Commonwealth v. Sineiro

• Decision Date: 06 October 2000
• Citation: 432 Mass. 735,740 NE 2d 602
• Parties: COMMONWEALTH v. DANIEL SINEIRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 735

740 NE 2d 602

COMMONWEALTH v. DANIEL SINEIRO.

Supreme Judicial Court of Massachusetts, Bristol.

October 6, 2000.

December 1, 2000.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Brian J. Kelly for the defendant.

David Keighley, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

A jury in the Superior Court found the defendant guilty on two indictments charging rape of a child, G. L. c. 265, § 23, and on one indictment charging indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B. The victims were his minor daughters, Mary and Jane (pseudonyms). We transferred the case here on our own motion. We reject the defendant's arguments that (1) the indictments should have been dismissed because of lack of specificity as to the dates and times of the alleged crimes; (2) he was entitled to a required finding of not guilty on the charge that he had indecently assaulted Mary; and (3) the judge improperly admitted in evidence at trial, for substantive purposes, Jane's testimony at the probable cause hearing.

The jury could have found the following facts. One afternoon in the summer of 1986, Mary, who was then in the third grade, was at home playing with her brother, when her father, the defendant, called her into his bedroom. There, the defendant told her to take off her pants. She lay on her back on her parents' bed. The defendant took off his pants, lay down on top of Mary, and "put his penis into [her] vagina." Mary tried to move away, but the defendant pulled her back. When the defendant had finished raping Mary, he told her not to tell anyone what had happened. Mary's mother was not home at the time.¹

On another occasion, the defendant called both Jane and Mary into his bedroom. The defendant told the girls to take off their clothes and lie down on the bed. The defendant took off his pants, kissed Jane on the lips and proceeded to have sexual intercourse with Jane. Jane stated that it hurt, that she was crying, and that, when the defendant stopped having sexual intercourse with her, "[h]e did it to my sister [Mary]." Mary lay naked on the bed on her stomach, while her father lay on top of her and anally raped her.

When Jane was about ten years old, she was sleeping in her bedroom when the defendant awakened her. The defendant wore a shirt but no pants. He proceeded to engage in sexual intercourse with Jane, while she lay naked on the floor. He stopped when the girls' mother unexpectedly walked into the room. She asked the defendant, "How can you do this?," and sent Jane to her (the mother's) bedroom. The next morning, the defendant told Jane that he was sorry.

Occasionally, after supper, Mary would sit on the defendant's lap, in the presence of her mother and her sister, while the defendant rubbed her arms and touched her breasts. Mary and Jane once confronted their mother with the fact that their father had engaged in sexual intercourse with them. At first the mother did not believe her daughters. Then she grew upset and cried. Finally, after becoming sick in the bathroom, the girls' mother asked them "[i]f [they] liked it."

In April of 1995, Mary spoke with a counselor at her high school about her father's behavior. The Department of Social Services became involved with the family, and, shortly thereafter, both girls moved out of their home.² When Jane visited her parents' home in late summer or early fall of 1995, the defendant admitted to Jane that he had had sexual intercourse with her, and told her that he was sorry.

1. The indictments concerning Mary alleged that the defendant sexually assaulted her "on divers dates and at divers times" between August 29, 1986, and August 29, 1992. The indictments concerning Jane made similar allegations for the period between November 25, 1983, and November 25, 1988. The defendant's motion to dismiss the indictments was denied. He argues that the lack of specific dates and times in the indictments, combined with the denial of his request for a bill of particulars and the alleged lack of credibility of the victims, encumbered his defense to the extent that his rights of due process were violated.

