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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Upton U,
Present: Perretta, Beck, & Rapoza, JJ.
The case was heard by Joseph R. Welch, J.
Nadell Hill for the juvenile.
Susanne M. O'Neil, Assistant District Attorney, for the Commonwealth.
PERRETTA, J.
On appeal from his adjudications of delinquency
on two counts of indecent assault and battery on a child under the age of
fourteen years, the juvenile claims errors in the trial judge's refusal to
sanction the Commonwealth for what the juvenile alleges was a failure to
preserve potentially exculpatory evidence, and in the allowance of fresh
complaint and rebuttal testimony in evidence. We affirm the adjudications.
1. The facts. There was evidence as to the following facts. At the time of the
alleged abuse in question, the juvenile was fourteen years old and the
babysitter for three siblings, Carol (age five), Mary (age two), and Michael
(age seven).[2] While babysitting, and as Michael watched television in
another room, the juvenile would expose himself to Carol and Mary and make them
touch his penis.
Carol testified that the juvenile would put his "private" on her
"private," that when he did so, he told her that "vanilla"
would come out of his "private" part, that he "had [Mary]
lick" his penis but that when he asked her, Carol, to do the same, she
refused, and that he exposed himself "almost ever[y] time" that he
babysat. Carol also related that on one occasion when the juvenile was exposing
himself to her, Michael "peeked in through the door."
Michael told the jury that when the juvenile babysat, he would watch television
while the juvenile and his sisters went into another room for about thirty
minutes. Michael testified that on one occasion he went into their room and saw
Carol standing on the bed and Mary "leaning down to [the juvenile's]
private," and "trying to lick his private." He, Michael, said
nothing and left the room.
Janet, the children's mother, related how she
had left Carol and Mary in the juvenile's care while she and Michael attended a
science fair. Upon her arrival home, Janet heard Carol talking about something
and the juvenile telling Carol "don't say that" and calling Carol a
"liar." When Janet asked the juvenile what the commotion was about,
Carol said that the juvenile "let me touch . . . ." The
juvenile, his face red, interrupted Carol and said "my private." At
this point, the juvenile's mother arrived to take him home. As he was leaving,
he said: "Ask [Michael]. [Michael] knows she said this before."
After the juvenile's departure, Janet asked Carol about the conversation that
she had overheard. Carol then told her mother what the juvenile had been doing
to her and Mary and how she (Carol) had touched the juvenile's penis. Carol
also told her that when she rubbed the juvenile's penis, "he peed on [the]
floor" and told her it "was vanilla, but she said it looked like he
was peeing."
Janet reported these disclosures to law
enforcement officials, and Carol was interviewed at the district attorney's
office. Mora Cesarini, a detective with the local police department, testified
that she had observed and taken notes during the Sexual Abuse Intervention
Network (SAIN) interview with Carol. Cesarini related that during Carol's
interview, Carol stated that the juvenile showed her his penis, that sometimes
she rubbed it, that "if you rubbed it so hard vanilla would come
out," and that sometimes the juvenile "would touch his private to her
private." Cesarini also testified that she turned her notes of the
interview over to the SAIN interviewer from the district attorney's office who,
in turn, wrote a report based upon Cesarini's notes. This procedure was the
same as that used by the department of psychiatry at Children's Hospital.
To demonstrate that the allegations were the result of Carol's precociousness,
the juvenile presented evidence to show that the first time he babysat for the
children, Carol walked in on him while he was using the bathroom. He told his
mother and Janet about this occurrence, and Janet told the juvenile's mother
that she would speak to Carol. On other nights that he babysat, Carol ran about
the house unclothed. This was also a topic of conversation between the two
mothers. During the time period here relevant, the juvenile's sister and her
boyfriend would babysit the children. Carol would sit in the boyfriend's lap,
hugging him and calling him "Daddy." She once walked in on the
boyfriend while he was using the bathroom. There was also evidence to the
effect that Carol would put her hands in her pants, that she and her siblings
spoke about their bodies, and Carol talked about the fact that she did not have
a penis.
Because the juvenile also presented expert testimony on the importance and
significance of the manner in which the SAIN interview was conducted, the
Commonwealth was allowed to present the rebuttal testimony of Susan Meyer, a
licensed social worker, who testified upon interviewing techniques and behavior
patterns of sexually abused children.
