Com. v. Cogswell

• Citation: 583 N.E.2d 266,31 Mass.App.Ct. 691
• Decision Date: 12 February 1992
• Docket Number: No. 91-P-126,91-P-126
• Parties: COMMONWEALTH v. Earl S. COGSWELL.
• Court: Appeals Court of Massachusetts

Page 266

583 N.E.2d 266

31 Mass.App.Ct. 691

COMMONWEALTH v. Earl S. COGSWELL.

No. 91-P-126.

Appeals Court of Massachusetts,

Plymouth.

Argued Sept. 11, 1991.

Decided Dec. 20, 1991.

Further AppellateReview Denied

Feb. 12, 1992.

Donald A. Harwood, Dorchester, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for Com.

Before ARMSTRONG, DREBEN and GREENBERG, JJ.

GREENBERG, Justice.

The six indictments ¹ on which the defendant was convicted after a jury trial arose out of alleged sexual assaults on his two stepdaughters, whom we shall call Yvette and Zoe. After considering the several issues raised by the defendant on appeal, we conclude that the convictions on the indictments encompassing both girls' accusations must be reversed.

We recite the highlights of the evidence produced by the Commonwealth, described in the order in which they occurred. Both girls first met the defendant in 1977 while he worked in Brockton as the operator of an ice cream truck business. The defendant and the girls' mother began a romantic relationship sometime in 1978. About a year later, in 1979 (the precise date is discussed below as it governs the statute of limitations), Zoe, who was eleven years old, Yvette, who was seven, and their brothers moved into the first-floor apartment of a two-family home on St. Casimir Avenue in Brockton. The defendant assumed occupancy of the second-floor apartment of this building at the same time. During the moves, the defendant asked Zoe to carry a few boxes upstairs for him and then, according to her testimony, followed her into a room, closed the door, and forced her to have sexual intercourse with him. The defendant warned Zoe that, if she said anything about the incident, she would never see her mother again.

Zoe described two similar incidents. In the fall of 1985, she stayed home from school for several days because of a back ailment. While her mother was out, the defendant (who had since married the girls' mother) summoned Zoe into his bedroom, threw her down on the bed, and again forced her to have sexual intercourse with him. Zoe next described an incident in the spring of 1986, in which the defendant forced her, quite violently, to perform oral sex on him in the bathroom of a Halifax home where the family had relocated. Again, he ended the episode by issuing threats, telling Zoe that she would not see her mother again if she tried to tell her about what had transpired.

Yvette, Zoe's sister, testified that she would often sleep next to the defendant after the family moved into the St. Casimir Avenue home, and she described how he began to fondle her when they were in bed. As she grew older, the defendant's demands for sexual favors intensified. He started demanding "hand jobs," forced her to perform fellatio, and later made her have intercourse with him. Yvette also recounted how the defendant threatened that he would "get her in trouble with her mother" if she did not comply or revealed what had happened.

For his part, the defendant testified that he did not commit any of the assaults described by the two sisters. He offered that the accusations were the product of a very strained and troubled relationship that he had with the children. His most specific defense was aimed at Yvette's second accusation of rape, which she related in no uncertain terms occurred on Thanksgiving Day, 1986. During both the presentation of his own case and the cross-examination of Yvette, the defendant unsuccessfully attempted to show that neither Yvette nor he was in the home at the time the attack was supposed to have taken place. We develop additional facts as necessary to discuss each issue raised on appeal.

1. The statute of limitations question. Indictment No. 84052 charged the defendant with forcibly raping Zoe "on or between August 1, 1979, and September 30, 1979." The defendant moved prior to trial to dismiss the indictment based on the statute of limitations. ² At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty pursuant to Mass.R.Crim.P. 25, 378 Mass. 896 (1979); however, he did not raise the statute of limitations issue. Prior to ruling on the motion, the judge discussed this question on his own initiative. The motion was denied. The defendant continues to press the issue on appeal.

General Laws c. 277, § 63, sets forth the statute of limitations for the offense of rape of a child. At the time the offenses occurred, § 63 provided a six-year period of limitations. This limitations period was extended in July, 1985, by force of St.1985, c. 123, to ten years, effective September 30, 1985. The ten-year limitations period applies to those offenses that were not time-barred when the amendment became effective. Commonwealth v. Rocheleau, 404 Mass. 129, 130, 533 N.E.2d 1333 (1989), citing Commonwealth v. Bargeron, 402 Mass. 589, 592, 524 N.E.2d 829 (1988). Consequently, with respect to the earliest rape indictment involving Zoe, the Commonwealth was required to produce sufficient evidence to show that the crime was perpetrated no earlier than September 30, 1979, if the ten-year limitations period were to apply retroactively.

