Com. v. Peters

• Decision Date: 17 February 1999
• Citation: 429 Mass. 22,705 N.E.2d 1118
• Parties: COMMONWEALTH v. Ronald P. PETERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1118

705 N.E.2d 1118

429 Mass. 22

COMMONWEALTH v. Ronald P. PETERS.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Jan. 7, 1999.

Decided Feb. 17, 1999.

Carlo A. Obligato, Committee for Public Counsel Services, Boston, for the defendant.

Christopher P. Hodgens, Assistant District Attorney, for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

GREANEY, J.

A jury in the Superior Court found the defendant guilty on twenty indictments charging him with the sexual abuse of his stepdaughter. ¹ The charges stemmed from accusations by the stepdaughter that he had sexually assaulted her for six years (starting when she was ten years old), when the defendant lived with her and her mother at their various homes in Douglas, Bellingham, and Milford.

Represented by new counsel, the defendant appealed from his convictions to the Appeals Court, asserting that his motion for a required finding of not guilty should have been allowed as to several of the charges and that a new trial was required on the remaining convictions because the complainant was improperly allowed to corroborate herself by fresh complaint testimony in the absence of independent testimony by the fresh complaint witnesses. In its brief to the Appeals Court, the Commonwealth conceded that its proof was insufficient to convict the defendant on four of the indictments, and that, as a consequence, he was entitled to a required finding of not guilty on those charges. The Appeals Court, in an unpublished decision entered pursuant to that court's rule 1:28, entered judgment for the defendant on the charges on which the Commonwealth had conceded a lack of proof, rejected the defendant's other arguments, and affirmed his remaining convictions. Commonwealth v. Peters, 45 Mass.App.Ct. 1101, 694 N.E.2d 1318 (1998). We granted the defendant's application for further appellate review. We conclude that his motion for a required finding of not guilty was correctly denied on two of the four Douglas indictments which are still disputed, but that there must be a new trial because of improper fresh complaint testimony and instructions to the jury concerning it.

1. The defendant argues that the complainant's testimony as to two of the four incidents that were asserted to have occurred in Douglas was replete with contradiction, uncertainty, and vacillation, to the point where no rational trier of fact could have found beyond a reasonable doubt that more than two acts of sexual assault occurred in Douglas. We have examined the complainant's testimony. She testified in explicit detail as to two incidents of sexual assault in Douglas, and went on to testify that "after [the] first two incidents," the defendant put "his fingers up my vagina, his hands on my breasts, and touch[ed] my vagina." Inconsistencies in a complainant's testimony will not render it insufficient, see Commonwealth v. Clary, 388 Mass. 583, 589, 447 N.E.2d 1217 (1983), and "[i]t does not matter that some of the evidence could be characterized as equivocal or contradictory." Commonwealth v. Melchionno, 29 Mass.App.Ct. 939, 940, 558 N.E.2d 18 (1990). The proof as to the third and fourth incidents in Douglas could be found in the testimony quoted above. When considered with the complainant's other testimony about events in Douglas, the evidence was sufficient under the standards set forth in Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), to warrant submission of the two Douglas indictments in issue (indictment nos. 94-0047-1 and 94-0047-10) to the jury. The defendant's motion for a required finding of not guilty on these indictments was correctly denied. ²

2. The background information pertinent to the problem with the fresh complaint evidence is as follows. During jury empanelment, the judge informed the jury that, among other potential witnesses, Patricia Savelli from the Department of Social Services and Marian MacLean, from the Massachusetts State police might be called to testify. The name of Mary Flemming, a guidance counsellor at the complainant's high school was not mentioned as a potential witness. Savelli, MacLean, and Flemming, if called to testify, would have been fresh complaint witnesses. In his opening statement, the prosecutor told the jury that the defendant's alleged sexual abuse continued through the fall of 1993, when the complainant "after speaking to several friends," disclosed what had been happening to her to Mary Flemming, her high school guidance counsellor with whom the complainant had "developed a relationship." The prosecutor went on to state that "thereafter [the complainant] spoke to several people from the Department of Social Services ... [and] to a trooper from the Massachusetts State police" about the abuse.

