the defendant, Egy spoke with the defendant by telephone. The defendant was then living and working in Springfield, Illinois. Egy told the defendant that complaints had issued against him regarding the abuse allegations. The detective also stated to the defendant that he would “like him to get in touch with the district attorney’s office [a]nd find out when he’s [sic] going to be back if he’s coming back.”
Defense counsel objected to the consciousness of guilt instruction by stating, “Given that it’s such a close call, I think to give the consciousness of guilt instruction would by its very nature and by the very language contained within it, is very prejudicial . . . . I ask that the instruction not be given.” While counsel
Consciousness of guilt instructions are permissible when there is an “inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,” such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness. Commonwealth v. Toney, 385 Mass. 575, 584 & n.4 (1982). There was no such evidence in this case and no other evidence that supported a consciousness of guilt instruction.
Because the issue was properly preserved, we review to determine whether we can be certain that the improper instruction “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). There were no witnesses to the alleged abuse other than Nancy and the defendant. Although the details Nancy provided are horrific and the repetitive nature of the incidents especially disturbing,
First complaint. The defendant argues that the judge should not have permitted Horan to testify as a first complaint witness. Prior to trial, the Commonwealth filed a motion in limine requesting that Nancy’s letter to Horan, a journal entry, Nancy’s initial conversation with Horan, and Nancy’s subsequent conversation with Horan and the school’s principal be admitted as first complaint evidence. However, Nancy’s letter to Horan stated, “My mom did not know anything about this, but I recently told her. My mom told Mr. Rubin about this and he is trying to get me to talk about it.”
At a nonevidentiary hearing on the motion, before the judge who later presided at trial, defense counsel objected on the ground that Horan was not the first complaint witness. The prosecutor represented that both Nancy and her mother had told the prosecutor that the April, 2000, letter to Horan was the first disclosure, and that neither Nancy nor her mother had memory of a disclosure prior to said letter. Defense counsel informed the judge that the 2000 SAIN interview report contradicted the Commonwealth’s representations. That report stated that Nancy had said that, before speaking to Horan, she had made a “vague[]” report to “Mike” (a family friend living in the
Before ruling on the Commonwealth’s motion in limine, the judge should have conducted a voir dire. Although it is common to rely on the representations of counsel in considering motions in limine, here the issue could not be resolved without an evidentiary presentation. The prosecutor represented that neither Nancy nor her mother recalled any disclosure prior to the letter to Horan, yet the letter plainly stated otherwise. Given this contradiction, there was no way to decide who was the first complaint witness without a hearing. It was essential to hear directly from Nancy and her mother to determine, inter alla, whether in fact they did not recall any discussion prior to the Horan letter, and if not, the meaning of the reference in the Horan letter to prior discussion with the mother and the mother’s report to Mr. Rubin. Mr. Rubin was another potential witness who might have had relevant testimony. If he was a counselor of some type, as suggested by the record, and if he had been informed by the mother of the allegations, he may well have had notes regarding the date he received the information. Nancy’s friend Mike could also have been called.
This case was tried very shortly after our decision in Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006), and all involved were seeking to apply the new decision for the first time. Nevertheless, in the circumstances presented here, the designation of the first complaint witness clearly demanded the taking of evidence. We also comment on the fact that the Commonwealth sought admission of
SAIN and investigative process. The defendant claims that, contrary to the first complaint doctrine, the judge improperly permitted the Commonwealth to introduce testimony regarding others to whom Nancy spoke regarding the assault. The defendant also asserts that details of the investigative process were improperly admitted. The judge ruled that Nancy could testify that she “told [her] mother [and] told Mike,” but not the details of what she told them. The defendant maintains that this evidence created an impression that multiple people, including trained investigators to whom Nancy disclosed the abuse, found her allegations credible. Nancy testified that she described the abuse to her mother, to Mike, and to numerous people in the investigative process. Horan testified that she believed Nancy’s allegations and filed a § 51A report with DSS. Nancy’s mother testified that, after Nancy told her of the abuse, she “immediately engaged [her] daughter in[] counseling,” and soon thereafter went to the district attorney’s office with Nancy for an interview. Detective Egy described the SAIN interview procedure to the jury, and informed them that it consisted of a trained forensic interviewer and members of the police department and the district attorney’s office. Most, if not all, of this evidence was admitted without objection.
