Com. v. Densten

• Decision Date: 27 February 1987
• Citation: 503 N.E.2d 1337,23 Mass.App.Ct. 981
• Parties: COMMONWEALTH v. Glenwood E. DENSTEN.
• Court: Appeals Court of Massachusetts

Page 1337

503 N.E.2d 1337

23 Mass.App.Ct. 981

COMMONWEALTH v. Glenwood E. DENSTEN.

Appeals Court of Massachusetts Berkshire.

Argued Jan. 12, 1987.

Decided Feb. 27, 1987.

Conrad W. Fisher, Worcester, for defendant.

Lee Diane Flournoy, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and SMITH and WARNER, JJ.

RESCRIPT.

After a jury trial in the Superior Court, the defendant was convicted of rape of a child under sixteen years of age (G.L. c. 265, § 23) and indecent assault and battery on a child (the same child) under fourteen years of age (G.L. c. 265, § 13B).

1. There was no abuse of discretion in the admission, as fresh complaint, of the testimony of the victim's mother concerning the description of the incident given to her seventeen days after the incident by the victim, a nine-year old special needs boy. See Commonwealth v. Brenner, 18 Mass.App.Ct. 930, 931-932, 465 N.E.2d 1229 (1984), and cases cited. That evidence was admissible on both the rape and the indecent assault and battery charges. Ibid. We decline the defendant's request that we abandon the doctrine of fresh complaint. See Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973).

The defendant made no objection to the instructions on fresh complaint testimony given by the judge immediately after the mother's testimony and in his final charge. Our review, therefore, is confined to a determination whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). We conclude that there is no such risk. The judge forcefully instructed the jury that the fresh complaint testimony could only be considered to corroborate the victim's testimony and that any detail in the mother's testimony not contained in the victim's testimony could not be considered for any purpose. See Commonwealth v. Bailey, 370 Mass. 388, 392-397, 348 N.E.2d 746 (1976). Although, as the Commonwealth concedes, the judge's instructions could have been more explicit, we think, when read as a whole, they adequately conveyed to the jury that it was for them to determine whether the victim's complaint to his mother was made within a reasonable time. See Commonwealth v. King, 387 Mass. 464, 473, 441 N.E.2d 248 (1982). We are concerned "with the impressions ... [the instructions] conveyed to a reasonable juror." Commonwealth v. Simmons, 11 Mass.App.Ct. 156, 163, 414 N.E.2d 623 (1981). Commonwealth v. McMaster, 21 Mass.App.Ct. 722, 727, 490 N.E.2d 464 (1986). After describing fresh complaint testimony, including that the complaint must be made "soon after the event," and its permissible use, the judge in his final instructions told the jury that it was for them to decide whether "to accept the testimony of fresh complaint." In his limiting instructions at the time of the testimony, the judge also made clear that it was the province of the jury "to say whether the evidence is to be accepted." The judge did not communicate to the jury his preliminary finding, see Commonwealth v. McGrath, 364 Mass. 243, 247, 303 N.E.2d 108 (1973), that the complaint was reasonably prompt.

There was no error in the admission of testimony of the mother that a friend of the victim told the victim "to tell me what happened that night." The testimony was not hearsay and, as the judge said, was offered merely to set the scene of the victim's account of the incident to his mother. The defendant refused the judge's offer of a limiting instruction to this effect. There is nothing in the defendant's argument that the testimony suggested that the friend witnessed the incident and thus bolstered the Commonwealth's case.

2. A witness, Melissa Mazzarella, equivocated in her trial testimony with respect to the defendant's opportunity to be in the presence of the victim. On that subject, however, she testified that she had read the grand jury minutes of her testimony, that they were accurate and that what she said there was true. The witness' grand jury testimony would permit the inference that the defendant had had sufficient opportunity to commit the crimes charged. There was no error in the admission of the grand jury testimony for its probative value for the reason, if no other, that the witness unequivocally adopted it. "If the witness affirms the truth of the prior statement , he adopts it and no hearsay problem is presented." Commonwealth v. Daye, 393 Mass. 55, 67 n. 13, 469 N.E.2d 483 (1984). See United States v. Borelli, 336 F.2d 376, 390-391 (2d Cir.1964); United States v. Klein, 488 F.2d 481 (2d Cir.1973); 4 Weinstein & Berger, Evidence, par. 801(d)(1)(A), at 801-112 to 801-113 (1984). We thus do not reach the...