Commonwealth v. Geoghan, 991143;001002

• Decision Date: 07 March 2002
• Docket Number: 991143;001002
• Citation: 2002 MBAR 029
• Parties: Commonwealth v. John Geoghan
• Court: Massachusetts Superior Court

2002-MBAR-029

Commonwealth v. John Geoghan

No. 991143;001002

Superior Court of Massachusetts

March 7, 2002

Mass L. Rptr. Cite: 14 Mass. L. Rptr. 331

Venue Superior Court, Suffolk, SS

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): HINKLE

In this case, defendant John Geoghan has been indicted on two charges of rape of a child in violation of G.L.c. 265, 23. Both indictments allege that the defendant committed unnatural sexual intercourse and abuse on Anthony Donovan. The Commonwealth's theory of prosecution is that the defendant engaged in oral sex with the complainant.1

Now before the Court is the defendant's motion to dismiss the indictments on the ground that they are time-barred by the applicable statute of limitations.2 The defendant argues that the indictments were untimely as of May 22, 1996. After an evidentiary hearing conducted on February 27 and March 1 2002, which included testimony from nine witnesses and introduction of five exhibits, I make the following findings of fact and rulings of law.

FINDINGS OF FACT

1. The Grand Jury indicted defendant on these crimes on December 2 1999. The indictments allege that the rapes occurred "between December 16, 1980 and December 16, 1984."3

2. Anthony Donovan ("Donovan"), the alleged victim, was born on December 16, 1974. His mother is Barbara Boyd ("Boyd").

3. During the period encompassed by the indictments, Boyd and her son were acquainted with the defendant through Boyd's companion, John Stevens.

4. During their acquaintance, the defendant, with Boyd's permission, took Donovan on outings which included trips for ice cream and swimming. Boyd also gave the defendant permission on one occasion to take her son to the defendant's mother's house.

5. At times defendant visited Donovan's home around the time Donovan went to bed, and he then spent time with Donovan in his bedroom with the lights out.

6. At some time before November 1984, Boyd questioned the defendant about his repeated arrival at their home at her son's bedtime. After Boyd raised the issue, the defendant stopped seeing Donovan.

7. In November 1984, when Donovan was nine years old, he began counseling at West-Ros Park Mental Health Center with Judith Israel ("Israel"), a psychiatric nurse and psychologist. The primary reason for the therapy was that Donovan had sexually fondled his younger brother and had placed his mouth on his brother's penis. Donovan had other behavioral problems which were also addressed in therapy.

8. At the time Boyd sought counseling for her son, Boyd told Israel that she suspected that her son had been sexually abused by the defendant. Boyd was also in therapy with Israel at this time.

9. On a date shortly before February 7, 1986, Boyd questioned her son about problems he was experiencing, including depression and suicidal tendencies. In response to his mother's questions, Donovan told his mother that the defendant had "touched him between the legs." Boyd is unable to recall the exact words that her son used or the details he reported to her. Donovan was 11 years old at this time.

10. On February 7, 1986, Boyd told Israel about her son's accusations. At his next regular therapy session on February 10, 1986, Donovan acknowledged to Israel that he had told his mother about having been sexually abused by the defendant, but Donovan did not provide details to Israel about the nature of the abuse.

11. On February 12, 1986, Boyd and Israel together phoned the Department of Social Services ("DSS") hotline to report Donovan's allegations of sexual abuse by the defendant. Boyd told DSS that her son had told her that the defendant had touched him "more than once" between the legs; that the first time he did so, defendant told Donovan that he was showing him how body parts worked; that Donovan had refused the defendant's overtures on occasion, but defendant told Donovan to be quiet and continued his abuse; and that the defendant had asked Donovan to touch him, but Donovan had refused. Later that same day, Israel sent a written report to DSS memorializing the disclosure. Israel stated in her report: "Anthony Donovan was sexually fondled by Father Gaghan (sic) over an extended period of time. This took place when Father would visit Anthony after Anthony was in bed at night. Anthony reported this to his mother who in turn called me. Anthony acknowledges this happening but won't talk to me about it..."

12. DSS screened in Israel's written report and assigned the matter to social worker Thomas Caggiano ("Caggiano") for investigation. On or about February 18, 1986, Caggiano interviewed Donovan and Boyd at their home. According to Caggiano, Donovan reported to him that the defendant had touched him repeatedly between the legs, including the area of his penis. Donovan does not today recall his interview with Caggiano.

