Com. v. Flebotte

• Decision Date: 08 September 1993
• Docket Number: No. 92-P-366,92-P-366
• Citation: 34 Mass.App.Ct. 676,615 N.E.2d 203
• Parties: COMMONWEALTH v. Richard FLEBOTTE.
• Court: Appeals Court of Massachusetts

Page 203

615 N.E.2d 203

34 Mass.App.Ct. 676

COMMONWEALTH v. Richard FLEBOTTE.

No. 92-P-366.

Appeals Court of Massachusetts Middlesex.

Argued May 5, 1993.

Decided June 28, 1993.

Review Granted Sept. 8, 1993.

Robert L. Sheketoff, Boston (John A. Amabile with him), for defendant.

Lincoln S. Jalelian, Asst. Dist. Atty., for Com.

Before BROWN, KASS and LAURENCE, JJ.

KASS, Justice.

Richard Flebotte was convicted by a jury of raping his daughter, Dora (not her real name), when she was something over two years old. There was evidence that he had placed his penis in the child's mouth and ejaculated. The jury acquitted the defendant of a charge of assault with a dangerous weapon (it was alleged that he had burned the child with a cigarette) and convicted on an indictment for simple assault and battery. The charge of assault and battery was placed on file with the defendant's consent. ¹ As to an indictment for indecent assault and battery, the judge allowed a motion for a required finding of not guilty.

1. Examination of jury venire to determine that the jurors stood indifferent. Except for a limited category of cases in which the defendant is a special target for racial prejudice or in which interracial sex or murder is involved, a judge is not bound to ask questions of prospective jurors beyond those required by G.L. c. 234, § 28, nor is the judge, except in those instances, required to conduct individual voir dire examinations of members of the venire. Compare Commonwealth v. Lumley, 367 Mass. 213, 216-217, 327 N.E.2d 683 (1975), and Commonwealth v. Moffett, 383 Mass. 201, 214, 418 N.E.2d 585 (1981), with Commonwealth v. Sanders, 383 Mass. 637, 640-641, 421 N.E.2d 436 (1981); Commonwealth v. Young, 401 Mass. 390, 395-400, 517 N.E.2d 130 (1987); Commonwealth v. Stephens, 15 Mass.App.Ct. 461, 465, 446 N.E.2d 410 (1983); Commonwealth v. Bodden, 24 Mass.App.Ct. 135, 138-140, 506 N.E.2d 1171 (1987); Commonwealth v. Ramos, 31 Mass.App.Ct. 362, 363-366, 577 N.E.2d 1012 (1991); and Commonwealth v. Proulx, 34 Mass.App.Ct. 494, 497, 612 N.E.2d 1210 (1993). See Smith, Criminal Practice & Procedure §§ 1708, 1717, 1718 (2d ed. 1983 & Supp.1993). The trial judge in this case did not commit reversible error by declining to inquire of the venire during empanelment whether any member had been the victim of child abuse when he or she was a child, or by declining to conduct individual voir dire examinations.

As events played out, a question to the venire about whether any member had experience of sexual abuse might have been helpful. After the jury had begun its deliberations in the instant case, the foreman sent a note to the judge saying: "One juror has just disclosed a personal experience of being sexually abused as a child, to relate a 'personal experience' in explaining his common sense interpretation of some of the testimony in this case. Other jurors feel he should be excused." The foreman identified the juror who had referred to his experience and, with the consent of the prosecutor, defense counsel, and the defendant, that juror was excused. Again with the consent of counsel and the defendant to the procedure, the judge thereupon conducted individual voir dire examinations of all the other jurors on the deliberating panel to inquire whether each could put completely out of mind what the discharged juror had said. All but one of the deliberating jurors said that they could do so, and that they could decide the case solely on the basis of what they had heard in the courtroom and the law as the judge had given it to them. One juror said he could not put what had been said out of his mind and that juror was discharged. Again with the consent of counsel and the defendant, the judge replaced the two discharged jurors with alternate jurors. In so doing, the judge acted in accordance with G.L. c. 234, § 26B, and Commonwealth v. Haywood, 377 Mass. 755, 768, 388 N.E.2d 648 (1979).

2. Whether fresh complaint evidence was within the scope of the primary evidence given by the victim. At the time of trial, Dora was three months shy of age five. Her testimony demonstrates the difficulties which lawyers encounter when questioning very young children. See Commonwealth v. Kirouac, 405 Mass. 557, 559-562 & n. 4, 542 N.E.2d 270 (1989). Frequently, Dora made no verbal reply to questions put by either the prosecutor or defense counsel. In comparison to the witness in Kirouac, however, Dora was loquacious and responsive. Yet in all the many pages of examination, her testimony ultimately describes only one act of sexual molestation: that her daddy had put his "peanut" in her mouth and that white stuff had come out.

Three witnesses gave fresh complaint testimony which went beyond corroborative detail in that their testimony described offenses that Dora had not mentioned. The first of those witnesses, a psychotherapist, described Dora as having said that sometimes her father made her touch his penis and that he touched his penis on her hands and "butt," as well as her mouth. A second witness described Dora as saying her father had inflicted "boo-boos" on her with a stick like a hot dog coming from his belly. The third witness had Dora saying her father had touched her with his penis on the "tush" and that "the stick was red and hot, and the stick came from Daddy's belly."

The posture of the defendant toward fresh complaint testimony at trial was equivocal. Defense counsel filed no pretrial motion in limine. The first occasion on which the defendant made an effort to limit what a witness might testify to about what Dora had said was when Dora's mother was on the stand. During her testimony, defense counsel asked for a limiting instruction. The judge thereupon delivered a clear and forceful instruction to the jury explaining the fresh complaint exception to the hearsay rule and informing the jury that they were to consider evidence about what Dora had said about sexual assaults upon her only for the purpose of corroboration. The jurors were told they were to disregard testimony about what Dora had said insofar as it did not corroborate what they remembered Dora having said when she testified. On the fourth day of trial the defense filed a motion in limine asking the judge "to prohibit the prosecutor and the prosecution witnesses from referring to any alleged complaint of sexual touching or rape that is beyond the scope of the testimony of the alleged victim." That motion was denied without prejudice and the judge continued to deal with the scope of fresh complaint by repeating to the jury his limiting instruction on every occasion when a witness began to give fresh complaint testimony.

In telling the jury that fresh complaint testimony was admissible only insofar as it corroborated the primary complaint of the putative victim, the judge acted in accord with cases which had touched on the question before the defendant's trial, such as Commonwealth v. Bailey, 370 Mass. 388, 394-396, 348...