Com. v. Montanino

• Decision Date: 11 March 1991
• Citation: 567 N.E.2d 1212,409 Mass. 500
• Parties: COMMONWEALTH v. Joseph MONTANINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1212

567 N.E.2d 1212

409 Mass. 500

COMMONWEALTH v. Joseph MONTANINO.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Oct. 2, 1990.

Decided March 11, 1991.

Henry P. Sorett, Boston, for defendant.

Catherine E. Sullivan, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

On April 3, 1987, a Middlesex County jury found the defendant, Joseph Montanino, guilty on two indictments charging unnatural sexual intercourse with a fifteen year old male youth. The Appeals Court affirmed the convictions. Commonwealth v. Montanino, 28 Mass.App.Ct. 516, 553 N.E.2d 223 (1990). We granted the defendant's application for further appellate review. For the reasons stated below, we reverse.

We present a brief summary of the factual background of this case. ¹ On May 31, 1985, a Middlesex County grand jury returned two indictments against the defendant, charging him with engaging in unnatural sexual intercourse with a child under sixteen on two occasions between January and April, 1981. ² See G.L. c. 265, § 23 (1988 ed.). At trial, the alleged victim, to whom we shall refer as "Paul," testified that both incidents occurred while he was a member of a Boy Scout troop of which the defendant was the scoutmaster. There were no other eyewitnesses to the incidents. Paul testified that he did not report these incidents to anyone until four years later when, in the spring of 1985, he met with Sgt. Leonard Saviagno of the Cambridge police department and "told him everything." The defendant testified and acknowledged that he had been Paul's scoutmaster, but denied that any sexual activity had ever occurred.

On appeal, the defendant challenges: (1) Sgt. Saviagno's testimony as to his "opinion" that Paul was credible; (2) the prosecution's presentation of unrelated, but similar, "bad acts" of the defendant; (3) the trial judge's sua sponte introduction of the concept of "fresh complaint" testimony to the jury; and (4) the trial judge's failure to dismiss the indictments against the defendant due to a lack of specificity. We address only issues which involve prejudicial error or are apt to recur on retrial.

1. Sgt. Saviagno's "opinion" testimony. The prosecution called Sgt. Saviagno. Saviagno testified that he met with Paul three or four times during the spring of 1985 and discussed "some incidents involving the defendant." Saviagno testified also that as a result of his conversations with Paul "some charges were brought against the defendant."

During cross-examination by defense counsel, Saviagno admitted that there were several inconsistencies between Paul's trial testimony and the comments Paul had made to Saviagno in describing the first incident with the defendant. Paul had stated that the first incident with the defendant occurred as early as January, 1980, while at trial he stated that the incidents occurred between January and April, 1981. Paul had told Saviagno that the first incident consisted of the defendant fondling Paul's genitals, but at trial Paul testified that the defendant had engaged in oral sex with him during the first incident.

On redirect examination, Saviagno was allowed to testify over the defendant's objection that he was the commanding officer of the Cambridge police department sexual assault unit, and that he had investigated approximately 300 cases involving sexual assault. Saviagno described the process by which he interviewed victims of sexual assault. The prosecutor then asked Saviagno, "And, would you tell us, Sergeant, whether or not you have an opinion as to whether in your initial discussions with victims, tend to get more or less than the complete details that you eventually learn regarding the incident?" In the ensuing colloquy, which is reproduced in the margin, Saviagno testified that over the course of his interviews with sexual assault victims, "most" victims eventually provided more details regarding the assault than they initially revealed. ³ The defendant claims that this testimony should not have been permitted because it allowed Saviagno to present to the jury his opinion that Paul was credible on the theory that the irregularities in Paul's statements were consistent with the manner in which truthful victims of sexual assault relate their experiences. "It is a fundamental principle that 'a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.' " Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262 (1986), quoting Commonwealth v. Dickinson, 394 Mass. 702, 706, 477 N.E.2d 381 (1985). "Evaluations of credibility are, of course, within the exclusive province of the trier of fact." Commonwealth v. Ianello, 401 Mass. 197, 202, 515 N.E.2d 1181 (1987), quoting Commonwealth v. Bohannon, 376 Mass. 90, 94, 378 N.E.2d 987 (1978). The Appeals Court concluded, however, that "Saviagno did not give his 'opinion' on Paul's credibility or on any other topic." Commonwealth v. Montanino, 28 Mass.App.Ct. 516, 521, 553 N.E.2d 223 (1990). However, we believe that the impact on the jury of Saviagno's observations regarding sexual assault victims had the same effect as if Saviagno had directed his comments specifically to Paul's credibility. We think there is little doubt that Saviagno's comments relating to the credibility of "most" sexual assault victims would be taken by the jury as Saviagno's endorsement of Paul's credibility. As we stated in Commonwealth v. Ianello, supra, 401 Mass. at 202, 515 N.E.2d 1181, "[w]hile the proposed testimony fell short of rendering an opinion on the credibility of the specific [witness] before the court, we see little difference in the final result. It would be unrealistic to allow this type of ... testimony and then expect the jurors to ignore it when evaluating the credibility of the complaining [witness]."

