Com. v. Trowbridge

• Decision Date: 21 March 1995
• Citation: 419 Mass. 750,647 N.E.2d 413
• Parties: COMMONWEALTH v. Jonathan V. TROWBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 413

647 N.E.2d 413

419 Mass. 750

COMMONWEALTH v. Jonathan V. TROWBRIDGE.

Supreme Judicial Court of Massachusetts Middlesex.

Argued February 6, 1995.

Decided March 21, 1995.

Barbara F. Berenson, Asst. Dist. Atty. (Marcia E. Jackson, Asst. Atty. Gen., with her) for Com.

Esther J. Horwich, Boston (Steven J. Brooks, with her) for defendant.

Before WILKINS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

On October 25, 1990, a jury convicted the defendant, Jonathan V. Trowbridge, of indecent assault and battery on a child under the age of fourteen, but acquitted him on the charge of rape of a child under the age of sixteen. The defendant filed a timely notice of appeal. After hearing oral arguments, the Appeals Court, on its own initiative, requested that the parties brief the issue of the sufficiency of the judge's instructions on fresh complaint. The Appeals Court reversed the defendant's conviction, and held that the judge's failure to instruct properly the jury regarding the limited purpose of fresh complaint testimony created a substantial risk of a miscarriage of justice. Commonwealth v. Trowbridge, 36 Mass.App.Ct. 734, 746, 636 N.E.2d 291 (1994). This court granted the Commonwealth's application for further appellate review. We agree with the Appeals Court and reverse the defendant's conviction.

We note at the outset that, although the defendant did not file an application for further appellate review, we may consider all issues briefed and argued before the Appeals Court. Commonwealth v. Lombard, 419 Mass. 585, 646 N.E.2d 400 (1995). Our order granting further appellate review did not limit the issues to be addressed. To the extent that language in Commonwealth v. Caldwell, 418 Mass. 777, 778 n. 2, 641 N.E.2d 1054 (1994), suggests otherwise, we reaffirm our previous position that in a case of this type, "[u]nless we direct otherwise in our order granting an application for further appellate review, all issues that were before the Appeals Court are before this court, including issues not addressed in the application." Commonwealth v. Burno, 396 Mass. 622, 623, 487 N.E.2d 1366 (1986). See also Commonwealth v. Lombard, supra.

We briefly summarize the facts of this case. ¹ In August, 1989, a Middlesex County grand jury returned two indictments against the defendant, alleging that the defendant had committed both rape and indecent assault and battery on his daughter. The abuse allegedly occurred during a fifteen-month period from November, 1987, to February, 1989. The child was five and six years old during the time of the alleged abuse.

The defendant and the child's mother were married for several years before becoming embroiled in a bitter divorce and custody battle. The child's mother was awarded custody, and during the relevant time period, the child lived in Connecticut with her mother and visited her father in Massachusetts.

In March, 1989, the child's first grade teacher conducted a series of classes on personal safety, including a discussion on sexual abuse. Following the class, the child approached the teacher and said "I go to my therapist to talk to him about when my daddy touches me in my private body parts." After the child's disclosure, the teacher reported the alleged abuse to school officials. A school social worker interviewed the child, and the child provided further details of the alleged abuse.

At trial, the Commonwealth called five witnesses. The child, who was almost eight years old at the time of trial, testified that her father would lift her up on the bed and touch her "private parts." She also testified that she felt her father's finger go inside her vagina. The Commonwealth's remaining four witnesses, which included the child's mother, the child's first-grade teacher, a school social worker, and a pediatric gynecologist, all testified as fresh complaint witnesses. In addition, the pediatric gynecologist testified as an expert witness in the area of child sexual abuse.

The defense in the case focused on the defendant's normal and loving relationship with his daughter. The defendant argued that any touching that had occurred was part of normal parental activities, such as bathing and personal hygiene. He also sought to convince the jury that the mother's animosity toward him had influenced the child to make false accusations. Finally, the defendant testified that the mother had accused him previously of sexual abuse, and that these accusations were later determined to be unfounded by a Connecticut court and a Massachusetts Probate Court.

We turn now to the merits of the case. Additional facts will be provided where necessary.