The testimony regarding the specific date when the rape occurred was inconclusive. Zoe testified that the defendant assaulted her on the day her family moved into a new apartment on St. Casimir Avenue in Brockton in the summer of 1979, "before she started the sixth grade." Zoe also remembered that the defendant had driven his ice cream truck that day, but added that "if it was nice," the ice cream vending season would "at times" extend into October.

When reviewing the denial of a motion under Mass.R.Crim.P. 25, we must examine the evidence in the light most favorable to the Commonwealth. Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). Commonwealth v. Ortiz, 408 Mass. 463, 464, 560 N.E.2d 698 (1990). Commonwealth v. Pimental, 25 Mass.App.Ct. 971, 519 N.E.2d 795 (1988). Zoe's testimony, which was the only evidence produced by the Commonwealth going to the date of the incident, indicated that the rape happened before she entered the sixth grade. It follows that the evidence was insufficient to satisfy a rational trier of fact beyond a reasonable doubt that the offense occurred on or after September 30, 1979. Commonwealth v. Latimore, 378 Mass. 671, 393 N.E.2d 370 (1979).

The defendant also argues that the charge of indecent assault and battery involving Yvette was time-barred. Although the conviction of this indictment (No. 84013) was placed on file, and, "[o]rdinarily, we do not consider appeals from indictments placed on file, Commonwealth v. Delgado, 367 Mass. 432, 438 (1978), ... in the interest of efficiency and in a suitable case we may choose to do so. See Commonwealth v. Bianco, 388 Mass. 358, 364-365 (1983)." Commonwealth v. Chappee, 397 Mass. 508, 523, 492 N.E.2d 719 (1986). Commonwealth v. O'Brien, 30 Mass.App.Ct. 807, 807-808 n. 1, 573 N.E.2d 986 (1991). Here, the filed indictment is also clearly time-barred, with the record failing to disclose specific occurrences after May 26, 1981. ³

2. Severability of the two sets of indictments. The defendant argues that the motion judge's refusal to sever Zoe's indictments for trial from those involving Yvette was prejudicial and constitutes ground for reversal. Indictments may properly be joined for trial if the offenses "arise out of a course of criminal conduct or series of criminal episodes connected together." Mass.R.Crim.P. 9(a), 378 Mass. 859 (1979). The crux of the defendant's argument is that Yvette and Zoe's accusations of sexual abuse, although alleged to have taken place in the same locations, describe independent offenses, not related within the meaning of Mass.R.Crim.P. 9(a)(1). ⁴

The defendant must show that the motion judge clearly abused his discretion in failing to sever the indictments. See Commonwealth v. Sylvester, 388 Mass. 749, 753-758, 448 N.E.2d 1106 (1983). Here, the defendant's modus operandi was consistent. All the incidents occurred while the defendant was living with the complainants' mother. With one exception, each allegation of sexual abuse took place while the defendant was living in the same household as the complainants, and on each occasion the defendant used his apparent authority to force them into submission. Cf. Commonwealth v. Mamay, 407 Mass. 412, 416, 553 N.E.2d 945 (1990) (physician used his position of authority and trust to commit sexual crimes upon patients visiting his office). See also Commonwealth v. Pope, 392 Mass. 493, 502-503, 467 N.E.2d 117 (1984). Finally, both Yvette and Zoe testified that the defendant repeatedly threatened both of them that he would disrupt their relationships with their mother if they failed to submit or told anyone.

The defendant suggests that Commonwealth v. King, 387 Mass. 464, 441 N.E.2d 248 (1982), is distinguishable. We think not. In that case, the court found no error in the admission of evidence showing that the defendant had also performed oral sex on the victim's younger brother, both children lived in the same house with the defendant, the sexual acts took place during the same time period, the victims were of similar age, and the form of sexual conduct was similar. The evidence here, as in the King case, "showed a common pattern or course of conduct toward the two children," id. at 472, 441 N.E.2d 248, and the judge did not abuse his discretion by allowing the charges to be tried jointly.

3. Exclusion of the diary. As noted, Yvette testified that the defendant forced her to have intercourse with him in the upstairs bathroom of the family's Halifax home on Thanksgiving Day, November 27, 1986. During cross-examination, defense counsel tried to impeach Yvette with entries in her diary that ostensibly revealed she was visiting her grandmother in Dorchester on that day. Yvette denied writing the entries for November 26 and 27 and suggested that other...