Com. v. Amirault

• Decision Date: 06 March 1989
• Citation: 535 N.E.2d 193,404 Mass. 221
• Parties: COMMONWEALTH v. Gerald AMIRAULT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 193

535 N.E.2d 193

404 Mass. 221

COMMONWEALTH v. Gerald AMIRAULT.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 6, 1988.

Decided March 6, 1989.

Juliane Balliro, Boston, for defendant.

Karen J. Kepler, Sp. Asst. Dist. Atty. (Margot Botsford, Asst. Dist. Atty., with her), for Com.

Before HENNESSEY, C.J., and ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The defendant was indicted for seven counts of indecent assault and battery on a child under the age of fourteen, and for eight counts of rape of a child under the age of sixteen. The fifteen indictments involve nine child victims, both female and male, aged four to eight years. A jury found the defendant guilty on all fifteen counts.

The defendant was sentenced to serve concurrent terms of from thirty to forty years at the Massachusetts Correctional Institution, Cedar Junction, on each of the eight indictments charging rape, and to concurrent terms of from eight to ten years on each of the seven indictments charging indecent assault and battery.

A single justice of the Appeals Court affirmed the denial of the defendant's motion to stay the execution of his sentence pending appeal, and ordered an expedited appeal of the denial of the defendant's motion for a new trial on the single issue that a juror in the case was biased. This court upheld the Superior Court judge's denial of the defendant's motion for a new trial on this issue. 399 Mass. 617, 506 N.E.2d 129 (1987).

The defendant later renewed his motion for a new trial based on additional evidence regarding his allegation of juror misconduct. The Superior Court judge denied the renewed motion.

The defendant now appeals from his convictions and from the denial of his renewed motion for a new trial. This court transferred the case here on its own motion. By reason of the foresight and skill of the trial judge, there was no reversible error. We affirm.

The Commonwealth filed a motion to remand the case to the Superior Court judge for further findings concerning the videotaped testimony of one of the child witnesses. A single justice of this court denied that motion.

The defendant was convicted for the multiple sexual assaults of children who attended the Fells Acres Day School (Fells Acres) in Malden. The defendant, known as "Tooky," is the son of the school's owner and director, Violet Amirault, known as "Miss Vi." The defendant worked at the school as a bus driver, helped prepare lunches and snacks, and performed maintenance tasks on the premises. The defendant's sister, Cheryl Amirault LeFave, known as "Miss Cheryl," worked at Fells Acres as a teacher for the toddlers' class. Fells Acres was in operation from 1982, until September, 1984, when the school was closed.

Classrooms at Fells Acres had as many as thirty children under the supervision of one teacher. In warm months, most teachers took their classes on field trips. Field trips included excursions to the schoolyard, to parks, to Miss Vi's pool, and other recreational areas. All the classes, except the toddlers' class, were often out of the building at the same time. During field trips, children sometimes remained at the school with Miss Cheryl, Miss Vi, or Tooky, due to ill health, bad behavior, late arrival, or early departure. Four of the children who testified in this case were occasionally left behind on field trips.

There was a regular nap time at Fells Acres after lunch, between 12:30 P.M. and 2:30 p.m. The children slept on cots set up in the classrooms. Because of overcrowding, children were often removed from their classroom and sent to another less crowded room during nap time. Generally, those children were called away by Miss Vi or Miss Cheryl.

Early in September, 1984, after Fells Acres was closed, a Fells Acres parents' meeting was held at the Malden police station. Parents of five of the children who testified in this case attended that meeting. The meeting alerted parents to the symptoms of sexual abuse, and directed parents to question their children about sexual abuse at Fells Acres.

The children's descriptions of the sexual abuse varied in some details but were similar over-all. Each of the children stated that he or she was forced to touch the defendant's penis, to lick food from his penis, or that the defendant touched or put his penis in the child's vagina or rectum. Some of the boys stated that the defendant had touched or kissed their penises. Some children testified that Tooky inserted various objects into their vaginas or rectums--a magic purple wand, a thermometer, a pencil, a stick, a knife, and a fork.

