Commonwealth v. Sullivan
January 24, 2011
78 Mass.App.Ct. 631
Juvenile Court, Jurisdiction. Superior Court, Transfer hearing, First Complaint, Rape
The defendant was convicted of one count of rape of a person under sixteen by force. On appeal, the defendant challenged whether the Juvenile Court had jurisdiction, under G. L. c. 119, § 72A, to transfer the proceedings to Superior Court. The defendant also raised the issue of whether his due process rights were violated by being prosecuted in the Superior Court instead of the Juvenile Court. Lastly, the defendant argued that the trial judge erred in allowing the victim’s friend to testify about what the victim testified was the second complaint of the rape. The judgment was affirmed.
Facts
On a Friday evening in December 2003, the victim was at the defendant’s house with other teenagers. At some point in that evening, the victim was held down by the defendant while the codefendant forcibly raped her. At the time of the incident, the victim was fourteen years old and the defendant was sixteen years old.
The police investigated the crime and completed their investigation before the defendant was eighteen. However, it was not until after the defendant was eighteen that the victim decided that she wanted to prosecute. The police applied for the complaint; when the defendant was nineteen, the complaint alleging one count of rape of a child by force was issued in the Norfolk County Division of the Juvenile Court Department on August 23, 2006.
Under G. L. c. 119, § 72A , the Juvenile Court decided to transfer the proceedings to the Superior Court, where the defendant was tried and convicted of one count of rape of a person under sixteen by force.
At trial, the victim testified that she first told her friend about the rape on Saturday, without providing any details about the incident. On Sunday, the victim had a more in depth conversation with her friend about what occurred and who had raped the victim. The trial judge identified the friend as the first complaint witness and allowed her to testify over the defendant’s objection about her first recollection of the victim’s complaint, which occurred on Sunday. The friend did not remember the victim mentioning the defendant as one of her attackers. Other evidence was also presented at trial to link the defendant to the incident, including that of a three-way call between the victim, her friend, and the defendant where the defendant apologized.
Motion to Dismiss for Lack of Jurisdiction
The defendant first argued that he was not apprehended after his eighteenth birthday as required by G. L. c. 119, § 72A. Under § 72A, the juvenile court determines whether there was probable cause to believe a person apprehended after his eighteenth birthday for a crime committed prior to his seventeenth birthday actually committed the offense and, then, whether the person should be discharged or tried for the offense under a criminal complaint. The defendant claimed he was not apprehended after his eighteenth birthday because he was identified and available for prosecution before he turned eighteen, so he filed a motion to dismiss because neither the Juvenile Court nor the Superior Court had jurisdiction; the Superior Court denied the motion. The Appeals Court also rejected this argument finding that apprehended means taken into custody. Therefore, the defendant was not taken into custody until after his eighteenth birthday and he was subject to a § 72A proceeding. The Court also noted that if the statute was given the construction proposed by the defendant, other defendants could escape prosecution for crimes committed before their seventeenth birthday if they were not apprehended until after their eighteenth birthday; the legislature likely did not intend for that result.
Due Process Rights
The Court declined to address the defendant’s claim that his due process rights were violated because he was prosecuted in Superior Court instead of Juvenile Court because the issue was not raised in the lower court.
First Complaint
The defendant also argued that the trial judge erred in allowed the victim’s friend to testify about what was the victim’s second complaint to the friend about the rape. The Court concluded that that even if there was error in allowing this testimony, the testimony was not prejudicial because it did not influence the jury. The defendant’s theory at trial was that the encounter between the victim and the codefendant was consensual and the defendant was not involved at all. The purpose of the first complaint testimony is to help the jury evaluate the credibility of the victim, which in this case meant supporting the victim’s claim that the encounter was not consensual. Furthermore, the friend’s testimony did not link the defendant to the rape; the victim’s testimony and the testimony about the three-way call were presented to connect the defendant to the crime. Therefore, the friend’s testimony did not bolster the victim’s credibility, but rather it may have hurt the Commonwealth’s case because the victim could not remember any mention of the defendant.
Concurrence
The concurring judge found that there was no error in admitting the friend’s testimony as first complaint testimony. The difference in the victim’s testimony and the friend’s testimony about when the first complain occurred was simply differing memories about when the first complaint was made.
The judgment was affirmed.
- Prepared by JM
