Com. v. King

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation445 Mass. 217,834 N.E.2d 1175
PartiesCOMMONWEALTH v. Thomas S. KING.
Decision Date29 September 2005
834 N.E.2d 1175
445 Mass. 217
Thomas S. KING.
Supreme Judicial Court of Massachusetts, Plymouth.
Argued April 6, 2005.
Decided September 29, 2005.

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Robert O. Berger, III, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

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Lisa J. Steele, Bolton, for National Association of Criminal Defense Lawyers.

William J. Meade, Boston, for District Attorney for the Bristol District & others.

Djuna E. Perkins, Boston, for Jane Doe, Inc., & others.

Jane Larmon White, Boston, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Wendy J. Murphy for Victim Advocacy and Research Group.



The defendant, Thomas S. King, appeals from his convictions of forcible rape of a child under sixteen years, G.L. c. 265, § 22A, and indecent assault and battery of a child under fourteen years, G.L. c. 265, § 13B. In part, the defendant argues that the trial judge improperly admitted the testimony of two "fresh complaint" witnesses. Under the fresh complaint doctrine in effect at the time of trial, the Commonwealth was permitted to introduce out-of-court statements seasonably made by the victim after the alleged sexual assault for the purpose of corroborating her own testimony concerning the alleged assault (so-called "fresh complaint" testimony). See, e.g., Commonwealth v. Montanez, 439 Mass. 441, 445, 788 N.E.2d 954 (2003). There was no error in the judge's admission of the testimony. We affirm the defendant's convictions.

We take this opportunity, however, to reconsider the scope of, and continued necessity for, our present fresh complaint doctrine. In light of changed circumstances we shall describe, we substantially revise the doctrine, which in the future shall be called the "first complaint" doctrine. Under the new doctrine, to be applied only in sexual assault cases tried after the issuance of the rescript in this opinion, the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time. Testimony from additional complaint witnesses is not admissible.

First complaint testimony may be admitted for a limited purpose only, to assist the jury in determining whether to credit the complainant's testimony about the alleged sexual assault. The testimony may not be used to prove the truth of the allegations. The jury must be so instructed. The timing by the complainant in making a complaint will not disqualify the evidence, but is a factor the jury may consider in deciding whether the first complaint testimony supports the complainant's credibility or reliability. First complaint testimony is not relevant and therefore not admissible under the doctrine where neither the fact of the sexual assault nor the complainant's consent is at issue, as in cases where the identity of the assailant is the only contested issue.

Facts and procedural history. On the evidence admitted, the jury could have found the following facts. At the time of the alleged assault, the victim, whom we shall call Alice, was four years old. Her mother and the defendant, who is Alice's biological father, were no longer in a relationship, but had a visitation arrangement concerning Alice: Alice lived and slept at the defendant's apartment on Mondays and Tuesdays. Alice's grandparents and the defendant's wife also lived in the same apartment. The defendant, his wife, and

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Alice shared a bedroom during her visits: the defendant and his wife slept in one bed, and Alice in another.

One day in February, 2002, Alice walked in on the defendant in the bathroom and he asked her to "lick or scratch" his penis because it was "itchy." He was fully clothed until Alice replied "okay." The defendant then removed his pants and underwear and laid down on his back on the bathroom floor or leaned against the tub. Alice knelt or sat beside him and did as she was told. She did not like the taste of the defendant's penis and so applied bubble-gum flavored toothpaste to it. When she finished licking the toothpaste off the defendant's penis, she put the toothpaste back and left the bathroom. Alice did not recall any conversation with the defendant during the incident, but remembers that her grandparents were nearby in the living room watching television when she came out of the bathroom.

Later that same day, the defendant drove Alice to her day care center and her mother picked her up there. Alice told her mother about the alleged assault the day after the incident or perhaps one week later, when she was preparing to return to her father's house for another visit. This was the first time Alice disclosed the alleged assault.