The precise dates and times of the assaults are not elements of the crimes charged. Commonwealth v. Kirkpatrick, 423 Mass. 436, 439-440, cert. denied, 519 U.S. 1015 (1996). The question whether an indictment has sufficient specificity to allow a defendant to prepare an adequate defense is decided on a case by case basis. Commonwealth v. Montanino, 409 Mass. 500, 512 (1991). Here, the defendant was furnished with copies of police reports and grand jury minutes. The case was the subject of a probable cause hearing in the District Court, at which both victims testified and were subjected to lengthy cross-examination by the defendant's counsel. The defendant does not claim that the Commonwealth withheld any material information from him. His defense at trial was that the crimes had never occurred; that his daughters had lied to escape parental supervision; and that Mary was particularly untrustworthy because she suffered from mental illness and had a problem with drugs and alcohol. The defendant does not assert that he would have conducted his defense any differently had the indictments been more precise as to dates and times. See Commonwealth v. Kirkpatrick, supra at 442; Commonwealth v. Conefrey, 420 Mass. 508, 511 n.6 (1995); Commonwealth v. Swain, 36 Mass. App. Ct. 433, 435 (1994). The claimed lack of precision in the indictments did not bear on the central question before the jury concerning the credibility of the victims.³ The motion to dismiss was properly denied.

2. To prove that the defendant had committed indecent assault and battery on Mary, the prosecutor elicited testimony from her that her father had indecently rubbed her breasts. At one point, in her direct examination, Mary testified that the rubbing consisted of her breasts being "[a]ccidentally touched." The defendant focuses on this testimony and argues that his motion for a required finding of not guilty on the indecent assault and battery charge on which he was convicted should have been allowed because the Commonwealth's evidence was insufficient to warrant a finding by the jury that the touchings were intentional.

The motion for a required finding of not guilty was properly denied. After the reference to an accidental touching, Mary clarified her testimony. She indicated (as the jury could have found) that the defendant had inappropriately rubbed her breasts at times, as distinguished from inappropriately squeezing or fondling them, and that he had engaged in the indecent conduct while her mother and sister watched him. In addition, Jane's testimony at the probable cause hearing, as shall be discussed next in this opinion, properly was admitted as substantive evidence. Jane told the jury that the defendant "touched [Mary] a lot," and that she (Jane) saw the defendant touch Mary's breasts, in the presence of their mother. Mary's testimony, considered as a whole, and supported by Jane's testimony, was sufficient to warrant a finding by the jury that the defendant's conduct in touching Mary's breasts was an indecent and intentional act. See Koonce v. Commonwealth, 412 Mass. 71, 75 (1992).

3. We now come to the principal issue in this case concerning the admission of Jane's probable cause testimony as substantive evidence. The issue arose in the following manner. In October of 1995, both Mary and Jane testified to the defendant's sexual assaults on them at a probable cause hearing in the District Court. Subsequently, in April of 1996, Jane signed an affidavit, in which she indicated that her allegations of the defendant's sexual assaults on her were false, and that she had made the earlier statements in order to help her sister, who "was having problems with my parents." Several months later, Mary also signed an affidavit, in which she too indicated that the allegations against the defendant were untrue, and that she had made them up because of her problems with addiction and mental illness.

In light of these affidavits, and at the request of the prosecutor, the judge held an evidentiary voir dire hearing to determine whether the testimony of Mary and Jane at the probable cause hearing should be admitted substantively if they did not testify at trial in a manner consistent with their former testimony. The judge properly held a voir dire.

At the voir dire hearing, Mary testified that she remembered being sexually assaulted from the time she was eight or nine years old until April of 1995, but claimed that she did not remember whether the assaults were committed by her father or some other person. Mary testified that, at the time of the probable cause hearing, she believed that she had been assaulted by her father. At the voir dire hearing, however, she stated, "I know it happened, but I just don't know who." She also indicated that she "just [did not] want to remember anything."

Jane testified that, although she remembered testifying under oath at the probable cause hearing, she did not recall the questions asked of her nor the answers that she gave, and, further, that she did not have a present memory of the incidents that formed the basis of her probable cause testimony. Jane indicated that she did not remember a time when she and her sister told their mother about their father's sexual assaults on them. When asked whether it ever happened, or whether she just did not remember, Jane responded, "I don't remember." Jane blamed her inability to remember on the fact that she had a "lump on [her] head."

At the conclusion of the hearing, the judge found that there were significant inconsistencies between Mary and Jane's testimony at the voir dire hearing and their testimony at the probable cause hearing that related to the fundamental issues whether either of them had been sexually assaulted, and, if so, who the...