Com. v. Swain

• Decision Date: 02 May 1994
• Docket Number: No. 91-P-1019,91-P-1019
• Citation: 632 N.E.2d 848,36 Mass.App.Ct. 433
• Parties: COMMONWEALTH v. Donald SWAIN.
• Court: Appeals Court of Massachusetts

Page 848

632 N.E.2d 848

36 Mass.App.Ct. 433

COMMONWEALTH v. Donald SWAIN.

No. 91-P-1019.

Appeals Court of Massachusetts Norfolk.

Argued Oct. 7, 1993.

Decided May 2, 1994.

Daniel J. O'Connell, III, Boston, for defendant.

Robert C. Cosgrove, Asst. Dist. Atty., for Com.

Before KASS, JACOBS and IRELAND, JJ.

JACOBS, Justice.

The defendant was tried and convicted by a Superior Court jury on fourteen indictments alleging unlawful sexual contact with his daughter--eight indictments charged rape of a child under sixteen years of age, five charged indecent assault and battery of a child under fourteen years of age, and one charged incest. ¹ He appeals from those convictions and from the denial of his motion for a new trial essentially claiming (1) the indictments suffered from a fatal lack of particularity, (2) the judge erred in admitting fresh complaint evidence and certain writings and statements of the daughter, and (3) newly discovered evidence entitled him to a new trial. We reverse on the grounds of prejudicial error in the admission of fresh complaint evidence.

Born on March 7, 1975, the daughter, whom we shall call Martha, was fifteen years old at the time of the trial in December of 1990. She testified that the first of the sexual contacts by her father, who was separated from her mother, occurred when she was "about five" years old during one of her overnight visitations at his residence. She stated that this incident involved sexual intercourse and that various forms of sexual contact by her father ² occurred on almost all of her weekly overnight visits with him at his apartments over the next nine years. She acknowledged that she never told anyone of this abuse during that period. She testified that the last such incident occurred between November 3, 1988, and December 5, 1988, and that her father never threatened her or told her not to tell anyone or that the sexual contact would be a secret between them. Her first report of abuse by her father occurred in October, 1989.

1. Indictments. The indictments alleged unlawful sexual acts as follows: three in Quincy between January 1, 1981, and January 1, 1983; two in Quincy between January 1, 1981, and January 1, 1984; seven in Holbrook between January 1, 1984, and October 1, 1988; and two between November 3, 1988, and December 5, 1988, in Holbrook. A bill of particulars filed by the Commonwealth provided specific information as to the nature of the sexual act alleged in each of the indictments but did not more precisely identify the time of any offense. At the close of the prosecution's case and over the objection of the defendant, the judge allowed the Commonwealth's motion to amend the five indictments alleging incidents in Quincy and the related information in the bill of particulars by changing the termination date of the periods alleged from January 1, 1983, and January 1, 1984, to December 30, 1987.

The defendant moved neither to dismiss the indictments nor to strike or amplify the bill of particulars. See Commonwealth v. Brenner, 18 Mass.App.Ct. 930, 465 N.E.2d 1229 (1984); Smith, Criminal Practice and Procedure § 1296 (2d ed.1983). His argument to us, that the lack of specificity in the indictments deprived him of a fair trial, not only overlooks the substantial authority permitting imprecise dates in indictments for crimes involving young victims, see Commonwealth v. King, 387 Mass. 464, 467-469, 441 N.E.2d 248 (1982); Commonwealth v. Atkinson, 15 Mass.App.Ct. 200, 203, 443 N.E.2d 1371 (1983), but also ignores that he did not challenge at trial the evidence of his private access to Martha during the times in question. Instead, his defense was constructed on total denial of any impropriety. Given Martha's trial testimony of weekly sexual contact over a period of approximately nine years, the defendant's acknowledgment of regular and frequent private access to her during that time, and his argument at trial that it was highly unlikely that so many repeated instances of abuse would be unnoticed for so long a period, he hardly can complain that a lack of specificity disadvantaged his defense. For the same reason, and because the precise time of the alleged sexual contacts was not an essential element of the crimes charged, see Commonwealth v. King, supra 387 Mass. at 467, 441 N.E.2d 248; G.L. c. 277, § 20, the judge did not err in permitting the amendment of five of the indictments. Compare Commonwealth v. Jervis, 368 Mass. 638, 644, 335 N.E.2d 356 (1975); Commonwealth v. Liebman, 379 Mass. 671, 676, 400 N.E.2d 842 (1980).

