Com. v. Fuller
| Decision Date | 21 April 1987 |
| Citation | 506 N.E.2d 852,399 Mass. 678 |
| Parties | COMMONWEALTH v. Robert J. FULLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Maureen B. Brodoff, Boston, Committee for Public Counsel Services, for defendant.
Daniel A. Ford, Asst. Dist. Atty., Pittsfield, for the Com.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.
After trial by jury in the Superior Court in Berkshire County, the defendant was convicted of statutory rape, G.L. c. 265, § 23 (1984 ed.), and indecent assault and battery on a child under fourteen years of age, G.L. c. 265, § 13B (1984 ed.). He was sentenced to a term of two and one-half years in the house of correction on the indecent assault and battery conviction. On the rape conviction, he received a suspended sentence of from five to seven years at the Massachusetts Correctional Institution, Cedar Junction, with a probationary period of three years, to commence from and after the indecent assault and battery sentence. 1 He appealed, and the Appeals Court affirmed the judgments. Commonwealth v. Fuller, 22 Mass.App.Ct. 152, 491 N.E.2d 1083 (1986). We allowed the defendant's application for further appellate review. We affirm.
The defendant claims that the judge erred in allowing the victim's mother to testify to her daughter's out-of-court statements; the judge ruled that the statements fell within the "spontaneous exclamation" exception to the hearsay rule. The defendant also claims that the judge erred in denying him adequate cross-examination of the victim's mother and in his instructions to the jury.
We summarize the evidence heard by the jury. On October 12, 1984, the mother left her home at approximately 1:30 P.M. to look for employment. She left her three year old daughter in the care of the seventeen year old defendant. 2 She returned home unexpectedly at 3:15 P.M. and found no one downstairs. Hearing noises upstairs, she started up the stairs and said, "Hey." Her daughter opened the bathroom door and ran out with her pants and underpants around her knees. The defendant, still in the bathroom, appeared to be zipping his pants. The mother asked "what was going on." The defendant said that he had gone in to use the bathroom, and the child had insisted on joining him, saying that she had to use the bathroom as well.
The mother examined the child's vagina. She saw nothing indicating abuse. Still concerned, she left her daughter with the defendant and drove to a doctor's office. 3 Saying that she "knew for sure that something had happened," she requested an immediate appointment. When the mother returned home and told her daughter that she had a doctor's appointment, the child started to whimper about a "boo-boo" on her foot.
Over objection, the mother testified to the following conversation with her daughter while they drove to the doctor's office:
According to the mother, the daughter referred to both a penis and a vagina as "pee-pee."
On October 13, 1984, Detective Bruce Eaton of the Pittsfield police department tape recorded an interview with the child in her home. He then arrested the defendant at approximately 11:55 that night. Advised of his Miranda rights twice, the defendant agreed to waive his rights and to speak with Detective Eaton. Prior to giving a statement to the police, the defendant was allowed to confer with his mother. He then gave a statement. He read the three-page transcription of his statement and signed it at 4:15 A.M. In this statement, which was admitted in evidence, 5 the defendant initially denied the allegations, then described the events of October 12 as follows.
He further stated: 6
The defendant testified to a different version of the events of October 12, 1984. He said that he was using the bathroom at approximately 3:20 P.M. when the child ran in and jumped in the bathtub. She said that she had to "go to the bathroom." He pulled up his underwear and sat her on the toilet. When he picked her up, he put one hand under her arm and the other on her leg, "almost by her hip." Although his hand was near, or touching, her buttocks, he did not touch her genitalia. When the little girl finished going to the bathroom, the defendant told her "to come here so [he] could pull up her pants." He had pulled his pants down to finish urinating. She walked up to him and "touched [his] penis with her lips." He testified that he was "stunned" and "jumped back." At that point, the little girl "started laughing" and said, "Mommy watches these on movies." She then opened the door and ran out. Her mother was standing there; the defendant said that he had to finish urinating, and he shut the door.
1. Hearsay statements of the victim. The judge, over defense counsel's objection, permitted the mother to testify as to her daughter's responses to her questions regarding what had occurred on the afternoon of October 12, 1984. 7 He allowed the testimony on the theory that the answers were spontaneous utterances admissible as an exception to the hearsay rule. The defendant claims error in that the statements bore no indicia of spontaneity so as to bring them within the exception.
