Commonwealth v. Revells

• Decision Date: 28 December 2010
• Docket Number: No. 09–P–888.,09–P–888.
• Citation: 940 N.E.2d 481,78 Mass.App.Ct. 492
• Parties: COMMONWEALTHv.Paul REVELLS.
• Court: Appeals Court of Massachusetts

78 Mass.App.Ct. 492

940 N.E.2d 481

COMMONWEALTH

v.Paul REVELLS.

No. 09–P–888.

Appeals Court of Massachusetts, Berkshire.

Argued Oct. 13, 2010.Decided Dec. 28, 2010.

Derege B. Demissie, Cambridge, for the defendant.Karen L. Carlo, Assistant District Attorney, for the Commonwealth.Present: KANTROWITZ, KAFKER, & WOLOHOJIAN, JJ.

KAFKER, J.

The defendant, Paul Revells, was convicted of four counts of rape of a child with force, G.L. c. 265, § 22A, after a jury trial in the Superior Court Department. He subsequently filed a motion for a new trial. On appeal from his convictions and from the denial of his motion for a new trial, he primarily claims error in the admission of testimony under the first complaint doctrine. We affirm.

Background. We relate the testimony presented at trial as it pertains to the issue of the first complaint doctrine. The victim testified as the Commonwealth's first witness.¹ She provided a detailed description of the defendant's rapes and sexual abuse of her over a number of years. At the end of direct examination, the victim was asked: “Did you tell the doctor what the Defendant had been doing to you?” The victim replied, “yes.” Next, the victim was asked: “Before you went to the doctor, did you explain to the police what the Defendant had been doing to you?” The victim replied, “yes.” Lastly, the victim was asked: “Did you tell the police essentially everything that you told the jury here today?” The victim replied, “yes.”

At trial, the mother, who testified as the first complaint witness, stated that on August 23, 2007, the victim made her first disclosure that the defendant had sexually abused her over five years, beginning at age nine. The defendant was the mother's boy friend. As the victim attempted to disclose what had occurred, she began stuttering and was unable to continue. The mother testified that she then asked the victim to write down what she was trying to say. While the victim was writing the mother a letter, the defendant knocked on the door and asked to come inside. Although the victim asked her mother to refuse to let the defendant inside, the mother allowed the defendant to come in for a short time. Upon the defendant leaving the home, the mother read her daughter's letter. The mother testified that in the letter, the victim reported that the defendant “had started hurting her when she was nine, that he would sneak into her bedroom while I was sleeping and he would hurt her repeatedly.” The mother further explained that according to the letter, the defendant was hurting her “sexually.” The letter also stated that the defendant had threatened to kill the other members of the family if the victim told anyone. The mother also testified that the letter concluded by stating the victim was scared to tell anyone because she knew her mother was in financial trouble and might not be able to deal with the information, but could no longer stay quiet and knew the mother could now help her, because the victim had seen the mother “wrestling with [the defendant].”

After reading the letter, the victim's mother went to the defendant's home and confronted him with the letter. The defendant denied the allegations contained in the letter, and the two returned to the mother's house to confront the victim. The mother testified that the victim became upset and ran upstairs. Following this confrontation, the mother testified that she had not seen the letter since it was in the defendant's possession. The defendant testified that although he placed the letter on a shelf at the mother's home, no one had seen the letter afterwards.

First complaint. The defendant argues that the judge committed reversible error in admitting testimony in violation of the first complaint doctrine. More specifically, the defendant, relying on Commonwealth v. Stuckich, 450 Mass. 449, 879 N.E.2d 105 (2008), claims reversal is required because (1) the letter itself is the first complaint and therefore the mother's testimony should not have been admitted; (2) the trial judge failed to hold a voir dire hearing to determine who, or what, comprised the first complaint; and (3) the trial judge erred in allowing the victim to testify that she told multiple people about the allegations.

