Com. v. Bishop

• Decision Date: 16 August 1993
• Citation: 617 N.E.2d 990,416 Mass. 169
• Parties: COMMONWEALTH v. Edward BISHOP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 990

617 N.E.2d 990

416 Mass. 169

COMMONWEALTH v. Edward BISHOP.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 3, 1993.

Decided Aug. 16, 1993.

[416 Mass. 170] James L. Rogal, Boston, for defendant.

Sabita Singh, Asst. Dist. Atty., for the Com.

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

NOLAN, Justice.

The victims, whom we shall call Brian and Stephen (not their true names), are brothers. In the summer of 1987, Brian was fourteen years old and Stephen was thirteen years old. At the time both Brian and Stephen were Boy Scouts. The defendant was the scoutmaster of their troop, which he had organized. The troop was comprised of scouts who were mentally retarded, physically disabled, and emotionally disturbed, though the record does not indicate that either Brian or Stephen was Brian testified that he respected the defendant and that he thought that the defendant was "the greatest guy in the world." Brian's admiration was the product, at least in part, of the defendant's recounting of his personal adventures which allegedly included experience as a narcotics agent, a Vietnam veteran, and an agent with the Central Intelligence Agency. The defendant also told Brian that he could predict the future because he had ESP (extra-sensory perception).

mentally retarded, physically disabled or emotionally disturbed. During summer camp in [416 Mass. 171] 1987, the defendant praised Brian in front of the other scouts who then elected Brian senior patrol leader. Once Brian was elected senior patrol leader, the defendant worked closely and maintained frequent contact with him.

It is undisputed that in October, 1987, the defendant asked Brian to accompany him on a trip to Connecticut. The stated purpose of the trip was to pick up furniture and transport it back to the Boston area. The defendant and Brian travelled in the defendant's truck.

At trial, Brian testified that the defendant took him to the defendant's home in Acton on the way to Connecticut. There the defendant showed Brian a pornographic movie. After the movie, they departed. On arrival in Connecticut, Brian testified that the defendant drove to a church located in a "bad part of town." The defendant allegedly pointed out individuals entering into drug transactions. Brian testified that the scene made him nervous.

After the tour, the defendant drove to his wife's parents' home, which was located near the church. After entering the house, Brian testified that the defendant, who apparently sensed Brian's fear, told him that he could help him with his powers of ESP. The defendant told Brian that he can not always get "a real good picture" of the future using his powers of ESP. In order to get a clearer picture of the future, the defendant said, he needed to touch something other people touch, such as Brian's hands, and something that nobody else could touch, such as Brian's penis. The defendant attempted to grab Brian's penis. Brian pushed him away. Apparently relying on his powers of ESP, he defendant told Brian that bad things could happen if he let Brian out of the house. Finally, Brian acquiesced. The defendant held Brian's penis. The defendant then told Brian that it would be even better if Brian could "come." The defendant placed Brian's penis in his mouth. Brian became unnerved and urinated in the defendant's mouth. The defendant got upset and went to bed.

The following day, Brian helped the defendant load the furniture onto the truck and then the two drove back to Brian's house. The defendant allegedly told Brian not to tell his parents because it would get the defendant in a lot of trouble. Brian testified that similar incidents occurred approximately one hundred times over the next year. The incidents occurred in the defendant's house, Brian's house, the defendant's truck, and at the defendant's place of employment. The last incident took place in January, 1989.

In the fall of 1988, Brian learned that the defendant wanted to take his younger brother, Stephen, who had also been elected senior patrol leader, to Connecticut. Although Brian never told Stephen what the defendant had been doing to him, Brian told Stephen that the defendant was a "fag" and told his mother that he did not think that Stephen should go to Connecticut.