The opinion testimony of Sgt. Saviagno, be he considered as a lay witness or as an expert witness, violated the long-standing rule that witnesses may not offer their opinions regarding the credibility of another witness. See Commonwealth v. Ianello, supra; Commonwealth v. Wolcott, 28 Mass.App.Ct. 200, 207-208, 548 N.E.2d 1271 (1990); P.J. Liacos, Massachusetts Evidence 96 (5th ed. 1981 & Supp.1985). In light of the fact that Paul, the alleged victim, was the key prosecution witness in this case, his credibility was a crucial issue. The improper use of Sgt. Saviagno's opinion testimony to bolster Paul's credibility was error requiring reversal.

2. "Bad acts" testimony. The prosecution called Paul as its first witness. During direct examination, the prosecutor elicited testimony that approximately four years had passed between the alleged incidents and Paul's report of the incidents to Sgt. Saviagno. The prosecutor then asked Paul: "Why did you finally tell [Sgt. Saviagno] after all that time?" Defense counsel's objection to the question was overruled. Paul answered: "Because I had found out that it was still going on--." Defense counsel immediately objected and asked to be heard at side-bar. Defense counsel moved for a mistrial. The trial judge denied the motion for a mistrial, ruling that the statement was admissible as relevant to Paul's state of mind and as "fresh complaint" testimony. Defense counsel requested, and was denied, an instruction that the jury should disregard Paul's answer.

The defendant argues that the admission of this evidence was improper and highly prejudicial. We agree. "It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.... Such evidence can be highly prejudicial to the defendant, and therefore must be excluded unless it comes within one of the permitted uses, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." (Citations omitted.) Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). See Commonwealth v. Cordle, 404 Mass. 733, 744, 537 N.E.2d 130 (1989); Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985); Commonwealth v. Welcome, 348 Mass. 68, 70-71, 201 N.E.2d 827 (1964).

In the present case, the Commonwealth claims that Paul's testimony was relevant to Paul's state of mind at the time he reported the incidents to Saviagno. We have upheld previously the admission of evidence of a defendant's prior sexual misconduct as relevant to the state of mind of a sexual assault victim. In Commonwealth v. Errington, 390 Mass. 875, 460 N.E.2d 598 (1984), a child sexual assault victim testified that she decided to report the defendant's sexual misconduct when she learned that the defendant had been sexually molesting another young girl. The testimony arose on cross-examination by defense counsel, and followed questioning by defense counsel which "seriously challenged" the credibility of the victim. Id. at 880, 460 N.E.2d 598. We recognized the "inflammatory nature" of such testimony, but in light of the prosecution's "serious need for [the] evidence to rehabilitate its witness", and the fact that the need for the testimony was created by defense counsel's cross-examination, we upheld its admission. Id.

In the present case, by contrast, Paul's testimony regarding other sexual misconduct by the defendant occurred during direct examination in response to questioning by the prosecutor. At the time this testimony was given no evidence had been presented to impeach Paul's credibility; the prosecution had no need to rehabilitate its witness. See Commonwealth v. Triplett, supra, 398 Mass. at 563, 500 N.E.2d 262 (prosecution's argument that evidence of prior misconduct was necessary to disprove defendant's testimony is without merit when such evidence was offered prior to defendant's testimony).

The...