Com. v. Dion, 90-P-525
| Decision Date | 29 May 1991 |
| Docket Number | No. 90-P-525,90-P-525 |
| Citation | 30 Mass.App.Ct. 406,568 N.E.2d 1172 |
| Parties | COMMONWEALTH v. Paul M. DION. |
| Court | Appeals Court of Massachusetts |
Peter T. Elikann, Newton, for defendant.
Wendy Murphy, Asst. Dist. Atty., for Com.
Before KASS, KAPLAN and PORADA, JJ.
The defendant Dion appeals from a judgment of conviction of the crime of rape of a child under the age of sixteen (G.L. c. 265 § 23), entered upon the verdict of a Middlesex jury. 1
At oral argument of the appeal before us, counsel for the Commonwealth said, with commendable candor, "It's amazing we won this." 1a
We describe the case in some detail in order to see whether the "victory" is fairly tenable upon appellate review.
It is accepted that on August 10, 1988, John Smith (pseudonyms are used throughout), then fourteen years old, told his mother that his older brother Leonard, then fifteen, had told him that day that, at an unspecified time in the past, the defendant Dion had "put his private in my [Leonard's] butt." 2 The mother repeated to Leonard what John had told her. Mother, father, and John went promptly to the police station; two officers visited that evening at the Smith home; the following day mother, father, John and Leonard were interviewed, all four together, apparently, by Officer George Thomas Sullivan, and a statement was prepared and signed.
No further police work was done. Thus, although, according to John, his friend Morris Cato was present when Leonard spoke, the police did not interview Cato, who was available. Officer Sullivan did tell the mother to have Leonard examined by a physician, but he did not follow up whether this was done. 3 Grand jury indictment was not obtained until February 15, 1989, six months after the accusation in August. The police did not attempt any communication with the defendant. He first learned of the trouble he was in around the time of his arraignment on March 9, 1989.
The indictment stated that the criminal event occurred sometime between January 1 and May 1, 1987. Defendant's counsel requested particulars. Particulars were given only to the effect that it was after school in the afternoon.
On trial day in August, 1989, before jury empanelment, the defendant brought up his motion to dismiss the indictment on the ground that the four-month period mentioned was excessively broad and this exacerbated the difficulty of making a defense, especially because Leonard was mentally retarded and cross-examination of him could not serve its normal function. The prosecutor said he had interviewed Leonard a half dozen times to try to fix the time more closely, but without result. He explained the May 1, 1987, end date by his belief that the defendant was then incarcerated, but there is little of record to support the January 1, 1987, beginning date. The putative offense could have occurred earlier, thus extending further the possible interval between the offense and the accusation, the so-called "fresh complaint." From the subsequent trial record, it appears that Leonard indicated he was thirteen years old when he was molested, but this would allow his thirteenth birthday, June 7, 1986, to serve as the beginning date. The problem was not much helped by Leonard's mention of June, Valentine's day, a day that started cold and ended warm, each supposed to approximate to the time of the offense; he also said it did not happen before Christmas, after Christmas, or on Christmas; he was generally vague about dates and times. 4
At all events, the judge denied the motion to dismiss the indictment. The defense moved for voir dire to test whether Leonard's "complaints" were or were not "fresh," and thus to be admitted or excluded, but the judge said he would rather see how the evidence went. In response to cross-motions on the subject of the use of prior convictions to impeach the defendant, the judge ruled from the start that he would admit convictions of "dissimilar" offenses (there were no convictions of similar, i.e. sex-related offenses).
In his speech to the jury after empanelment, the prosecutor made two statements of some consequence. He said the proof would show that the defendant took Leonard's hand and led him from the TV room to the living room where the act took place; and that it was when a new family moved into the nearby house, in which the defendant's family had resided, that Leonard spoke to John.
