Com. v. Montanino, 88-P-1331

• Citation: 553 N.E.2d 223,28 Mass.App.Ct. 516
• Decision Date: 26 June 1990
• Docket Number: No. 88-P-1331,88-P-1331
• Parties: COMMONWEALTH v. Joseph MONTANINO.
• Court: Appeals Court of Massachusetts

Page 223

553 N.E.2d 223

28 Mass.App.Ct. 516

COMMONWEALTH v. Joseph MONTANINO.

No. 88-P-1331.

Appeals Court of Massachusetts Middlesex.

Argued Jan. 9, 1990.

Decided April 17, 1990.

Further Appellate Review Granted June 26, 1990.

Henry P. Sorett, Boston, for defendant.

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

Before BROWN, SMITH and JACOBS, JJ.

SMITH, Justice.

On May 31, 1985, a Middlesex County grand jury returned two indictments against the defendant. Each indictment charged that he had engaged in unnatural sexual intercourse with a fifteen year old youth ("Paul"). ¹ The incidents allegedly occurred between January and April, 1981. A jury convicted the defendant of crimes set forth in both indictments. The defendant raises five issues on appeal. They are that the judge committed error in (1) permitting a police officer to give his "opinion" that Paul's testimony was credible, (2) injecting the "fresh complaint concept" in the case, (3) allowing the prosecution to introduce evidence of prior bad acts of the defendant, (4) ruling that the defendant's character witnesses could be cross-examined in reference to their awareness of other allegations of sexual misconduct by the defendant, and (5) refusing to dismiss the indictments for lack of specificity.

We summarize the evidence. On direct examination, Paul testified that in 1981 he was a member of a Boy Scout troop and that the defendant was the scoutmaster. ² The first incident occurred following a scout meeting as the defendant was driving him home. Paul stated that, while he was sitting sideways on the defendant's lap and steering the defendant's sportscar upon invitation, his genitals were rubbed by the defendant. Subsequently, the defendant parked the car on a side street near Harvard Square and then unfastened and pulled down Paul's pants. Paul testified that the defendant performed fellatio on him for about fifteen minutes. After the episode, the defendant asked Paul if he was going to tell anyone. Paul said he would not. The defendant then drove him home.

Paul testified that he told no one of the incident because he was "confused," "embarrassed," "scared," and "just didn't know what was right." He continued to attend scout meetings because he "just wanted to try and forget it, that it wouldn't ever happen again." He said he "was confused, but ... still for some reason trusted ... [the defendant] because he was ... [the] Boy Scout leader and ... [Paul] looked up to him at that time."

According to Paul, several weeks elapsed without further incident. During this period, he and the defendant discussed prerequisites to becoming a Star Scout, and the defendant offered to assist him in obtaining the necessary merit badges. They agreed to meet on a Saturday. The defendant picked Paul up at his home in Cambridge and brought him to the defendant's apartment in Somerville. Paul stated that this was the only time he had been there. After describing the apartment, Paul stated that he and the defendant sat down on a couch in the den. The defendant then unfastened Paul's pants as well as his own and performed fellatio on Paul. He stated that the defendant next attempted, without success, to force Paul to perform fellatio on him. According to Paul, the defendant then told him to lie face down on the floor. Paul complied and the defendant lay on top of him and engaged in anal intercourse. Paul testified that after a few minutes he was able to roll over, and the defendant got off him. The defendant, who appeared to Paul to be nervous, asked Paul if he would tell anyone what happened. Again, Paul said he would not. At Paul's request the defendant drove him home. Paul testified that he told no one about the occurrences in the defendant's apartment. He withdrew from the troop a few weeks later. Paul stated that he told the defendant he was quitting as a result of increased time demands of his job, but that the real reason was because of what happened and because he hated the defendant. According to Paul, both incidents occurred between January and April, 1981.

From the time of the incidents in 1981 until the spring of 1985, Paul remained silent. He testified that his family had moved from Cambridge to Hingham and that at some point he learned the defendant had become a Cambridge police officer. He stated that during this time the incidents with the defendant "started to erase from [his] mind". In the spring of 1985, however, he discussed the incidents, for the first time, with his sister-in-law. A few days later, he met with Sergeant Leonard Saviagno (the sergeant) of the Cambridge police department. Paul testified that during the course of a series of interviews with Sergeant Saviagno, he told him "everything" about the two incidents.

