Com. v. Amirault

• Decision Date: 24 March 1997
• Citation: 424 Mass. 618,677 N.E.2d 652
• Parties: COMMONWEALTH v. Violet AMIRAULT (and eleven companion cases 1 ). COMMONWEALTH v. Gerald AMIRAULT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 652

677 N.E.2d 652

424 Mass. 618

COMMONWEALTH v. Violet AMIRAULT (and eleven companion cases ¹).

COMMONWEALTH v. Gerald AMIRAULT.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 9, 1996.

Decided March 24, 1997.

Martin F. Murphy, Assistant District Attorney (Catherine E. Sullivan, Assistant District Attorney, with him) for Commonwealth.

Daniel R. Williams, New York City (Daniel V. Finneran and James L. Sultan, with him) for defendants.

Scott L. Harshbarger, Attorney General and Elizabeth J. Medvedow, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

FRIED, Justice.

In 1986, Gerald Amirault was found guilty on eight indictments charging rape of a child and seven indictments charging indecent assault and battery on a child. We affirmed the denial of his request for a new trial in Commonwealth v. Amirault, 399 Mass. 617, 506 N.E.2d 129 (1987), and affirmed his convictions and the denial of his renewed motion for a new trial, Commonwealth v. Amirault, 404 Mass. 221, 535 N.E.2d 193 (1989). In a separate trial arising from the same allegations of abuse at the Fells Acres Day School, Violet Amirault ² was found guilty on two indictments charging rape of a child and three charging indecent assault and battery on a child, and Cheryl Amirault LeFave was found guilty on three indictments charging rape of a child and four charging indecent assault and battery on a child. We affirmed these convictions, Commonwealth v. LeFave, 407 Mass. 927, 556 N.E.2d 83 (1990), and vacated on appeal a judge's order revising their sentences, Commonwealth v. Amirault, 415 Mass. 112, 612 N.E.2d 631 (1993). Gerald filed a motion for a new trial on March 30, 1995, and Violet and Cheryl filed their motion for a new trial on April 11, 1995, alleging that the special seating arrangements used for the child witnesses in their original trials deprived them of their right "to meet witnesses against [them] face to face" as guaranteed by art. 12 of the Massachusetts Declaration of Rights and our recent decision in Commonwealth v. Johnson, 417 Mass. 498, 631 N.E.2d 1002 (1994). Gerald Amirault's motion was denied by the judge who presided over his trial. Violet Amirault and Cheryl Amirault LeFave's motion was allowed by a motion judge who had had no connection with their original trial. We granted the Commonwealth's application for direct appellate review as to all three defendants. ³

I

The defendant Violet Amirault directed the Fells Acres Day School where her daughter, Cheryl, worked as a teacher and her son, Gerald (generally referred to as "Tooky" in the children's testimony), worked as a bus driver, cook, maintenance man, and general assistant. On September 2, 1984, a mother of one of the students made allegations of abuse against Gerald, which led to a large-scale investigation. Gerald was arrested three days later, and the school was closed shortly thereafter. Violet and Cheryl were implicated in the allegations of abuse. After the school was closed, a parents' meeting was held at the Malden police station where parents were instructed to question their children about a secret or magic room and a clown, and were made aware of symptoms which might evidence sexual abuse.

Initially, all three defendants were subject to the same prosecution, and all three were represented by the same trial counsel. In the course of pretrial motions, the Commonwealth requested severance and the defense agreed. ⁴

A

Gerald Amirault was the first of the three defendants to be tried. The Commonwealth's cases consisted primarily of the testimony of nine children who related their accounts of abuse at Fells Acres. Eight of the nine children testified in the court room, but using an altered seating arrangement. The other child's testimony was recorded on videotape and shown to the jury at a later date. We upheld that mode of testimony in Gerald's direct appeal, Commonwealth v. Amirault, 404 Mass. 221, 240-243, 535 N.E.2d 193 (1989), and summarized the evidence presented against him in great detail. Id. at 224-227, 535 N.E.2d 193. An identical seating arrangement was used in both trials for those child witnesses who testified in the court room. This was the seating arrangement for the child witnesses which is the subject of these petitions:

Each child witness testified at a small, child-sized table which was placed directly in front of the jury box. A microphone was placed in the center of the table into which the child was directed to answer. The defendants remained at the defense table which was positioned behind and to the side of the child witness. The Commonwealth and the defendants quibble over the specific parts of the child witness's face the defendants could view and the exact degree of the sight angles available from the defense table. There is sufficient agreement as to the basic features of the arrangement, and our decision does not turn on the features about which there is disagreement. The defense table was not directly behind the child witness, so some profile view was observable. The parties agree that the approximate sight angle from the nearest seat at the defense table to the child witness was approximately 112 degrees. The maximum angle from the other seats at the defense table is in dispute, but is somewhere between 128 and 145 degrees. The child witnesses were seated approximately eight to nine feet from the defendants. The motion judge who heard Violet and Cheryl's motion, declared that "[a]t best, the defendants could only see the right ear and a part of the right cheek of the testifying witness." The Commonwealth contends that the defendants could see almost a full profile view including the child's lips and that the child witness could make eye contact by turning toward the defendants.

During the child witness testimony, counsel sat at either side of the small table. The lawyer examining the child sat in the seat furthest from the defense table. If the child looked at the lawyer examining the child, he or she would have to turn his or her face away from the defendants. The judge sat next to the questioning attorney and a parent was permitted to sit approximately six feet behind the child. Thus, it is likely that the child's attention was focused away from the defense table during most of the testimony. No defendant made any effort to move to the open seat at the defense table which offered the best view of the child witnesses.

Gerald was present when each child walked into the court room. The children were aware of his presence, and the jury would have been able to see any interaction, such as eye contact or avoidance of it, between the defendant and the witnesses at that time. In addition, the judge who denied Gerald's motion for a new trial found that "[d]uring [breaks], some [children] ... looked directly at the defendant, some expressing fear that the defendant would leave his seat and come after them." Five of the eight children testifying in the altered court room were asked to identify the defendant. Four of the children positively identified the defendant by pointing toward him, some being asked to point several times to ensure that they were, in fact, pointing to the defendant. The remaining child pointed in the direction of the defendant but refused to look at him.

Before the trials and before severance, the judge heard testimony from Dr. Eli Newberger, a pediatrician specializing in child abuse, regarding the appropriate manner by which the children should be asked to testify. In their examination of Dr. Newberger, defense counsel conceded that an altered court room arrangement would be preferable, stating, "I think we've all accepted the fact that the small, more intimate setting is the preferred setting as it potentially will be less traumatic, notwithstanding what the child is being asked to address himself to." The defense also declined on two separate opportunities presented by the judge to object to the seating on confrontation grounds. In the first instance, the judge explicitly asked defense counsel whether he was raising the confrontation issue:

THE JUDGE: "I think [defense counsel], if you try and get at the situation of would a face-to-face confrontation with the defendant be more likely to produce the truth--is that your thrust?"

DEFENSE COUNSEL: "No, your Honor."

In the second instance, defense counsel not only rejected the judge's characterization of their argument, but also ignored the judge's suggestion that confrontation was an open issue, worthy of examination:

THE JUDGE: "What you're saying is, fine, Judge, look at the trauma, look at the right of confrontation under the Sixth Amendment or [art. 12], which I really think is basically here--"

DEFENSE COUNSEL: "Not quite, Judge."

THE JUDGE: "--to be determined."

DEFENSE COUNSEL: "It's not a right of confrontation issue."

The discussion that actually determined how seating would be arranged for the child witnesses was made off the record because defense counsel did not object to those arrangements.

While the defense did not question the in-court seating arrangement on confrontation grounds, it vigorously contested the use of videotaped testimony on this basis. The defendant's motion in opposition to the use of videotape stated that art. 12 "has long been recognized as affording defendants greater protections than those provided for in the Sixth Amendment" to the United States Constitution. Arguing this point prior to trial, defense counsel noted that "[t]he Massachusetts Constitution, by its very words, guarantees a defendant a face-to-face confrontation." The defendant's motion cited liberally to United States v. Benfield, 593 F.2d 815 (8th Cir.1979), a case favoring confrontation rights under Federal constitutional law, and noted a Kentucky case, Commonwealth vs. Willis, No. 84-CR-346 (Fayette ...