Commw. v. Lorenzetti

• Court: Appeals Court of Massachusetts
• Writing for the Court: WELLS; GRIMES, J., concurs with an opinion, in which OVERTON; ANSTEAD, J., dissents with an opinion, in which KOGAN, C.J. and SHAW; GRIMES; OVERTON; ANSTEAD; KOGAN, C.J. and SHAW
• Citation: Commw. v. Lorenzetti, 48 Mass. App. Ct. 37, 716 N.E.2d 1067 (Mass. App. 1999)
• Decision Date: 01 October 1999
• Docket Number: 98P0257
• Parties: MASSACHUSETTS COURT OF APPEALSCOMMONWEALTH vs. TED LORENZETTI. Norfolk County

MASSACHUSETTS COURT OF APPEALS

No. 98-P-257

COMMONWEALTH vs TED LORENZETTI

Norfolk County

October 1, 1999

Armstrong, Brown, & Porada, JJ.

Rape. Indecent Assault and Battery. Evidence, Fresh complaint. Practice, Criminal, Instructions

to jury, Argument by prosecutor.

Indictments found and returned in the Superior Court Department on November 20, 1996.

The cases were tried before Robert W. Banks, J.

Richard J. Fallon for the defendant.

Michele M. Armour, Assistant District Attorney, for the Commonwealth.

Indictments found and returned in the Superior Court Department on November 20, 1996.

The cases were tried before Robert W. Banks, J.

Richard J. Fallon for the defendant.

Michele M. Armour, Assistant District Attorney, for the Commonwealth.

Argued February 8, 1999.

ARMSTRONG, J.

A jury found the defendant guilty of two counts each of rape and indecent

assault and battery of a person over fourteen years of age. On appeal, he claims error primarily in

the excessive "piling on" of fresh complaint testimony and improper closing argument by the

prosecutor.

The Commonwealth offered this evidence. The complainant, Janice Doe (a pseudonym), testified

that on May 19, 1996, when she was seventeen years old, she spent the night at the home of a

family friend, Karen Thomashay. The defendant's wife, Cheryl Lorenzetti, and the Lorenzettis'

children lived at the house with Thomashay, who was Cheryl's mother. The defendant did not

live there but frequently visited, and was visiting there on the night in question. Janice, who was

sleeping on a couch in the living room, awoke sometime between 12:15 and 12:30 A.M. when

the defendant pulled a blanket over her feet. He began touching her breasts, and put his finger

inside her vagina. Keeping her eyes closed, she feigned the initial stages of waking up,

prompting the defendant to return to his wife's bedroom. Forty-five minutes later, he came back

and again began to touch her breasts and inserted his finger in her vagina. Janice screamed for

help, and both Cheryl and Karen Thomashay responded. When Janice explained to the two

women what had happened, they told the defendant to leave the premises and called the police.

He asserted his innocence but complied; there was no evidence that he later tried to elude police

when sought and arrested.

The Commonwealth presented no physical evidence or eyewitness testimony, but to reinforce

Janice's credibility called five witnesses who provided fresh complaint evidence in varying

degrees of detail. Karen Thomashay simply stated that when she came out at 1:30 A.M. and

asked Janice what had occurred, Janice said, "Ted has been touching me." Cheryl Lorenzetti

testified that Janice told her that she "c[ouldn't] believe that he could do this to [her]" and that he

had put his finger "inside of" her and touched her breasts. Officer Terrence Connolly, who

responded to the scene shortly before 2:30 A.M., related an account by Janice that was as

detailed as her direct testimony. Janice's mother recounted Janice's description of the incident to

her within about two hours of its occurrence; the mother's account, although more detailed than

Cheryl Lorenzetti's, was less detailed than Janice's own testimony. Finally, Elaine Gakern, an

emergency room nurse who spoke with Janice at about 3:00 A.M., testified that Janice told her

she had awakened to "somebody touching her on her breasts and 'down below'" and that, after a

respite, she screamed when the assailant returned and started to touch her again.

The defense attempted to show that the allegations were the product of a nightmare from which

Janice awoke in a confused fright while the defendant was placing a blanket over her for warmth.

There was evidence that Janice was sleeping at the Thomashay house because she had been

having horror-movie-induced nightmares, had been receiving prank hang-up phone calls, was

afraid to sleep at her home alone while her mother worked the night shift, and had watched a

movie that night that involved animals terrorizing children. The defense focused on

inconsistencies in Janice's recollection and suggested she confused a dream with reality. She

testified, for example, that between the two episodes of touching she lay awake, crying and

wondering what to do, but Officer Connolly testified that she told him she was asleep during that

interim. Janice stated on direct that the first touching occurred at about 12:30 A.M., but it was

stipulated that a report by an investigating detective stated that Janice told him it occurred at

11:15 P.M. The defense also relied on testimony by the nurse and a social worker that when, in

accordance with certain medical paperwork, Janice was asked the routine questions whether the

assailant had penetrated her vagina with his penis or ejaculated, she stated that she did not know.

