Com. v. Gamache

• Decision Date: 21 January 1994
• Docket Number: No. 92-P-1077,92-P-1077
• Citation: 626 N.E.2d 616,35 Mass.App.Ct. 805
• Parties: COMMONWEALTH v. Kathleen M. GAMACHE.
• Court: Appeals Court of Massachusetts

Page 616

626 N.E.2d 616

35 Mass.App.Ct. 805

COMMONWEALTH v. Kathleen M. GAMACHE.

No. 92-P-1077.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 23, 1993.

Decided Jan. 21, 1994.

R. Brian Snow, Manchester, for defendant.

Judith B. Stephenson, Asst. Dist. Atty., for Com.

Before DREBEN, KAPLAN and GILLERMAN.

DREBEN, Judge.

After a joint trial with the codefendant, Dominic Sortino, the defendant was convicted of aggravated rape of her daughter, Jane, ¹ under a joint enterprise theory and rape of Jane, a child under the age of sixteen. ² Jane was born on February 12, 1985, was five years old at the time of trial (June, 1990) and was twenty-two months to thirty-three months old during the period of the incidents charged in the indictments (January to November, 1987). The defendant claims: (1) that Jane should not have been found competent to testify; (2) that her motions for a required finding of not guilty should have been allowed; and (3) that factual misrepresentations in the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm the convictions.

1. Competency of Jane. The judge held two competency hearings and requested that a child psychiatrist from the Cambridge Court Clinic examine the child. See G.L. c. 123, § 19. After receiving the doctor's opinion, the judge found the child competent to testify.

The basic rule under G.L. c. 233, § 20, as appearing in St.1983, c. 145, is that any person of "sufficient understanding" is qualified as a witness. "While age is of importance, it is not the test." Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495 (1921). To determine whether a person is of "sufficient understanding" to be considered competent the courts of this Commonwealth "have long applied a two-prong test ...: (1) whether the witness has the general ability or capacity to 'observe, remember, and give expression to that which she has seen, heard, or experienced'; and (2) whether she has 'understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment.' " Commonwealth v. Brusgulis, 398 Mass. 325, 329, 496 N.E.2d 652 (1986), ³ quoting from Commonwealth v. Tatisos, 238 Mass. at 325, 130 N.E. 495. Whether the test is met is "peculiarly for the trial judge, and his determination will be rarely faulted on appellate review." Commonwealth v. Whitehead, 379 Mass. 640, 656, 400 N.E.2d 821 (1980). "Much which cannot be reproduced by the printed word depends on the child's appearance and manner.... [T]he question for decision is almost always one of fact" and, unless clearly erroneous, the judge's determination will not be set aside. Commonwealth v. Tatisos, 238 Mass. at 325, 130 N.E. 495. Commonwealth v. Reid, 400 Mass. 534, 542, 511 N.E.2d 331 (1987). "The tendency, moreover, except in quite clear cases of incompetency, is to let the witness testify and have the triers make any proper discount for the quality of her 'understanding.' " Commonwealth v. Whitehead, 379 Mass. at 656, 400 N.E.2d 821.

The defendant concedes that Jane satisfied the second component of the test. She argues, however, that Jane's inconsistent answers and her inability to remember many events, e.g., her date of birth, what month she was born, when she was going to be five years old, and, more particularly, the failure to show that she could "remember significant or cogent details of events in 1987 relative to the charges" in the indictments, required the judge to find Jane incompetent.

The judge acted correctly in not requiring Jane's competence to rest on a recall of other events or circumstances of 1987. Our cases only require a "general ability" to observe and remember. See Commonwealth v. Brusgulis, 398 Mass. at 329, 496 N.E.2d 652. See also Malchanoff v. Truehart, 354 Mass. 118, 119, 236 N.E.2d 89 (1968).

In Malchanoff v. Truehart, 354 Mass. at 121, 236 N.E.2d 89, the court pointed out that "strictly speaking the question [whether the witness could testify as to events which occurred when she was slightly more than three years old] was really not one of competency," but rather a question whether the witness has the requisite knowledge.

