Com. v. Shiek, 95-P-1885
| Decision Date | 03 April 1997 |
| Docket Number | No. 95-P-1885,95-P-1885 |
| Citation | 675 N.E.2d 805,42 Mass.App.Ct. 209 |
| Parties | COMMONWEALTH v. Nicholas SHIEK. |
| Court | Appeals Court of Massachusetts |
James L. Rogal, for defendant.
Kathleen Ann Adams, Assistant District Attorney, for the Commonwealth.
Before IRELAND, LAURENCE and FLANNERY, JJ.
A District Court jury convicted the defendant of indecent assault and battery on a child under the age of fourteen. G.L. c. 265, § 13B. He claims on appeal that the trial judge should have excluded part of the prosecutor's opening statement, that the trial judge erroneously failed to define "corroborate" in her instructions to the jury concerning the use of fresh complaint testimony, that a fresh complaint witness prejudicially exceeded the complainant's testimony, and that fresh complaint evidence was stale and should not have been admitted. We agree with the last-stated contention and reverse on that ground.
The complainant testified, in response to a question that included certain dates and her ages at those times, that the defendant sexually molested her "between 1986 and 1991, when [she was] about eight through thirteen." The complainant placed the assaults at an apartment in Brockton, which she visited from time to time and which she described in some detail. She also testified that the defendant never threatened her and that she did not see him after 1991 except at holiday gatherings. The defendant testified and denied the complainant's accusations.
The prosecution's sole fresh complaint witness, Brockton police officer Desmond, testified over objection that, on January 19, 1994, the complainant told her that, between the time that she was "around eight years old" until "about she was twelve" or thirteen, the defendant sexually assaulted her on a number of occasions. 1 The assaults reportedly occurred when the complainant would visit her sister and her husband, the defendant, at their apartment on Grove Street in Brockton.
The complainant was born on May 19, 1978, so the alleged assaults that she reported to the officer would have occurred between 1986 and 1991. Therefore, if the last assault took place before the complainant turned thirteen, in May of 1991, about thirty-two months passed before she told the officer. If the final alleged episode took place in December of 1991, about twenty-four months passed before the complaint was made. 2
We shall not reiterate the history of the fresh complaint exception to the rule against hearsay. See Commonwealth v. Dion, 30 Mass.App.Ct. 406, 412-414, 568 N.E.2d 1172 (1991). In summary, to be admitted in evidence as corroborative of the complainant's in-court accusation, the out-of-court complaint must have been made reasonably promptly after the alleged assault. "The length of delay remains an important consideration" in determining freshness, see Commonwealth v. Fleury, 417 Mass. 810, 815, 632 N.E.2d 1230 (1994), but the passage of time does not alone determine promptness. That is to say, factors such as the mental and emotional maturity of the complainant, her (or his) relationship to the alleged perpetrator, and whether she remained in the allegedly abusive setting or moved to a more secure one, are all relevant to the judge's initial ruling that a complaint is fresh and admissible or stale and not. See Commonwealth v. Fleury, 417 Mass. at 814, 632 N.E.2d 1230; Hughes, Evidence § 244, at 188-189 (1993 Supp.).
In the present case, the interval between the first alleged incident (1986) and the report to Officer Desmond (1994) was at least seven years, and the interval between the last alleged incident (1991) and the report was twenty-four to thirty-two months. No evidence about the relationship between the complainant and the defendant explains those delays. The complainant did not reside with the defendant, she saw him infrequently after 1991, and she testified that he never threatened her. Contrast the extraordinary situation in Commonwealth v. McKinnon, 35 Mass.App.Ct. 398, 400-403, 620 N.E.2d 792 (1993) ().
We conclude that the Commonwealth failed to show here that the complaint to Officer Desmond was fresh after twenty-four to thirty-two months because of explanatory circumstances. It should not have been admitted in evidence.
The Commonwealth may elect to retry the defendant, so we discuss briefly his other contentions on appeal. He urges that the prosecutor, in her opening statement, effectively accused him of raping the complainant and the trial judge erred in overruling his objection and denying his motion for a mistrial. 3 Of course, a prosecutor may not seek to inflame a jury by accusing a defendant of uncharged misconduct. That did not...
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