Com. v. Gonsalves

• Decision Date: 18 November 1986
• Parties: COMMONWEALTH v. Frank GONSALVES.
• Court: Appeals Court of Massachusetts

Page 1229

499 N.E.2d 1229

23 Mass.App.Ct. 184

COMMONWEALTH v. Frank GONSALVES.

Appeals Court of Massachusetts,

Middlesex.

Argued Oct. 10, 1986.

Decided Nov. 18, 1986.

George Hassett, Cambridge, for defendant.

Cynthia J. Weigel, Asst. Dist. Atty., for Com.

Before KASS, KAPLAN and FINE, JJ.

FINE, Justice.

A Superior Court jury convicted the defendant of rape, assault with intent to rape, indecent assault and battery, and assault and battery. The charges were based on an incident which occurred in the defendant's sister's apartment in Lowell on July 28, 1983. According to the victim, the defendant drove him from Tewksbury to the apartment; while the two young men were sitting on a bed listening to music, the defendant made sexual advances towards the victim which were rejected; the defendant punched the victim in the face, grabbed his throat, put a pillow over his head and performed fellatio on him; the defendant then attempted to force the victim to perform fellatio on him.

We have considered each of the defendant's contentions on appeal and, finding no reversible error, we affirm the convictions.

1. Sufficiency of evidence of rape. The victim's account of what the defendant did to him in the apartment was sufficient to overcome the defendant's motion for a required finding of not guilty of rape. G.L. c. 265, § 22(b ), as appearing in St.1980, c. 459, § 6. Commonwealth v. Hackett, 383 Mass. 888, 421 N.E.2d 769 (1981). See Commonwealth v. Gallant, 373 Mass. 577, 581-585, 369 N.E.2d 707 (1977).

2. Fresh complaint. The defendant claims error in the trial judge's admission of the fresh complaint testimony of one Robert Haines, an older and trusted friend of the victim. A month or so after the incident, in response to a question by Haines, the victim stated that the defendant had raped him. This was the first time the victim had related to anyone that the rape had occurred in an apartment. Three other fresh complaint witnesses testified that the victim had told them shortly after the incident that the rape had occurred in a car. The defendant objected to the testimony from Haines on the ground that the complaint was not sufficiently prompt to qualify as a fresh complaint.

"A complaint of a sex crime made by a victim within a reasonable period of time after the commission of the offense is admissible as corroboration of the victim's testimony under the fresh complaint doctrine." Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 480, 488 N.E.2d 780 (1986), and cases cited. See generally Glover v. Callahan, 299 Mass. 55, 57-58, 12 N.E.2d 194 (1937); Commonwealth v. Bailey, 370 Mass. 388, 391-397, 348 N.E.2d 746 (1976). See also Liacos, Massachusetts Evidence 171 (5th ed. 1981). "A reasonable period of time" has not been defined as matter of law. Commonwealth v. Bedard, 6 Mass.App.Ct. 959, 383 N.E.2d 546 (1978). To qualify as a fresh complaint, the communication by the victim need only be "reasonably prompt in light of the circumstances." Commonwealth v. King, 387 Mass. 464, 473, 441 N.E.2d 248 (1982).

In allowing the testimony, the trial judge implicitly found that the complaint was reasonably prompt in the circumstances. The victim was a youth of nineteen at the time of the incident. Following the incident he was in obvious distress, embarrassed, and fearful of "what people might think." His initial complaints were met in part by disbelief. His father reacted to the victim's complaint of rape, for example, by asking him why he had not prevented it by fighting off the defendant. Even when he responded to Haines' inquiries about the incident several weeks after it occurred, the victim was upset, and he was crying and trembling. It is not at all implausible that feelings of humiliation, embarrassment, and violation of privacy might be particularly forceful in a teenage victim of a male homosexual rape and might account for a delay of several weeks in revealing all the details of the rape. The fresh complaint rule has been applied to admit accounts made after delays longer than the one in this case, where circumstances warranted such flexibility. See Commonwealth v. Wilson, 12 Mass.App.Ct. 942, 942-943, 426 N.E.2d 162 (1981); Commonwealth v. Brenner, 18 Mass.App.Ct. 930, 931-932, 465 N.E.2d 1229 (1984) (detailing the circumstances of cases involving sexual assaults on children which warrant flexible application of the rule). The trial judge acted within his discretion in admitting the complaint as "reasonably prompt in light of the circumstances" of this case. ¹

3. The admissibility of evidence of the victim's state of mind. On direct examination, without objection, the victim testified that he smashed all of the defendant's car windows the day after the rape. The prosecutor then asked the victim why he did that. Over a general objection, the judge allowed the victim to testify that he had smashed the windows because he "was mad and wanted to get back." The defendant contends on appeal that evidence of the victim's state of mind when he damaged the defendant's property was inadmissible because it was irrelevant and prejudicial. If the evidence was "admissible for at least one purpose, its admission over a general objection ... [was] not erroneous." Commonwealth v. Errington, 390 Mass. 875, 882, 460 N.E.2d 598 (1984).

There was at least one theory on which the state of mind testimony was admissible. By introducing the evidence of the destruction of the car windows as part of the case in chief, the prosecutor was anticipating the use of that evidence by the defense to support its theory of fabrication. The victim had not made any complaint of rape to the police before he smashed the car windows. He had been convicted previously of malicious destruction of a car, and, at the time of the rape alleged in this case, he was on probation for that earlier offense. It was important to the Commonwealth to counter the defendant's anticipated attempt to convince the jury that the victim fabricated the rape in order to avoid being charged with violation of his probation. Having been permitted, without objection, to ask the victim about the smashing of the windows, it was reasonable for the prosecutor to ask the witness to explain that conduct. The judge's ruling permitting the explanation was not erroneous. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270, 431 N.E.2d 880 (1982); Commonwealth v. Errington, 390 Mass. at 880-882, 460 N.E.2d 598; Liacos, Massachusetts Evidence 165-166 (5th ed. 1981 & 1986 Supp.). At most, one might question whether the judge should have allowed the question to be asked during the victim's direct examination rather than on redirect after the defense had pursued the issue in cross-examination. See Commonwealth v. Dougan, 377 Mass. 303, 307, 386 N.E.2d 1 (1979); Commonwealth v. Errington, 390 Mass. at 880-882, 460 N.E.2d 598. Any minor departure from the traditional order of proof, however, a matter usually left to the trial judge's discretion, was not prejudicial. The defense took full advantage of the opportunity to explore the issue in cross-examination and to argue forcefully the inferences adverse to the...