The judge ruled that the child's utterance "was made in such circumstances as would reasonably tend to negate any premeditation." He based his finding on (1) "the age of the child"; (2) "the manner in which she answered--didn't simply ...--say yes or no or adopt the facts in the question"; (3) the close proximity to the events; and (4) "the added issue of going to the Doctor."
Under the spontaneous exclamation exception to the hearsay rule, "a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event." Blake v. Springfield St. Ry., 6 Mass.App.Ct. 553, 556, 379 N.E.2d 1112 (1978). Commonwealth v. McLaughlin, 364 Mass. 211, 222-223, 303 N.E.2d 338 (1973). Commonwealth v. Hampton, 351 Mass. 447, 449, 221 N.E.2d 766 (1966). The statements Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197, 163 N.E.2d 157 (1960). In determining whether an utterance meets the tests of admissibility, the trial judge Commonwealth v. McLaughlin, supra at 223, 303 N.E.2d 338, quoting Rocco v. Boston-Leader, Inc., supra.
The rule provides that each case must depend on its own circumstances. See Commonwealth v. Hampton, supra. In the instant case, the statements were made by a three year old child to her mother the first time she was away from the defendant after the incident occurred. Only a few moments had elapsed since she had come running out of the bathroom, the mother had examined her, and then driven to and from the doctor's office one block away. As the judge noted, the child's answers went beyond a simple "yes" or "no," or a mere acquiescence to ideas suggested by her mother. The fact that her statements were responses to her mother's questions does not defeat their admissibility as spontaneous exclamations. 8 Commonwealth v. Burden, 15 Mass.App.Ct. 666, 676, 448 N.E.2d 387 (1983). See Commonwealth v. Hampton, supra, at 450, 221 N.E.2d 766.
The defendant complains that there was no evidence that the child was "excited" or that she "exclaimed" the statements to her mother. In Blake v. Springfield St. Ry., supra, there was no indication that the declarant was excited or agitated at the time of her spontaneous declaration. See Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1756 (1983). Accordingly, whether children manifest excitement or hysteria when they make a statement is not determinative whether the child is reliably reporting a traumatic event. 9 The issue is whether reasonable "indicia of reliability" support the statement's admissibility. In this case, the judge acted within his discretion in determining that the statements were made in circumstances which reasonably negated premeditation and were sufficiently proximate to the event so as to be admissible as spontaneous utterances.
2. Cross-examination of the victim's mother. The defendant claims that the judge erred by prohibiting cross-examination of the victim's mother concerning allegations of sexual abuse at a day care center which her daughter had attended. He now maintains that the mother's anxiety concerning such allegations was relevant to her credibility and to the likelihood that she exerted influence on her daughter. 10
On direct examination, the mother testified that she had abandoned her plans to look for employment on the afternoon of October 12, 1984. When asked why, she replied, "I read the newspaper, and was concerned about E.C.D.C." 11 On cross-examination, the mother testified that her child had attended the Center for...
To continue reading
Request your trial
-
Com. v. Daye
...say on this record that "the substantial rights of [the defendants] are clearly shown to have been prejudiced." Commonwealth v. Fuller, 399 Mass. 678, 684, 506 N.E.2d 852 (1987). Finally, with respect to the defendants' assertion that their cross-examination was unfairly restrained, we ment......
-
Com. v. Gonsalves
...Massachusetts law, proof of declarant's unavailability not required for admission of spontaneous utterance); Commonwealth v. Fuller, 399 Mass. 678, 682-683, 506 N.E.2d 852 (1987) (statement may be spontaneous exclamation, even if made in response to In Crawford, the Supreme Court declined t......
-
Commonwealth v. Mccoy
...or possible fabrication and if it tended to qualify, characterize and explain the underlying event.” Commonwealth v. Fuller, 399 Mass. 678, 682, 506 N.E.2d 852 (1987), Blake v. Springfield St. Ry., 6 Mass.App.Ct. 553, 556, 379 N.E.2d 1112 (1978). The Commonwealth must show that “there was a......
-
Com. v. Crouse
...proper scope of cross-examination unless the defendant shows a clear abuse of discretion and prejudice. See Commonwealth v. Fuller, 399 Mass. 678, 684-685, 506 N.E.2d 852 (1987). In the circumstances of this case, the defendant maintains, the judge's decision to exclude the question was an ......