The jury found the juvenile delinquent on two
counts of indecent assault and battery on a child under the age of fourteen
years as to Carol, and not delinquent on the one count of rape of a child as to
Mary.
2. Failure to preserve evidence. Because the SAIN interview of Carol was not videotaped,
the juvenile filed a pretrial motion seeking to preclude Carol, Janet, and
Cesarini from testifying. He claimed that the failure to videotape the
interview was tantamount to the loss or destruction of exculpatory evidence.
The judge denied the motion, and the juvenile did not renew his objection on
this ground when any of the three witnesses testified.[3] The claim on
appeal is that because the SAIN interview was not videotaped, Cesarini should
not have been allowed to testify.[4]
Although we have acknowledged the fact that the
electronic recording of SAIN interviews is good practice, we have never
required that such recordings be made.
In the instant case, counsel for the juvenile was given broad range on his
cross-examination of Cesarini regarding the lack of a video of the SAIN
interview as well as any failure by her to preserve her handwritten notes of
that interview. Moreover, counsel questioned the Commonwealth's expert rebuttal
witness, see part 4, infra, as to the potential importance of an interviewer's
body language, the tone and phrasing of the questions, and other like issues.
In light of defense counsel's cross-examination of the Commonwealth's expert
witness and the substantial similarities in the essential points of the
testimony of Carol, Janet, and Cesarini, we conclude that there is no basis for
reversing the juvenile's adjudications of delinquency due to the lack of a
recording of Carol's SAIN interview.
3. The fresh complaint testimony. When Carol
was asked on direct examination whether she ever saw anything come from the
juvenile's penis, she testified that she had not but that the juvenile told her
"something did" and said it was "vanilla."[5] Based
upon Carol's response to this particular question, the juvenile argues that
Janet and Cesarini's testimony was inadmissible because it went beyond Carol's
testimony. Although Janet's and Cesarini's testimony differed somewhat from
Carol's response to the prosecutor's question about whether she ever saw anything
come from the juvenile's penis, the difference did not in any way require
exclusion of the fresh complaint testimony. As stated in Commonwealth v.
Scanlon, 412
"This court has never insisted that fresh
complaint testimony be sanitized to match exactly the testimony of the
complaining witness. Such a rule would undermine the purpose of allowing a
witness to testify as to the details of a victim's complaint, which is to let
the jurors draw their own conclusions regarding whether the fresh complaint
evidence corroborates the victim's testimony. . . . Moreover, such a rule would
deprive defendants of the opportunity to highlight discrepancies between the
testimony of the witness and the complainant in order to discredit the
complainant's testimony. . . . We have, however, cautioned that fresh complaint
evidence cannot be used as hearsay to fill gaps in the prosecution's
case."
See Commonwealth v. Kirkpatrick, 423 Mass. 436,
445 & n.6, cert. denied, 519 U.S. 1015 (1996) (fresh complaint testimony
that defendant had performed anal sex on victim not error where victim
testified that defendant had touched her "rear end" with his penis);
Commonwealth v. Snow, 30 Mass. App. Ct. 443, 446 (1991) (fresh complaint
testimony that defendant ejaculated added nothing essential to Commonwealth's
case where victim testified that defendant had penetrated her).
Our conclusion, that the testimony of Janet and
Cesarini was within the bounds of permissible fresh complaint evidence,
requires us to consider the juvenile's claim that the evidence should have been
excluded on the basis that it was unduly prejudicial. More specifically, the
juvenile argues that because a child of Carol's age would not likely know
anything about ejaculation unless she was present when someone had ejaculated,
the fresh complaint testimony undermined his defense. We need say no more than
that the argument overlooks the fact that Carol testified that when she rubbed
the juvenile's penis, he told her about ejaculation. Nor is discussion
warranted on the juvenile's complaint about the timing or content of the
judge's limiting instructions to the jury.
4. Admissibility of rebuttal testimony. After the juvenile rested his defense,
the Commonwealth asked to present a rebuttal witness to testify about
interviewing techniques and patterns of behavior of sexually abused children.
The prosecutor represented that the testimony of Susanne Meyer, a licensed
clinical social worker, was relevant and necessary to refute the juvenile's
evidence concerning Carol's sexual behavior and to speak to recognized
techniques of interviewing sexually abused children. The judge allowed the
Commonwealth's request.
