Com. v. Allen, 94-P-1729

• Decision Date: 11 July 1996
• Docket Number: No. 94-P-1729,94-P-1729
• Citation: 40 Mass.App.Ct. 458,665 N.E.2d 105
• Parties: COMMONWEALTH v. Douglas ALLEN.
• Court: Appeals Court of Massachusetts

Page 105

665 N.E.2d 105

40 Mass.App.Ct. 458

COMMONWEALTH v. Douglas ALLEN.

No. 94-P-1729.

Appeals Court of Massachusetts Bristol.

Argued Jan. 3, 1996.

Decided May 22, 1996.

Further Appellate Review Denied July 11, 1996.

Joseph F. Krowski, Brockton, for defendant.

Mary O'Neil, Special Assistant District Attorney, for Commonwealth.

Before KASS, IRELAND and LENK, JJ.

LENK, Justice.

A Superior Court jury found the defendant guilty of two counts of indecent assault and battery of a child, ¹ and one count of rape of a child. ² The victims are the defendant's children, George and Heather, ³ who were eleven and ten years old, respectively, at the time of trial, and nine and eight years old when the crimes were committed. The defendant complains that he suffered a substantial risk of a miscarriage of justice because the trial court erred in (1) denying his request for a pretrial hearing concerning the competency and reliability of the children, given the nature of the interviewing techniques employed by Commonwealth investigators; (2) excluding defense expert testimony concerning the interview techniques employed; (3) improperly admitting expert testimony that vouched for the children's credibility; (4) allowing both stale fresh complaint testimony and the fresh complaint testimony of a child abuse investigator who had observed an interview with the children through a two-way mirror; and (5) refusing to give certain defense instructions to the jury concerning the reliability of children's testimony. ⁴ Because there was no error, we affirm.

1. Pretrial hearing regarding the impact of the Commonwealth's interview techniques on the child-victims' competency and reliability. The defendant does not argue that, under Massachusetts law, the children were not competent to testify. Rather, he urges us to adopt the reasoning of a New Jersey case, State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), and to reverse the convictions because, as a result of "coercive and suggestive" questioning of the complainants by the Commonwealth during the investigation of the case, he was deprived of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, when denied a pretrial evidentiary hearing to determine whether the children's testimony had been so tainted as to render it unreliable.

In support of his motions in limine seeking a pretrial competency hearing, the defendant offered (1) a videotape of one such interview, between Susan Desrosiers, coordinator of the Sexual Assault Intervention Network in New Bedford and each of the children; (2) expert testimony to the effect that the techniques employed in the interview, including use of anatomically correct dolls and allegedly leading and suggestive questions, had affected the children's reliability; and (3) assertions in his offer of proof (a) that the children had been told in advance about the videotaped interview and (b) that prior to this interview, George and Heather had been interviewed eight and eleven times, respectively, by professionals such as Department of Social Service employees, police, investigators, and a psychotherapist. The trial judge denied the motions in limine, noting that he would view the videotape, and that he intended to review the children's competency in the course of the trial.

As the trial unfolded, the defendant's daughter was the first of his children to testify. A voir dire was conducted outside the hearing of the jury, with a full opportunity for questioning by all counsel. Both prongs of the competency test (see infra ) were fully explored. The defendant's son, the older child, then testified. Without objection, the trial judge briefly examined George in the presence of the jury, to determine his competency. The boy was asked his name, age, grade in school, and the names of his school, his teacher, and his school principal. He was not asked any questions regarding his ability to understand the difference between the truth and a lie, or the importance of speaking only the truth. However, defense counsel made no objection to the competency of either child witness, nor did counsel request that the trial judge view the videotape before making a determination of the children's competency. ⁵ We therefore consider whether the trial judge committed error in denying the motions for a pretrial hearing, and if so, whether it amounted to a substantial risk of a miscarriage of justice.

