Com. v. Kebreau, SJC-10317.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtCowin
Citation454 Mass. 287,909 N.E.2d 1146
Docket NumberSJC-10317.
Decision Date16 July 2009
909 N.E.2d 1146
454 Mass. 287
Supreme Judicial Court of Massachusetts, Essex.
Argued April 7, 2009.
Decided July 16, 2009.

[909 N.E.2d 1149]

Iris Alkalay for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Lydia Watts, Brenda R. Sharton, Jennifer M. Mendola, & James M. Hlawek, Boston, for Victim Rights Law Center & others, amici curiae, submitted a brief.



454 Mass. 288

The defendant was convicted by a Superior Court jury of two counts of rape of a child, four counts of indecent assault and battery on a child under fourteen, and one count each of assault and battery and threatening to commit a crime.1 The victims were the defendant's two daughters, Rachel and Patricia.2 The defendant appeals from his convictions on the grounds that the judge erred in allowing the testimony of multiple first complaint witnesses, improperly admitting other testimony that introduced first complaint evidence "through the back door," and denying the defendant's motion to suppress inculpatory statements that, he asserts, were protected by the priest-penitent privilege. The defendant argues further that the prosecutor impermissibly vouched for witnesses during her closing argument. For all these reasons, the defendant requests that we reverse the judgment and order a new trial.

We conclude that the first complaint doctrine, see Commonwealth v. King, 445 Mass. 217, 242-243, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006) (King), permits testimony from two first

454 Mass. 289

complaint witnesses in circumstances such as those here, where each witness testifies to disclosures made years apart concerning different periods of time and escalating levels of abuse, which constitute

909 N.E.2d 1150

different and more serious criminal acts committed over a lengthy period. In addition, the other multiple witness complaint testimony to which the defendant objects was properly admitted, not as first complaint testimony, but rather in response to cross-examination by the defendant and contentions raised in his defense. We conclude further that the defendant's inculpatory statements were not protected by the priest-penitent privilege because they were not made in the course of seeking spiritual comfort or guidance. We determine also that there was no vouching in the prosecutor's closing argument. We therefore affirm the defendant's convictions.3

Background and proceedings. We recount the facts from evidence at trial, reserving specific details for later discussion. The defendant began sexually abusing his older daughter, Rachel, when she was in sixth grade, and his younger daughter, Patricia, when she was in third grade. The assaults continued throughout the girls' high school years.4 The assaults against Rachel escalated from sexualized touching to digital penetration when Rachel was in junior high school to penile penetration when she was in ninth grade. The incidents became less frequent in Rachel's later high school years; she sought to avoid being around her father. Later, Rachel did not return home from college on weekends. The last incident occurred when Rachel was home for Thanksgiving break during her freshman year at college. When the defendant attempted to touch Rachel, she refused and threatened to call the police. The defendant became angry, showed Rachel a nine millimeter handgun, and said, "I could kill you if you ever open your mouth." Although the defendant did not touch Rachel after this incident, she continued to fear for her safety and for that of her mother.

454 Mass. 290

The assaults against Patricia followed a similar pattern of escalation while Patricia was in elementary and junior high school, and became less frequent during her high school years as well.5 Patricia often stayed away from home during junior high and high school; when the defendant attempted to assault her, she at times told him not to touch her or put out her hand to stop him. On one occasion when Patricia was sixteen or seventeen, the defendant grabbed her by the throat, pinning her against a wall, because she did not respond quickly enough when he called her. The defendant also attempted sexual assaults on Patricia on her visits home from college, but she fended off his attempts.

Rachel first disclosed the abuse to her mother, Solange, when she was in seventh or eighth grade.6 After Rachel told Solange that the defendant had been touching her inappropriately, Solange confronted the defendant, who responded by yelling at Solange. A few days later, the defendant told Rachel that she should not have disclosed the abuse to her mother, that nothing would come between him and his wife, and that, in any case, no one would believe Rachel. There was no

909 N.E.2d 1151

further discussion of the abuse until Rachel disclosed to Azanda Seymour, an academic advisor at her college, that she did not want to go home because her father was molesting her. Seymour referred Rachel to the school's counselling center, and also attended a counselling meeting with Rachel.

