Com. v. Kirkpatrick

• Decision Date: 07 August 1996
• Citation: 423 Mass. 436,668 N.E.2d 790
• Parties: COMMONWEALTH v. David KIRKPATRICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 790

668 N.E.2d 790

423 Mass. 436

COMMONWEALTH v. David KIRKPATRICK.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 7, 1996.

Decided Aug. 7, 1996.

James M. Doyle, Boston, for defendant.

Kelly A. Downes, Cambridge, Assistant District Attorney, for Com.

Before LIACOS, C.J., and ABRAMS, GREANEY and FRIED, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant, David Kirkpatrick, on two indictments, the first charging ten identical counts of forcible rape of a child under sixteen years, in violation of G.L. c. 265, § 22A (1994 ed.), and the second charging ten identical counts of indecent assault and battery on a child under fourteen years, in violation of G.L. c. 265, § 13B (1994 ed.). The defendant is represented by new counsel on appeal. We transferred the case to this court on our own motion principally to consider the defendant's claim that his constitutional rights to due process of law ¹ were violated because the prosecutor was unable, in the indictment, a bill of particulars, or through the victim's testimony, to provide any specific dates or other identifying characteristics for the multiple criminal acts which the defendant was alleged to have committed over a span of two years. We conclude that the defendant's rights were not violated, and that his motions for a required finding of not guilty and to dismiss the indictments properly were denied. We also conclude that there was no error as to the other issues argued by the defendant on appeal concerning the sufficiency of the evidence to support the convictions; the admission of fresh complaint testimony beyond the scope of abuse testified to by the victim; the admission of testimony about the actions of the Department of Social Services (DSS); and the exclusion of medical records of the victim and the defendant offered by the defendant. Accordingly, we affirm the convictions. We note, however, that as to the admission of medical records, the defendant may wish to pursue a motion for a new trial.

1. Trial testimony. The female victim was twelve years old at the time of trial and was between the ages of nine and eleven years in 1989 through 1991, when the incidents that gave rise to the indictments were said to have occurred. The victim lived for the greater part of this two-year period with her mother and the defendant, the mother's boy friend (and, subsequently, her husband). The victim testified that approximately three times a week during the two-year period, when her mother and her older sister were either away from the family's apartment or asleep, the defendant would do one or more of the following: fondle or lick her chest area and vagina; masturbate and ejaculate on her stomach; force her to masturbate him; force her to engage in oral sex; or force her to have sexual intercourse with him. The victim was, however, uncertain and to some degree contradictory about the frequency with which certain acts had occurred, testifying at one point that vaginal intercourse occurred less frequently than fondling, and that it would not happen most of the time, although she also testified that it occurred as often as twice a week. The victim testified that she sometimes protested and "would not let him do it," that the defendant sometimes threatened to "get the belt" if she did not submit to his demands, and that the threats made her feel that the defendant wanted to beat her up as he did her mother. There was evidence that the defendant had violent altercations with the victim's mother, but, with one exception, no evidence that he had physically abused the victim in any other respect than stated in this opinion. ²

The victim also testified that her mother had entered the room while the defendant was on top of her the first time the defendant forced sexual intercourse on her, and that she had told both her mother and her sister something about the abuse. The victim's testimony was supported by the testimony of five fresh complaint witnesses, including a neighbor, two social worker-investigators employed by the DSS, an aunt, and a police officer. The Commonwealth offered no medical evidence.

The defendant's case was aimed at impugning the credibility of the victim. Defense counsel elicited testimony from the victim's mother, who denied having seen, or hearing about, any sexual abuse of the victim by the defendant, and from the victim's sister, who said that the victim had told her about one incident of indecent exposure, but had never disclosed any other form of sexual abuse. The defendant did not take the stand.

