Com. v. Figueroa

• Decision Date: 21 July 1992
• Citation: 595 N.E.2d 779,413 Mass. 193
• Parties: COMMONWEALTH v. Theodoro FIGUEROA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 779

595 N.E.2d 779

413 Mass. 193

COMMONWEALTH v. Theodoro FIGUEROA.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 3, 1992.

Decided July 21, 1992.

Peter M. Onek, Committee for Public Counsel Services, for defendant.

Daniel A. Less, Asst. Dist. Atty., for Com.

Before NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

After a jury trial in the Superior Court, the defendant was convicted of rape and indecent assault and battery on a mentally retarded person. The defendant appeals from his convictions, asserting that (1) the trial judge abused his discretion in refusing to give a special jury instruction on the credibility of a child witness; (2) the judge erroneously admitted in evidence the testimony of a fresh complaint witness concerning details not testified to by the alleged victim; (3) the judge incorrectly refused to give a requested missing witness jury instruction; and (4) the judge refused to give defense counsel access to Department of Social Services records and other documents concerning the alleged victim. We granted the defendant's application for direct appellate review. We affirm the convictions, but we remand the case to the Superior Court to allow defense counsel to review the contested records and documents in accordance with such rules and orders as the trial judge (or another Superior Court judge) may issue for the purpose of minimizing breaches of confidentiality and the alleged victim's privacy. If such a review yields arguably significant exculpatory evidence, the defendant may move in the Superior Court for a new trial, which motion shall be heard in camera and shall otherwise be governed by the usual principles that apply to new trial motions.

The relevant evidence may be summarized as follows. The alleged victim, whom we shall call Sarah, in lieu of her real name, was a moderately retarded twenty-one year old woman at the time of the alleged crimes. She lived with her mother in Newton and had attended Newton public schools since she was four and one-half years old. Sarah was in her final year of a special needs program at Newton South High School at the time of the alleged criminal incidents. That program included both classroom work and on-the-job training. Sarah was picked up at her home in the morning by a van owned and operated by a private company. She and her classmates were taken to their morning jobs. They were brought to Newton South High School at noon, and they would be picked up again between 2:30 P.M. and 3 P.M. and driven home. Sarah generally got home around 4 P.M.

The defendant, known as "Ted," drove the van that took Sarah home at least three times a week and occasionally drove the van in the morning. Sarah was the last passenger to be dropped off in the afternoon. According to the Commonwealth's evidence, the events for which the defendant was being tried took place when Sarah was a front-seat passenger in the van and, on one occasion, in Sarah's home when no one but Sarah and the defendant were there. Defense witnesses, including the defendant, testified that Sarah never sat in the front seat of the van. There was also conflicting evidence about whether Sarah ever returned home to an empty house, and the defendant denied ever having touched Sarah or having been in her house. In addition, a defense witness, a nonretarded student who also rode in the van, testified that Sarah had told her "some really weird stories," including that she had met "Wonder Woman" and had gone flying with "Superman." In connection with these stories, according to the witness, Sarah "was serious; she really believed it happened."

With the aid of anatomically correct dolls, Sarah testified in some detail to having been sexually assaulted by Ted several times in the van and once in her home. She did not identify the defendant at the trial although she testified over objection that she had seen "Ted" in the same courtroom one week earlier and it was the same "Ted" that had assaulted her. The evidence showed that no other bus driver named Ted transported Sarah. There also was evidence that the defendant had changed his appearance before trial by cutting his hair and shaving his beard. During her testimony, Sarah named five other retarded students who were in the van when the defendant allegedly assaulted her.

The prosecution introduced fresh complaint testimony by five witnesses. That testimony need not be repeated except for one statement made by Sarah's sister, Jennifer, which, the defendant argues here for the first time, was inadmissible. Jennifer testified, without objection, that, in describing the assaults, Sarah had told her that other students in the van "would tell him to stop and leave her alone."

