Lead Opinion
Thе defendant appeals from his conviction in the Superior Court of one count of rape of a person under sixteen by force. G. L. c. 265, § 22A. The offense occurred when the defendant was sixteen years old. The victim, then fourteen years old, who was at the defendant’s house along with several other teenagers late on a Friday evening in December, 2003, was
The policе investigated the crime, and when the defendant was seventeen years old, the complaining witness was videotaped as part of a Sexual Abuse Investigation Network (SAIN) interview. The follow-up police investigation was completed well bеfore the defendant turned eighteen.
In February, 2006, when the defendant was eighteen years old, the complaining witness contacted the police and indicated that she wanted to prosecute, and the police applied for a complaint against the defendant. On August 23, 2006, when the defendant was nineteen, a complaint issued in the Norfolk County Division of the Juvenile Court Department against the defendant alleging one count of rape of a child by force, as well as othеr charges not relevant to this appeal.
General Laws c. 119, § 72A, as amended by St. 1996, c. 200, § 13A, states in relevant part that:
“If a person commits an offense or violation prior to his seventeenth birthday, and is not apprehended until after his eighteеnth birthday, the [juvenile] court, after a hearing, shall determine whether there is probable cause to believe that said person committed the offense charged, and shall, in its discretion, either order that the person be discharged, if satisfied that such discharge is consistent with the protection of the public; or, if the court is of the opinion that the interests of the public require that such person be tried for such offense or violation instead of being discharged, the court shall dismiss the delinquеncy complaint and cause a criminal complaint to be issued.”
After a hearing under § 72A, the Juvenile Court transferred the proceedings. A grand jury subsequently returned an indictment against the defendant.
It is undisputed that the defendant was in no way responsible for the delay in his prosecution. The defendant argues that because he did not evade or attempt to evade prosecution and was identified and available for prosecution while still seventeen, he was not “apprehended” after his eighteenth birthday within the meaning of § 72A. On this basis, the defendant filed a mo
In Commonwealth v. A Juvenile,
While the language of the statute and our сonstruction of it in A Juvenile bind us, we do note that the alternative construction of the statute proposed by the defendant would result in defendants over seventeen, like the defendant here, who age out of the Juvenile Court before being taken into сustody but who did not evade or attempt to evade prosecution, being free of any possibility of any criminal prosecution for crimes committed prior to their seventeenth birthdays since after aging out they would not be subject to prosеcution in the Juvenile Court, see G. L. c: 119, §§ 72 and 74, or in any other court. It is most unlikely that the Legislature would have intended such a result.
The defendant also argues that on the facts and circumstances of this case, the prosecution of the defendant in the Superior
Finally, the defendant argues that the first cоmplaint doctrine was violated by the testimony of the individual identified by the victim as the first complaint witness. The judge properly identified one of the friends of the victim, Jane,
Jane testified, over objection, that the first complaint she heard from the victim was on Sunday at the cheerleading benefit. Her testimony of the substance of her first сonversation with the victim was that the victim told her she had been raped by Os-trowsky, and that she had not mentioned the defendant. From the details to which Jane testified, this appears to be a description of the Sunday conversation to which the viсtim testified.
Even assuming, however, that it might, as the defendant argues, be error to admit the testimony of a first complaint witness about what the victim testified was actually the “second" complaint — a question we need not decide — there would be no warrаnt for reversal here because the admission of the first complaint witness’s testimony was not prejudicial. The test for prejudicial error is the familiar one: whether we are “sure that the error did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte,
The Commonwealth’s substantive evidence in this case ties the defendant to the sexual assault against the victim in two ways. First, there is the victim’s account of the сrime describing the defendant’s role. Second, there is the testimony by the victim, confirmed by Jane who was the first complaint witness, that within days of the assault, the victim called the defendant with Jane on the line and the defendant apologized, admitting to his rolе in the rape. This latter evidence was the centerpiece of the Commonwealth’s closing.
The first complaint testimony, which was not to be considered for its substance but only to evaluate the credibility of the victim, supports the victim’s account that this was not a case of consensual sex, but it does not link the defendant to the crime in any way. Given the similarly corroborative implications of the independently admissible evidence of Jane’s presence on the three-way telephone call shortly after the first complaint to which she testified, the complaint testimony adds little to the Commonwealth’s case in terms of bolstering the credibility of the victim. On the other hand, the failure of Jane to remember any mention оf the defendant in the complaint may have been marginally harmful to the Commonwealth’s case.
In these circumstances, we think that the admission of Jane’s first complaint testimony, even assuming there was any error in its admission, could at most have had but а slight effect on the jury.
Judgment affirmed.
Notes
The Commonwealth argues that apprehension occurs not only when an individual is arrested and available to the court, but also when “process commences.” Since the defendant was neither taken into custody nor subject to process on or before his eighteenth birthday, we may assume without deciding that commencement of process and availability to the court would also amount to “apprehension.”
The defendant makes no argument that this fаilure should be excused because of “a substantial risk of a miscarriage of justice.” Commonwealth v. Vasquez,
A pseudonym.
Concurrence Opinion
(concurring). I concur in the result, but write separately to express my view that the judge did not err in admitting the testimony of the victim’s friend, Jane,
There is no dispute that Jane was the first person to whom the victim made her complaint and that the victim’s complaint related to a single incident.
Because the judge did not err in admitting Jane’s testimony, no prejudicial error arises. See Commonwealth v. Sullivan,
A pseudonym.
The judge ruled that the disсrepancies between the victim’s and Jane’s recounting of the first complaint did not render Jane’s testimony inadmissible but bore on the credibility of the witnesses.
The Commonwealth’s theory at trial was that Kamil Ostrowsky penetrated the victim while the defendаnt held her down.
Under the doctrine of first complaint, unlike its fresh complaint predecessor, “the complainant may also testify to the details of the first complaint (i.e., what the complainant told the first complaint witness) and also why the cоmplaint was made at that particular time.” Commonwealth v. King, supra at 245. While it is difficult to ascertain the tactical reasons why defense counsel sought to preclude admission of Jane’s first complaint testimony that the victim reported a rape by Ostrowsky, without mentiоn of the defendant, the first complaint doctrine does not bar that testimony.
Although the absence of error renders further analysis unnecessary, I agree with the majority that even were error to be shown in the admission of Jane’s first complaint testimony, no prejudice inured to the defendant.