Com. v. Errington

• Decision Date: 04 February 1983
• Citation: 442 N.E.2d 1170,14 Mass.App.Ct. 733
• Parties: COMMONWEALTH v. Robert W. ERRINGTON.
• Court: Appeals Court of Massachusetts

Page 1170

442 N.E.2d 1170

14 Mass.App.Ct. 733

COMMONWEALTH v. Robert W. ERRINGTON.

Appeals Court of Massachusetts Worcester.

Argued Oct. 18, 1982.

Decided Dec. 2, 1982.

Further Appellate Review Granted Feb. 4, 1983.

Angelo P. Catanzaro, Boston, for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before PERRETTA, CUTTER and KASS, JJ.

PERRETTA, Judge.

The indictments against the defendant charged unlawful sexual intercourse, unnatural sexual intercourse, and indecent assault and battery on a child under the age of fourteen. G.L. c. 265, § 23 and 13B. All the indictments involved the same victim. The defendant was convicted on the indecent assault and battery charges and found not guilty on the indictments charging him with sexual intercourse. At trial, the victim was allowed to testify, over objection, that she had been told by a female child of somewhat similar acts of misconduct by the defendant with the other child. The trial judge later struck the response from evidence and gave a curative instruction. The defendant's principal contention on appeal is that the actions of the judge did not provide a sufficient remedy for the prejudice to him from these hearsay allegations. In the circumstances and for the reasons discussed below, we reverse the judgments so that there may be a new trial.

At the time of the incidents, the victim was twelve years old and was a frequent babysitter for the three children of the defendant and his wife. The Erringtons and the victim's parents were good friends. The victim testified that she would babysit at the defendant's house once or twice a week, and that, beginning in the fall of 1980, the defendant indecently assaulted her twice, October 25 and November 8, and raped her three times, November 8 and 9 and January 2, 1981. She continued to babysit for the Errington children through the spring of 1981, and told no one about these acts until April 29 and May 1, 1981, when she related them to her girlfriend and mother, respectively. Upon hearing her daughter's account, the victim's mother informed the police, who, in turn, called the defendant and asked him to come to the police station, where he was advised of his rights and questioned. The defendant denied the accusations.

At trial, the theory of the defense was fabrication of the charges by the victim because she had been fired the day before as a babysitter by Mrs. Errington. The defendant testified that his only physical contact with the victim had been a backrub over her sweater, in the presence of his daughter, on one occasion when the victim was wearing a neck collar due to a recent skating injury. The defendant's wife related how the day before the defendant was called by the police, she had informed the victim that her services as a babysitter were no longer wanted and that she (the victim) had behaved irresponsibly in leaving the children unattended to go to the store and in allowing a neighborhood child, whom we shall refer to as Mary Jones, to play in the house.

In anticipation of this testimony, defense counsel cross-examined the victim concerning the five-month hiatus between the last incident on January 2 and her complaint to her mother on May 1. The victim explained that she had been concerned about the friendship between her parents and the Erringtons--"I wasn't about to break up any friendship"--but that after the passage of time--"I think it had reached a point where somebody should know. Even if it was to break up the friendship." The following questioning by defense counsel next occurred:

Q. "Well, that is when you decided that?"

A. "Yes."

Q. "You decided that this is the time that someone should know?"

A. "I decided to take my own advice."

Q. "You took your own advice?"

A. "Yes, because I told ..."

Q. "Okay. You have answered the question you took your own advice?"

A. "Yes. I told ... [Mary Jones] came to me ..."

Defense Counsel: "Well, objection to that, Judge."

The Court: "No. You have asked the question. I am going to let her answer it."

Defense Counsel: "I just asked her if she took her own advice."

The Court: "I know. But you asked her another question. Go ahead."

A. "[Mary Jones] came to me and she said ..."

Defense Counsel: "Well, objection to the ..."

The Court: "I am going to let her have it. You asked the question."

Defense Counsel: "Objection to it, your Honor, please. I didn't ask her that question."

A. "[Mary Jones] came up to me and she said that Mr. Errington had been doing certain things to [Mary], and she came to me telling me about that; and I told her to go home and tell her mother. Because she lived right next door. And I decided to take my own advice and tell my own mother."

