Commonwealth v. Flint

• Decision Date: 30 May 2012
• Docket Number: No. 10–P–674.,10–P–674.
• Citation: 968 N.E.2d 928,81 Mass.App.Ct. 794
• Parties: COMMONWEALTH v. Mark Carl FLINT.
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 794

968 N.E.2d 928

COMMONWEALTH

v.Mark Carl FLINT.

No. 10–P–674.

Appeals Court of Massachusetts, Plymouth.

Argued Oct. 12, 2011.

Decided May 30, 2012.

Stacey Gross Marmor, Northboro, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: GRAINGER, FECTEAU, & AGNES, JJ.

AGNES, J.

Mark Flint appeals from his convictions, in 2005, of rape of a child and attempt to commit rape of a child and from the denial, in 2010, of his motion for a new trial. The appeals were consolidated in this court. The case is before us on the basis of a reconstructed record. The three-day jury trial consisted of the testimony of three Commonwealth witnesses. The available record includes a transcript of pretrial motions, jury selection, the closing arguments, and jury instructions. The trial judge conducted an evidentiary hearing, and in accordance with Commonwealth v. Harris, 376 Mass. 74, 379 N.E.2d 1073 (1978), reconstructed the missing record, which includes the opening statements and the direct and cross-examination of the three witnesses.

On appeal, the defendant contends that (1) the absence of a complete transcript of his three-day trial violates his constitutional rights to due process, equal protection, and effective assistance of counsel; (2) the negligence of the court reporter in failing to produce a complete trial transcript should be imputed to the Commonwealth, with the result that the defendant should receive a new trial; (3) the reconstructed trial record is not accurate or sufficient to enable the defendant to have a meaningful appeal; and (4) notwithstanding an inadequate record, the defendant is entitled to a new trial because of various violations of the first complaint doctrine. For the reasons that follow, we affirm.

Factual background. 1. Procedural history. The defendant was tried before a jury in the Superior Court from December 6–8, 2005, and sentenced on December 19, 2005.¹ The defendantfiled a timely notice of appeal on December 23, 2005, and ordered a transcript of the evidence on December 28, 2005.

Filing of the trial transcript was delayed, and the defendant moved for its production on multiple occasions between March, 2006, and October, 2007, but the court reporter was able to provide only portions of the transcript. It was not until June 24, 2007, eighteen months after he first ordered a transcript of his trial, that the defendant was informed that the testimony of the witnesses was not available. On October 21, 2008, the defendant filed a motion to recreate missing portions of the record in accordance with Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979).

Hearings on the reconstruction of the record took place on April 13, 2009, and May 18, 2009. The trial judge heard testimony from both attorneys and received numerous exhibits, including defense counsel's trial notes, the prosecutor's outline of opening statements, and her direct examination outlines and cross-examination notes for the three witnesses who testified. At the judge's request, the parties conferred and submitted documents containing areas of agreement and disagreement with regard to the contents of the record. The judge issued his reconstruction of the record on August 7, 2009.

2. Motion for a new trial. On July 22, 2010, nearly one year after the judge issued his reconstruction of the record, the defendant filed a motion for a new trial in which he asserted that he was entitled to a new trial due to the incomplete and inadequate record and the admission of evidence in violation of the doctrine of first complaint. The judge denied the motion without a hearing on August 2, 2010.

3. Undisputed record evidence. The parties do not dispute that the jury heard the following testimony from the Commonwealth's witnesses. We provide it in detail to give context to the claims of error asserted by the defendant.

As a young child, the victim was exposed at home to behavior by his mother involving nudity and sexual relations with other adults in his presence, and he was sexually assaulted by an older brother. The victim met the defendant, a United States Air Force recruiter, at the Air Force recruiting office in Brockton, where the victim accompanied his brother who was interested in joining the Air Force. The defendant befriended the victim and eventually brought him fishing, to the recruiting office, and to his home.