1. The Defendant's Request for a "Child Witness" Instruction to the Jury.

The defendant requested the following jury instruction: "A child is not disqualified as a witness simply by reason of his age. There is no precise age which determines the competency of a child to testify. This depends on the capacity and intelligence of the child, his understanding of the difference between truth and falsehood, his appreciation of the duty to tell the truth, and in a general way, belief that failure to tell the truth will result in punishment.

"Children are likely to be more susceptible than adults. Moreover, children may not have a full understanding of the serious consequences of the charges they make. Therefore, in evaluating the testimony of a child witness, you should consider not only the child's capacity to distinguish truth from falsehood, but also his ability to appreciate the seriousness of his testimony.

"As with other witnesses, you are the sole judges of the credibility of a child who testifies. In weighing his testimony, you may consider a number of factors in addition to his age. These factors include his demeanor on the stand, the manner of testifying, the capacity to observe and remember facts; the ability to understand the questions asked and to answer those questions intelligently; whether the child impressed you as being a truth-telling individual; and any other facts and circumstances which impress you as significant in determining his credibility. On the basis of your consideration you may give the testimony of the child such weight as you feel it is fairly entitled to receive." See Commonwealth v. Avery, 14 Mass.App.Ct. 137, 140-141 n. 2, 437 N.E.2d 242 (1982).

The defendant argues that, because there was compelling evidence that the alleged victim witness had the mental age of a child, and because, due to her cognitive limitations, her testimony was unreliable and cross-examination was difficult, and also because there were no other eyewitnesses who testified to the alleged assaults, the judge was required to give the requested instruction. We disagree. The judge advised the jury that, as the sole assessors of credibility, they could take into account the demeanor of the witness, whether the witness was trying to be candid or was attempting to "cloud the issues," the accuracy of the witness's recollection, the degree of intelligence shown by the witness, the witness's motive in testifying, and the probability and reasonableness of the witness's testimony. The judge further instructed the jury that they "may also consider the intelligence of the particular witnesses who have testified and their ability or capacity to relate to you the matters to which they testify in court." In view of those instructions, and in light of the fact that Sarah's credibility as a witness "was highlighted and vigorously explored throughout the trial, and could not have failed to attract and engage the active consideration of the jury," Commonwealth v. A Juvenile, 21 Mass.App.Ct. 121, 125, 485 N.E.2d 201 (1985), we conclude that the judge properly exercised his discretion in declining to give the particularized instruction requested by the defendant and thereby avoiding the risk of intrusion on the jury's role as arbiter of the facts by singling out a particular witness's testimony for special scrutiny. See Commonwealth v. Avery, supra 14 Mass.App.Ct. at 142, 437 N.E.2d 242.

2. The Fresh Complaint Testimony.

We reject the defendant's argument that a substantial risk of a miscarriage of justice occurred, see Commonwealth v. Mamay, 407 Mass. 412, 418, 553 N.E.2d 945 (1990), when the judge admitted in evidence without objection the testimony of Sarah's sister, Jennifer, that Sarah had told her that, when the sexual molestation took place in the van, other students "would tell him to stop and leave her alone." That testimony did not constitute fresh complaint evidence. It was not an account of a complaint by Sarah concerning the defendant's offensive sexual conduct or anything the defendant said. Rather, as an account of the reaction of third persons to the defendant's conduct, it was mere hearsay that would not have been admissible under the Commonwealth's fresh complaint rule even if, contrary to the defendant's contentions, it did not substantially exceed the scope of Sarah's testimony.

The evidence was inadmissible. However, its admission did not create a substantial risk of a miscarriage of justice, and therefore the error in admitting it was not reversible. The case turned on the credibility of Sarah. Surely, evidence of her out-of-court statements that others in the van "would tell [the defendant] to stop and leave her alone," added little or nothing to Sarah's credibility with respect to her in-court account of the defendant's conduct as buttressed by the concededly admissible fresh complaint evidence. Jennifer's testimony was not "used as hearsay to fill gaps in the prosecution's case." Commonwealth v. Scanlon, 412 Mass. 664, 670, 592 N.E.2d 1279 (1992).

3. The Missing Witness Instruction.

The defendant challenges the judge's denial of his request for a missing witness instruction in reference to the other students who Sarah had...