Commonwealth v. Haggett

• Decision Date: 29 March 2011
• Docket Number: No. 09–P–2271.,09–P–2271.
• Citation: 944 N.E.2d 601,79 Mass.App.Ct. 167
• Parties: COMMONWEALTHv.Steven HAGGETT.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 167

944 N.E.2d 601

COMMONWEALTH

v.Steven HAGGETT.

No. 09–P–2271.

Appeals Court of Massachusetts, Plymouth.

Argued Nov. 12, 2010.Decided March 29, 2011.

Daniel N. Marx, Boston, for the defendant.Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.Present: McHUGH, SIKORA, & FECTEAU, JJ.FECTEAU, J.

The defendant appeals from a Superior Court jury conviction of rape of child with force and indecent assault and battery on a person under the age of fourteen years. He complains of multiple errors in connection with the admission of testimony from the complainant and a guidance counsellor in violation of the first complaint doctrine of 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). Specifically, the defendant contends that the judge committed prejudicial error when the complainant was allowed to testify, over objection, that she had reported to both her teacher and her guidance counsellor being sexually assaulted by the defendant, notwithstanding that neither of these reports were her first complaint and that the Commonwealth called neither person to testify. Second, the defendant contends that the judge committed prejudicial error when she refused to instruct the jury on the nature and purpose of this “first complaint” evidence. Lastly, the defendant contends that there was a substantial risk of a miscarriage of justice when the complainant's guidance counsellor was permitted to testify, on cross-examination during the defendant's case, about the complainant's report to her, and that the counsellor reported the complainant's accusation to her parents, filed a G.L. c. 119, § 51A report (§ 51A report) with the Department of Social Services (department),¹ and assisted the complainant in reporting the event to the police. We reverse.

Background. During the trial in July, 2009, the Commonwealth called only one witness to testify during its case in chief, the complainant, whom we shall refer to as Sarah.² On direct examination, Sarah testified that the defendant, her mother's then boyfriend, lived with her and her mother from 2001 to 2003. Sarah, born on June 4, 1992, testified that on January 16, 2002, the defendant inappropriately touched her. On the previous day she, her mother, and the defendant were involved in a car accident. On January 16, Sarah had stayed home from school because she was still shaken up from the accident, her mother had gone to work, and the defendant had stayed at home with Sarah. Sarah testified that the defendant lay down next to her on the couch while she was watching television. At some point, the defendant placed his hand on her thigh, gradually moved his hand inside her pajama pants, and then put his hand inside her underwear. The defendant touched her buttocks and penetrated her vagina with his fingers. While this happened, the telephone rang and the defendant stopped to answer the telephone. Right after he answered the telephone, the defendant put the telephone up against his shirt and told Sarah, “This never happened.” Sarah did not talk to the defendant about what happened, nor did she discuss the defendant's abuse with her mother when her mother returned from work that day.³

In April of 2008, during her sophomore year in high school, Sarah attended a series of antiviolence lectures, including a sexual abuse and rape lecture given by a South Shore Hospital emergency room nurse. When Sarah heard the nurse lecture about the importance of reporting sexual abuse, she decided to speak to her guidance counsellor, Susan LeMay. Unable to locate LeMay, Sarah left her a note and went to speak with her English teacher, Helen Galambos. ⁴ Over the defendant's objection, Sarah testified that she told Galambos something had happened to her but did not go into “big detail.” Again over the defendant's objection, Sarah testified that the next morning she explained “in detail” to LeMay that she “had been sexually assaulted by one of [her] mom's former ex-boyfriends.” ⁵ LeMay called the police and helped Sarah through the process of telling the police. Sarah was not asked, on direct or cross-examination, about any statements she may have given to the police.

