Com. v. Fanara, 97-P-2048

• Decision Date: 13 August 1999
• Docket Number: No. 97-P-2048,97-P-2048
• Citation: 47 Mass.App.Ct. 560,715 N.E.2d 62
• Parties: COMMONWEALTH v. John P. FANARA, Jr.
• Court: Appeals Court of Massachusetts

Page 62

715 N.E.2d 62

47 Mass.App.Ct. 560

COMMONWEALTH v. John P. FANARA, Jr.

No. 97-P-2048.

Appeals Court of Massachusetts Barnstable.

Argued Jan. 12, 1999.

Decided Aug. 13, 1999.

Joseph J. Balliro, Boston, for the defendant.

Linda A. Wagner, Assistant District Attorney, for the Commonwealth.

Present: GREENBERG, KAPLAN, & LENK, JJ.

LENK, J.

The defendant, John P. Fanara, Jr., was at all relevant times a chiropractor. An employee and several of his patients accused him of improperly touching them. After a jury trial, the defendant was convicted of five counts of indecent assault and battery in violation of G.L. c. 265, § 13H, against five different victims. ¹ On appeal, the defendant argues that he is entitled to a new trial because (1) his trial counsel's failure to object to fresh complaint testimony was ineffective assistance of counsel, (2) the trial judge's failure to instruct the jury sua sponte on the appropriate use of the fresh complaint testimony was error, (3) his trial counsel's failure to expose the bias of the Commonwealth's expert and to impeach her testimony was also ineffective assistance of counsel, and (4) the trial judge erroneously admitted evidence of a prior bad act by the defendant.

Facts. Considered in the light most favorable to the Commonwealth, the facts pertinent to the defendant's claimed errors are these. A chiropractor in private practice, the defendant employed other chiropractors, chiropractic assistants, physical therapists, and administrators. Jennifer Bauer worked as a chiropractic assistant at Fanara Chiropractic from August, 1986, to April, 1994. On more than two occasions between 1988 and 1990, the defendant pulled her into an examination room to kiss her and fondle her breasts; each time, Bauer told him to stop. The defendant once also came up behind Bauer, lifted her blouse, and cut her brassiere strap. On cross-examination by defense counsel, Bauer testified that she complained about Fanara to the police in January, 1995; she did not testify as to the details of that complaint.

On August 17, 1992, Luanne Holmes, ² one of Fanara's patients, went to him for a chiropractic adjustment. Fanara put his hand up her shirt, touched her right breast on the side, and said, "What you need is a breast exam." Holmes told him, "If you give me a breast exam, it will be the last exam you ever give," after which she got up and walked out of the office. Four days later she received a written apology from the defendant. She never returned to Fanara for chiropractic adjustments. Holmes testified on direct examination that in May, 1995, the police questioned her about Fanara, but did not testify as to the details of what she said to the police. On cross-examination by defense counsel, she testified that she complained about Fanara to two other chiropractors at Fanara Chiropractic in 1994, as well as to her friends and family on various occasions; she did not testify as to the details of those complaints.

Joanne Nickerson was Fanara's patient for approximately two years. During a visit in 1991, the defendant put Nickerson's knee into his groin; she felt his erection. Nickerson was uncomfortable and moved her knee away, but Fanara put it back into his groin. Nickerson removed her knee a second time. When Fanara put her knee into his groin for the third time, Nickerson told him, "Look--if you're not going to adjust my back, just leave my knee alone." Nickerson subsequently returned to Fanara for treatments. During a visit in February, 1992, Nickerson commented that she was forgetful. Fanara then massaged certain points above her breasts "all around the clavicle and the sternum" and told her that massaging those areas might help her memory to return. Nickerson's last visit to Fanara was in August, 1992. On cross-examination by defense counsel, she testified that the police questioned her about these incidents, but did not testify to the details of her conversation with them.

Tammy Mattson occasionally sought chiropractic treatment from Fanara. On approximately six occasions, Fanara left his hands on her buttocks and then ran a hand down her leg after an adjustment. Mattson testified on cross-examination that she reported these incidents to the police after she saw Fanara's indictment reported in a newspaper in November, 1995. Defense counsel also cross-examined Mattson on the details of her report, emphasizing inconsistencies between the police report and her trial testimony.