The defendant first sexually assaulted the victim when he was in the fifth or sixth grade and eleven or twelve years old. The pair were wrestling when the victim pulled down the defendant's sweat pants and exposed the defendant's genitalia. The victim performed oral sex on the defendant and the defendant did the same to him. The defendant and the victim saw each other thereafter three or four times each week. When the defendant moved to an apartment on Simmons Avenue in Brockton, he would drive the victim there. The defendant also told the victim to be quiet and not to tell anyone about their relationship because he (the defendant) would get into trouble.

The victim described several instances while he was visiting or sleeping over at the defendant's Brockton apartment where the defendant approached him, in the nude, and each performed oral sex on the other. Once, the defendant told the victim to stop because the defendant wanted to collect his ejaculate to use with his wife in trying to conceive a child. The victim also testified that the defendant tried to penetrate him anally but stopped when the victim said it hurt. The defendant and the victim also performed oral sex on each other at the Air Force recruiting office. The victim testified that the defendant had a circumcised penis and a mole or scar on his back. The defendant's abuse of the victim lasted for several years, until the defendant was transferred in 1989.

The circumstances of the victim's disclosure of the abuse and the steps taken to report it are discussed in detail in the next section.

4. Judge's reconstructed record. The judge determined that both parties' opening statements referred to the victim's childhood in a dysfunctional family. The prosecutor made specific reference to the victim's alcoholic mother, his physically abusive father, and his sexual abuse by an older brother. The judge also found that these details were elicited by the prosecutor in her direct examination of the victim and that it was “unlikely” that there were objections by the defendant, “[g]iven defense counsel's strategy of attempting to portray [the victim] as a product of a severely traumatic childhood and thus prone to fantasizing.”

The judge found that the victim had testified that he did not disclose his sexual abuse by the defendant until 2001, when the victim's second wife began to ask him about whether he “had a sexual fantasy.” The victim stated that he wanted to have sex with her and the defendant, as they were the two people he loved. Eventually, over time, after she pressed him for details about the relationship he had with the defendant, the victim disclosed to his wife the details of his abuse as a child by the defendant. The judge found that the defendant objected to the testimony “insofar as it involved a series of conversations over time.” The judge overruled the objection because even though the victim and his wife had multiple conversations about the defendant leading up to the disclosure of sexual abuse, “only one conversation about the sexual assaults was introduced on direct examination.” The judge also found that the victim had testified on direct examination that he reported the abuse by the defendant to Jim Corr of the United States Air Force and thereafter to the Brockton police. The judge concluded “with substantial certainty” that there was no objection to this testimony.² The judge rested his conclusion on the pretrial proceedings in which defense counsel focused on the then-recent decision in Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006), decided less than three months before the trial.³ The judge also determined that defense counsel cross-examined the victim about the various people he informed of the sexual assaults, including his wife, the prosecutor, a victim-witness advocate from the district attorney's office, Detective Cummings from the Brockton police department, and a prior assistant district attorney. Defense counsel also elicited the fact that the defendant and his wife met with Corr and Detective Cummings, and that the defendant had numerous conversations with Corr.

The judge determined that Detective Cummings had testified that on April 21, 2001, she received a telephone call from Corr informing her that the victim had reported a sexual assault committed by the defendant at the Air Force recruiting office in Brockton. The judge found that there had been no objection by the defendant to this testimony. The judge also found that Detective Cummings had testified that Corr faxed an initial report of the victim's allegation to her, telling her that “the Air Force was unable to prosecute these allegations” due to the statute of limitations. Detective Cummings was found to have testified that the victim and his wife gave statements about the alleged sexual assaults. The judge found that there had been no objection to this testimony.⁴ Detective Cummings also testified, without objection according to the judge, that she had confirmed the identity of the defendant, his residence at 49 Simmons Avenue at the relevant time, his employment as an Air Force recruiter (i.e., April, 1985 to April, 1989), his ownership of a Ford Pinto automobile at the time, and that he had been transferred in 1989 to Pease Air Force base in New Hampshire, and then to Japan. The judge found that the cross-examination of Detective Cummings focused on investigative steps that were not taken.

The judge found that the victim's wife...