2. Fresh complaint evidence. The defendant argues that the fresh complaint evidence relied upon by the prosecution was too remote from the acts complained of and therefore should not have been admitted. He also claims that there was an impermissible "piling on" of fresh complaint witnesses.

a. Promptness of complaints. The witnesses who testified to Martha's having told them of being abused by the defendant were, in the order of their testimony, a psychiatrist, Martha's mother, a social worker, a pediatrician, a police officer and an investigator for the Department of Social Services (DSS). These six witnesses testified to Martha's complaining to them at various times between October of 1989 and January 8, 1990. The first of the complaints was made in October of 1989 to a social worker at Westwood Lodge, an inpatient psychiatric hospital. The other complaints were in response to inquiries precipitated by the first revelation. Martha's confinement to Westwood Lodge was her second to that institution and her fourth hospitalization in approximately a year for various emotional, psychological and physical problems. ³ She was first hospitalized at the Judge Baker Center at Children's Hospital after suffering seizures in the fall of 1988. She testified that her father's last molestation of her occurred between her release from Children's Hospital and her admission to McLean Hospital in December of 1988. Her confinement to McLean was followed by her treatment at Westwood Lodge from which she was first discharged on June 27, 1989. During this admission she spoke of being abused by her cousins, but specifically denied being abused by anyone else, including her father. This period of confinement marked the end of her regular overnight visits with the defendant, except for a brief vacation with him on Cape Cod during the summer of 1989. She testified that the defendant masturbated in her presence during this stay with him. Shortly after this vacation, she was readmitted to Westwood Lodge and it was during this second admission that her first complaint of abuse was made.

The first fresh complaint witness, a psychiatrist who treated Martha at Westwood Lodge, testified that Martha's first complaint, to her in early October, 1989, was of her father's masturbating in her presence over a course of years. When the witness was asked whether Martha said anything else, the judge overruled the defendant's objection and characterized the requested testimony as part of a fresh complaint. The psychiatrist then testified that Martha, over the course of the next month, told of having intercourse with her father when she was approximately four years old. There was no objection to the psychiatrist's agreeing that there was nothing in Martha's behavior and symptoms that was "inconsistent with a child who is sexually abused over a number of years." In unobjected-to redirect testimony, the witness testified to general correlations and consistencies between sexual abuse and several of the conditions and disorders she attributed to Martha.

Martha's mother was the second fresh complaint witness. After specific objection based on the untimeliness of Martha's conversation with her, she was permitted to testify that Martha first told her, in October of 1989, of her father having sexual intercourse with her "when she was very young," and that three weeks later, she told her about later abuse "all through her childhood" but without recounting much detail. ⁴

The third fresh complaint witness was the social worker to whom Martha first complained of sexual abuse. She testified that Martha, in response to a question, told her in October of 1989 that the defendant had had intercourse with her. After a voir dire, and over objection by the defendant, the witness told of Martha telling her that she recalled the abuse as a result of having her memory jogged by a staff person coming into the room at night. She also stated that Martha had first said there was one incident of abuse and later that sexual abuse occurred repeatedly over several years. The social worker further testified that Martha did not describe the sexual contacts in detail.

The next witness was a pediatrician specializing in adolescent medicine and child abuse and neglect who examined Martha on January 8, 1990, and testified, over objection, to a history of sexual abuse by the defendant related to her by Martha and her mother. The judge allowed the testimony "as a basis of the doctor's opinion." ⁵ The witness told of Martha's reporting that she had experienced "genital intercourse contact with her father" from the time she was five to seven years old until the fall of 1988. The witness then described the physical examination she conducted and, in response to several unobjected-to questions, testified essentially that the findings derived from that examination were "not inconsistent with that kind of a history."

The last two fresh complaint witnesses, testifying essentially without objection, were a police officer and an investigator for DSS who had spoken to Martha as a result of reports of sexual abuse by personnel at Westwood Lodge. The police officer, who was assigned to the sexual assault unit of the district attorney's office, interviewed Martha on January 5, 1990, and testified about Martha's detailed recounting of a long history of sexual abuse, repeating considerable specific...