Com. v. LaSota
| Decision Date | 19 July 1990 |
| Docket Number | 89-P-831,Nos. 89-P-639,s. 89-P-639 |
| Citation | 557 N.E.2d 34,29 Mass.App.Ct. 15 |
| Parties | COMMONWEALTH v. Robert J. LaSOTA. |
| Court | Appeals Court of Massachusetts |
John P. White, Jr. (John T. Dawley Boston, with him), for defendant.
Margaret J. Perry, Asst. Dist. Atty. (Janice W. Howe, Asst. Dist. Atty., with her), for Com.
Before WARNER, C.J., and ARMSTRONG and DREBEN, JJ.
After a jury trial in the Superior Court, the defendant was convicted on five counts of rape and abuse of a child (G.L. c. 265, § 23), his daughter. He raises several issues in these consolidated appeals from the convictions and the denial of his motion for a new trial.
The events leading up to the defendant's arrest on May 27, 1987, began on April 8, 1987, when the victim, then sixteen years old, told a high school teacher that she had to leave her home. At first, she complained of having "nothing to do at home." She told her teacher, Robert Loiselle, that she felt "like a prisoner" at home and that the situation was "unbearable." As their discussion progressed, the victim reported that she was frequently hit by the defendant. Although she never expressly stated that she had been sexually abused, Loiselle inferred as much from her conduct. Loiselle got in touch with the Department of Social Services ("D.S.S.").
At a meeting with D.S.S. officials, the victim alleged that the defendant had sexually abused her since she was in kindergarten. She stated that, beginning in 1982 when she was in the sixth grade, the abuse included intercourse. She also reported that the defendant took her to a gynecologist in June, 1985, to obtain a prescription for birth control pills. The victim was placed in voluntary foster care the afternoon of that meeting.
On May 27, 1987, the victim met with an assistant district attorney and a police officer. She renewed her allegations of sexual abuse (fondling, tickling and petting) from the age of five and of rape. In addition, she reported that the defendant had taken nude photographs of her which, she said, were hidden in the family home. A search warrant issued that day and was immediately executed. It authorized a search of the defendant's home including "the attic and all rooms" for "sexually explicit pornographic child photos" of the complainant. No photograph was found. As a result of the search, the police seized a pregnancy testing kit discovered in a garment bag in the defendant's closet, a printed sheet of instructions for oral contraceptives found in the kitchen, and a pamphlet entitled, The Sex Life of Byron.
The Byron article was found in the attic amid academic papers and books belonging to the defendant, an assistant professor of family history at Salem State College since 1964. One paragraph of the Byron article was underlined in pen and is set out in the margin. 1 It describes incest as a potentially "warm and happy" relationship. Appended to the article was an annotation, apparently from an encyclopedia, on "incest." The annotation contains a paragraph, bracketed and underlined in part in pen, which suggests that genetic concerns regarding incestuous relationships have been overstated. 2 , 3
As the trial judge noted at the close of the evidence, the issues in the case were "sharply focused and hotly debated." The victim and the defendant gave vastly different accounts of their turbulent relationship, the extent of the victim's social activities, her use of contraceptives, and of undiscovered, sexually explicit photographs of the victim. The critical issue before the jury was the credibility of these two witnesses. It is helpful to our discussion to summarize the testimony of the principal witnesses and describe the use of the Byron pamphlet.
The victim testified at length about sexual abuse perpetrated on her by the defendant. 4 She stated that the abuse included vaginal intercourse and oral sex. Between July, 1982, and July, 1983, the defendant engaged her in intercourse at least once a week. Thereafter, the frequency of the abuse escalated to three or four times per week. By 1986-1987, when both of her older siblings were away at college, the victim regularly slept with the defendant in his bed at night, although she refused his demand that she move her clothing into his closet.