General Laws c. 233, § 20, as appearing in St.1983, c. 145, provides, "Any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal...." In this Commonwealth, there is a two-pronged test for competency. The witness must (1) have "the general ability or capacity to 'observe, remember, and give expression to that which she has seen, heard, or experienced'; and (2) ... ha[ve] 'understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment.' " Commonwealth v. Gamache, 35 Mass.App.Ct. 805, 806, 626 N.E.2d 616 (1994), quoting from Commonwealth v. Brusgulis, 398 Mass. 325, 329, 496 N.E.2d 652 (1986), quoting from Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495 (1921). A trial judge has broad discretion to determine whether a competency hearing is required, and whether a witness is competent to testify. "Whether the test is met is 'peculiarly for the trial judge, and his determination will be rarely faulted on appellate review.' " Gamache, supra at 806, 626 N.E.2d 616, quoting from Commonwealth v. Whitehead, 379 Mass. 640, 656, 400 N.E.2d 821 (1980).

Under Massachusetts law, there is no reason to conclude that the children were not competent to testify. Heather's response to the voir dire questions amply demonstrated her competence under both prongs of our competency test. Neither is there any reason for thinking that George was unaware of the difference between the truth and a lie, or the importance of speaking the former and not the latter, even though the judge did not explore the second prong of the competency test with him during the voir dire conducted in the jury's presence. In fact, the videotaped interview with each child began with questions and admonitions to that effect. Finding no error under Massachusetts law, we consider the analysis set out in State v. Michaels, 136 N.J. 299, 642 A.2d 1372.

The Michaels decision focused on the reliability of children's testimony. In keeping with a host of psychological research, ⁶ the Michaels court acknowledged that leading or coercive questioning can distort a child's memory. ⁷ (In Massachusetts, this would implicate the first prong of the competency test.) To provide defendants a means for raising this issue of memory distortion, the Michaels court provided for a "pretrial taint hearing" when a defendant shows "some evidence" ⁸ that a victim's statements were the product of suggestive or coercive interview techniques. Michaels, supra at 320, 642 A.2d 1372. Such is not the case here. Even if we were to embrace the Michaels analysis, a matter that we do not reach today, it would not change the result, as the defendant's offer of proof did not reach the threshold required by Michaels to trigger a pretrial hearing.

In the case at bar, both children made their initial allegations of abuse spontaneously, rather than in response to questioning. Heather made her first allegation when she discovered she was about to go on a camping trip without her mother, and feared her father might know where she was. George made his first allegation right after the defendant, who no longer lived with the family, appeared at the children's home with no warning and allegedly hit George's bicycle with his truck. The videotape of each child's separate interview with Desrosiers reveals that her questions were not particularly leading, nor were they coercive. In contrast to the Michaels interviews, there was no vilification of the defendant, no incessant questioning, no references to statements made by the other complainant, and no use of threats, bribes, or cajoling. While the defendant asserted in his motions that some eleven or more interviews had been conducted with the children, evidence of only one interview was proffered. We note that neither the initial interview, nor subsequent interviews (with the exception of the one set of interviews with Desrosiers) were videotaped or recorded, and that, without such recordings, it is difficult for the defendant to substantiate an offer of proof in support of a request for a pretrial competency hearing. ⁹ Nevertheless, on the record before us, there is no reason to think that the children's allegations or testimony were coerced.

2. Exclusion of expert opinion on the interview techniques employed in questioning the complainants. The trial judge ruled that the defendant would be permitted to show the videotaped interview with the complainants, ¹⁰ and to put on expert testimony regarding proper and improper interview techniques to be employed with children alleged to be the victims of sexual abuse. Further, the trial judge ruled that defense counsel would be permitted to argue in his closing that the techniques employed on the video were of the improper type described by the expert witness, and thus the children's testimony was unreliable. However, the trial judge refused to allow the defense expert to comment specifically on the questions employed in the videotape itself, on the basis that such opinions would impermissibly comment on the children's credibility. Apparently deciding as a matter of strategy that it would be better not to show the jury the videotape, defense counsel never showed the tape, and was arguably unable to put squarely before the jury...