Defense counsel's cross-examination of Sarah focused on alleged inconsistencies in her prior statements. Defense counsel asked Sarah about inconsistent statements she had made regarding who she had told first about the alleged sexual assault. Sarah testified that when she was thirteen years old she attempted to tell her mother about the abuse by the defendant, but was unable to do so. Defense counsel then elicited testimony that during a Sexual Abuse Intervention Network (SAIN) interview in April, 2008, Sarah reported that she had told her mother that something happened between herself and the defendant, saying only that “stuff” happened. Sarah also testified on cross-examination that she had told her boyfriend about the alleged abuse a few months before telling her teachers, but she did not testify as to what details she told him.⁶

Defense counsel also explored inconsistencies with what Sarah had testified to on direct examination and what she had reported during the SAIN interview. During the SAIN interview, Sarah reported that she did not remember what she had been wearing the day of the alleged sexual assault; she reported that after the defendant had picked up the telephone, he had continued touching her; and she did not report that the defendant had touched her buttocks. Finally, Sarah testified on cross-examination that when she spoke with LeMay, she told her of her previous attempt to report the sexual assault to her mother. Defense counsel asked nothing more about her discussion with LeMay. ⁷

The defendant called three witnesses during his case: Sarah's mother, LeMay, and the defendant. Most relevant to this appeal is LeMay's testimony. During LeMay's direct examination, defense counsel primarily inquired about Sarah having previously told her mother about the defendant's alleged sexual assault. On cross-examination, the prosecutor elicited, without objection, testimony about the crisis intervention LeMay provided to Sarah. Specifically, LeMay testified that she filed a § 51A report with the department, informed Sarah's parents of the allegations and the § 51A report, and had Sarah speak to the police.

Discussion. 1. Preserved error. The defendant first contends that Sarah's testimony about how she reported the alleged sexual assault to her teachers and what she reported violated the first complaint rule. The defendant objected to this line of questioning. Further, the defendant requested an instruction on first complaint evidence, which the judge denied. Thus, we review these preserved claims for prejudicial error, which involves a two-part analysis: “(1) was there error; and (2) if so, was that error prejudicial. An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect’; however, if we cannot find ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,’ then it is prejudicial.” Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994).

The Commonwealth correctly conceded at oral argument that error occurred when Sarah testified on direct examination that she told Galambos and LeMay of being sexually assaulted by the defendant. In fact, it was error to allow this testimony for two distinct reasons, both of which violate the first complaint doctrine. First, because the Commonwealth chose not to present a first complaint witness, Sarah's testimony recounting her reporting to Galambos and LeMay about the sexual assault was inadmissible. See Commonwealth v. King, 445 Mass. at 245 n. 24, 834 N.E.2d 1175 (“The complainant may testify in this manner only if a first complaint witness or a ‘substitute’ complaint witness ... is produced at trial who testifies regarding the complaint. Otherwise, the complainant may not testify to the fact of the complaint or its details unless the witness to the complaint is deceased or the judge determines that there is some other compelling reason for the witness's absence that is not the fault of the Commonwealth”).

Second, this testimony was inadmissible because it became evident during Sarah's testimony on cross-examination that her report to LeMay was not her first complaint. On cross-examination, Sarah read into the record her SAIN interview responses in which she stated that closer in time to the sexual assault, she told her mother “something happened” between her and the defendant. Later during her cross-examination, Sarah admitted to having told her boyfriend about the sexual assault prior to reporting it to her teachers. Nonetheless, when this became apparent during Sarah's cross-examination, the judge declined the defendant's motion to strike the evidence of Sarah reporting the alleged sexual assault to LeMay and Galambos. If, as it appears, Sarah's report to LeMay was not her first report, her testimony regarding that report constituted inadmissible hearsay and was erroneously admitted.⁸

Although the judge recognized this testimony as first complaint evidence (see note 5, supra ), she refused the defendant's request for appropriate jury instructions because no first complaint witness testified. ⁹ Upon the admission of such evidence, the judge's refusal to instruct the jury as to the appropriate use of such evidence was error. “As is the current practice, these instructions should be given to the jury contemporaneously with the first complaint testimony, and again during the final instructions.” Id. at 248, 834 N.E.2d 1175, citing Commonwealth v. Licata, 412 Mass. 654, 660, 591 N.E.2d 672 (1992).

The defendant was prejudiced...