Commonwealth v. Parent

• Decision Date: 10 June 2013
• Docket Number: SJC–11181.
• Citation: 465 Mass. 395,989 N.E.2d 426
• Parties: COMMONWEALTH v. John PARENT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 395

989 N.E.2d 426

COMMONWEALTH

v.John PARENT.

SJC–11181.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 2013.

Decided June 10, 2013.

Michael Tumposky for the defendant.

Anne Pogue Donohue, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

A Superior Court jury convicted the defendant, John Parent, on three indictments: the first alleged indecent assault and battery on a fourteen year old friend of his daughter (victim) in violation of G.L. c. 265, § 13H; and the latter two alleged that he contributed to the delinquency of a child, in violation of G.L. c. 119, § 63. The second indictment rested solely on the theory that the defendant violated G.L. c. 138, § 34, by delivering, procuring, and furnishing alcohol to the victim; and the third rested solely on the defendant's delivery of alcohol to his own fifteen year old daughter. On appeal, the defendant claims that the trial judge erred by (1) barring defense counsel from eliciting from a police detective certain statements made by the victim in an interview conducted four days after the indecent assault and battery that were inconsistent with the victim's trial testimony; (2) allowing “second complaint” testimony to be admitted at trial; (3) limiting inquiry into matters that the defendant contends would have revealed a motive for the victim to fabricate her allegations; and (4) denying the defendant's motion for a required finding of not guilty on the indictment alleging that he had delivered alcohol to his own daughter. The defendant also argues that his counsel was ineffective because he declared in his opening statement that he would prove certain facts and asserted in his closing argument that he had proved those facts, thereby suggesting that the defendant had accepted some burden of proof.

We conclude that the judge erred in preventing the jury from learning that the victim made statements to a police detective regarding the alleged sexual assault and her first complaint that were inconsistent with the victim's testimony at trial. Where the Commonwealth's case regarding the sexual assault rested entirely on the victim's credibility, we conclude that such an error is prejudicial and requires a new trial as to that indictment. We also conclude that the defendant's conviction resting on his delivery of alcohol to his daughter must be reversed and a judgment of acquittal entered, because the Legislature did not intend G.L. c. 138, § 34, to prohibit the delivery of alcohol by a parent to his or her minor children. We affirm the conviction of furnishing, procuring, and delivering alcohol to the victim, because we conclude that the defendant was not denied the effective assistance of counsel.¹

Background. We recite the facts a jury could have found, reserving additional facts for the discussion of specific issues raised on appeal. The defendant's fifteen year old daughter, Sally, invited her fourteenyear old friend Maxine,² the victim, to sleep over at her father's house.³ On March 21, 2008, Maxine arrived at the defendant's home with a water bottle containing vodka that she had taken from her parents' liquor cabinet.

Sally asked her father for a bottle of “hard lemonade,” an alcoholic, lemon-flavored malt beverage, and the defendant gave a bottle to each of the girls. After the girls had each consumed the hard lemonade, the defendant asked them if they wanted to go with him to a local convenience store to purchase more alcohol. At the convenience store, the defendant bought two six-packs of hard lemonade. The store clerk testified that the defendant came into the store with two girls and that the defendant introduced one of the girls as his daughter. After purchasing the alcohol, the defendant and the two girls returned to the defendant's home, and the defendant then gave the girls one of the six-packs of the hard lemonade. The girls took the six-pack to a bedroom located in the refinished basement of defendant's house,⁴ and each consumed three bottles. After finishing the third bottle at approximately 10:30 or 11 p.m., Maxine testified that she felt “tipsy.”

Maxine also testified that the defendant appeared “tipsy” when he spoke to them from the doorway of Sally's bedroom about twenty minutes after they had gone down to the basement. The girls spoke with friends on their cellular telephones until after midnight, at which point the defendant and his fiancée ⁵came down to the bedroom and told the girls to go to bed. The defendant's fiancée confiscated the girls' cellular telephones, but the girls were allowed to keep the telephones' batteries. The girls then both fell asleep on a sofa bed while watching television.

