Com. v. Scanlon
| Decision Date | 15 May 1992 |
| Citation | 412 Mass. 664,592 N.E.2d 1279 |
| Parties | COMMONWEALTH v. Steven J. SCANLON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jonathan Shapiro, Boston, for defendant.
Mary O'Sullivan Smith, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.
We are asked in this case to abandon the evidentiary rule that permits the Commonwealth, in a prosecution for sexual assault, to present evidence of the complainant's fresh complaint. In Commonwealth v. Licata, 412 Mass. 654, 591 N.E.2d 672 (1992), we considered fully the arguments for and against the fresh complaint rule and concluded that we shall adhere to the rule as it exists in this Commonwealth. 1 Accordingly, in this case we address only the defendant's additional arguments relating to his trial.
In July, 1989, a Plymouth County grand jury returned two indictments charging the defendant, Steven J. Scanlon, with one count of rape of a child by the use of force, G.L. c. 265, § 22A, and two counts of indecent assault and battery on a person over the age of fourteen, G.L. c. 265, § 13H. Following a trial in the Superior Court Department, the jury found the defendant guilty of both counts of indecent assault and battery and not guilty of the charge of rape. Subsequently, the defendant filed two separate motions for a new trial on the basis of newly discovered evidence. The trial judge denied both motions without a hearing. The defendant then filed a consolidated appeal of his convictions and the denials of his motions for a new trial. We granted the defendant's petition for direct appellate review, and we affirm.
On appeal, the defendant challenges: (1) the scope of the testimony of two fresh complaint witnesses; (2) the exclusion of evidence that the complainant had an opportunity to report the assaults earlier than she did; (3) the trial judge's instructions regarding fresh complaint testimony; (4) the exclusion of evidence that the victim previously had made an allegedly false accusation of sexual assault; (5) the admission of evidence of consciousness of guilt; (6) the charge on reasonable doubt; (7) the judge's use of the so-called Tuey-Rodriquez charge; and (8) the judge's refusal to grant the defendant a new trial in light of newly discovered evidence.
We summarize the evidence presented to the jury. 2 The complainant, whom we shall refer to as Kate (not her real name), was fourteen years of age when, in November, 1987, her mother was admitted into Charles River Hospital in Wellesley for psychiatric treatment. Kate, along with her four younger siblings, 3 was left in the care of the defendant, Kate's stepfather, in the family's Marion home. Kate's mother remained hospitalized until March, 1988, and, according to Kate's testimony, it was during this period that the defendant sexually assaulted Kate on three occasions.
Kate testified that the first incident occurred in early December, 1987. Kate was watching television in a downstairs bedroom at approximately 9 P.M. when the defendant called for her to come upstairs. Kate's brothers and sisters were sleeping at the time. Kate went upstairs and found the defendant in his bedroom. Kate went into the bedroom and sat on the edge of the bed. She and the defendant had a "regular conversation" until the defendant placed his hand on Kate's shoulder. The defendant then moved his hand down over the front of Kate's shirt and moved his hand around her breast "for about twenty to thirty seconds." Kate then left the room. She testified that she didn't tell anyone about the incident because she wasn't sure if it was a mistake or if she was judging it wrong.
Kate testified that a second incident occurred approximately two weeks later. Kate was downstairs watching television at approximately 9 P.M. when the defendant again called for her. The other children were sleeping. Kate hesitantly went upstairs to the defendant's bedroom. The defendant was in his bathrobe and a candle was burning on the nightstand. When Kate entered the room, the defendant closed the door and told Kate to take off her pants. Kate complied, and sat on the end of the bed, pulling her sweatshirt down over her knees. The defendant approached her, pushed his bathrobe behind him, pushed Kate's ankles up so that her knees were in the air, and began to have intercourse with her. Kate was crying and was asking the defendant "in a small voice" to please stop. After approximately five minutes the defendant did stop and Kate felt a wetness on her thigh. Kate told the defendant that she was going to tell her mother. The defendant responded that her mother wouldn't believe her. He also threatened to harm the family if she told anyone.
