Com. v. Lund

• Citation: 5 Mass.App.Ct. 884,368 N.E.2d 1221
• Decision Date: 01 November 1977
• Court: Appeals Court of Massachusetts

Page 1221

368 N.E.2d 1221

5 Mass.App.Ct. 884

COMMONWEALTH v. George R. LUND.

Appeals Court of Massachusetts, Middlesex.

Argued Oct. 12, 1977.

Decided Nov. 1, 1977.

William P. Homans, Jr., Boston, for defendant.

Roberta Thomas Brown, Legal Asst. to the District Attorney, for the Com.

Before HALE, C. J., and KEVILLE and GRANT, JJ.

RESCRIPT.

The defendant has appealed (G.L. c. 278, § 28E) from his conviction of rape (G.L. c. 265, § 22, as appearing in St.1974, c. 474, § 1), urging error in connection with the judge's admitting in evidence, on the theory of fresh complaint (see, generally, Commonwealth v. Bailey,--- Mass. ---, --- - --- ^a, 348 N.E.2d 746 (1976)), the contents of three conversations which the victim had had with various persons following the commission of the acts alleged, at approximately 2:00 A.M. on the day in question. The evidence disclosed a total of five such complaints. The admission of three of the four complaints objected to was preceded by correct instructions as to the single purpose for which the particular complaint might be considered by the jury, and in his charge the judge carefully reiterated and expanded on those instructions with respect to all five complaints. See and compare Commonwealth v. Howard, 355 Mass. 526, 530, 246 N.E.2d 419 (1969); Commonwealth v. Bettencourt, 361 Mass. 515, 519, 281 N.E.2d 220 (1972); Commonwealth v. Blow, --- Mass. ---, --- ^b, 348 N.E. 794 (1976). Contrast Commonwealth v. Spare, 353 Mass. 263, 266, 230 N.E.2d 798 (1967). 1. The complaints to the two police officers occurred not later than 11:15 A.M. on the day in question; neither appeared to be more remote in time than those considered in Commonwealth v. Cleary, 172 Mass. 175, 51 N.E. 746 (1898), and Commonwealth v. Howard, 355 Mass. at 529-530, 246 N.E.2d 419; they constituted the second and third, respectively, of a consecutive series of four complaints (compare Commonwealth v. Howard, 355 Mass. at 530, 246 N.E.2d 419; Commonwealth v. Izzo, 359 Mass. 39, 41-43, 267 N.E.2d 631 (1971)) which the victim had voiced on the day in question; and both emerged as "noncontroversial, largely inconspicuous, and redundant segment(s) of the trial" (Commonwealth v. Bailey, --- Mass. at --- ^c, 348 N.E.2d at 749). The sole ground of objection to both complaints was that "this does not appear to be a complaint initiated by the victim," apparently because the officers had initiated the conversations by calling the victim on the telephone. That ground has been essentially abandoned on appeal in favor of the entirely new contention that neither complaint was voluntary. Compare Commonwealth v. Coolbeth, --- Mass.App. --- ^d, 357 N.E.2d 30 (1976). It is enough to say that the judge was not required to exclude or strike either complaint merely because it took the form of the victim's answering leading questions which were designed to (and apparently did) corroborate information already within the possession of the officers. See Commonwealth v. Ellis, 319 Mass. 627, 630, 67 N.E.2d 234 (1946); Commonwealth v. Hanger, 357 Mass. 464, 465, 466-467, 258 N.E.2d 555 (1970). 2. It might have been wiser if the judge had excluded the complaint which the victim had made to her employer when she returned to work, still "very nervous and distraught," at approximately 8:45 A.M. on the second morning following the incident, but that complaint was no more specific than, and was entirely consistent with, (a) the direct testimony of the victim, (b) the explicit and intimately detailed complaint (no longer objected to) which the victim had made to her girl friend shortly after the...