Com. v. LeFave

• Decision Date: 11 July 1990
• Citation: 556 N.E.2d 83,407 Mass. 927
• Parties: COMMONWEALTH v. Cheryl Amirault LeFAVE (and eleven companion cases). 1 Supreme Judicial Court of Massachusetts, Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 83

556 N.E.2d 83

407 Mass. 927

COMMONWEALTH v. Cheryl Amirault LeFAVE (and eleven companion cases).

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 8, 1990.

Decided July 11, 1990.

Juliane Balliro, Boston, for defendants.

Kurt N. Schwartz, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

A jury found the defendants, Violet Amirault (Amirault) and Cheryl Amirault LeFave (LeFave), guilty of indecent assault and battery on a child under the age of fourteen and rape of a child under the age of sixteen. ² The convictions involved four child victims, both female and male. On appeal, the defendants claim that the trial judge erred in (1) permitting testimony on the subject of child pornography; (2) admitting evidence of fresh complaint; (3) determining that the child witnesses were competent to testify; (4) denying the defendants' motion for required findings of not guilty on two indictments; and (5) denying their motion for mistrial based on the prosecutor's closing argument. We transferred the case here on our own motion. We conclude that there was no reversible error. We affirm.

"In order to be considered relevant, 'the evidence must have rendered the desired inference more probable than it would have been without it.' " Commonwealth v. Fayerweather, 406 Mass. 78, 83, 546 N.E.2d 345 (1989), quoting Commonwealth v. Copeland, 375 Mass. 438, 443, 377 N.E.2d 930 (1978). See Green v. Richmond, 369 Mass. 47, 59, 337 N.E.2d 691 (1975). Testimony concerning photographs depicting unnamed and unidentified children in pornographic poses is not relevant to whether these defendants in this particular case were more likely to have had the motive of committing the acts with which they were charged. The photographs about which Dunn testified were not related to the defendants in any way; they were not in evidence. They were not taken by the defendants and had not been in the possession of the defendants. There was no evidence to show that the children depicted in the photographs were the children involved in this case. And there was no evidence that the children in this case were forced to pose with gun barrels, scissors, dildoes, fruit, vegetables, or animals.

The Commonwealth apparently desired the jury to infer that, because pornographers often take photographs of children in poses similar to those described by the children involved in this case, these defendants took pictures of the victims for the purpose of distributing and marketing the photographs in the pornographic trade. Without any supporting evidence, that connection is so remote that it cannot be deemed to pass the threshold test of relevance. See Commonwealth v. Fayerweather, supra 406 Mass. at 83, 546 N.E.2d 345. There was no evidence presented that the defendants were engaging in the pornography trade. No pornographic photographs allegedly taken by the defendants were presented in evidence. In short, Dunn's testimony was irrelevant to show motive. ² See Commonwealth v. Lamrini, 392 Mass. 427, 433-435, 467 N.E.2d 95 (1984).

We summarize the evidence presented at trial. The defendant Amirault was the owner and director of the Fells Acres Day School (Fells Acres) in Malden. Amirault's daughter, the defendant LeFave, worked at Fells Acres as a teacher. We previously have described the general manner in which Fells Acres was operated. See Commonwealth v. Amirault, 404 Mass. 221, 224, 535 N.E.2d 193 (1989). When the rest of the school's population went on field trips, some children occasionally remained at Fells Acres in the care of Amirault, LeFave, or Gerald "Tooky" Amirault, who also worked at the school and is Amirault's son and LeFave's brother. The four victims in this case were among the children who occasionally were left at the school during those field trips.

On September 2, 1984, a mother of a Fells Acres child made an allegation of sexual abuse against Gerald Amirault. ³ After Fells Acres was closed in September, 1984, a parents' meeting was held at the Malden police station, where parents were informed of the symptoms of sexual abuse and directed to question their children about a magic room, a secret room, and a clown.

The children's descriptions of the sexual abuse varied in some details, but were similar over-all. The three female victims each testified that the defendants took them separately to the "magic room," described as a bathroom on the second floor of the school with a small, child-sized door. Two girls testified that both of the defendants touched her naked "bum" and vagina with their (the defendants') hands or a purple "magic wand." One of the girls testified that only LeFave touched her vagina and "bum." One child was forced to touch both of the defendants' "bums" and to kiss their vaginas. One of the girls testified that both of the defendants inserted their fingers, a thermometer, and the "magic wand" into her vagina or "bum." A second girl testified that LeFave inserted a thermometer and a pencil into her vagina and rectum.

