Com. v. Stuckich

• Decision Date: 16 January 2008
• Docket Number: SJC-09756.
• Citation: 879 N.E.2d 105,450 Mass. 449
• Parties: COMMONWEALTH v. Peter STUCKICH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

879 N.E.2d 105

450 Mass. 449

COMMONWEALTH v. Peter STUCKICH.

SJC-09756.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued November 5, 2007.

Decided January 16, 2008.

Robert F. Shaw, Jr., Brighton, for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

Lisa J. Steele, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

The defendant, Peter Stuckich, was charged with four counts of indecent assault and battery on his daughter, a child under fourteen years of age, between January 1, 1995, and December 7, 1997, and one count of rape of a child (also his daughter) by force between January 1, 1995 and December 7, 1997. A jury acquitted him of the rape charge and convicted him of the assault and battery charges. He was sentenced to a State prison term of from five to seven years followed by probation of twenty years. The defendant filed a timely notice of appeal in the Appeals Court and we granted his application for direct appellate review.

On appeal, the defendant makes several claims. He alleges that the judge erred by instructing the jury regarding consciousness of guilt. He contends further that the judge failed to conduct a voir dire to identify the first complaint witness; improperly permitted evidence that effectively served as additional "fresh complaint" testimony; and improperly admitted evidence from a prior care and protection proceeding. In addition, the defendant claims that the prosecutor improperly (a) attacked his character, (b) asked witnesses to comment on the credibility of other witnesses, and (c) argued consciousness of guilt based on the defendant's retention of legal counsel. The defendant maintains also that his trial counsel was ineffective for failing to object to the admission of an abuse prevention order against him that the defendant's daughter had previously obtained.¹ Finally, the defendant claims that the judge's sentencing decision was impermissibly premised on uncharged conduct. We reverse for the reasons set forth below.

Background facts. We recite the facts the jury could have found, reserving further details for discussion in conjunction with the specific issues raised. In April, 2000, the complainant, whom we will refer to as Nancy, wrote a letter to her high school guidance counselor, Barbara Horan, alleging that the defendant, Nancy's biological father, had sexually assaulted her over a period of years. The letter stated that Nancy had recently told her mother about the abuse, and that her mother had in turn spoken to Nancy's therapist, Mr. Rubin, who was "trying to get me [Nancy] to talk about it." After reading the letter, Horan had a conversation with Nancy, comforting her and informing her that Horan would need to file a report of an allegation of child abuse with the Department of Social Services (DSS), as required by G.L. c. 119, § 51A (§ 51A report). The following day, Horan and the principal of the school met with Nancy, who showed them a journal entry she had written two weeks earlier describing her feelings about the abuse. Horan filed a § 51A report with DSS. Nancy indicated to Horan that she was angry about the filing of the DSS report and that she "just wanted her parents to get a divorce and move on."

Shortly after Nancy spoke with Horan, she told her mother about the abuse,² and a family meeting was held to confront the defendant. The defendant left the family home after the meeting. Soon after, Nancy and her mother went to the district attorney's office for a sexual abuse intervention network (SAIN) interview regarding the abuse allegations. One of the officers present at the SAIN interview, Detective David Egy, then interviewed the defendant regarding the allegations. No formal charges were brought at that time.

The defendant and his wife were divorced at some point following the allegations of abuse.³ The defendant obtained employment in Springfield, Illinois, and moved there.