The complainant was called as the Commonwealth's first witness, and she testified, on direct examination, in explicit detail, about all the acts of sexual assault and abuse committed by the defendant. When she had completed her description of the sexual abuse, and its details, the prosecutor elicited from the complainant that she had told a "couple of kids on [her] soccer team" about the abuse. The prosecutor then went on to ask the complainant about her visits to Flemming, her high school guidance counsellor. The complainant testified that she felt "comfortable in talking" with Flemming, and near the end of November, 1993, told Flemming "some of the details of the things the defendant had done to [her] ... because [she] was sick of [the defendant's] doing this to [her]." During the testimony, the defendant's trial counsel made a general objection, and he explained to the judge, at the conclusion of the evidence for the day, that the objection to the complainant's testimony of her conversations with Flemming was "on the basis as to whether it was a fresh complaint." After the complainant had completed this aspect of her testimony, the judge gave the jury (without objection) the instruction set forth below. ³

In his cross-examination of the complainant, the defendant's trial counsel elicited testimony that in November, 1993, the complainant had spoken to Patricia Savelli with the Department of Social Services and told Savelli that the defendant would "stop before penetrating [her] because [she was] usually crying, and he was afraid it would wake up [her] mother"; that she and the defendant had "actual sexual intercourse, penis in the vagina ... only one time last summer"; and that "the very night before [the complainant's speaking to Savelli, the defendant had] tried to have sex with [her]," but he had not succeeded because she "struggled with him," and during the struggle, he had "grabbed [her] by the neck."

On redirect examination of the complainant, the prosecutor, over objection by the defendant's trial counsel, further explored what the complainant had told Savelli, and had her repeat some of her testimony on direct examination about her relationship with Flemming. The prosecutor then brought out that the complainant had written a letter to Flemming in which she stated that "every time my mother is out of the house ... [the defendant] rapes me," and it "happened ... on more than one occasion." The defendant's trial counsel made no objection as to content to this testimony, and the letter was not offered in evidence.

The Commonwealth's evidence closed with the testimony of the complainant's mother. Neither Flemming nor Savelli was called as a witness. ⁴ There was no motion made by the defendant's trial counsel to strike any of the complainant's testimony about the details of the complaint as expressed by her. The prosecutor made reference in his closing argument to the complainant's contact with Flemming, with no objection. In addition, the defendant's trial counsel made reference to the complainant's conversations with both Flemming and Savelli in his closing argument. In her final charge to the jury, the judge repeated, in slightly different terms, her earlier instruction on the complainant's fresh complaint testimony, see note 3, supra, to which she added the remarks set forth below. ⁵ There was no objection to the instruction.

The defendant contends that the manner in which the fresh complaint evidence was introduced, and handled by the judge, improperly permitted the complainant to corroborate herself, and, as a consequence, a new trial is required. We agree. We first discuss the law pertaining to fresh complaint evidence and why there was error here, and then state the reasons why a new trial is necessary.

(a) Our fresh complaint doctrine permits an out-of-court complaint seasonably made by the complainant in a sexual assault case to be admitted as part of the prosecution's case-in-chief. ⁶ Evidence of the fact of the complaint is admissible only to corroborate the complainant's testimony. See Commonwealth v. Bailey, 370 Mass. 388, 391-392, 348 N.E.2d 746 (1976), and cases cited. It cannot be used to establish the truth of the complaint itself. See Commonwealth v. Lavalley, 410 Mass. 641, 643, 574 N.E.2d 1000 (1991). In Massachusetts, unlike most jurisdictions, a fresh complaint witness may testify both to the fact of the complaint and the details of the complaint as expressed by the complainant. ⁷ See id. 643 & n. 4, 574 N.E.2d 1000; Commonwealth v. Bailey, supra.

In Commonwealth v. Lavalley, supra at 646-647 n. 7, 574 N.E.2d 1000, and in Commonwealth v. Licata, 412 Mass. 654, 657-658, 591 N.E.2d 672 (1992), we expressed concern about the fresh complaint doctrine. We noted that the doctrine was based on the outmoded, and arguably invalid, premise that victims of a sexual assault who complained to others were truthful, while victims who did not complain may have remained silent because they had consented to the sexual contact. See Commonwealth v. Lavalley, supra. Despite our reservations about the doctrine, we stated in Commonwealth v. Licata, supra at...