The trial judge denied defense counsel's requests that the answer be struck and that a mistrial be declared. Defense counsel then questioned the victim briefly about the extent of her relationship with Mary Jones. On redirect examination the prosecutor asked and was told that Mary was eight years old at the time of the conversation with the victim. The Commonwealth presented two more witnesses, the victim's mother and the police officer who took statements from the victim, and then rested. The trial judge informed defense counsel, sua sponte, that he was going to strike the conversation between the victim and Mary Jones and instruct the jury to disregard it. ¹ Defense counsel agreed that he should do so but also stated that he didn't know "if that would be enough to cure it."

1. Hearsay Evidence of Similar Acts of Misconduct.

"The principle on which the defendant rests his first argument is well established: commission of an independent crime cannot be admitted to show commission of the crime charged." Commonwealth v. Imbruglia, 377 Mass. 682, 695, 387 N.E.2d 559 (1979). See Commonwealth v. Welcome, 348 Mass. 68, 70-71, 201 N.E.2d 827 (1964). When, however, "the evidence is not too remote in time, or is connected with the facts of the case, it may be admitted to establish 'knowledge, intent, motive, method, material to proof of the crime charged.' " Commonwealth v. Imbruglia, 377 Mass. at 695, 387 N.E.2d 559, quoting from Commonwealth v. Murphy, 282 Mass. 593, 598, 185 N.E. 486 (1933).

The Commonwealth argues that the victim's statement was necessary "not only to show the victim's state of mind but to give the jury a sense of the 'big picture' of the events leading up to [the victim's] reporting the incidents and erase the false impressions of recent fabrication created by defense counsel." Thus, the argument continues, the present case is identical to and controlled by Commonwealth v. Hollyer, 8 Mass.App. 428, 430, 395 N.E.2d 354 (1979), where it was held that hearsay evidence of similar acts of misconduct possessed "other relevant probative purposes" in that, as here, it "bore on the issue of [the victim's] silence."

Whether the probative value of the statement was outweighed by the danger of unfair prejudice to the defendant was a matter within the sound discretion of the trial judge. The present case is not readily disposed of by Hollyer. Here, it is not clear whether defense counsel elicited the answer before he made efforts to prevent the victim's response. ² Additionally, the trial judge determined, albeit belatedly, that the answer was inadmissible and that it should be struck from evidence.

In the circumstances, the trial judge correctly decided that the victim's response should be withdrawn from consideration by the jury. The victim's statement had some relevance to the question of the delay in her complaint to her mother, but the victim had explained that her reluctance to come forward earlier was attributable to her concern for the friendship (corroborated by the victim's mother) that existed between her parents and the defendant and his wife. The victim's response did not evince any emotion or state of mind very strongly probative of her silence. See and contrast, Commonwealth v. Chalifoux, 362 Mass. 811, 816, 291 N.E.2d 635 (1973); Commonwealth v. Campbell, 371 Mass. 40, 43, 353 N.E.2d 740 (1976); Commonwealth v. King, 387 Mass. 464, 470-472, 441 N.E.2d 248 (1982).

It is implicit in the trial judge's tardy striking of the statement sua sponte that he had determined that the probative force of the evidence was outweighed by the risk of prejudice. The trial judge's action gives some indication of a sense of unease on his part about the possibility of prejudice in what was developing into a close case. Having concluded that, on the whole, the hearsay allegations were too prejudicial to allow the statement to remain in evidence, see Commonwealth v. Ellis, 321 Mass. 669, 670, 75 N.E.2d 241 (1947); Commonwealth v. Welcome, 348 Mass. at 70, 201 N.E.2d 827, the trial judge struck it and gave a curative instruction. See note 1, supra. Hence, an important question before us is the adequacy and efficacy of that instruction in the circumstances of this case.

The evidence of similar acts of misconduct by a defendant carries with it the danger of misuse by the jury. Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896 (1947). Commonwealth v. Welcome, 348 Mass. at 70, 201 N.E.2d 827. The danger in the present instance was not reduced by any simultaneous instruction to the jury limiting their consideration of that evidence to the victim's state of mind or to the issue of any silence on her part. ³ See United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758, 763 (1974) ("A statement which would be pure hearsay as to the truth of the matters alleged is not made inadmissible thereby if introduced solely to show the declarant's state of mind and if accompanied by a limiting instruction. This represents a basic policy judgment that the possibility of misuse of the evidence for the impermissible purpose, when minimized by a limiting instruction, is a risk worth chancing when compared to the harms that would likely result from the total...