Com. v. Bailey

Decision Date07 June 1976
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

David O. Burbank, Pittsfield, for defendant.

L. Jeffrey Meehan, Asst. Dist. Atty., for the Com.


KAPLAN, Justice.

The defendant Ronald E. Bailey was convicted in the Superior Court on indictments charging him with rape, and assault with intent to commit rape (G.L. c. 265, §§ 22, 24), and with breaking and entering a dwelling house in the night time with intent to commit a felony, making an assault on a person lawfully therein (G.L. c. 266, § 14). He was sentenced thereon to concurrent fifteen-to-twenty year terms. His convictions on two other associated indictments 1 were placed on file. He appeals under the provisions of G.L. c. 278, §§ 33A--33G, and direct review was granted by this court under G.L. c. 211A, § 10(A).

The jury could have found the following. The victim, a retired school teacher living alone in a small house in Sheffield, Massachusetts, heard a knock on her door in the late evening of April 1, 1972. She looked through a window in the doorway and saw 'a young negro fellow, rather light, with a modified Afro.' Through the closed door he asked if he could use the phone; the victim refused to let him in, but said she would make a phone call for him. She could not find in the phone book the name the man mentioned. When she returned to the door, he had gone. She informed the local policeman of the incident by telephone. As the policeman cruised through the neighborhood he saw the defendant walking on the side of the road. The defendant was known to the policeman. He matched the victim's description of the man at the door. However, the policeman did not stop or speak to the defendant but continued on his patrol.

Later in the evening, after the victim had secured the house and retired to bed, she heard a sound and looked toward the door of the bedroom. In the glow of a light near a telephone in the hallway she saw the silhouette of a person resembling the man she had seen earlier. The man had entered the house by breaking a window in the rear door and releasing the latch. The victim ran towards the phone hoping, apparently, to butt the man out of the way, but he grabbed her and the two struggled. He hit her on the mouth and tied her hands behind her back with the cord from the telephone, which he had ripped from the wall. He attempted to rape her. He then carried her into the bedroom and tied her to the bed with stockings and pantyhose. The victim was unable to see her assailant because he covered her head with a plastic laundry bag. She was then beaten and raped.

The assailant left at dawn and the victim managed to get free and run to a neighbor's house. After the police and relatives were summoned, she was taken to a hospital where she repeated her story to a State policewoman (a conversation discussed below). Meantime the police searched the victim's home. The phone ripped from the wall was found in a linen closet in the bathroom and a latent fingerprint was lifted from it. Three police officers testified at trial that the print had eighteen points of comparison with a record print of the right thumb of the defendant. 2

A grand jury soon indicted the defendant for the crimes mentioned, but the defendant had left the Sheffield area and was not apprehended until two years later in Pennsylvania. He testified at trial, in November of 1974, that he was playing with a band in Poughkeepsie, New York, on the night of the rape, but was unable to locate witnesses who could verify this alibi, which was substantially different from one he gave a State trooper in an interview just after the rape. On cross-examination the defendant explained his failure to mention the Poughkeepsie job to the trooper by claiming that he felt the Massachusetts police would only be interested in his activities in Massachusetts.

Questions are raised on this appeal about the 'fresh complaint' doctrine, the time for claiming a voir dire to suppress the record print, and the questioning of jurors for bias. We find no error.

1. The State policewoman, who visited the victim in the hospital on the morning after the rape, was allowed, over objection, to testify to the victim's description of the attack. The court admitted the testimony under the doctrine of 'fresh complaint.'