Some of the children described the abuse as being perpetrated by a bad clown. The bad clown made the children taste ice cream from his penis and made them touch his penis. One child described the incidents in terms of playing an elephant game at school, licking ice cream from the trunk of a pink elephant. The children related that the incidents occurred in a magic or secret room. The magic room was described to be the bathroom on the second floor of the school.

Some children described seeing, or being photographed by a big camera with wires, a red button, and pictures that came out of the camera. One child, while at home, emerged naked from a closet, struck various poses and stated that this was what she had to do at school.

The children stated that they were threatened by Tooky or Miss Vi that if they told anyone about the incidents, that their parents, or family, would be killed, or cut up in pieces, or that the children would be sent away. One child described the killing of a bird, squirrel, and dog in his presence. Another child said her wrist was cut and that blood came out. Some of the children described a robot that threatened them, and told them not to tell their parents. Another child described being blindfolded during the incidents.

The parents of the child witnesses testified about their children's behavior while, or shortly after, attending Fells Acres. The children complained and cried about the school; they complained of stomachaches, headaches, pain in their genital areas, and bowel problems. They began bedwetting, lost their appetites, had nightmares, used baby talk, became fearful of lights, of men, and of being left alone. The children also displayed sexually explicit behavior; some began masturbating. Two of the boys tried to stick their tongues into their mothers' mouths, and one tried to kiss his mother's chest.

The defendant testified at his trial and denied committing any acts of sexual abuse on any of the children. Twenty-two teachers and teachers' aides, full and part-time employees of Fells Acres, testified on behalf of the defendant. Teachers testified that they never saw the defendant dressed as a clown, never saw a robot at the school, never heard of the magic or secret rooms. They testified that they were never restricted or denied access to any rooms in the school, that they never lost track of the children in their care for any length of time, never saw anything indicative of sexual abuse, and that the defendant was well-liked by the children.

Dr. Renee Brant, a child psychiatrist, testified that sexually abused children often delay making disclosure about the abuse, or make gradual disclosure, and frequently retract their disclosures. A child might not disclose the abuse due to fear, guilt, lack of trust, threats of harm to the child or the child's family, or loyalty to the abuser. Dr. Brant also described behavior sexually abused children frequently display, both trauma specific and trauma nonspecific. Trauma specific behaviors include sexualized behavior such as striking sexual poses, exposing genital areas, inserting objects into body cavities, and displaying age-inappropriate sexual knowledge. Trauma nonspecific complaints include stomachaches, sleep disturbances, aggressive behavior, and regression in the form of baby talk and loss of toilet training skills.

Dr. Jean Emans, a pediatric gynecologist, examined five of the female victims who testified in this case and made positive findings as to four of them. One child had a small hymenal bump (caused by rubbing, touching, irritation, or masturbation). Two suffered vulvitis (caused by irritation such as rubbing, nylon tights, leotards, irritating soaps, or sexual abuse). One child had a hymenal scar (extraordinarily rare in nonabused children) and a healed anal fissure; another suffered a labial adhesion (caused by rubbing, irritation, or sexual abuse).

Dr. Daniel Schuman, a psychiatrist, testified that sexualized behavior is not trauma specific to sexual abuse and can be a memory of something the child has seen or been exposed to, or the result of a severe emotional disturbance. He also testified about his "positive reinforcement loop" theory to explain false accusations of sexual abuse. He explained that children may reassure a parent's fearful expectations to maintain an emotional bond, resulting in reports of abuse that become increasingly magnified or exaggerated.

On appeal, the defendant challenges: (1) the admission of testimony concerning a clown; (2) the admission of fresh complaint testimony; (3) the denial of his motion for a mistrial based on improper admission of evidence pertaining to use of a camera and an expert witness's testimony on hymenal scarring; (4) the denial of his motion to dismiss based on variances between the bill of particulars and the substitute bill of particulars, and the evidence presented at trial; (5) the denial of his motion to dismiss two indictments because of inadequate cross-examination of a child witness; (6) the denial of his motion to dismiss because of improper interviewing of the children; (7) the prosecutor's closing argument; (8) the presentation of a child's testimony by videotape; (9) the denial of his right to a fair trial because of the procedure used by the judge in the examination of the child witnesses; and (10) the...