Com. v. Tufts

• Citation: 405 Mass. 610,542 N.E.2d 586
• Parties: COMMONWEALTH v. Laura TUFTS.
• Decision Date: 21 August 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 586

542 N.E.2d 586

405 Mass. 610

COMMONWEALTH v. Laura TUFTS.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued May 3, 1989.

Decided Aug. 21, 1989.

Richard L. Dahlen, Boston, for defendant.

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

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

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 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 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 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 that they were not going to make any progress with the child witness that day and recessed the trial until the following morning.

At a lobby conference, the attorneys and the judge discussed the situation. The judge stated: "I am going to permit great leeway with this child ... [n]ot only because he's a child but because of the fact that at least I know now from what he said in the lobby, without any real prompting at all, as to what his testimony and observations are ... [p]articularly when he assured me without any pressure at all that he was prepared to answer the questions."

The next day, during a lobby conference, the judge stated that he would permit the prosecutor to ask leading questions of the child witness. He reiterated his view that, "I'm going to be lenient, at least in getting this boy's story told. Whether it's believed or not is another story. I'm at least satisfied that he has a story to tell because I heard it."

When the child took the stand for the fourth time, the prosecutor attempted to elicit the child's testimony with the use of anatomically correct dolls. The child witness had difficulty sitting up straight in the chair. When the prosecutor asked for a recess, the judge encouraged the boy to answer questions. After the child witness stated that he would not answer questions for anyone, the judge called a recess.

The prosecutor then moved to videotape the child's testimony outside the presence of the defendants and the jury under the provisions of G.L. c. 278, § 16D (1988 ed.). The judge allowed the videotaping of the child witness's testimony but conducted the videotaping in the defendant's and codefendant's presence. ²

The judge, in his written findings of fact and rulings of law, found that the child was unable to answer questions in the courtroom about the alleged sexual abuse. The judge found, as fact, based on the lobby conferences at which the child witness gave a detailed account of sexual abuse, that, "at a minimum, [the child] at least had a story to tell, but would not tell it in the presence of the jury or defendants," and concluded "that the courtroom is not a suitable setting for him to tell a story which he has the ability to tell."

Based on the child's courtroom testimony, his conduct in the courtroom, the voir dire hearings conducted with the child witness in the lobby before and during trial, and the judge's observations of the child over the course of three days, the judge found, by a preponderance of the evidence, "that for [the child] to tell his story in the presence of the jury and the defendants in open court would have the consequence of a likelihood on his part to suffer psychological or emotional trauma." After the hearing on the motion for a new trial, the judge amplified his findings by stating "that the same behaviors exhibited by [the child] in the courtroom as contrasted with his appearance and behavior as witnessed by [the judge] in the lobby would have satisfied [the judge] beyond a reasonable doubt that it was necessary to record [the child's] testimony outside the courtroom in order to prevent [the child] from suffering psychological or emotional trauma." ³

The judge conducted the videotaping in the room where the grand jury ordinarily sits, a room approximately seventeen by twenty-three feet in area. A court officer stood inside the room in front of the door. The judge sat at the head of a twelve by four feet rectangular table. The child witness sat to the judge's right with his foster mother. The court clerk sat to the foster mother's right. The two defendants sat together, to the clerk's right, approximately twelve feet from the child. The court reporter sat to the judge's left. The prosecutor and defense attorneys sat to the court reporter's left. The judge established the seating arrangement and rejected the prosecutor's request to seat the child's foster mother so as to obstruct the views of the defendant and codefendant.

On this appeal from the denial of her motion for a new trial, the defendant challenges the quality of the videotape and argues that her constitutional right to confrontation has been violated. ⁴

1. The defendant's confrontation right. This case was tried in June, 1987, before we decided Commonwealth v. Bergstrom, 402 Mass. 534, 524 N.E.2d 366 (1988). In Bergstrom, we held that G.L. c. 278, § 16D, violated art. 12 of the Massachusetts Declaration of Rights to the extent that it allowed a child witness, through electronic means, to testify outside the physical presence of the defendant and the jury. Article 12 guarantees a criminal defendant the right "to meet the witnesses against him face to face." The defendant argues that her prosecution violated art. 12 because there was no actual or possible "face to face" confrontation, i.e., eye contact between her and the child witness during the videotaping procedure. ⁵

In this case, unlike the circumstances in Bergstrom, the defendant and codefendant were both present during the videotaping procedure. See Bergstrom, supra at 539, 524 N.E.2d 366 (both child witnesses testified in a room separate from the courtroom where the jury and defendant were located). The defendant's argument is that her physical position during the videotaping prevented eye contact with the child witness. We reject the defendant's contention that no eye contact was possible as inconsistent with the record as well as with the judge's findings of fact. The judge's memorandum of decision regarding the defendant's motion for a new trial explicitly stated that the judge had denied the prosecutor's request to obstruct the defendant's and...