Kate testified that a third incident occurred in early February, 1988. Kate was watching television in the late afternoon and the other children were outside. The defendant called Kate upstairs. Kate was "very hesitant" to go upstairs but she did so because the defendant had called her and because her relationship with the defendant in the previous month had been "pretty normal." When Kate entered the defendant's bedroom he was wearing a bathrobe. He immediately told her to take off her pants. Kate started to cry but did as she was told. After Kate sat on the bed, the defendant pushed back his bathrobe and got on top of her. Kate testified that "this time there wasn't really intercourse" but that the defendant rubbed his penis on her vagina. The defendant stopped after approximately "five to nine minutes" and Kate noticed a wetness on her upper thigh area. Kate told the defendant she "seriously [was] going to tell [her] mother." The defendant responded "in a laughing voice" that her mother would never believe her. The defendant also told her that if she told anyone all her privileges would be taken away.
Kate did not report that her stepfather had assaulted her until September, 1988, when she wrote a note to a friend, Elizabeth Briggs, indicating that "something bad" had happened to her and that if she told anyone "something bad" would happen to her family. Approximately one week later, Elizabeth asked Kate about the note. At first, Kate did not respond. She then told Elizabeth "my stepfather raped me." Elizabeth testified that Kate was "hysterical" and was "crying and punching the wall and kitchen table." Elizabeth urged Kate to report the assaults but Kate refused to do so because she was frightened that something would happen to her family and because she was concerned about her mother's mental condition.
Two weeks later, in the early morning of October 18, 1988, Kate arrived at Elizabeth's house upset and crying. After speaking with Kate, Elizabeth called the Marion police. A police officer came to the house and brought the two girls to the police station. At the station, Kate described the three sexual assaults to Sergeant James Nolan of the Marion police department. Subsequently, Sergeant Nolan called the defendant to the police station and, after advising the defendant of his Miranda rights, informed the defendant about the nature of the allegations. Sergeant Nolan testified that the defendant responded that
The defendant denied that any of the assaults had occurred. At trial, he testified that his relationship with Kate had always been strained and he presented evidence that, prior to any of the incidents in question, Kate had told one of her friends that she hated the defendant. The defendant testified that he was the disciplinarian of the household and that at the time Kate reported the assaults she had been grounded for dialing a "1-900" telephone number and then lying about it. The defendant also introduced evidence that, on at least one of the dates that Kate had estimated the sexual assaults occurred, Kate had spent the night at the home of one of her friends. Finally, the defendant explained that the reason he had told Sergeant Nolan that he "thought it might be that" when he was confronted with the charges against him was because he had passed his wife on the way to the police station and his wife, who had already been to the station, refused to look at him.
1. Scope of the fresh complaint testimony. Elizabeth Briggs and Sergeant Nolan were each permitted to testify as fresh complaint witnesses. Elizabeth testified that Kate had sent her the September, 1988, note indicating that "something bad" had happened to her, that Kate had later explained "my stepfather raped me," and that Kate was crying and hysterical when she made this disclosure. Sergeant Nolan testified as to the details of Kate's complaint. In the course of his testimony, Sergeant Nolan mentioned details that Kate had omitted from her own testimony. Specifically, he testified that Kate had reported that the defendant had held her down by the shoulders during the first incident. In addition, Sergeant Nolan testified that Kate had reported that the defendant yelled at her during the second incident and that he had threatened to "do it to her again" if she ever told anybody. Finally, Sergeant Nolan testified that Kate had reported that, during the third incident, "there was penetration and it hurt."
The defendant contends that the judge committed reversible error in permitting the testimony of these two witnesses because their testimony exceeded the testimony of the complainant herself and because the testimony involved more than a mere dry recounting of the facts. 4
This court has never insisted that fresh complaint testimony be sanitized to match exactly the testimony of the complaining witness. Such a rule would undermine the purpose of allowing a witness to testify as to the details of a victim's complaint, which is to let the jurors draw their own conclusions...
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