During cross-examination, defense counsel attacked Paul's credibility by focusing on his four-year delay in reporting the incidents. In addition, defense counsel used the contents of Paul's statements to Sergeant Saviagno to probe for inconsistencies with Paul's testimony. Paul admitted he told Sergeant Saviagno that the incidents had occurred at several times different from those to which he testified in his direct examination. He also conceded a failure to inform the sergeant that the defendant had engaged in oral sex with him during the first incident. On redirect examination, Paul explained that these inconsistencies had occurred during his first interview with Sergeant Saviagno when he was nervous and did not know the sergeant. ³

1. The "opinion" testimony. Sergeant Saviagno was the next Commonwealth witness. He testified that he met with Paul "three or four times" in the spring of 1985 and they discussed "some incidents" involving the defendant. The prosecutor did not ask Sergeant Saviagno for the details of those conversations. The sergeant, in concluding his testimony on direct examination, stated that as a result of his conversations with Paul "some charges" were brought against the defendant.

On cross-examination, defense counsel again used the contents of Paul's statements to Saviagno to reemphasize the inconsistencies in Paul's testimony. Saviagno testified that during a tape recorded interview Paul stated that the incidents could have occurred at times different from those given in his trial testimony. He also stated that, in the tape recorded interview, Paul had not included any reference to oral sex during the first incident.

On redirect examination, Saviagno explained the method by which he and Paul, during the initial interview, attempted to narrow the possible dates of the incidents. The prosecutor then asked Saviagno about his job assignments in the Cambridge police department. Saviagno testified, over the defendant's objections, that one of his assignments was as commanding officer of the sexual assault unit and, in that capacity, he had investigated approximately 300 cases of sexual assault. Saviagno was then asked about the process used in interviewing alleged victims of sexual assaults. He testified that the process of interviewing "victims" in those cases varied according to the age, demeanor and mental state of the "victim." He stated that children, generally, would be interviewed four or five times, whereas adults were typically interviewed only two or three times. The prosecutor then engaged the witness in the following colloquy:

PROSECUTOR: "And, would you tell us, Sergeant, whether or not you have an opinion as to whether in your initial discussions with victims, [you] tend to get more or less than the complete details that you eventually learn regarding the incident?"

. . . . .

SAVIAGNO: "Yes."

PROSECUTOR: "And, would you tell us what that opinion is, Sergeant?"

DEFENSE COUNSEL: "Objection."

THE COURT: "Overruled. He may elaborate."

SAVIAGNO: "The first, usually the first meeting with the victim is a process of laying the groundwork for an interview, which is just to meet the victim, gain the victim's confidence, to reaffirm the victim that we are there to be supportive, and that the information we get is going to have to be reported and passed on to the District Attorney and get the person comfortable as to what the process is, the court process, supportive processes, psychological supports, and let the victim know exactly what they are going to have to contend with in the course of the prosecution of the case."

In response to other questions, Saviagno explained that in some cases a "victim" might reveal what happened in detail at the first meeting, but in most cases "victims" provide further details of the incident over the course of the interview process.

The witness was then asked:

PROSECUTOR: "And at some point in your discussions with ... [Paul], in this case, Sergeant, did he tell you about the alleged oral sexual contact that had occurred in the car?"

DEFENSE COUNSEL: "Objection."

SAVIAGNO: "Yes; he did."

THE COURT: "No. She can have that."

SAVIAGNO: "Yes; he did, Your Honor."

On appeal, the defendant claims that the Commonwealth was allowed to introduce Saviagno's opinion that "the changes in ... [Paul's] story were consistent with the way in which truthful victims of sexual assaults relate their stories," and the admission of such testimony was error because it allowed the witness to comment on Paul's credibility. See Commonwealth v. Dickinson, 394 Mass. 702, 706-707, 477 N.E.2d 381 (1985); Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262 (1986); Commonwealth v. Ward, 15 Mass.App.Ct. 400, 401-402, 446 N.E.2d 89 (1983); Commonwealth v. Long, 17 Mass.App.Ct. 707, 708, 462 N.E.2d 330 (1984), for cases where the court held that one witness cannot be asked for his opinion or cannot otherwise comment on the credibility of other witnesses.

Contrary to the defendant's assertion, Saviagno did not give his "opinion" on Paul's credibility or on any other topic. Contrast Commonwealth v. Wolcott, 28 Mass.App.Ct. 200, 207, 548 N.E.2d 1271 (1990). Clearly, one of ...