Com. v. Coolbeth

• Decision Date: 26 November 1976
• Citation: 4 Mass.App.Ct. 855,357 N.E.2d 30
• Parties: COMMONWEALTH v. Raymond L. COOLBETH.
• Court: Appeals Court of Massachusetts

Page 30

357 N.E.2d 30

4 Mass.App.Ct. 855

COMMONWEALTH

v. Raymond L. COOLBETH.

Appeals Court of Massachusetts, Worcester.

Argued Nov. 8, 1976.

Decided Nov. 26, 1976.

Robert S. Potters, Boston, for defendant.

Leon R. Zitowitz, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and GRANT and BROWN, JJ.

RESCRIPT.

1. The only question (properly) argued on appeal is whether the complaints made by the victim to her 'aunt' and her mother in the early evening of October 9, 1974, were, as matter of law, too remote in time from any of the offences committed (under G.L. c. 265, § 23) in the mornings of September 30 and October 7 and 9, 1974. ¹ to be admissible under the so called 'fresh complaint' rule. See Commonwealth v. Cleary, 172 Mass. 175, 177, 51 N.E. 746 (1898); Commonwealth v. Spare, 353 Mass. 263, 265--266, 230 N.E.2d 798 (1967); Commonwealth v. Howard, 355 Mass. 526, 530, 246 N.E.2d 419 (1969); Commonwealth v. hanger, 357 Mass. 464, 466, 258 N.E.2d 555 (1970). We do not answer the question because we are not persuaded that the admission of either complaint resulted in any real harm to the defendant. See and compare Commonwealth v. Howard, 355 Mass. at 530, 246 N.E.2d 419; Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971). The victim's direct examination was confined to testimony concerning the commission of the offences. The critical question whether she had made any complaint to her 'aunt' or her mother (see Glover v. Callahan, 299 Mass. 55, 57, 12 N.E.2d 194 (1937); Commonwealth v. Izzo, 359 Mass. at 44, 267 N.E.2d 631) was first broached in the evidence during the defendant's cross-examination of the victim; on no less than four separate occasions (either in reply to questions by counsel ² or by means of unresponsive answers not objected to) the victim gave affirmative testimony to the effect that she had complained of the defendant's conduct to both her 'aunt' and her mother in the evening of October 9. When the details of the complaints were subsequently offered through the mother and the 'aunt,' the defendant made no effort to limit the jury's consideration of the complaints to the offence which they could have found had been committed on October 9. Contrast Commonwealth v. Ellis, 319 Mass. 627, 629, 67 N.E.2d 234 (1946). The details of both complaints were colorless, and the jury heard nothing they had not already heard during the course of the victim's testimony. See Commonwealth v. Bailey, --- Mass. ---, --- - --- ^a, 348 N.E.2d 746 (1976). The instructions given by the judge as to the use which might be made of such complaints, both when they were admitted and sebsequently in the charge, were full and accurate. See COMMONWEALTH V. BAILEY, --- MASS. AT --- , 348 N.E.2D 746. 2.^B We note in conclusion that no objection was voiced below that either complaint was the product of coercion. Contrast Commonwealth v. Hanger, 357 Mass. at...