According to Alice's mother, on February 18, 2002, at 8:45 A.M., while in the living room of her studio apartment, Alice told her that the defendant had asked her to lick his penis. On hearing Alice's story, Alice's mother telephoned her own mother for advice and then telephoned the police. The following day, Alice and her mother went to the district attorney's office where they spoke with Brockton Detective Erin Kerr about the incident.

The grand jury's indictments allege that the offenses occurred between June, 2000, and February 12, 2002, the period during which Alice was periodically visiting the defendant at his home.1 A Superior Court judge allowed the defendant's motion in limine seeking a determination of Alice's competency. The judge examined Alice, then six years old, and found her competent. A December 3, 2004, trial of the defendant's case ended in mistrial. Before the mistrial, the judge had ruled, over objection, that the Commonwealth could impeach the defendant (if he testified) with a prior conviction of armed robbery.

The following day, a second jury were empanelled. At this trial, three witnesses testified for the Commonwealth: Alice testified as the complainant, and her mother and Detective Kerr testified as "fresh complaint" witnesses. To minimize the potential prejudicial impact of multiple iterations of Alice's complaint, the judge limited the mother's testimony to a few details of the complaint. The only evidence presented by the defendant was the testimony of his mother. The defendant did not testify, citing the judge's decision (made again at the retrial) to admit his prior conviction for impeachment purposes.

The judge instructed the jury at the time of Alice's mother's testimony about the "fresh complaint" doctrine: "If an alleged victim of a rape or sexual assault tells someone about the event reasonably promptly after the event," then evidence of the statement is admitted "only to corroborate

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the alleged victim's in-court testimony and not to prove independently that the sexual assault occurred." The judge gave similar instructions before Detective Kerr's testimony, and again in his final instructions.

At the close of the Commonwealth's case, the defendant moved unsuccessfully for a required finding on so much of the indictment that charged rape of a child by force, claiming insufficient evidence of penetration. He renewed this motion at the close of all of the evidence, and again before sentencing. The judge denied the motions, concluding that "[b]ecause licking constituted oral stimulation, and therefore fellatio, proof of penetration was satisfied."

The defendant was found guilty of both offenses and appealed. We transferred this case here on our own motion.

Discussion. The defendant challenges his convictions on five bases: (1) the rape indictment was "void" as there was no penetration; (2) there was insufficient evidence to support the rape conviction; (3) both the assault and battery and rape convictions were so closely related as to constitute one crime; (4) the judge erred in ruling that the defendant's prior conviction would have been admissible had he testified; and (5) the fresh complaint testimony of Alice's mother and Detective Kerr exceeded the bounds of the fresh complaint doctrine and violated the defendant's right to confrontation.

1. "Void" indictment. The defendant claims that the indictment charging rape of a child by force was defective because it did not allege penetration. We disagree. While our case law has required the Commonwealth to prove some degree of penetration in order to support a conviction under the statute, see, e.g., Commonwealth v. Lopez, 433 Mass. 722, 726-727, 745 N.E.2d 961 (2001), an allegation of penetration is not required in an indictment for rape of a child by force where it is not expressly mentioned in the statute. The indictment expressly references the crime of rape of a child by force and properly tracks the statutory definition of the crime.2 See G.L. c. 265, § 22A.3 See also G.L. c. 277, §§ 34, 79; Commonwealth v. Baron, 356 Mass. 362, 364, 252 N.E.2d 220 (1969) ("An indictment conforming with the statutory form is sufficient"). The defendant was given adequate notice of the nature of the charges against him and thus the indictment was sufficient.4 See Commonwealth v. Farmer, 218 Mass. 507, 509, 106 N.E. 150 (1914) ("The Constitution of Massachusetts, article 12 of the Declaration of Rights, requires only such particularity of allegation as may be of service to a person charged with crime in enabling him to understand the charge and prepare his defense"). Cf. Commonwealth v. King, 387 Mass....

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    ...surrounding the making of that first complaint. The witness may also testify about the details of the complaint." Commonwealth v. King, 445 Mass. 217, 218-219, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006). Other witnesses may not testify to sub......
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