In 2002, when Nancy turned eighteen, she obtained a restraining order against her father. She stated that she was "being threatened on the telephone" and "being followed." Nancy told Detective Egy that she now wanted to proceed with the abuse allegations against the defendant, and Detective Egy resumed work on the case. A second SAIN interview took place, and Egy caused criminal complaints to be issued against the defendant in the District Court. In July, 2003, a grand jury found and returned indictments charging the defendant with rape of a child by force and indecent assault and battery on a child under fourteen.⁴

Consciousness of guilt. The defendant claims that there was no basis in the evidence to support a consciousness of guilt instruction. Detective Egy testified that, after complaints had issued against the defendant, Egy spoke with the defendant by telephone. The defendant was then living and working in Springfield, Illinois. Egy told the defendant that complaints had issued against him regarding the abuse allegations. The detective also stated to the defendant that he would "like him to get in touch with the district attorney's office [a]nd find out when he's [sic] going to be back if he's coming back."⁵ The defendant said he would call Egy back or have his attorney do so, but Egy never heard from the defendant.⁶ Over defense counsel's objection, the judge instructed the jury, based on the above testimony, that they "heard evidence suggesting that the [defendant] failed to have further contact with the police after the police contacted him," and that, if the jury believed that the defendant had failed to have further contact with the police, then they "may consider whether such actions indicate feelings of guilt by the defendant and whether in turn such feelings of guilt might tend to show actual guilt on those charges."

Defense counsel objected to the consciousness of guilt instruction by stating, "Given that it's such a close call, I think to give the consciousness of guilt instruction would by its very nature and by the very language contained within it, is very prejudicial.... I ask that the instruction not be given." While counsel could have stated the basis for the objection in more specific terms, it was sufficient to alert the judge to the fact that there was no evidence on which to base the instruction.

Consciousness of guilt instructions are permissible when there is an "inference of guilt that may be drawn from evidence of flight, concealment, or similar acts," such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness. Commonwealth v. Toney, 385 Mass. 575, 584 & n. 4, 433 N.E.2d 425 (1982). There was no such evidence in this case and no other evidence that supported a consciousness of guilt instruction.⁷ Detective Egy, in his telephone conversation with the defendant, did not order the defendant to return to Massachusetts, report to the police or restrict his travel. No notice of a court date was sent to the defendant, nor was the defendant informed that he must appear in court. The statement to a lay person that a complaint had "issued" is not meaningful and does not convey that any particular action is required. Nor did the statement that Detective Egy "would like [the defendant] to get in touch with the district attorney's office [a]nd find out when he's going to be back, if he's coming back" suggest any command. This is particularly the case given the fact that the telephone call occurred almost two years after the defendant had voluntarily relinquished his parental rights, see infra, and approximately three years after the initial complaint of abuse and investigation. That the defendant said that he would call Egy back or have his attorney do so, and that Egy never heard again from anyone, is not a sufficient evidentiary foundation to support the instruction.

Because the issue was properly preserved, we review to determine whether we can be certain that the improper instruction "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994). There were no witnesses to the alleged abuse other than Nancy and the defendant. Although the details Nancy provided are horrific and the repetitive nature of the incidents especially disturbing the jury acquitted the defendant of the rape charge. Thus, to some extent, the jury did not credit Nancy. The instruction presupposed that there was evidence of consciousness of guilt; communicated to the jury that the judge believed that there was such evidence; and directed the jury to determine whether to credit it and, if so, how to apply it in their deliberations. We have concluded that there was no evidence that qualified as consciousness of guilt evidence. Thus, in a case that turned ultimately on Nancy's credibility versus that of the defendant, the instruction, with its implication that there was indeed evidence that the defendant had demonstrated consciousness of guilt, could well have affected the verdict. Even if this error, standing alone, might not be sufficiently prejudicial to require reversal of the convictions, in combination with other errors discussed infra, "[o]n the whole, we are left with the clear opinion ... that there was a substantial risk of a miscarriage of justice." Commonwealth v. Cancel, 394 Mass. 567, 576, 476 N.E.2d 610 (1985). See Commonwealth v. Santiago, 425 Mass. 491, 503, 681 N.E.2d 1205 (1997).

First complaint. The defendant argues that the judge should not have permitted Horan to testify as a first complaint witness. Prior to trial, the Commonwealth filed a motion in limine requesting that Nancy's letter to Horan, a journal entry, Nancy's initial conversation with Horan, and Nancy's subsequent conversation with Horan and the school's principal be admitted...