405 Mass. 610 (1989), Commonwealth v. Tufts

Citation:405 Mass. 610, 542 N.E.2d 586
Case Date:August 21, 1989
Court:Supreme Judicial Court of Massachusetts

Page 610

405 Mass. 610 (1989)

542 N.E.2d 586



Laura TUFTS.

Supreme Judicial Court of Massachusetts, Norfolk.

August 21, 1989

Argued May 3, 1989.

[542 N.E.2d 587] Richard L. Dahlen, Boston, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for Com.


LIACOS, Chief Justice.

The defendant, Laura Tufts, was convicted by a jury in June, 1987, of several indictments charging rape, indecent assault and battery, and child pornography. She took no appeal from her convictions. In August, 1988, she filed a motion for a new trial claiming that the use of videotaped testimony of the child victim deprived her of her right to confront the witnesses against her. After a hearing, the motion was

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denied. She now appeals from the denial of her motion for a new trial. We transferred the case to this court on our own motion.

The defendant and her codefendant, Joseph Dockham, 1 were tried for the sexual abuse of the defendant's two minor children, a four year old boy and an eighteen month old girl. The four year old boy was the only witness to the alleged events and the principal witness for the prosecution at trial. When called to testify, the child witness answered general questions about himself, his friends, school, and about the foster family he was living with at the time of trial. He testified that the defendant had taken pictures of him and his sister but was not responsive to questions about what he was doing when the pictures were taken. He began to kick, move around in his seat, and turned around in his chair to face the wall of the courtroom behind the judge. He testified that things had happened that he did not like, that things had happened at his house besides taking pictures, but stated that he did not remember what other things had happened. When asked if anything else had happened to him, he responded that he "didn't know it anymore," he did not "remember any of it." The judge allowed a brief recess to allow the child's foster mother, in the presence of defense counsel, to encourage the boy to answer questions.

During the recess, the judge allowed the prosecutor to ask some questions of the child witness in the judge's lobby to refresh his recollection. The child witness made a detailed statement about how the defendant and codefendant had taken pictures of him and had touched him and his sister. He stated that the defendant had touched his penis with her hands and her mouth. He said that the codefendant had touched his penis with his mouth and had tried putting his penis up the child's "bum"; the penis "got hard and fit in a little bit." The [542 N.E.2d 588] child stated further that both the defendant and codefendant touched the witness's sister and made him touch his sister's vagina. The boy stated that the codefendant took pictures while the defendant

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was "sucking [his] penis," and that the defendant took pictures while the codefendant was "sucking [the girl's] vagina." The child agreed to answer some of the same questions again in the courtroom.

When the child witness resumed the stand in the courtroom, he was biting his shirt, could not speak, turned around in his chair, and put his head on the railing. When asked if someone did something while he lived with the defendant, he responded, "I already said it. Now enough's enough." When further questioning elicited no response from the child witness, the judge called another brief recess.

The judge again called the child witness into the lobby. The boy stated that he was not talking, that he had had enough, and that he was not answering anymore. The judge allowed the child's foster mother to come into the lobby. The child thereafter agreed to answer questions in the courtroom.

The child witness resumed the stand before the jury. He testified that he and his sister had been touched but refused to answer additional questions, saying that he had "already said it." The judge, at that point, allowed the foster mother to sit in the front of the courtroom. The child again stated that he was not answering any questions, saying, "I said that was enough." The judge concluded...

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