1. Fresh complaint evidence. The defendant first argues that the number of fresh complaint

witnesses,[1] coupled with faulty contemporaneous jury instructions on the limited use of their

testimony, warrants a reversal.

"[T]he repetition of fresh complaint testimony creates a risk that the jury will use the details of

the fresh complaints as substantive evidence that the crime actually occurred. Commonwealth v.

Lavalley, 410 Mass. 641, 646 (1991). In order to counter this risk, [the Supreme Judicial Court]

recommended in Commonwealth v. Licata, 412 Mass. 654, 660 (1992), that a trial judge instruct

the jury as fresh complaint testimony is admitted, and again during the judge's charge, that fresh

complaint testimony may not be used as substantive evidence of the crime." Commonwealth v.

Trowbridge, 419 Mass. 750, 761 (1995). As the defendant did not object to any of the judge's

instructions on this point, we review for a substantial risk of a miscarriage of justice.(2)

Commonwealth v. Gabbidon, 398 Mass. 1, 4-5 (1986).

The contemporaneous instructions were deficient. The instruction given at the time of the first

fresh complaint evidence is set out at the margin.(3) Apart from general ambiguity, the

instruction is flawed for failing to define "corroborate" so as to apprise the jury that they could

not use the testimony as substantive proof of the acts alleged. See Commonwealth v. Scanlon,

412 Mass. 664, 674 (1992). The reference to "what actually happened" did not by itself

communicate that idea. Compare id. at 673-674; Commonwealth v. Lamontagne, 42 Mass. App.

Ct. 213, 220 (1997). Even if it did, the instructions given as to later witnesses were deficient. In

two instances (concerning Cheryl Lorenzetti and Janice's mother), the judge simply told the jury

to "[r]emember my instructions" without specifying which instructions. No instruction was given

in connection with the nurse's testimony. When Officer Connolly testified, the judge stated,

"Jurors you will remember my instruction on fresh complaint. It's being offered only as to

whether or not it corroborates what the victim said on the witness stand. If it doesn't, disregard it

completely."(4) That instruction also failed to caution the jury against using the evidence

substantively.

However, the judge's final charge properly informed the jury of the limited use of the evidence

and the witnesses to whom that instruction applied. The charge was not objected to at trial and is

not challenged on appeal. We are aware of no decision holding that a substantial risk of a

miscarriage of justice arises solely from deficient contemporaneous instructions when the jury

were later instructed correctly, although the importance of contemporaneous instructions, as

called for by Commonwealth v. Licata, supra, has been emphasized in such decisions as

Commonwealth v. Trowbridge, 419 Mass. at 761, and Commonwealth v. Lorette, 37 Mass. App.

Ct. 736, 738 n.3, 741 n.4 (1994), S.C., 422 Mass. 1014 (1996). If Licata had been intended to

express a per se rule, however, it presumably would have stated that a judge "must" give the

instructions sua sponte; instead, it used the word "should," and the Licata guidance has

subsequently been referred to as "recommended" and not a "strict requirement." See

Commonwealth v. Trowbridge, 419 Mass. at 761; Commonwealth v. Vieux, 41 Mass. App. Ct.

526, 533 (1996), cert. denied, 520 U.S. 1245 (1997).

The impact of the lack of proper contemporaneous instructions has thus been evaluated on a

case-by-case basis, and the reversals in this area have involved additional prejudicial factors not

present here. In Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 454-457 (1996), the

substantial risk did not arise only from missing contemporaneous instructions: the testimony of

two witnesses was overly graphic, one witness was prejudicially emotional, and an expert

witness impermissibly vouched for the truthfulness of the complainants where the case rested

entirely on credibility. See Commonwealth v. Trowbridge, 419 Mass. at 760-762 (substantial risk

where jury was never properly instructed); Commonwealth v. Lorette, 37 Mass. App. Ct. at

741-743 & n.4 (no contemporaneous instruction; final instruction did not specify which witness

it referred to; highly inflammatory evidence of parents' emotional states was admitted and argued

by prosecutor). Although the Commonwealth's case was not overwhelming and turned on

credibility as in Brouillard, Trowbridge, and Lorette, there was no other significant impropriety.

The contemporaneous instructions did not create a substantial risk of a miscarriage of justice.

Compare Commonwealth v. Scanlon, 412 Mass. at 673-675 (no error where deficient final

instruction referred back to correct contemporaneous instruction); Commonwealth v. Vieux, 41

Mass. App. Ct. at 534-535 (correct contemporaneous instructions, no final instruction).

The mere fact that there were five fresh complaint witnesses does not affect the result; "there is

no per se rule of how many fresh complaint witnesses may testify." Commonwealth v.

Trowbridge, 419 Mass. at 761. We recognize that...