13. During his investigation of Donovan's allegations, Caggiano interviewed the defendant, who denied touching Donovan sexually but acknowledged being naked with Donovan in the shower and soaping him down and acknowledged taking Donovan swimming 6-12 times over a 2-3 year period.

14. On February 19, 1986, Caggiano substantiated the report of sexual abuse by defendant and stated in writing his reasons for doing so:

(1) The 11-year-old child told worker that Father John Gaughan (sic) touched him on the penis between 10 and 20 times. The incidents reportedly occurred when Father Gaughan and the child were in the shower and in the child's bedroom.

Mother reported that the child exhibited inappropriate sexual behavior by engaging in oral sex with his younger brother. She also reported that the child was depressed and withdrawn during the past few months. These behaviors indicate the possibility of the child having been sexually abused.

The child's therapist, Judy Israel, stated that she believes some type of sexual abuse did occur because of the child's sexual behavior...

15. On February 21, 1986, Caggiano initiated a referral to the District Attorney's Office. He sent the referral form to the Boston/Brighton regional DSS office on February 25, 1986. Caggiano stated in the referral form: "The child reported that his penis was touched by Father John Gaughan (sic) while in the shower together and while in the child's bedroom. The child reported Father Gaughan did this 10-20 times." Caggiano did not check the portion of the form indicating an allegation of rape. The investigation form and the DSS reports under 51A and 51B of G.L.c. 119 were then reviewed and mailed by Donna Makin, the Regional Director of DSS, to the District Attorney's office. There, Michele Petruzelli, a victim witness advocate, reviewed the DSS referral and created a case file on March 4, 1986.

16. This file, numbered 688D, formally began an investigation by the District Attorney of Donovan's allegations of sexual abuse by the defendant. Unfortunately, although the file jacket exists today, its contents are missing, and the Assistant District Attorney who handled the investigation in 1986, Louis M. Nordlinger, is now deceased.

17. The DSS report to the District Attorney's office is the first "report" to law enforcement of the defendant's sexual abuse of Donovan. March 4, 1986, the date of its receipt in the District Attorney's office, is the day the limitations period begins to run in this case.

18. At an uncertain date in the spring of 1986, but during weather she now recalls as "warm," Boyd accompanied her two sons and Stevens to the police station in Brighton to report the defendant's abuse of Donovan. Boyd does not now recall the details of what she reported.

19. Donovan recalls that when he told his mother in February 1986 that he had been sexually abused, he told her "everything," including that the defendant had performed oral sex upon him. He also recalls that he provided this information to the District Attorney's Office around the same time.

20. In 1986, Boston Police Department Superintendent Margaret O'Malley4 and Lieutenant Detective Edward Simmons interviewed Donovan at his home about the defendant's alleged abuse. Unfortunately, no contemporaneous report of their interview exists.

21. Neither Superintendent O'Malley nor Detective Simmons remembers the specific acts that Donovan described to them in 1986, although Superintendent O'Malley's present recollection is that Donovan only mentioned being touched on the buttocks by the defendant.

22. Superintendent O'Malley had a telephone interview with the defendant in 1986. The defendant admitted tucking Donovan in at bedtime but denied any improper touching. The police department records of this interview are missing.

23. After conducting its 1986 investigation, the District Attorney's office decided against prosecuting the defendant based upon Boyd's belief that her son was not emotionally able to testify. Around this time, the District Attorney's office sent a "no prosecution" letter to Boyd. The decision not to prosecute was not based on any analysis of the nature of the crimes alleged.

24. On the basis of the credible evidence before me, the Commonwealth has not proven beyond a reasonable doubt that in 1986 Anthony Donovan did not report that defendant had oral sex with him to the police and/or the District Attorney's office.

25. In 1989, another complainant alleged sexual abuse by the defendant. On the basis of the 1986 reports, a representative of the office of the District Attorney again contacted Donovan and Boyd. At that time, the District Attorney's office had received no new information about the Donovan matter, and the defendant had no contact with Donovan since before the 1986 investigation. Superintendent O'Malley was involved in the renewed investigation because she had handled the...