Cheryl Lena was Fanara's patient from July, 1992, through March, 1994. In the fall of 1993, Fanara ran his finger up the cleft between her buttocks as she was exiting the examination room. On another occasion Fanara touched Lena's breasts when he was adjusting her neck from behind her. Lena testified on direct examination that she reported Fanara to the Board of Registration of Chiropractors (board) in May, 1993. ³ Defense counsel cross-examined Lena as to the details of her complaints to the board and the police as well as her testimony before the grand jury.

The defendant called as his first witness Detective Bernd Wunderlich of the Dennis police department, the chief investigator in this case. Wunderlich was not presented as a fresh complaint witness, and the trial judge was neither requested to give fresh complaint instructions, nor did he do so sua sponte. Wunderlich testified on direct examination that Lena approached him about Fanara's inappropriate conduct on January 24, 1995, and that Mattson contacted Wunderlich about Fanara's conduct after Fanara's indictments were reported in the newspapers. Wunderlich also testified on direct examination by defense counsel that he contacted Bauer, Nickerson, and Holmes in the course of investigating the case. He also detailed some of the complaints made to him by Holmes and Mattson against Fanara.

The defendant testified on his own behalf. He denied any indecent touching, and said he cut Bauer's brassiere strap in playful retaliation for her prior act of having cut his tie. Fanara accused the victims of falsely, vindictively, and unjustly conspiring against him.

1. Failure to object to fresh complaint testimony. The defendant claims that he was afforded ineffective assistance when his trial counsel failed to challenge the admissibility of fresh complaint testimony. Specifically, the defendant argues that when each victim testified about having complained to third parties, his trial counsel should have objected that such testimony was impermissible hearsay, and, were it nonetheless admitted as fresh complaint, his trial counsel should have requested limiting instructions. In order for the defendant to succeed on his ineffective assistance claim, we must conclude that defense counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).

The testimony which appellate counsel characterizes as objectionable fresh complaint testimony was elicited in several ways: by defense counsel on both direct and cross-examination, and by the prosecutor on direct examination. We consider each in turn.

First, the defendant contends that his defense counsel rendered ineffective assistance by not objecting to the admissibility of evidence elicited by defense counsel through the direct or cross-examination of witnesses, and by not requesting a limiting instruction from the judge each time a witness gave such testimony. His claim, in other words, is that counsel should have objected to his own questions, a claim tantamount to saying that the questions should not have been posed at all.

To be sure, a victim's in-court testimony as to her previous out-of-court complaints of sexual assault made to third parties may well be fresh complaint testimony, but only if offered to corroborate her in-court allegations of sexual assault. See Commonwealth v. Peters, 429 Mass. 22, 27, 705 N.E.2d 1118 (1999), and cases cited. The testimony elicited by defense counsel was hardly brought forth for this purpose. To the contrary, defense counsel plainly elicited the testimony in order to impeach the victims with their prior inconsistent statements as well as to further Fanara's defense that the victims had conspired against him. There was no risk here that "repetitive testimony from several witnesses regarding the details of the complaint may lend undue credibility to the complainant's testimony," Commonwealth v. Licata, 412 Mass. 654, 659, 591 N.E.2d 672 (1992), since the entire point of this line of questioning was to undercut and discredit the victims' credibility. Defense counsel's decision to pursue such a line of questioning at trial falls well within the realm of reasonable trial strategy. As such, the failure to object to such testimony as fresh complaint does not constitute ineffective assistance of counsel.

Second, the prosecutor elicited testimony from Holmes and Lena on direct examination, without objection, as to their out-of-court complaints made to third parties, i.e., Holmes to the police, and Lena to the board. If defense counsel had objected, the testimony would likely have been excluded as improper fresh complaint testimony. ⁴

However, failure to object to fresh complaint evidence does not constitute ineffective assistance of counsel when it forms part of the defense counsel's trial strategy. Commonwealth v. Lamontagne, 42 Mass.App.Ct. 213, 221, 675 N.E.2d 1169 (1997). See Commonwealth v. McCarthy, 12 Mass.App.Ct. 722, 729, 428 N.E.2d 832 (1981). Compare Commonwealth v. Gillette, 33 Mass.App.Ct. 427, 430-432, 600 N.E.2d 1009 (1992); Commonwealth v. Sugrue, 34 Mass.App.Ct. 172, 174, 607 N.E.2d 1045 (1993); Commonwealth v. Scullin, 44 Mass.App.Ct 9, 12, 687 N.E.2d 1258 (1997). For nine pages of trial transcript, defense counsel vigorously cross-examined...