State v. Phillipo

• Decision Date: 20 April 1993
• Citation: 623 A.2d 1265
• Parties: STATE of Maine v. Charles PHILLIPO.
• Court: Maine Supreme Court

Page 1265

623 A.2d 1265

STATE of Maine v. Charles PHILLIPO.

Supreme Judicial Court of Maine.

Submitted on Briefs Feb. 4, 1993.

Decided April 20, 1993.

Stephanie Anderson, Dist. Atty., Jane Elizabeth Lee, Asst. Dist. Atty., Portland, for the State.

Matthew B. Nichols, Boulos & Gardner, Biddeford, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

CLIFFORD, Justice.

Charles Phillipo appeals from a judgment of conviction of gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B) (Supp.1992), ¹ following a jury trial in the Superior Court (Cumberland County, Brennan, J.). Phillipo contends that the court erred by admitting the out-of-court statements of the victim and her brother. Because we agree that the testimony was improperly admitted and that the error was not harmless, we vacate the conviction.

Charles Phillipo was indicted on January 15, 1991, on one count of gross sexual assault. At the time, Phillipo lived next door to the victim and her parents and worked with the victim's father at a local restaurant. The victim, age seven at the time of the incident, testified at trial that Phillipo assaulted her at her home on December 28, 1990, when they were upstairs alone. The victim's brother, age five at the time of the incident, testified that he came into the room, saw Phillipo lying on top of the victim, and ran downstairs to tell his mother. The mother testified that upon confirming the story with the victim the next morning, she took the child to the hospital for examination. The hospital physician testified that he found no physical evidence of abuse, and that the hospital reported the incident, as mandated by law, to the Portland police. The responding officer testified that he interviewed the doctor, the mother, and the victim at the hospital. Both children also were interviewed approximately two weeks later by a Portland police detective.

Phillipo sought to impeach the children's testimony claiming that it was improperly influenced by their parents, who, Phillipo argued, had a motive to fabricate the charge against Phillipo because they believed that Phillipo was a confidential informant responsible for their arrest on drug charges two weeks prior to the alleged assault. The court permitted Phillipo to inquire into the prior arrest of the parents, but also allowed the State, in the nature of rebuttal evidence, to introduce the testimony of the children's mother, the doctor, and the detective, reciting in detail what the children had related to them at the time of the assault. The court concluded that such testimony was admissible as prior consistent statements of the children. See M.R. Evid. 801(d)(1). Phillipo was convicted and now appeals.

A prior, out-of-court statement of a witness consistent with the witness's testimony at trial is generally not admissible because it is hearsay. State v. Zinck, 457 A.2d 422, 426 (Me.1983) (citing Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495, 503 (1981)). Such a statement is admissible as an exception to the hearsay rule only to rebut an express or implied charge of recent fabrication or improper motive. M.R. Evid. 801(d)(1). ² In order for the prior consistent statement to be admissible, the proponent of the statement must demonstrate that the statement (1) is consistent with the in-court statement of the witness, (2) is being offered to rebut an express or implied charge of recent fabrication or improper influence, and (3) was made prior to the time the supposed motive to falsify arose. State v. Fredette, 462 A.2d 17, 22-23 (Me.1983).

Phillipo contends that the evidence is inadmissible as prior consistent statements because the State failed to demonstrate that the statements were made prior to the time the motive may have arisen to improperly influence the victim. Any motive to fabricate the charges against Phillipo and to improperly influence the children's testimony, he contends, resulted from the arrest of the victim's parents, and that arrest occurred prior to the time the children's statements offered in rebuttal as prior consistent statements were made. We agree with Phillipo.

If the prior consistent statement was made after the time the alleged motive to fabricate arose, the evidence of that statement does not make the existence of recent fabrication or improper influence or motive more probable, or less probable, than it would be without the evidence. In that circumstance the evidence is not admissible under M.R. Evid. 801(d)(1).

Zinck, 457 A.2d 422, 425 (Me.1983) (citation omitted). "[A] prior consistent statement does not rebut a charge of improper motive where the motive to falsify also existed at the time of the earlier statement." Fredette, 462 A.2d at 23.

The State contends that Phillipo failed to provide sufficient evidence that the children's parents had an improper motive prior to the date of the assault. We disagree. Phillipo presented evidence that the victim's parents had been arrested prior to the date of the assault; that they believed that there was an informant who was involved in their case; that the victim's father had been told that...