Com. v. Lanning

• Decision Date: 24 March 1992
• Docket Number: No. 90-P-292,90-P-292
• Parties: COMMONWEALTH v. John J. LANNING.
• Court: Appeals Court of Massachusetts

Page 318

589 N.E.2d 318

32 Mass.App.Ct. 279

COMMONWEALTH v. John J. LANNING.

No. 90-P-292.

Appeals Court of Massachusetts Bristol.

Argued March 21, 1991.

Decided March 24, 1992.

Robert J. Catalano, Taunton, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Commonwealth.

Before PERRETTA, DREBEN and IRELAND, JJ.

PERRETTA, Justice.

At his jury trial on indictments charging him with two counts of indecent assault and battery on a child under the age of fourteen years and two counts of rape of a child by use of force, there was evidence of uncharged bad acts by the defendant and of fresh complaint by the two victims, sisters. The defendant claims on appeal, as to the bad acts, that this evidence was inadmissible, overwhelmingly prejudicial, and insufficiently instructed upon by the trial judge. In respect to the fresh complaint testimony, he argues that the complaints were not prompt and that the trial judge failed to include a limiting instruction in his final charge to the jury. The principles of law controlling on all these issues are established. Applying these principles to the facts of this case, we affirm the convictions.

1. The evidence. We assign fictitious names to the victims. The time period set out in the indictments is January 1, 1985, to on or about April 23, 1987. The indictments were returned on June 16, 1987, and trial commenced on March 1, 1989. On that date, the victims, Jane and Linda, were fifteen and thirteen years of age, respectively.

Jane related that she had known the defendant since she was a little girl. Her mother was friendly with the defendant's mother. During this time, she would see the defendant about once a week. When she was about nine years old, she and her family (mother, brother, and Linda) moved in with her grandmother and uncle. After the move, they lived nearer to the defendant, who resided with his parents. Jane and Linda's mother worked at night, and the defendant's mother was elderly and ill, spending much of her time, according to Jane, in either her bedroom or the kitchen. Jane became accustomed to spending much time with the defendant's mother and was frequently at the Lanning house.

It was in December, 1985, when the sexual abuse of Jane began. Jane was babysitting for the defendant's son, who was visiting from Ohio. She was asleep in the Lanning guestroom when the defendant arrived home sometime between 1:00 and 2:00 A.M. She testified that she awoke when he got into her bed. He was naked, and she hit him. He hit her back and held her down on the bed. He then had vaginal and anal intercourse with her. She did not cry out, because she was afraid that his parents would hear her. The defendant left the room, and Jane went back to sleep. She went home that morning, telling no one what the defendant had done to her.

The second incident occurred on the date Jane experienced her first menstruation. She called her mother from school and asked to be brought home. Her mother did not have a car, and she sent the defendant in her stead. Jane related that the defendant brought her to his house and told her how he would have intercourse with his wife while she was menstruating. Jane asked the defendant to take her home, but he would not. He penetrated her vagina with his fingers and tongue. During the final act of abuse to which Jane testified, forcing her to perform oral sex on him and to fondle his genitals, the defendant threatened her: if she told anyone about what he had done, he would commit these same acts upon Linda. She also related that on one occasion the defendant punched her in the eye.

In addition to this testimony supporting the acts charged in the indictments, Jane described how she and her friends had watched pornographic movies with the defendant at his house. She also related an incident involving the defendant's use of her hair clip on her girlfriend's breasts.

The acts committed upon Linda were no less horrible and began when she was about nine years old. At first, the abuse took the form of fondling her breasts and buttocks, but it intensified. The defendant's attempts to have vaginal and anal intercourse with Linda were very painful for her. The defendant would warn her to keep silent as he attempted to penetrate her. Linda testified that she did not think that the defendant ever deeply entered her because of her pain. He frequently (fifteen to twenty times) performed acts of digital penetration on her. When she would tell the defendant to stop, he would strike her. She too watched pornographic movies while at the defendant's house.

There were threats of harm if Linda ever told anyone about these acts. On one occasion, the defendant held a BB gun to Linda's head and stated that if she told anyone, he would kill her. Another time, he took a doll that he had given her and stabbed and decapitated it with a steak knife. Should she tell anyone, he would do the same to her. Linda testified that the last incident of sexual abuse by the defendant was about two weeks before Easter, 1987.

