Com. v. Hartnett

• Citation: 892 N.E.2d 805,72 Mass. App. Ct. 467
• Decision Date: 28 August 2008
• Docket Number: No. 07-P-1504.,07-P-1504.
• Parties: COMMONWEALTH v. Derek HARTNETT.
• Court: Appeals Court of Massachusetts

892 N.E.2d 805

72 Mass. App. Ct. 467

COMMONWEALTH v. Derek HARTNETT.

No. 07-P-1504.

Appeals Court of Massachusetts, Essex.

Argued June 2, 2008.

Decided August 28, 2008.

Neil L. Fishman for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., GRAHAM, & MEADE, JJ.

MEADE, J.

In 2004, the defendant was indicted for rape of a child in violation of G.L. c. 265, § 23, and assault and battery of another child in violation of G.L. c. 265, § 13A. Following a jury trial in Superior Court, the defendant was convicted of both charges. He was sentenced to a term of from six to seven years in prison for the rape conviction, and to three years, probation upon his release from prison for the assault and battery conviction. On appeal, the defendant claims that: it was error to admit first complaint testimony when there was an eyewitness to the rape; the judge abused his discretion by permitting the courtroom lights to be dimmed as a demonstration; the judge abused his discretion by admitting testimony as a spontaneous utterance exception to the hearsay rule; and there was insufficient evidence to support his conviction of assault and battery. We affirm.

1. Background. a. The crimes. In 2004, the seven year old victim, James,¹ was living in New Hampshire with his parents, Donna and Richard, and his three sisters: Linda, age nine; Bailey, age twelve; and Cathy, age fourteen. Once or twice each month, James and his sisters would visit Douglas, their maternal grandfather. Douglas lived in Methuen with his "lady friend," the defendant's mother. The defendant lived in Lawrence, but often would visit his mother in Methuen.² The children knew the defendant and got along well with him.

On a February night in 2004, Donna brought James and Linda to stay at Douglas's house overnight. The defendant was also there, and he too spent the night. James and Linda played indoors and out, and had dinner at a restaurant with their grandfather. In the morning, the defendant took the children shopping with money that his mother provided.

Around noon, Donna arrived with Bailey and Cathy, and the children all played while Donna visited with her father. After her mother arrived, Linda went looking for James. Her search took her into the basement, where she wove her way past the clutter, attempting to find her younger brother. Upon turning a corner around a tall box, Linda saw James sitting in a wheelchair.³ The defendant was standing in front of him, his sweat pants were pulled down to his knees, and his penis was in James's mouth.⁴ When Linda turned to run away, the defendant grabbed her, put her on the couch, and began to tickle her on her stomach with both of his hands. Linda struggled to get away by pushing the defendant's arm and by "mov[ing] around" until she was able to escape up the stairs.

Once upstairs, Linda immediately found her sister, Bailey, and urgently asked her to go outside together and play; Linda was "scared and sad" about what she had witnessed. Linda was anxious to go outside, and she suggested the two play hopscotch and go to see a tree she had climbed earlier that day. According to Bailey, as they walked towards the woods in the rear of the house, Linda turned around and said that the defendant and James "had been doing something bad."⁵ Bailey insisted that Linda tell their mother what she had witnessed.

Back inside the house, Linda found her mother in the living room. Linda looked "visibly upset, nervous," and had her "head down." Linda told her mother that she "saw Derek and [James] doing bad things downstairs."⁶ Upon hearing what the defendant had done, Donna became very upset and frantically gathered the children to leave the house. Douglas went to find James, and saw him and the defendant walking away from the house towards the woods, James ahead of the defendant.

With the children all collected, Donna brought them to a restaurant, where she separated James from the others in order to speak to him. James was pale, visibly upset, on the verge of tears, and would not make eye contact with his mother. When she asked him what had happened at his grandfather's house, James initially insisted that nothing had occurred. When Donna informed him that Linda had said otherwise, and that she would bring her over to repeat it, James looked distraught and said, "Derek put his thing in my mouth." Donna telephoned her husband, Richard, and told him what had transpired.