At a retrial, the prosecutor should not be permitted to introduce any of this testimony, for it undermines the purpose of the first complaint doctrine recently enunciated in Commonwealth v. King, supra. In that case, we stated that “we will no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of . . . the first person told of the assault.[
The description of the investigative process suffers from the same infirmity. The fact that the Commonwealth brought its resources to bear on this incident creates the imprimatur of official belief in the complainant. It is unnecessary and irrelevant to the issue of the defendant’s guilt, and is extremely prejudicial. To cite but one example, the fact that Horan was mandated to, and did, file a § 51A report establishes nothing other than an impermissible inference that Horan believed the complainant. It has no relevance to whether the defendant in fact committed the acts charged, and the jury did not need to know how the complaint of abuse evolved into the case before them.
Care and protection stipulation and testimony of Nancy’s mother. The defendant maintains that the judge should not have admitted certain evidence from an April, 2001, care and protec
The stipulation of the parties was not relevant. It concerned only parental rights and the defendant’s decision not to contest his wife’s custody of his daughter. There was no litigation or determination regarding the allegations of abuse. The stipulation was also extremely prejudicial. Its contents suggested clearly that he could not have unsupervised contact with his daughter because he had sexually abused her. The references in the stipulation to DSS reports and reports from the “court investigator” were prejudicial as well because they suggested official approval of the allegations. Further, the judge should not have allowed Nancy’s mother to testify that at the care and protection hearing the defendant responded in a colloquy with the judge that he knew that the basis for the severing of his parental rights was “sexual abuse of his daughter.” Contrary to the trial judge’s ruling, this statement was not an admission of abuse. It was merely an acknowledgment by the defendant that his parental rights were being terminated because of the allegations of abuse.
Prosecutorial improprieties. The defendant argues that the
In the same vein, the prosecutor, over objection, introduced the defendant’s statement to Detective Egy that at one time he had two adult pornographic magazines in the house. The detective testified that the defendant said that he had “perhaps two magazines of a pornographic nature” and no longer even had those. The evidence was not relevant and it should not have been admitted.
The prosecutor asked the defendant several times whether Nancy “is lying about these allegations,” and whether Egy was lying about the interview he had with the defendant in 2000. The prosecutor also asked Horan whether she believed Nancy’s allegations. There was no objection to any of this testimony. As the Commonwealth concedes, the prosecutor should not have asked the defendant to comment on Nancy’s credibility and that of Egy by asking the defendant if those witnesses were “lying.” See Commonwealth v. Long, 17 Mass. App. Ct. 707, 708 (1984). Similarly, the prosecutor should not have asked Horan whether she believed Nancy’s allegations.
The defendant contends that the prosecutor improperly cross-examined the defendant concerning his retention of an attorney, whether the defendant paid for the attorney’s services, and the contents of the attorney’s advice to the defendant relating to answering the charges of abuse. There was no objection to these questions. On direct examination, the defense attorney had opened up this area by asking questions about the defendant’s hiring of a lawyer and the attorney’s advice about responding
The defendant maintains that the prosecutor argued improperly in her closing argument in two respects. There was no objection to either remark. The defendant contends that the prosecutor should not have stated that the police were “able to track him down, find him in Illinois.” Although there was evidence that the defendant had moved to Illinois and the. police had to take several steps to locate his telephone number, the police knew where he was. There was no basis in the evidence to suggest that the police had to “track him down.” This expression suggests that the defendant attempted to conceal himself or otherwise evade police detection, and was thus a misstatement of the evidence. See Commonwealth v. Fernette, 398 Mass. 658, 666 (1986). The defendant also argues that the prosecutor should not have stated the following:
“Detective Egy . . . said . . . ‘There’s a complaint against you here in Massachusetts.’ And you heard from the defendant that he contacted an attorney, paid him money, a defense attorney, and then never called [Detective Egy] again, never came back to Massachusetts to answer the charges . . . .”
It was improper to suggest consciousness of guilt based on the conversation with Egy. See the discussion of consciousness of guilt, supra.
