Com. v. Licata

• Decision Date: 15 May 1992
• Citation: 412 Mass. 654,591 N.E.2d 672
• Parties: COMMONWEALTH v. James LICATA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 672

591 N.E.2d 672

412 Mass. 654

COMMONWEALTH v. James LICATA.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Jan. 7, 1992.

Decided May 15, 1992.

Charles K. Stephenson, Granby, for defendant.

Marguerite T. Grant, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

On November 17, 1989, the defendant was found guilty on three indictments charging rape of a single victim. See G.L. c. 265, § 22(b ) (1990 ed.). Approximately one year after sentencing, he filed a motion for a new trial on the ground that he had been denied effective assistance of counsel. ¹ See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). The motion was denied without hearing. The defendant appealed from his convictions and from the refusal of the motion judge, who was also the trial judge, to grant him a new trial. The Appeals Court consolidated the appeals. We granted the defendant's application for direct appellate review. Mass.R.A.P. 11, as amended, 409 Mass. 1602 (1991). We uphold the defendant's convictions, but vacate the denial of the defendant's motion for a new trial and remand the motion to the Superior Court for hearing.

1. Facts. On the evidence admitted, the jury could have found the following facts. On the night of May 10, 1989, the victim met the defendant, a man whom she did not know, at a bar in the Marriott Hotel in Burlington. They talked for approximately two hours and exchanged pieces of paper on which they had written their names, addresses, and telephone numbers. The victim declined the defendant's invitation to return home with him, but she accepted his offer to accompany her to her automobile. It was raining. The victim's automobile was parked at some distance from the hotel entrance. The defendant, whose automobile was parked in a fire lane near the entrance, offered her a ride to her automobile. She accepted.

Once in the defendant's automobile, the defendant began to kiss the victim over her objection. She started to cry. She indicated that she wanted the defendant to stop. The defendant then forced her to submit to two acts of unnatural sexual intercourse and one act of sexual intercourse. The defendant used threatening language and made vulgar remarks with sexual epithets pertaining to the victim.

Following these acts, the defendant put his arm around the victim. She embraced him so as to retrieve from his pocket the piece of paper on which she had written her name, address, and telephone number. The victim left the automobile. She went to her vehicle. She did not enter the hotel to inform anyone of the defendant's attack, but proceeded instead to drive away.

On her way home, the victim was stopped for driving in excess of the speed limit by Reading Police Officer James Collins. Initially, she did not inform Officer Collins that she had been raped, but, after he returned to his cruiser (without giving her a citation), she called him back to her automobile and told him that a man had forced her to have sexual intercourse. The victim accompanied the officer to the Reading police station, where she made a statement describing the details of the attack. Officer Collins then took the victim to a hospital, where a nurse, Patricia Normandin, took information concerning the attack.

2. Fresh complaint doctrine. During the prosecution's case-in-chief, Collins and Normandin testified that the victim told them that she had been raped; they testified not only to the fact of the complaints but also to the details. The defendant concedes on appeal that this testimony was admissible under the fresh complaint doctrine, ² but, noting the concerns we raised in Commonwealth v. Lavalley, 410 Mass. 641, 646, 574 N.E.2d 1000 (1991), ³ he asks us to reconsider the doctrine. ⁴

Under the fresh complaint doctrine, an out-of-court complaint seasonably made by the victim after a sexual assault is admissible as part of the prosecution's case-in-chief. ⁵ Evidence of the complaint is admissible only to corroborate the complainant's testimony; it cannot be presented to establish the truth of the complaint itself. ⁶ In Massachusetts, unlike most jurisdictions, a witness may testify to the fact of a complaint and also to the details of the complaint. ⁷ See Lavalley, supra at 643, 574 N.E.2d 1000; Commonwealth v. Bailey, 370 Mass. 388, 391-392, 348 N.E.2d 746 (1976).

