Com. v. Lavalley

• Citation: 410 Mass. 641,574 N.E.2d 1000
• Parties: COMMONWEALTH v. Keith J. LAVALLEY.
• Decision Date: 15 July 1991
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1000

574 N.E.2d 1000

410 Mass. 641

COMMONWEALTH v. Keith J. LAVALLEY.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Jan. 9, 1991.

Decided July 15, 1991.

Yvonne P. Toyloy, Committee for Public Counsel Services, for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, Keith J. Lavalley, was convicted by a jury of rape and sentenced to a term of twenty years at Massachusetts Correctional Institution, Concord. The defendant appealed his conviction. ¹ We transferred the appeal to this court on our own motion. The defendant claims that the judge erred in allowing the jury to view and hear a videotape recording of a statement made by the victim to the police shortly after the incident. We conclude that the use of the videotape as evidence of fresh complaint was not prejudicial to the defendant. We also reject the defendant's argument that the judge's instructions on consciousness of guilt constituted reversible error.

Evidence of the following facts was presented to the jury. On October 25, 1988, the nineteen year old victim, the defendant, and a few friends were drinking alcohol in a wooded area in Ware. The defendant and the victim eventually separated from the rest of the group and began walking up a hill. During the walk, the defendant tried to kiss the victim, but she asked him to stop. When they reached the top of the hill, the defendant forced the victim to the ground and held her down. While the victim tried to push the defendant away, he pulled her pants and underwear down to her ankles and inserted his fingers inside her vagina. The victim told him to stop. The defendant placed his hand around her neck and told her that he would kill her if she was not quiet. The victim continued to resist. At one point she told him that, if she did not return to her home soon, her mother would be concerned and would call the police. The defendant then got up from on top of the victim, and they walked back down the hill. ²

1. Fresh complaint. Within a few hours of the incident, the victim told two friends, two police officers, and a physician about the alleged sexual attack. All five individuals testified as to what the victim told them. The testimony of these five witnesses was admitted as evidence of fresh complaint. Additionally, over the objection of the defendant, the judge allowed the jury to view a videotape, made on the day of the incident, recording a statement by the victim to the police describing the attack. The judge ruled that the jury could view the videotape since it was further evidence of fresh complaint. ³ The defendant argues that the videotape was prejudicial and that the judge erred in allowing it to be shown to the jury.

An out-of-court statement made by a victim of a sexual attack shortly after the incident occurred may be admissible, not as substantive evidence that the attack occurred but as corroboration of the complainant's in-court testimony. See Commonwealth v. Bailey, 370 Mass. 388, 396, 348 N.E.2d 746 (1976); Commonwealth v. Ellis, 319 Mass. 627, 629, 67 N.E.2d 234 (1946); Commonwealth v. Cleary, 172 Mass. 175, 176-177, 51 N.E. 746 (1898). The "fresh complaint doctrine is justified on the ground that a victim's failure to make prompt complaint might be viewed by the jury as inconsistent with the charge of sexual assault ..., and in the absence of evidence of complaint the jury might assume that none was made" (citation omitted). Commonwealth v. Bailey, supra. The rule in Massachusetts, unlike the rule in most jurisdictions, is that a witness may testify not only to the fact that the victim complained that she was sexually attacked, but also may relate the details of the complaint. Id., 370 Mass. at 396, 348 N.E.2d 746. ⁴ In Bailey, we concluded that a jury's "considerable and perhaps inordinate skepticism in rape cases" cannot be effectively counteracted by limiting the evidence of the complaint to the simple fact that it was made, id. at 394, 348 N.E.2d 746, and that the majority rule prohibiting details of the complaint "ask[s] the jury to draw important inferences from imperfect materials, perfect materials being at hand and in the cognizance of the witness in the box. In our opinion, nothing ought unnecessarily to be left to speculation or surmise." Id. at 395, 348 N.E.2d 746, quoting The Queen v. Lillyman, 2 Q.B. 167, 177-178 (1896).