Ordinarily an out-of-court statement that is merely repetitive of a victim's trial testimony is not admissible as part of the case-in-chief. 3 See Commonwealth v. Zukoski, --- Mass. ---, --- a, 345 N.E.2D 690 (1976); W. B. Leach & P. J. Liacos, Massachusetts Evidence 131, 183--187 (4th ed. 1967). In cases of rape, however, testimony reporting statements made by the victim shortly after the attack are universally admitted to corroborate the victim's testimony. See Commonwealth v. Hanger, 357 Mass. 464, 466, 258 N.E.2d 555 (1970); Commonwealth v. Ellis, 319 Mass. 627, 629, 67 N.E.2d 234 (1946); 4 J. Wigmore, Evidence §§ 1134--1140 (Chadbourn rev. 1972); 65 Ann.Jur.2d Rape, §§ 76--81 (1972). It is said to be the more common view that the prosecution is allowed to introduce only the fact of the complaint (see, e.g., State v. Grady, 183 N.W.2d 707, 712--719 (Iowa, 1971); 4 J. Wigmore, supra § 1136, at 307, 307--310 n. 1), but in the Commonwealth and a few other jurisdictions the rule is settled that 'the whole of the statement . . ., including the details, is admissible.' Glover v. Callahan, 299 Mass. 55, 58, 12 N.E.2d 194, 196 (1937); see Commonwealth v. Hanger, supra; Commonwealth v. Ellis,supra; State v. Purvis, 157 Conn. 198, 207--208, 251 A.2d 178 (1968); State v. Crissman,60 Ohio Op.2d 279, 281, 287 N.E.2d 642 (County Ct.App. 1971); Dunn v. State, 45 Ohio St. 249, 251, 12 N.E. 826 (1887). 4

A fresh complaint doctrine is justified on the ground that a victim's failure to make prompt complaint might be viewed by the jury as inconsistent with the charge of sexual assault (see Commonwealth v. Spare, 353 Mass. 263, 265, 230 N.E.2d 798 (1967)), and in the absence of evidence of complaint the jury might assume that none was made. See Glover v. Callahan, supra 299 Mass. at 57, 12 N.E.2d 194; 4 J. Wigmore, supra § 1135 at 298--299. The defendant argues that although this explanation can justify admission of the fact of the complaint, it does not justify admission of the details. Cf. K. B. Hughes, Evidence § 244 at 296--297 n. 98 (1961); 4 J. Wigmore, supra § 1136 at 306--307. So he contends we should modify our rule by limiting the proof to the fact of complaint.

We may say, preliminarily, that, even if we accepted the defendant's argument, we would conclude that the admission of the policewoman's testimony, with its detail, was nonprejudicial and harmless in the present case. Both the neighbor, to whose home the victim retreated, and the victim's sister were allowed to testify, without objection, to what the victim told them following the attack. And the testimony of the policewoman was merely a short summary of the testimony the victim herself gave about the criminal events. See Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971); Commonwealth v. Howard, 355 Mass. 526, 530, 246 N.E.2d 419 (1969). It contained no new information. It did not reach substantially any contested factual question, for the issue in dispute at the trial was the identity of the attacker, and the testimony of the policewoman did not include a description of him. Also, we think it fanciful to suppose that the policewoman's testimony could have served to inflame the jury; it was a dry recounting of the facts, and such force as it might have was diminished by the circumstance that the policewoman was unable to recall the physical appearance of the badly beaten victim. In short, the testimony was a non-controversial, largely inconspicuous, and redundant segment of the trial. 5

We are not persuaded, however, that we should depart from our settled practice. 6 Whatever may have been the historical origin of the fresh complaint doctrine, 7 it should now be seen in relation to the common observation, supported by some empirical data, 8 the juries tend toward considerable and perhaps inordinate skepticism in rape cases, above all where there is a suggestion of willingness or acquiescence on the part of the victim. As noted, admission of testimony of fresh complaint anticipates to some extent the inference of consent, or of merely imagined assault. However, the so called 'majority' rule 9 permits only the following: 'On the direct examination the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive in answer only a simple yes or no.' Woods v. State, 233 Ind. 320, 326, 119 N.E.2d 558, 562 (1954), quoting from Thompson v. State, 38 Ind. 39, 40 (1871). It may be doubted whether so perfunctory a reference goes far enough to achieve the intrinsic purpose of the doctrine.

The English court which, after extended consideration, overturned the previous rule confining the corroborative testimony to the fact of the complaint, and decided to admit the details, added the following thoughts: 'The jury, and they only, are the persons to be satisfied whether the woman's conduct was so consistent or not (i.e., consistent with her testimony). Without proof of her condition, demeanour, and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it? Is it to be left to the witness to whom the statement is made to determine and report to the jury whether what the woman said amounted to a real complaint? And are the jury bound to accept the witness's interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to...

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