In Lavalley, we expressed concern regarding the fresh complaint doctrine. We stated that we were "troubled by a rule which assumes that only those victims who complain of rape were actually raped, while those who remain silent somehow consented to the sexual assault." See Lavalley, supra 410 Mass. at 646-647 n. 7, 574 N.E.2d 1000. We strongly disagree with the notion that a rape victim naturally will complain of an attack soon after it occurs. It is not difficult to understand a rape victim's reluctance to discuss with others, particularly strangers, the uncomfortably specific details of a sexual attack. Additionally, a victim must endure the "[s]uspicion and disbelief" with which society greets those who allege sexual assault. See generally Taylor, Rape and Women's Credibility: Problems of Recantations and False Accusations Echoed in the Case of Cathleen Crowell Webb and Gary Dotson, 10 Harv. Women's L.J. 59, 59 (1987). Not surprisingly, many rape victims choose not to complain at all. In short, lack of a fresh complaint in no way necessarily implies lack of rape.

Troubled as we are by a doctrine which has its origins in outmoded, and invalid, sexual myths, we need not embrace those views to recognize the unfortunate skepticism that exists as to the truth of allegations of rape where the victim is perceived as having remained silent. "Whatever may have been the historical origin of the fresh complaint doctrine, it should now be seen in relation to the common observation ... that juries tend toward considerable and perhaps inordinate skepticism in rape cases, above all where there is a suggestion of willingness or acquiescence on the part of the victim" (footnote omitted). Bailey, supra 370 Mass. at 394, 348 N.E.2d 746. Thus, we continue to perceive a need for the fresh complaint doctrine. We cannot ignore the societal tendency to disbelieve sexual assault victims and to presume that a rape victim will make a prompt complaint. See H. Kalven, Jr., & H. Zeisel, The American Jury 249-254 (1966). Accordingly, we conclude that fresh complaint evidence should remain admissible "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). Bailey, supra at 392, 348 N.E.2d 746. This rationale does not assume that only those rape victims who do make a fresh complaint are credible; it simply allows rape victims who do complain promptly to eliminate any unwarranted skepticism arising from lack of evidence of a prompt complaint.

Moreover, we shall continue to hold admissible both the fact and the details of a fresh complaint. When a witness is limited to testifying only that the victim made a complaint, the jury must rely on that witness's interpretation of the victim's statements. In our view, the better approach remains one which allows a jury to make their own interpretation based on the details of the statements. "By allowing admissibility of all details, the [doctrine gives] the factfinder the maximum amount of information with which to assess the credibility of the ... complaint evidence as well as the overall credibility of the victim." Graham, The Cry of Rape: The Prompt Complaint Doctrine and the Federal Rules of Evidence, 19 Willamette L.Rev. 489, 511 (1983) (proposing such an amendment to the Federal Rules of Evidence). See generally Bailey, supra at 395, 348 N.E.2d 746. ⁸

In Lavalley we also expressed concern that repetitive testimony from several witnesses regarding the details of the complaint may lend undue credibility to the complainant's testimony. See Lavalley, supra 410 Mass. at 646, 574 N.E.2d 1000 (concern that jury will treat details of complaint as substantive, rather than corroborative, evidence). See also Cole v. State, 83 Md.App. 279, 286, 574 A.2d 326 (1990) ("prejudice is self-evident when one party's version of an incident is allowed to be repeated again and again"). We remain concerned about this aspect of the rule. Trial judges should be cautious in admitting evidence of a fresh complaint. The trial judge should instruct the jury as the evidence is admitted and again during the jury instructions that fresh complaint testimony does not serve as substantive evidence that the crime in fact occurred. The judge should instruct the jury that the purpose of the fresh complaint evidence is to corroborate the victim's testimony, namely, as it relates to the credibility of the victim's testimony at trial. Fresh complaint evidence is corroborative only if it shows that the victim seasonably complained of the attack. ⁹ Because the evidence is corroborative, the judge may exclude needless repetition of the details of the fresh complaints. See Lavalley, supra 410 Mass. at 646, 574 N.E.2d 1000. "When it appears that admission of details would operate unjustly--as by inciting a jury through a needless rehearsal of the particulars of a gruesome crime--the judge may well limit the testimony in his discretion." Bailey, supra 370 Mass. at 397, 348 N.E.2d 746.

3. Denial of motion for a new trial without hearing. The defendant filed a motion for a new trial, accompanied by two affidavits, arguing that he received ineffective assistance of counsel. See Mass.R.Crim.P. 30(b). The judge declined to hold a hearing and summarily denied the motion. The defendant appeals from the judge's refusal to grant him a hearing. "The judge may rule on the issue or issues presented by [a] motion [for a new...