Maxine testified that she awoke suddenly to find the defendant on the sofa bed, between her and Sally, saying her name, although mispronouncing it. According to her testimony, she felt the defendant's hand under her pajama pants rubbing her vagina over her underwear. Maxine pulled the defendant's hand out of her pajamas and pulled the covers up. After the defendant tugged at the covers and called Maxine a “party pooper,” he turned off the television and went back upstairs. Maxine then fell back to sleep.

The following morning, after Sally and Maxine woke up and recovered their cellular telephones, the defendant's fiancée took Sally, Maxine, and Sally's younger sister to a shopping mall to see a movie. While at the mall, Maxine saw a friend, Annette,⁶ who testified that Maxine told her that the defendant had lain on the bed with them while “they were trying to sleep” and “his hand [had been] in [Maxine's] pants.” ⁷

Sally testified that her father gave her and Maxine each a bottle of hard lemonade before going to the store, and that he purchased three six-packs of hard lemonade at the store and gave them two of the six-packs.⁸ She observed that her father was “getting more and more intoxicated” throughout the night. Sally further testified that she did not see, hear, or feel her father get on the sofa bed, even though she was sleeping only eighteen inches away from Maxine in the sofa bed.

Discussion. 1. Impeachment by prior inconsistent statement. The only evidence of the indecent touching derived from Maxine, and was presented to the jury through Maxine's testimony and the first complaint testimony of Annette. Defense counsel argued that Maxine was not credible and that the alleged sexual assault was a fabrication. In his opening statement, defense counsel told the jury that they would learn that the details surrounding Maxine's story changed over time, and he specifically referred to Maxine's interview with Detective Scott Chaulk as the source of some of those inconsistencies.

According to Detective Chaulk's incident report, Maxine told him on March 26, 2008, four days after the events at issue, of the sexual assault committed against her by the defendant. However, some of the information she provided to Detective Chaulk differed from what she said in her trial testimony. She told Detective Chaulk that, when the defendant lay down between Sally and her, Sally told him to leave them alone, but at trial she testified that she did not hear Sally say anything. She told Detective Chaulk that the defendant touched, but did not penetrate, her vagina, but at trial she testified that he rubbed her vagina over her underwear, and specifically denied telling Detective Chaulk that the defendant had touched her vagina. She told Detective Chaulk that she told someone about the incident on the following Monday at cheerleading practice, but at trial she testified that she told Annette on Saturday at the mall.

In his cross-examination of Maxine, defense counsel attempted to elicit these inconsistencies from her, but Maxine either denied making the inconsistent statements to Detective Chaulk or claimed that she did not remember making them, even after defense counsel attempted to refresh her memory with Detective Chaulk's report. When Detective Chaulk testified, defense counsel on cross-examination attempted to elicit Maxine's inconsistent statements from him. The judge sustained the prosecutor's objection to this line of questioning, ruling that the statements Maxine made to Detective Chaulk were not inconsistent because she did not remember making them. We review this evidentiary ruling for prejudicial error. See Commonwealth v. Hesketh, 386 Mass. 153, 160, 434 N.E.2d 1238 (1982).

The defendant argues on appeal that the judge erred by limiting his ability to impeach Maxine's credibility by eliciting from Detective Chaulk her earlier inconsistent statements. We agree. “The rule of evidence is well settled that if a witness either upon his direct or cross-examination testifies to a fact which is relevant to the issue on trial the adverse party, for the purpose of impeaching his testimony, may show that the witness has made previous inconsistent or conflicting statements, either by eliciting such statements upon cross-examination of the witness himself, or proving them by other witnesses.” Robinson v. Old Colony St. Ry., 189 Mass. 594, 596, 76 N.E. 190 (1905). See Commonwealth v. Basch, 386 Mass. 620, 623, 437 N.E.2d 200 (1982) (“A party has a right to impeach [a] witness's testimony by means of prior inconsistent statements, and though a judge may limit that impeachment when the testimony concerns collateral issues in the case, [the judge] has no discretion to do so when the issue is material”). See generally Mass. G. Evid. § 613(a) & note (2013) (extrinsic evidence of prior inconsistent statement by witness called by adverse party admissible for impeachment purposes). To be used for impeachment, it is not necessary that the witness's “prior statement be a complete, categorical, or explicit contradiction of his trial testimony.” M.S. Brodin & M. Avery, Massachusetts Evidence § 6.13.2(b), at 321 (8th ed. 2007). See Commonwealth v....