2. Specificity of charges. As has been mentioned, two indictments were returned against the defendant. The first indictment contained ten identically worded counts which tracked the statutory language of G.L. c. 265, § 22A (forcible rape of a child) as follows:

"DAVID KIRKPATRICK, on a day between 1989 and 1991, the exact date being unknown to the said GRAND JURORS, did assault [the victim], a child under the age of sixteen years, with intent to unlawfully have sexual intercourse with and abuse said [victim] and did unlawfully have sexual intercourse with and abuse said [victim], the said David Kirkpatrick having compelled the said [victim] to submit to such sexual intercourse by force and threat of bodily injury, against her will."

The second indictment contained ten identically worded counts which tracked the statutory language of G.L. c. 265, § 13B (indecent assault and battery of a child), as follows:

"DAVID KIRKPATRICK, on a day between 1989 and 1991, the exact date being unknown to the said GRAND JURORS, did commit an indecent assault and battery on [the victim], a child under the age of fourteen years."

The defendant moved for a bill of particulars (a procedure we recommended in Commonwealth v. Hrycenko, 417 Mass. 309, 313, 630 N.E.2d 258 [1994] ), which motion was granted. The Commonwealth complied by filing a one-page response which incorporated by reference a police report and a transcript of the testimony before the grand jury. This material did not describe any incident of sexual abuse in detail, and provided only one exact date, on which, it was alleged, the defendant had committed an indecent assault and battery on the victim. The grand jury testimony of the victim described specific forms of abuse, and alleged that these had occurred two or three times a week during the two years she had lived with the defendant. The defendant then moved to dismiss the indictments on the basis that they were insufficient, as supplemented by the particulars. The judge denied the motion.

The defendant does not maintain that the Commonwealth withheld information. He assumes that the prosecutor's response provided as much specificity as possible. He recognizes as well that the times and dates of the offenses are not elements of the crimes, see Commonwealth v. King, 387 Mass. 464, 467, 441 N.E.2d 248 (1982), and that a statutory form of indictment is constitutionally sufficient to charge a particular offense. See Commonwealth v. Hrycenko, supra at 313, 630 N.E.2d 258; Commonwealth v. Robertson, 408 Mass. 747, 749, 563 N.E.2d 223 (1990). Rather, he contends that the lack of specificity, what he referred to at trial as the "generic" nature of the victim's allegations, afforded him inadequate notice for the preparation of a defense, and that, in view of the victim's testimony, describing numerous but essentially undifferentiated acts of abuse, the jury could not have reached unanimous agreement on the acts underlying each of the twenty convictions. He suggests that, in a case involving a child complainant who alleges repeated, undifferentiated instances of abuse, due process requires that the Commonwealth elect and offer proof of specific acts on which to rely for conviction. In support of his position, the defendant relies on Commonwealth v. Montanino, 409 Mass. 500, 512, 567 N.E.2d 1212 (1991), a child sexual abuse case in which we suggested that the Commonwealth might be required to specify the dates of the particular incidents underlying the charges against the defendant, and two cases decided by the Supreme Court of Colorado in which, the defendant states, that court has held "that the prosecution [is] required to elect specific acts upon which to rely for conviction in [child sexual abuse] cases presenting large numbers of indistinct instances." The Colorado cases on which the defendant relies are Kogan v. People, 756 P.2d 945 (Colo.1988), and People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980). ³

As the Supreme Court of California observed in a similar case, we are presented here with questions about "the extent to which the defendant's due process rights are implicated by the inability of [a] young accuser to give specific details regarding the time, place and circumstances of various alleged assaults. Frequently ... these cases involve the so-called 'resident child molester' ... who either lives with his victim or has continuous access to him or her. In such cases, the victim typically testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (Citation omitted.) People v. Jones, 51 Cal.3d 294, 299, 270 Cal.Rptr. 611, 792 P.2d 643 (1990). See also State v. Brown, 55 Wash.App. 738, 746-747, 780 P.2d 880 (1989).

In its carefully reasoned opinion in the Jones case, the Supreme Court of California rejected the contention, like that made by the defendant in this case, that the prosecution should be required to elect a particular act of abuse on which to proceed when a young child reports continuous abuse and is unable to isolate any, or many, particular occurrences. The court reasoned that a defendant receives adequate notice of the charges against him, and of the critical details of the Commonwealth's...