Discovery of the defendant's conduct came about on April 14, 1987. As Linda's aunt was driving Linda to a previously scheduled appointment with a doctor, Linda told her about what the defendant had been doing to her.

2. Evidence of other misconduct. In addition to the testimony of Jane and Linda concerning the pornographic films and Jane's hair clip, three of their friends related that they had been in the defendant's house with one or the other sister and had seen pornographic movies or books. On some occasions, the defendant was present. One of the girls related that while she was watching such a film with Jane, another friend, and the defendant, the defendant fast-forwarded the film to the more explicit scenes and asked whether they would like to perform the depicted activity when they were older. The defendant lodged objections to all this testimony. He did not object at trial but now complains about the testimony of another friend. This witness testified that she and Jane were watching a pornographic movie at the defendant's house. He arrived home to find them and became angry, telling them that they should not have played the film. ¹

Another friend testified that the defendant had shown pornographic books to her and Jane at his house and, on three or four occasions, had grabbed her buttocks and fondled and kissed her. He told her that he wished she were older so that he could do things to her that he had done with her mother.

Susan Lynch, an investigative social worker with the Department of Social Services (DSS), testified, as fresh complaint evidence, that when she interviewed Jane, Jane told her how the defendant had placed her hair clip on her friend's breast. There was no specific objection by the defendant to this evidence, other than his earlier request for a "continuing objection to the summary nature" of the testimony.

"Evidence of independent ... [misconduct] unconnected with the crimes for which the defendant is on trial may not be used to show commission of the crime[s] charged. Commonwealth v. Imbruglia, 377 Mass. 682, 695 (1979). There are, however, many exceptions to this rule of evidence." Commonwealth v. King, 387 Mass. 464, 469, 441 N.E.2d 248 (1982). See Commonwealth v. Helfant, 398 Mass. 214, 224-225, 496 N.E.2d 433 (1986), wherein cases pertaining to the various exceptions to the rule are collected. In the present case, the evidence corroborated the victims' testimony and showed a common scheme and pattern of behavior. On the entire record, we conclude that the trial judge did not abuse his discretion in finding that the probative value of the evidence outweighed the risk of undue prejudice. See Commonwealth v. King, 387 Mass. at 471-472, 441 N.E.2d 248; Commonwealth v. Fleury-Ehrhart, 20 Mass.App.Ct. 429, 430-431, 480 N.E.2d 661 (1985). See also Commonwealth v. Helfant, 398 Mass. at 225, 496 N.E.2d 433.

When Linda was asked on redirect examination why she continued to return to the Lanning home throughout this period of abuse, she replied: "Because I was trying to help the mother, his mother from getting beaten." The prosecutor then asked: "By whom?" The defendant's complaint here is that the trial judge erred in denying his motion for mistrial. We need not consider whether that evidence was admissible (see Commonwealth v. Montanino, 409 Mass. 500, 505-506, 567 N.E.2d 1212 [1991]; Commonwealth v. Hollyer, 8 Mass.App.Ct. 428, 429-431, 395 N.E.2d 354 [1979]; Commonwealth v. Washington, 28 Mass.App.Ct. 271, 273, 549 N.E.2d 446 [1990] ), because the trial judge sustained the defendant's objection and instructed the jury to "disregard the child's answer to keep [the mother] from being beaten." We see no abuse of discretion in the decision to deny a mistrial and, instead, to give a prompt instruction "to correct any error and to remedy any prejudice to the defendant." Commonwealth v. Amirault, 404 Mass. 221, 232, 535 N.E.2d 193 (1989), and cases therein cited. ²

Nor do we see a risk of a miscarriage of justice in the trial judge's final instructions to the jury on this issue: "[T]here is no indecent assault and battery count here for anyone but [Jane and Linda]. There is no other child involved in whatever evidence you may have in mind of indecent assault and battery. The only charge against this defendant that has to do with indecent assault and battery is on one or the other ... [Jane or Linda]." Not only did the defendant not object to this instruction, he expressly stated that he was "satisfied" with it.

3. Evidence of fresh complaint. There were four witnesses who testified to fresh complaint by the victims: the victims' young cousin, the victims' aunt, the DSS social worker, and an investigator from the district attorney's office. Before any of the fresh complaint evidence was presented to the jury, there was a bench conference. At this time, the trial judge had heard the testimony of Jane and Linda concerning...