When Patricia was a senior in high school, she disclosed the abuse to Ralph Massillon ("Pastor Ralph"), one of the pastors at her church. Patricia told Pastor Ralph that she had not disclosed the abuse previously because she did not think that anyone would believe her and because the defendant had threatened her if she did so. Pastor Ralph suggested alternative actions that Patricia could take, including contacting the police or confronting her father, but Patricia decided that the best option would be to leave home to attend college. However, after a long weekend home from college in February, 2002, Patricia informed Pastor Ralph that she wanted to confront the defendant.

454 Mass. 291

A family meeting was held at the church in February, 2002. The defendant's two daughters, their mother, Pastor Ralph, two other pastors, and the defendant attended the meeting. During the meeting, the defendant made inculpatory statements to Pastor Ralph and the other pastors. The defendant apologized to his daughters for "what he did" and asked for forgiveness.7 The meeting ended without agreement concerning any future action.

Several weeks after the meeting, Solange informed her son James of what had occurred at the meeting. With Solange present, James confronted the defendant, who stated, without specifying further, that he had done inappropriate things to Rachel, but denied harming Patricia. The defendant was upset and crying during this encounter, and said to James, "What do you want me to do? Do you want me to kill myself?"

The defendant was asked to leave the family home. He initially agreed to do so, but then refused to move. He became angry and verbally abusive. Eventually, in September of 2002, Rachel and Solange went to the Lynn police department. At the suggestion of the detective who conducted the interview, Rachel and Solange obtained a restraining order against the defendant. The defendant was arrested a few days later.

Prior to trial, asserting that his statements at the church meeting were protected by the priest-penitent privilege, the defendant moved to suppress these statements. After an evidentiary hearing, the trial judge denied the motion. The defendant sought relief pursuant to G.L. c. 211, § 3. A single justice of this court denied the defendant's petition.

The decision in King, supra, which replaced the fresh complaint doctrine with the first complaint doctrine, was decided a few weeks before the trial in this case. King provided that its changes would apply to sexual assault cases tried after the issuance of the rescript in that case. See id. at 218, 248, 834 N.E.2d 1175. The rescript issued during the present trial.

At the beginning of the trial, the Commonwealth filed motions in limine to allow testimony from multiple first complaint witnesses. The trial judge ruled that one first complaint witness,

454 Mass. 292

Pastor Ralph, could testify as to the abuse of Patricia and two first complaint witnesses, Solange and Seymour, could testify concerning the abuse of Rachel. The defendant did not object to the first complaint witness for

909 N.E.2d 1152

Patricia, but did object to the two first complaint witnesses for Rachel. The judge instructed the jury on first complaint witnesses pursuant to King, supra at 247-248, 834 N.E.2d 1175.

The jury convicted the defendant of eight of the nine charges for which he had been indicted; the defendant was found not guilty of incest. This appeal ensued. We transferred the case from the Appeals Court on our own motion.

Discussion. 1. First complaint testimony. a. Multiple first complaint witnesses. The defendant claims that the judge should not have permitted testimony of two first complaint witnesses regarding Rachel's complaint. He argues here, as he did at trial, that this violated the first complaint doctrine set forth in King, supra at 242-243, 834 N.E.2d 1175. That doctrine permits only one witness to testify to a complainant's report of an alleged assault. That witness, who ordinarily will be the first person to whom the alleged victim disclosed the assault, may testify to "the details of the alleged victim's first complaint of sexual assault [including the victim's statement of the facts of the assault] and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief." Id. at 243, 834 N.E.2d 1175. The complainant may also testify to the details of the first complaint and why the complaint was made at that time. Id. at 245, 834 N.E.2d 1175.

The first complaint doctrine was designed to help counterbalance the continuing inaccurate assumptions about delayed reporting by victims of sexual assaults, which may lead juries to view skeptically statements by rape victims if the assault is...

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