The judge saw the need for a preliminary examination of Leonard's competence as a witness, and a voir dire on the subject was held as Leonard was about to be called as the Commonwealth's first witness. Leonard was a "special needs" student in a vocational high school. He could sign his name, count to one hundred, recite the alphabet, perhaps write a sentence, but was much limited: the prosecutor (without scientific help) ventured a guess that Leonard was at the level of a seven or eight year old. He was learning at school the seven steps in cleaning a floor, which he was glad to recite. Since he could not articulate well in connected speech, questions often had to be put to him in "leading" form, to which he generally would respond by yes, no, I forgot, etc. 5 He could be led easily; thus, to questions by the prosecutor he would say yes, and to like questions by defense counsel, no. However, it was reasonably inferable from Leonard's voir dire examination (and more so from his testimony) that he had been schooled in certain questions the prosecutor would ask and in the answers expected of him. He held firmly, again and again, to the formula that lying gets you into trouble. But this impelled him to affirm that he had never lied in all his sixteen years. The judge ruled that Leonard was competent, but it seemed no more than a minimal competence. 6
The prosecution drew from Leonard the details that, on the day, after returning home from school (customarily this was at 2:30 P.M.), and before John's return (say at 3:30), he and the defendant--his former babysitter--watched TV; then Leonard walked out of the room to the living room, followed, not led, by the defendant; Leonard lay face down on the sofa there; the defendant drew down Leonard's jeans and underwear, and inserted his penis in Leonard's anus. It hurt only a little. There was no indication of resistance on Leonard'sd nothing was said during the episode. The defendant went to the bathroom and then left the house. Leonard pulled up his clothes and resumed watching TV. As noted, it was hard for cross-examination regarding this testimony to be truly searching or to produce any telling effects, precisely because of the witness's limitations. He could not say whether the penetration lasted a short or a long time. In response to the prosecutor, he answered, yes, he was afraid of the defendant then (and was still afraid), but his answer to defendant's counsel was to the contrary. He had visited at the Dions' house after the happening. Why had he not told anyone sooner? He forgot.
As John took the stand, the defense objected to the admission of his testimony that Leonard complained to him (the objection was later made a continuing one to all complaint testimony). The judge responded by instructing the jury, briefly, that the evidence was not being received as proof of the event, but "to help you determine whether or not his brother [Leonard] told the truth on the stand when he testified." The judge did not elaborate and said nothing about "freshness." John testified to what Leonard said to him, with Morris Cato present. Leonard had not said when it happened. The prosecution tried to elicit from John some relation between the date of the complaint and the times when people moved in or out of the Dion house, but it is fair to say that little came of it.
From Leonard's mother, Ruth Smith, there was testimony that the defendant ceased babysitting when Leonard reached the age of twelve, presumably in 1985. However, the defendant was welcome in the Smith house thereafter. A note of acerbity entered at a time, again unspecified, when a dispute arose between the witness and the defendant over a veterinarian's bill, a quarrel not otherwise described, but apparently still rankling at the time of trial. The prosecution strove again to connect the "complaint" of August 10, 1988, with events at the Dion house. It was stipulated that the defendant moved out of that house finally on July 1, 1988. The witness testified that new people (outside the Dion family) moved in on August 10, but it may be observed that the defendant himself had departed a month and more earlier. Again the evidence was quite unsatisfactory. The judge charged again, much as before, about admitting Leonard's complaint. 7
Officer Sullivan testified as a third complaint witness, but added nothing of any substance. The Commonwealth rested.
On the part of the defense, Lucy Wendel, the defendant's mother, gave an account, which was at least pretty consecutive, of the defendant's movements in and out of the Dion house. In January, 1987, she said, the defendant, with his girlfriend and their child, moved out of the Dion house to the house of Vera Branch, his father's fiancee, elsewhere in Lowell; 8 in mid-August, 1987, he moved back with entourage and lived there to July 1, 1988 (the witness herself left in October, 1987). It was on August 15, 1988, Lucy Wendel said, that she rented the house to another family. She conceded, in effect, that the defendant might have visited in the neighborhood of the Dion house when he was residing elsewhere. Vera Branch testified that the defendant and girlfriend and child moved in with her in January, 1987. She placed his moving out at the end of May, 1987. He had been working steadily while he was living at her place.
As the last witness, the defendant testified in agreement with his mother that he had moved to Vera Branch's house in January, 1987,...
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...opportunity for invention or distortion through mistake, fading memory, fantasizing, or contrivance grows. Commonwealth v. Dion, 30 Mass.App.Ct. 406, 568 N.E.2d 1172, 1176 (1991). Nor does the Court reject the traditional criteria for determining if a prior complaint was timely made, that i......
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