At some point beginning after July, 1983, the defendant forced her to pose for sexually explicit pictures. He told her that he needed these because she could not always be with him, and he dictated suggestive comments which she inscribed on the back of them. The victim stated that she and the defendant frequently argued about the pictures. He slapped her and threatened to send the photographs to Playboy magazine, or similar magazines, if she did not submit to his demands.
Between the ages of fourteen and sixteen the victim missed her menstrual period on approximately six occasions. Home pregnancy tests, which she said were given to her by the defendant, proved negative. In June of 1985, when the victim was fourteen years old, the defendant took her to a doctor for a gynecological exam and she was given a prescription for oral contraceptives.
The victim told the nurse practitioner who examined her that she had been sexually active with her boyfriend, a high school football player. The defendant had concocted the story about a boyfriend and had coached her on how she was to respond to questions he anticipated she would be asked. The victim denied ever having had a boyfriend or even a date. The defendant retained control of the pills and would dispense one to her each morning. She said that sometimes after they argued he withheld the pills from her. It was on these occasions that the defendant engaged her in oral sex so as to avoid pregnancy.
The victim related constraints placed on her by the defendant. From early childhood he had restricted her from socializing with other children outside of school. The victim stated that she was not permitted to become close to her older sister and that, as a result, they did not enjoy a normal sibling relationship. Occasionally, she was allowed to attend "all girl" birthday parties. While in elementary school, where she was voted Miss [elementary school] her final year, she attended only one dance. She attended none at high school.
The victim explained that the defendant compelled her silence by warning her that no one would believe her story. He threatened that if she told anyone what was happening he would lose his job, the family would be ruined, and it would kill her paternal grandmother, for whom the victim had great fondness. The grandmother died in March, 1987.
The defendant denied ever having engaged in any form of sexual contact with the victim. He gave a very different account of the events leading to the request for contraceptives for the victim. He said that, in the spring of 1985, the victim appeared moody and depressed. 5 Upon inquiry, she confessed to him that she had made a terrible mistake. She told him that she had engaged in sexual intercourse with an older student. Because he could not be assured that the victim would refrain from sexual activities, he felt that medical advice was in order and scheduled an appointment for her. He denied her claim that he retained control over the pills. None was found during the search of the LaSota home. Following their conversation, he restricted the victim's activities, requiring that she inform him where she was going and with whom she was associating. He monitored her phone calls and required her to give him the phone numbers at which she could be reached when she went to a friend's house.
The defendant denied taking sexually explicit photographs of his daughter. In late February or early March of 1987 (just prior to the victim's complaint), he discovered five indecent photographs in the victim's closet. The victim appeared in four of the photographs; one depicted her sexually engaged with two males. The victim, apparently on a school holiday, was not at home. Shocked and upset, the defendant called a close friend and met with her later in the day showing her the pictures. 6 Subsequently, he put the photographs back in the victim's closet. He stated that he was afraid that if he confronted her directly with them, she would leave home, and that he feared for her safety. The defendant never saw the photographs again. When the victim returned home, approximately two days later, he told her that he "knew what she was involved in and that he was not going to let her get away with it." He slapped her and called her a "slut".
During the academic year 1986-1987, the victim had been staying out at night, frequently coming home after ten or eleven o'clock. On a few occasions, she had stayed out all night. They frequently argued about the victim's clothing, make-up, and behavior. After the photograph incident, he again clamped down on the victim's activities. She was prohibited from going anywhere unless he drove her to and from the destination. These restrictions remained in effect up until the time that the victim entered foster care.
The victim's brother and sister first learned of the alleged sexual abuse after the victim's April, 1987, disclosure. 7 At that time, both were away at college; the brother was a senior and the sister a freshman at different colleges. 8
The sister, testifying for the Commonwealth, stated that the defendant apologized to her for what he had done, tearfully admitting that he was "very sick" and "needed help." The brother testified for the defendant. He stated that the victim admitted to him that she had only wanted to "get out of the house ... things were unbearable there" but that the events she accused the defendant of had not occurred. He further testified that the victim told him that she was sorry, but that she could not go back and say that she...
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