After eating, Donna brought the children to get their hair cut, as previously had been planned, and Richard met her at the hair salon. The family then returned to Douglas's house in Methuen, and Douglas called the police. James stayed in the car with his father; he refused to go into the house. The police arrived, and the defendant was arrested at his home later that evening.

b. The defense. The defendant did not testify and produced no witnesses to testify on his behalf. Through cross-examination and argument, the defendant constructed a defense based on James's inconsistent responses relative to whether he had been sexually abused, how the poorly lit basement called into question Linda's ability to perceive the assault she had witnessed, the unreliable nature of the courtroom lighting demonstration and Linda's testimony regarding the demonstration, as well as other inconsistencies in the Commonwealth's case and the adequacy of the police investigation.

2. Discussion. a. First complaint testimony. The defendant claims that the rule permitting the admission of first complaint testimony is not applicable to cases, such as this one, where there is a percipient witness (in addition to the victim) to the sexual assault. We disagree and decline the invitation to create such a restriction.

The only authority cited by the defendant is Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006) (King), which was applicable to the 2006 trial of this case, but nonetheless offers his claim no assistance. In King, the Supreme Judicial Court revamped the rules regarding admission of fresh complaint testimony and held that the recipient of a sexual assault victim's first complaint may testify about the fact of the first complaint, as well as the details of the complaint and the circumstances surrounding the making of that first complaint. Id. at 218-219, 834 N.E.2d 1175.⁷ The court also eliminated the "freshness" requirement of the prior doctrine, id. at 242, 834 N.E.2d 1175⁸; limited the number of such witnesses to one, id. at 242-244, 834 N.E.2d 1175; and prohibited the use of first complaint testimony in cases "where neither the occurrence of a sexual assault nor the [victim's] consent is at issue," such as cases "where the sole issue is the identity of the perpetrator," id. at 247, 834 N.E.2d 1175. See Commonwealth v. Murungu, 450 Mass. 441, 442-443, 879 N.E.2d 99 (2008).

Absent from the restrictions on first complaint testimony is anything that relates to the type or strength of the evidence the Commonwealth offers in support of the sexual assault charge. To the contrary, the court determined that first complaint testimony "will be considered presumptively relevant" to a victim's "credibility in most sexual assault cases where the fact of the assault or the issue of consent is contested." King, supra. In fact, even in the past, when multiple fresh complaint witnesses were permitted, their testimony was not prohibited when the Commonwealth's case included a rare third-party percipient witness. See Commonwealth v. Richardson, 423 Mass. 180, 181, 185, 667 N.E.2d 257 (1996) (both eyewitness and fresh complaint evidence admitted); Commonwealth v. Graves, 35 Mass.App.Ct. 76, 82, 616 N.E.2d 817 (1993) (same); Commonwealth v. Kachoul, 69 Mass.App.Ct. 352, 353-354, 358, 868 N.E.2d 153 (2007) (same).

Rather, the first complaint rule (and its predecessor) came into being to address concerns about potential juror bias relating to the unsubstantiated belief that a sexual assault victim promptly will disclose the assault to someone,⁹ that jurors will draw an adverse inference from the absence of such a complaint,¹⁰ and that jurors are generally skeptical of rape allegations. See King, supra at 230, 834 N.E.2d 1175. When the sexual assault allegation involves a child victim, as is the case here, the rule "gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child's make-up." Ibid., quoting from Commonwealth v. Fleury, 417 Mass. 810, 814, 632 N.E.2d 1230 (1994). As the court noted in King, supra at 239-240, 834 N.E.2d 1175. "[j]uror biases may be particularly strong in child rape cases, as some may attribute allegations of sexual assault to the child's imagination or improper adult influence. And jurors may unfairly perceive child complainants as incredible."

In an effort to establish that the admission of Donna's first complaint testimony was unfairly prejudicial to him, the defendant curiously argues that his conviction was based on the unreliable testimony of two children, who were ages nine and eleven at the time of trial.¹¹ While Linda's and James's testimony differed in some details, the defendant's argument employs the very skepticism against which the rule is designed to protect. Indeed, the admission of Donna's first complaint testimony provided the jury with information that permitted them to make a fair assessment of James's credibility. See King, supra at 237, 834 N.E.2d 1175.

To adopt the defendant's proposed limitation on the first complaint rule would require the trial judge to conduct a time-consuming analysis of the strength or corroborative value of the eyewitness testimony. Even if there is "strong" eyewitness testimony, the proposed limitation fails to acknowledge that it is squarely within the province of a jury to entirely discount such evidence, and would...