In contending that this ruling gave rise to reversible error, the juvenile
makes two arguments. He claims that Meyer vouched for Carol's credibility by
comparing her behavior to the general behavior and disclosure characteristics
of sexually abused children, see Commonwealth v. Federico, 425 Mass. 844, 849
(1997), and that her testimony was improper rebuttal because it did no more
than support the Commonwealth's case-in-chief. See Drake v. Goodman, 386
Meyer's testimony was general in nature. She
testified that she had never met Carol nor reviewed any reports prepared in
connection with the case. Her testimony concerning the various phases of an
abusive relationship as well as certain factors that can lead a child to
disclose the existence of such a relationship made no reference to the present
case. Indeed, in some instances her testimony about the behavior of sexually
abused children was at odds with the Commonwealth's evidence.[6] As
stated in Commonwealth v.
"It is settled that expert testimony on
the typical symptoms or signs and general behavioral characteristics of
sexually abused children is admissible and does not, of itself, constitute an
opinion on the credibility of the complaining witness.
We conclude that Meyer's testimony fell far
short of crossing over the delicate line most recently analyzed in Commonwealth
v. Deloney, ante 47 (2003).
Our conclusion, that Meyer's testimony did not
touch upon the credibility of any witness, requires that we next consider
whether the judge erred in allowing Meyer to testify. The juvenile argues that
her testimony was improper rebuttal in that it did not respond to his
case-in-chief. For purposes of decision only, we will assume that the
Commonwealth had no right of rebuttal. See Drake v. Goodman, 386 Mass. at 92
("[t]here is no right to present rebuttal evidence that only supports a
party's affirmative case"). This assumption leads to the question whether
the judge abused her discretion in allowing Meyer to testify. Ibid.
We think that the judge was well within his discretion in allowing Meyer to
testify in rebuttal. Our conclusion is based upon the broad range of discretion
granted trial judges on this issue rather than any rejection of the juvenile's
claim that the Commonwealth had no right of rebuttal. See Commonwealth v.
Johnson, 54 Mass. App. Ct. 224, 233 (2002), quoting from Commonwealth v.
Guidry, 22 Mass. App. Ct. 907, 909 (1986) ("[r]ebuttal is legitimate when
it responds to the opponent's case . . . at any rate, the judge, as the
controller of the trial, has a nearly unreversible discretion to allow
it"). Compare Drake v. Goodman, 386
In reaching this conclusion, we have in mind the fact that the juvenile offered
evidence to show sexualized behavior by Carol and that Janet allegedly admitted
that Carol "had a problem with boys." That being so, we think it more
than appropriate that the Commonwealth was allowed to present expert evidence
to establish that victims of sexual abuse sometimes demonstrate a heightened
awareness of sexual activity or behave in a sexually inappropriate manner.
Adjudications affirmed.
FOOTNOTES:
[1] A pseudonym.
[2] These names are pseudonyms.
[3] Because we see no error in the judge's ruling, we
need not consider whether the appropriate standard of our review of this claim
is prejudicial error or a substantial risk of a miscarriage of justice.
[4] The juvenile also suggests that the Commonwealth
should have preserved Cesarini's interview notes which, as she testified, she
turned over to the district attorney's office. To the extent this suggestion
constitutes argument, it is without merit. The juvenile has made no showing of
any kind, let alone a "'reasonable possibility, based on concrete evidence
rather than a fertile imagination,' that access to the [notes] would have
produced evidence favorable to his cause. State v. Michener, 25 Or. App. 523,
532 (1976).
[5] More specifically,
the direct examination on this point was:
Prosecutor: "Did you see anything come out
of his private?"
Carol: "No."
Prosecutor: "I'm sorry?"
Carol: "He said something did."
Prosecutor: "What would he say?"
Carol: "He said it was vanilla."
Prosecutor: "It was vanilla, and he told
you that? Did you see the vanilla?"
Carol: "No."
[6] For example, Meyer testified that disclosure can
take place "progressively" over time, that "[i]t might start
with a vague puzzling statement," that a child might later deny what had
occurred, that an abused child might experience sleep disturbances, and that
sexually abused children could manifest some, all, or none of these traits.
Meyer also testified about behavior and characteristics of sexually abused
children not shown by Carol. For example, there was nothing to show that Carol
went through a "suppression" phase of the disclosure process, or that
she refrained from telling of her abuse because she worried that she would not
be believed or because she thought that she had done something wrong.