In this case, the Commonwealth argues that there was no error in allowing the jury to view the videotape since it was the best evidence available to show the details of the complaint. The defendant argues that the corroborative value of the videotape was outweighed by its prejudicial effect. See Green v. Richmond, 369 Mass. 47, 59-60, 337 N.E.2d 691 (1975).

"We have stated that videotapes are 'on balance, a reliable evidentiary resource'. Consequently, videotapes should be admissible as evidence if they are relevant, they provide a fair representation of that which they purport to depict, and they are not otherwise barred by an exclusionary rule." Commonwealth v. Mahoney, 400 Mass. 524, 527, 510 N.E.2d 759 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986). We have not, however, yet resolved "the broad issue of the admissibility of fresh complaint evidence appearing on a videotape of a police interview." Commonwealth v. Kirouac, 405 Mass. 557, 565, 542 N.E.2d 270 (1989).

We have viewed the videotape. The statement made by the victim and recorded in the videotape did not differ from the testimony of fresh complaint given by the five witnesses. In addition, the taped statement did not differ from the victim's in-court testimony. We have stated that fresh complaint evidence which is a mere summary of the victim's testimony at trial is cumulative and not prejudicial to the defendant. See Commonwealth v. Blow, 370 Mass. 401, 404, 348 N.E.2d 794 (1976); Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971). The fact that, in this case, the fresh complaint evidence was presented to the jury through the use of a videotape in which the victim can be seen telling a police officer about the incident in a relatively composed manner, did not by itself add to the cumulative nature of the evidence and did not, therefore, make it prejudicial to the defendant. ⁵

This case, however, raises serious questions regarding the continued viability of a rule which allows the Commonwealth to introduce details of fresh complaint during its case-in-chief as a way of corroborating the victim's in-court testimony. The overuse or "piling on" of evidence regarding the details of several fresh complaints may create the risk that the jury will use the details of the fresh complaints as substantive evidence that the crime actually occurred. ⁶ These issues have not been adequately focused, or briefed, in this case. We therefore invite parties in the future to give the court an opportunity to reassess the rule which allows the Commonwealth to introduce the details of a fresh complaint for corroborative purposes during its case-in-chief. ⁷

2. Consciousness of guilt. The defendant was arrested on the night of the incident. Shortly after he was arrested, the defendant insisted on making a statement. In the statement, which was admitted in evidence, the defendant stated that earlier in the day he had been drinking with the victim and a few friends. The defendant stated that he had an argument with the victim and that she had cried. The statement did not mention anything about the defendant and the victim walking up the hill together and engaging in sex. On October 26, 1988, the day after the defendant was arrested, the defendant told the police that the victim and he had separated from the rest of the group and walked up the hill together. The defendant told the police that the victim kissed him and made sexual advances. When he was asked whether he had pulled the victim's pants down and placed his fingers inside the victim's vagina, the defendant said that he might have but that he could not remember.

During the trial, the defendant testified that it was the victim who had lowered her pants, grabbed his hand and placed it between her legs. During cross-examination, the prosecutor asked the defendant why in his statement to the police on the night he was arrested, he did not mention the fact that he had been alone with the victim and that the latter had pulled her own pants down, thereby initiating the sexual contact. The defendant replied that he had not told the complete story to the police on the night of his arrest because he was afraid of being charged with rape. During closing argument, the prosecutor suggested to the jury that the defendant, on the night of his arrest, did not mention to the police that he had had sexual contact with the victim because he "needed time to figure out what it was [he was] going to say." ⁸

a. Instructions. The prosecutor asked the judge to instruct the jury on consciousness of guilt, arguing that the statement given by the defendant on the night of his arrest was false. The defendant objected. The judge orally instructed the jury that if the Commonwealth proved that the defendant made false statements, they could consider whether the statements "indicate feelings of guilt by the defendant, and whether in turn such feelings of guilt might tend to show actual guilt of these charges." ⁹

The defendant, citing Commonwealth v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986), argues that the judge's instructions, coupled with the prosecutor's closing argument, violated his right against self-incrimination because the jury was free to take into consideration, as evidence of consciousness of guilt, the fact that he did not tell the police on the night of his arrest that he had sex with the victim. In Haas, the prosecutor, during...