Ineffective assistance of counsel. The defendant maintains that his trial counsel was ineffective for not objecting to evidence about Nancy’s obtaining an abuse prevention order against her father in August, 2002 (approximately four years after the alleged abuse had ended), and to admission of Nancy’s complaint of domestic abuse, Nancy’s affidavit, and the order itself. When questioned by the judge, the defense attorney stated that the lack of objection was the result of a strategic decision. The familiar criteria set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), are applicable. Furthermore, “[wjhere, as here, the claim is that defense counsel committed a tactical error, the
Sentencing. The defendant contends that the judge’s sentencing decision was based on conduct for which the defendant had neither been charged nor convicted. The indictments on which the defendant was convicted allege indecent assault and battery occurring for a period of three years, January 1, 1995, through December 7, 1997. Testimony at trial referred to other uncharged conduct during the preceding six years. The prosecutor recommended a sentence of from seven to ten years followed by probation for life. She acknowledged that such a sentence exceeded the recommendation of the Superior Court sentencing guidelines, but stated that the length was justified because the defendant’s abusive conduct continued “for a period of ten years. So in being equal, I guess the defendant should be sentenced for a period of seven to ten years.” The judge imposed on the defendant a sentence of from five to seven years in prison, followed by twenty years of probation. She “agree[d] with the Commonwealth that [the defendant’s conduct] warrants a sentence substantially above the guidelines because of the repeated nature of the conduct, the long period of time over which the conduct occurred and because of the particularly manipulative nature of it as established in the testimony, which . . . makes it perhaps more damaging to a young child than other kinds of offenses that fall into the same statutory category.”
A defendant cannot be punished for uncharged conduct, Commonwealth v. Goodwin, 414 Mass. 88, 93 (1993), because such information is not “tested by the indictment and trial process. Punishment is appropriate only for conduct of which the defendant has been charged and convicted.” Commonwealth v. Henriquez, 56 Mass. App. Ct. 775, 779 (2002), S.C., 440 Mass. 1015 (2003). However, if the uncharged conduct is relevant and the report of it “sufficiently reliable,” the conduct may be considered at sentencing. Commonwealth v. Goodwin, supra at 94. That is, the uncharged conduct may be considered as
Here, the judge’s statement that she considered “the long period of time over which the conduct occurred” is ambiguous. She may have been referring to the three years encompassed by the indictments or to the ten years the prosecutor had described. We are particularly concerned that no improper considerations bear on a sentencing decision in the event of a retrial and a conviction. See Commonwealth v. Banker, 21 Mass. App. Ct. 976, 978 (1986) (although ambiguous remarks of judge could have reflected proper considerations, resentencing required because “sentencing . . . must be free of any suggestion of impropriety on the part of the judge”).
Judgments reversed.
The defendant was represented by different counsel at trial.
The testimony is inconsistent with the content of Nancy’s note to Horan. The note states that Nancy had recently told her mother about the abuse. This inconsistency and the problems created thereby are discussed infra.
The record does not disclose the date of the divorce.
As mentioned previously, the defendant was found not guilty on the indictment charging rape of a child by force.
Despite the garbled syntax, we construe this statement to mean that the detective wanted the defendant to inform the district attorney if and when he was returning to Massachusetts.
One year later, the defendant was taken into custody after the outstanding warrant for his arrest was discovered following a stop for a traffic violation.
The Commonwealth does not maintain that there was any suggestion of flight or concealment by the defendant. The defendant testified that he left Massachusetts because he had no family left here and had received a job offer in Springfield, Illinois. There was no contradictory evidence.
The defendant did not request a voir dire in the Superior Court, although he argues on appeal that the judge should have held one.
If it were determined that the conversation with Horan (and not the letter) was the first complaint, the only evidence admissible as first complaint would be that conversation. See infra.
But see Commonwealth v. Murungu, ante 441, 445-446 (2008), for excep
The governing principles when we decided Commonwealth v. Montanez, 439 Mass. 441, 445-446 (2003), permitted this type of reference to other complaint witnesses. These principles no longer control as a result of our adoption of the first complaint doctrine in Commonwealth v. King, 445 Mass. 217, 241-245 (2005), cert. denied, 546 U.S. 1216 (2006). The naming of people to whom the complainant spoke about the incident is akin to a parade of multiple complaint witnesses, because the jury are likely to assume, and reasonably so, that the complainant repeated the substance of her testimony to each person to whom she complained. Thus, the Montanez case, to the extent it permits such reference, is obsolete and is overruled.
The uncharged conduct may be used to determine the type of punishment that should be imposed for the offense of which the defendant has been convicted. See Commonwealth v. Goodwin, 414 Mass. 88, 93 (1993).