The male victim testified that the defendants took him to a garage at Amirault's house. There, Amirault "stuck a stick up [his] bum" and LeFave "put her mouth on his private spot [penis]." He stated that the defendants hurt birds and squirrels in front of the children and the teachers; that they gave him white pills which he never took; and that they tied him, naked, to a tree in front of the other children and teachers.

Each child testified that she or he was photographed in the nude by one of the defendants while the abuse occurred. Two of the children described a black camera on a tripod. The other two described a black camera with pictures that came out of its front. While at home, one child spontaneously demonstrated "sexy" poses in the nude for her mother.

All of the children stated that they were threatened by one or both of the defendants that if they told anyone about the incidents, they would be sent away from home or killed by their mothers or that the defendants would kill the children's parents. A child who attended Fells Acres but who was not a victim testified that he overheard Amirault tell the male victim that "you better keep quiet or else I'll cut your mother's arm off."

The parents of the child witnesses testified about their children's behavior while, or shortly after, attending Fells Acres. All four of the child victims began to demonstrate pronounced sexual behavior. Two of the children made sexual advances toward their mothers. Most of the children began nightly bedwetting, had nightmares, and developed a fear of being alone. Several reverted to baby talk, screamed and cried when bathed, exhibited fear at the sight of LeFave, and complained of pain in their genital areas.

Dr. Renee Brant, a child psychiatrist testifying for the Commonwealth, stated, in part, that sexualized behavior ⁴ is a symptom of sexual abuse. Trauma specific behaviors include sexualized behavior such as masturbation, inserting objects into body cavities, approaching others in a sexually provocative manner, or asking others to touch their genitals. Trauma nonspecific behaviors include complaints of stomachaches, headaches, nightmares, sleep difficulties, aggressiveness, lack of trust, nervousness, baby talk, bedwetting, withdrawal, lying, separation anxiety, and hypervigilance.

Dr. Jean Emans, a pediatric gynecologist, examined the three female victims who testified in this case and made positive findings as to all of them. All suffered vulvitis. See Amirault, supra at 226, 535 N.E.2d 193. Two had redness around their labias and one child also had cracking and fissuring around her labia and a small bump on her hymen. Dr. Emans testified that these findings were significant because they are more commonly seen in sexually abused children than in nonabused children and that it was unusual to have found vulvitis in three girls under the age of six who attended the same school.

In their defense, the defendants offered testimony from twelve teachers and teachers' aides employed at Fells Acres. Those employees stated that they never heard of a magic room nor did they see any indication of sexual abuse. One said that she never returned from a field trip to find the defendants alone with children. Each denied seeing the male tied naked to a tree or that animals were harmed.

Defense witness Dr. William Erickson, a psychiatrist, testified that some of the behaviors seen in sexually abused children can be attributed with equal frequency to causes other than sexual abuse. He testified that the most common source of excessive sexual behavior in children is observed behavior in the home. He also commented on videotaped interviews of the three female victims and stated that, in his opinion, the interviewer made no effort to distinguish between fact and fantasy. A psychologist, Dr. Sherry Skidmore, reviewed one taped interview and testified that the interview procedure was flawed. The pediatrician of one female victim, Dr. Andrew Guthrie, testified that his examination of the child in September, 1984, when the school was closed, showed no signs of vulvitis.

1. The admission of inspector Dunn's testimony on child pornography. The last prosecution witness was John Dunn, a United States postal inspector specializing in the investigation of child pornography. Dunn testified that he had seen approximately one thousand pornographic photographs of male and female children between the ages of three and six years old. He stated that "still" photographs included the thirty-five millimeter variety and that "Polaroid" types were "very common."

Dunn described the types of poses and props or paraphernalia generally seen in child pornography. As he testified, he had in front of him on a podium, out of the jury's view, photocopies of pornographic photographs involving children that had been seized in unrelated cases. Those photocopies were...