When the Commonwealth proposed the mother as the first complaint witness in its motion to admit first complaint testimony that the judge considered before the commencement of trial, defense counsel made what he referred to as an “academic objection.” He argued that the letter was the first complaint but “[u]nfortunately ... the letter disappeared.” He also stated that he was “satisfied that [the prosecutor] has made reasonable efforts to [find the letter].” Nonetheless before trial he continued to object to the mother's testimony on the issue of best evidence. The prosecutor stated that “[the mother's] testimony simply would be that she saw the letter and in that letter it indicated that her daughter had been abused by the defendant over the past several years ... and that he threatened, if she told, to hurt her family.” Defense counsel then appeared to withdraw his objection saying: “That would address my only real concern.” No objections were raised once the trial began.²

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), the Supreme Judicial Court moved from a fresh complaint to a first complaint doctrine. The court determined: “It is the alleged victim's first complaint, the point at which the accusation first surfaced, that is the most pertinent to the jury's understanding of what motivated the victim to come forward and is the most useful in assessing the victim's credibility (including assessing any specific defense theories attacking that credibility).” Id. at 243, 834 N.E.2d 1175. Therefore, the court limited first complaint “testimony to that of one witness—the first person told of the assault.” Ibid. In so holding, the court further explained that “[t]he testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime.” Ibid.

As part of its concentration of attention on the first complaint, the court later stated that the “complainant, as well as the first complaint witness, may testify as to the details of the complaint itself and why the complaint was made at that particular time.” Commonwealth v. McCoy, 456 Mass. 838, 845, 926 N.E.2d 1143 (2010). The first complaint witness may testify as to “his or her observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant's allegations or assess the specific defense theories as to why the complainant is making a false allegation.” King, supra at 246, 834 N.E.2d 1175.

With these principles in mind, we discern no error in allowing the mother's testimony in the instant case. There was no question that she was the first complaint witness. Her complete description of the victim's report to her also allowed a fuller assessment of the victim's veracity. The defendant nonetheless argues that Stuckich allows only the introduction of the letter the victim wrote, not the mother's testimony. Stuckich, however, is readily distinguishable.

In Stuckich, the complainant sent a letter to her school guidance counselor, who was presented as the first complaint witness at trial, alleging that she had been sexually assaulted. The letter stated that she had recently told her mother about the abuse and that the mother had reported the disclosure to her daughter's therapist. Later communication from the complainant put into question whether her mother had been told before the letter was sent to the guidance counselor. As a result, there was a difficult, unresolved issue about who the first complaint witness was, thereby requiring a voir dire. As a consequence, the convictions had to be reversed. Stuckich, supra at 455–456, 879 N.E.2d 105. Here, there is no such factual dispute and no need for a voir dire to resolve who the first complaint witness was.

The court in Stuckich did, however, state that “[i]f, in fact, the letter was the first complaint, that is the end of the matter. The letter would be the first complaint evidence and the further disclosures are not admissible as first complaint evidence.” Stuckich, supra at 456, 879 N.E.2d 105. In the instant case, the letter was not a separate complaint, such as a letter written on one day and discussed on another. Rather, the victim's first complaint to her mother consisted of a single, tightly intertwined oral and written communication. The letter was written at the mother's request after the victim was initially unable to verbally articulate her complaint. As soon as it was written, it was given to the mother. There was no meaningful gap in time between the written and oral aspects of the communication of the complaint. Consequently, the entire communication to the mother was the first complaint and was properly admitted “to give the jury as complete a picture as possible of how the accusation of sexual assault first arose.” King, supra at 247, 834 N.E.2d 1175.

We next address the defendant's contention that the mother should not have been allowed to testify about the letter itself, because such testimony violated the best evidence rule. “The best evidence rule provides that, where the contents of a document are to be proved, [a] party must either produce the original [document] or show a sufficient excuse for its nonproduction.” Commonwealth v. Ocasio, 434 Mass. 1, 6, 746 N.E.2d 469 (2001) quoting from Liacos, Massachusetts Evidence 746 (7th ed. 1999). See Mass. G. Evid. § 1002 (2010 ed.)....