1. The indictments. Prior to trial, the defendant moved to dismiss the indictments on the basis that the prosecutor withheld certain exculpatory evidence. The defendant claims the prosecutor should have informed the grand jury that the defendant and his wife were engaged in an on-going custody battle, that the defendant's wife previously accused him of sexual misconduct regarding the child, and that after several court-ordered investigations into the abuse allegations, the defendant's visitation rights were fully reinstated.

"Prosecutors are not required in every instance to reveal all exculpatory evidence to a grand jury." Commonwealth v. McGahee, 393 Mass. 743, 746, 473 N.E.2d 1077 (1985). However, they must disclose evidence that would "greatly undermine the credibility of evidence likely to affect the grand jury's decision to indict." Id. We review the proceedings to determine whether the grand jury received sufficient evidence to find probable cause for indictment, and whether the grand jury proceedings were impaired. Id. at 747, 473 N.E.2d 1077.

There was no error in the judge's denial of the defendant's motion to dismiss the indictments. The grand jury were informed of the defendant's divorce proceedings and the prior allegations of sexual misconduct. Although the grand jury were not informed that other courts had dismissed as unfounded previous sexual misconduct allegations, this information would not have greatly undermined the credibility of evidence against the defendant, and would not have affected significantly the grand jury's decision to indict. Even after hearing evidence of the bitter custody battle, the prior allegations of sexual misconduct, and the outcome of several court-ordered investigations into the alleged abuse, a trial jury found the defendant guilty beyond a reasonable doubt. "It would be rational to assume, therefore, that a failure to disclose the same evidence to a grand jury seeking only probable cause would have a negligible effect on their decision to indict" (emphasis in original). Commonwealth v. LaVelle, 414 Mass. 146, 151 n. 2, 605 N.E.2d 852 (1993).

2. Competency of the child witness. The defendant challenged the competency of the child who was almost eight years old at the time of trial. After conducting a voir dire, the judge ruled the child competent. The defendant argues that the judge applied an incorrect legal standard in determining the competency of the child witness. Because the defendant failed to object, we limit our review to whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). We conclude that there was no error.

In determining the competency of a witness, the courts of the Commonwealth apply a two-prong test: "(1) whether the witness has the general ability or capacity to 'observe, remember, and give expression to that which she ha[s] seen, heard, or experienced'; and (2) whether [the witness] has 'understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment.' " Commonwealth v. Brusgulis, 398 Mass. 325, 329, 496 N.E.2d 652 (1986), quoting Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495 (1921). A judge's determination of competency is discretionary and will seldom be faulted on appellate review. Commonwealth v. Brusgulis, supra, 398 Mass. at 329-330, 496 N.E.2d 652. Where the judge applies an incorrect legal standard, however, the discretionary ruling will be reversed. Id.

The defendant contends that the trial judge's questions focused exclusively on the child's ability to tell the truth, and that the judge failed to inquire whether the child had the ability to observe, remember, and recall facts. ² During the voir dire, the judge asked the child her name, her religion, her grade in school, and the subjects she studied. The child's ability to respond accurately and coherently to these questions demonstrated that the child possessed the general ability to observe, remember and recount. See Malchanoff v. Truehart, 354 Mass. 118, 120, 236 N.E.2d 89 (1968). See also Kentucky v. Stincer, 482 U.S. 730, 741, 107 S.Ct. 2658, 2665, 96 L.Ed.2d 631 (1987). Further, despite some inconsistencies and memory lapses in the child's trial testimony, the child was able to recall specific events of the alleged sexual abuse. See Malchanoff, supra, 354 Mass. at 121, 236 N.E.2d 89. We further note that the judge's decision not to employ a qualified physician or psychologist to aid in the competency determination was not error. This was a matter entirely within the judge's discretion. See G.L. c. 123, § 19 (1992 ed.).

3. Exclusion of the defendant's expert witness. The defendant sought to introduce the expert testimony of psychologist, Dr. Robert S. Colen. At a voir dire, the doctor testified to the following: Dr. Colen was appointed by a Connecticut court in order to determine if the defendant's visitation rights should be reinstated, and to investigate allegations of sexual abuse. After examining the defendant, the mother, and the child, the doctor issued a report stating that he could find no evidence of sexual...