"If the witness proposes to testify that he actually perceived a material matter, he must usually be permitted so to testify unless his story is inherently impossible or so fantastic that no rational person could reasonably believe it.... Consequently when a witness offers to testify to a personal experience relevant in itself, the question of the possibility of the truth of his story is rarely raised by an objection to admissibility. It is more generally raised by a request to charge the jury to disregard the story or by a motion for a directed verdict." Id. at 122, 236 N.E.2d 89, quoting from Model Code of Evidence, Rule 104, comment. ⁴

Jane, at the first voir dire hearing (September 28, 1989), remembered specific facts regarding the alleged events. While Jane did not remember living with "Mommy Kathy" (the defendant), she recalled that Mommy Kathy "hurted me ... at her house;" "she put her fingers in my body," "Daddy Dominic" was in "the living room" when she "was hurt." A bench conference was held during this line of questioning and thereafter no more inquiries as to the events of 1987 were made.

At the second voir dire hearing (October 23, 1989), the judge discussed with the prosecutor the feasibility of asking Jane questions, other than about the traumatic events, concerning what was happening in her life around the period of time covered by the indictments. The prosecutor replied that the incidents which gave rise to the indictments occurred when Jane was nonverbal and that she was not able to remember what her room looked like, her living situation, or other details from that period. The judge then permitted the prosecutor to question her to see how far back she could remember. Jane, in response to questions, told about the costume she wore the previous year on Halloween and numerous details about a Halloween party she attended in that year.

In addition to the obvious--"memory for the gist of events is more enduring than memory for details"--1 Myers Evidence in Child Abuse & Neglect Cases § 2.11, at 79 (2d ed. 1992); see Commonwealth v. Whitehead, 379 Mass. at 655-656, 400 N.E.2d 821 (victim's account of the happenings clear in its outlines though hazy in detail), appellate courts recognize that young children have considerable

difficulty with the concept of time, and that a child's inability to place events in a

temporal framework does not render a child incompetent. See, e.g., State v. Struss, 404 N.W.2d 811, 815 (Minn.Ct.App.1987); State v. D.B.S., 216 Mont. 234, 240, 700 P.2d 630 (1985); State v. Eiler, 234 Mont. 38, 43, 762 P.2d 210 (1988); State v. Lairby, 699 P.2d 1187, 1196 (Utah 1984). See also Myers, op. cit. § 2.12, at 87.

The defendant's other challenges to the judge's conclusion that Jane was competent are also without merit. Although some of Jane's answers were inconsistent, inconsistency is usually not a question of competency but rather a question of credibility, a matter left to the trier of fact except in very rare cases. See Commonwealth v. Corbett, 26 Mass.App.Ct. 773, 777, 533 N.E.2d 207 (1989) for such a case.

Contrary to the defendant's contention, the judge did not delegate to the psychiatrist the determination of competence. In his ruling the judge specifically made his own finding that Jane had the "capacity to perceive and recall." As pointed out in Commonwealth v. Widrick, 392 Mass. 884, 888, 467 N.E.2d 1353 (1984), "G.L. c. 123, § 19, ⁵ operates as a supplement to a judge's traditional method of assessing competency [of a minor or person with some disability], e.g., the voir dire."

Nor was it error to exclude the defendant from the psychiatric examination. It was not a hearing, no evidence was taken, and the physician and the judge agreed in advance that "the events alleged in the case [were] not a part of the interview." The judge's memorandum which was sent to counsel states that it "was agreed that counsel would be excluded from the interview." While it is not clear who agreed, the Commonwealth asserts in its brief that counsel agreed. In any event, the record is devoid of any objection to the procedure to be followed as set forth in the memorandum sent to counsel. Moreover, in the judge's subsequent ruling on competence he stated: "In fairness to all parties, the Court would ask [the psychiatrist] to be available to give a report in open court prior to jury empanelment."

The transcript of the proceedings prior to empanelment discloses no request by the defendant concerning this matter. On this record, the defendant is not entitled to raise her present claims of a denial of due process and violation of her confrontation rights because she was absent during the psychiatric examination. Moreover, none of the cases cited by the defendant supports the claim that she had a right to be present. See Mass.R.Crim.P. 18(a)(3), 378 Mass. 888 (1979) (defendant need not be present at any proceeding where evidence is not to be taken).

2. Motions for required findings of not guilty. There was no error in denying the defendant's motions. The alleged acts took place when Jane had unsupervised visits with her mother. At the time she was living in foster homes. Jane testified that "Mommy Kathy" (the defendant) put her "fingers in my buggy," that "it hurted," and that ...