The defendant and Stephen nonetheless departed for Connecticut. Stephen testified that on the way the defendant reached over and tried to grab his crotch. On arrival at the home of his wife's parents, the defendant played a pornographic movie for Stephen. After the movie, the defendant told Stephen that he wanted to show him what some of the things that were going on in the pornographic movie would feel like. The defendant then placed Stephen's penis in his mouth and performed fellatio. During the return trip, the defendant told Stephen that the incident was their secret and that his parents would not like him if they found out. Over the next few months The defendant testified to a markedly different relationship with Brian and Stephen from that which the boys described. The defendant maintained that his relationship with Brian and Stephen was one of a scoutmaster and scout. The defendant denied allegations of sexual impropriety with the boys. The defendant testified that he did travel to Connecticut with the boys, but denied charges of sexual misconduct. The defendant further testified that he knew the alleged victims' parents socially and visited their home on average once or twice a week during the period April, 1987 to July, 1989, and that the boys had visited his home six or seven times for the purpose of observing his menagerie and furthering other scouting-related interests. It was the defendant's testimony that during these visits, his wife was almost always at home and that seventy-five per cent of the scouts in the troop visited his home.

numerous similar incidents occurred between the defendant and Stephen in the defendant's home, in his automobile, and at the defendant's place of employment. The last incident between the defendant and Stephen occurred in October, 1988. In March, 1989, Brian told his [416 Mass. 173] mother of his incidents with the defendant. In July, 1989, she learned of the incidents between Stephen and the defendant.

In May, 1990, a Middlesex County grand jury returned four indictments charging the defendant with having unlawful sexual intercourse or unnatural sexual intercourse and abuse of two children under the age of sixteen. In July, 1990, the defendant was tried before a jury in Superior Court. The jury found the defendant guilty on three indictments. The defendant, asserting various grounds, appeals. We transferred the case to this court on our own motion. For the reasons set forth below, we affirm the convictions.

1. Grand jury proceedings. Prior to trial, the defendant filed a motion to dismiss the indictments because the victims' testimony wasvideotaped and replayed to the grand jury. The defendant argues that the victims' failure to testify in person before the grand jury impermissibly tainted the grand jury proceedings. ¹

The defendant's argument is without merit. It is axiomatic that an indictment may be based entirely on hearsay. See Mass.R.Crim.P. 4(c), 378 Mass. 849 (1979). The videotaped testimony presented to the grand jury is hearsay testimony. It is not enough for the defendant to assert that live testimony was available for presentation to the grand jury. SeeCommonwealth v. St. Pierre, 377 Mass. 650, 655, 387 N.E.2d 1135 (1979), citing Commonwealth v. Robinson, 373 Mass. 591, 592, 368 N.E.2d 1210 (1977). "We have, however ... stressed our position--and do so again--that sound policy dictates a preference for the use of direct testimony before grand juries." Commonwealth v. St. Pierre, supra, 377 Mass. at 655-656, 387 N.E.2d 1135. The defendant would have us elevate sound policy to a rule of law--a route we decline to take. Further, the defendant's reliance on Commonwealth v. Bergstrom, 402 Mass. 534, 524 N.E.2d 366 (1988), is misplaced as Bergstrom involved the introduction of testimony of a child witness by electronic means during the course of a criminal trial, circumstances distinguishable in fact and in law from the present case.

2. The victims' psychological and medical records. The defendant claims that the motion judge erred in refusing to disclose certain psychological and medical records to the defendant. The pertinent facts are as follows. Prior to trial the defendant moved to compel production of the victims' psychological records resulting from a Dr. Elaine Orabona's examination of the victims during August, 1989. The judge allowed the motion insofar as the judge examined Dr. Orabona's records in camera "to determine whether there are statements of the children which are discoverable." ² The judge did not disclose Dr Prior to trial the defendant also moved to compel production of the victims' medical records in the possession of the Hanscom Air Force Base Medical Clinic (clinic) "including, but not limited to," the results of laboratory tests and the physical examinations performed by a Dr. Hayes in August, 1989. ³ At a hearing on the motion, defense counsel argued that the judge should at least review the records in camera "with regard to whether there is anything exculpatory in [the] records at all." The assistant district attorney agreed to an in camera review of the "physical" reports but argued that the other medical records were privileged and that there had been no preliminary showing of need for disclosure. ⁴ Alternatively, the assistant district attorney argued that the other medical records were irrelevant.

Orabona's records to defense counsel or to the prosecutor.

The judge allowed the motion to compel production of the results of the laboratory tests and the physical examinations from the dates of the alleged abuse to the physical examination conducted by Dr. Hayes in ...