Commonwealth v. Haggett
79 Mass. Appt. Ct. 167 (2011)
Massachusetts Appeals Court
March 29, 2011
Rape, Indecent Assault and Battery of person under 14 years, Evidence, First Complaint, Evidence, Relevancy
The defendant was convicted of rape of a child with force and indecent assault and battery in violation of G.L. c. 265 § 22(A) and G.L. c. 265 § 13(H) respectively. On appeal the defendant complained of several errors in connection with the admission on testimony from witnesses. Specifically, the defendant argued that the judge committed prejudicial error when the complainant was allowed to testify that she reported being sexually assaulted to both her teacher and guidance counselor notwithstanding that neither of these reports were her first complaint. Second, the defendant argued that the judge committed prejudicial error when she refused to instruct the jury on the nature and purpose of “first complaint” evidence. Lastly, the defendant argued that there was a substantial risk of a miscarriage of justice when the complainant’s guidance counselor was permitted to testify about the complainant’s complaint to her and her subsequent investigative actions. The judgment was reversed.
Facts
During the trial in July, 2009, the complainant (referred to as Sarah for the purposes of these proceedings) testified that on January 16, 2002, when she was nine years old, her mother’s then live-in boyfriend inappropriately touched her. Sarah stated that she was home from school due to a car accident that took place the day before and she was left home with the defendant while her mother went to work. Specifically, Sarah stated that as she lay on the couch watching television, the defendant lay down next to her, put his hands in her pajamas and into her underwear, touched her buttocks and penetrated her vagina with his fingers. The defendant stopped to answer the phone and after answering, put the phone to his chest and told Sarah, “This never happened.”
At trial, Sarah testified that she did not tell her mother about what happened.
However, during her sophomore year of high school years later, Sarah attended a series of antiviolence lectures including one on sexual assault and rape which Sarah stated gave her the courage to tell someone about what happened to her years earlier. Unable to locate her guidance counselor, Sarah spoke with her English teacher (Galambos) about the incident but did not go into detail. The next morning she spoke with her guidance counselor (LeMay) in detail about what happened.
However, during her sophomore year of high school years later, Sarah attended a series of antiviolence lectures including one on sexual assault and rape which Sarah stated gave her the courage to tell someone about what happened to her years earlier. Unable to locate her guidance counselor, Sarah spoke with her English teacher (Galambos) about the incident but did not go into detail. The next morning she spoke with her guidance counselor (LeMay) in detail about what happened.
First Complaint
The Court held that error did occur at trial for two reasons. First, because the Commonwealth chose not to present a first complaint witness, error was committed when Sarah was allowed to testify that she told Galambos and LeMay of being sexually assaulted by the defendant. Second, Sarah testified that during a Sexual Abuse Intervention Network interview, she informed the counselor there that she reported the incident to her mother. She also stated that she told her boyfriend about the alleged abuse a few months before telling her school counselors. In light of this information, Sarah’s testimony was inadmissible because it became clear during her testimony that her report to LeMay was not her first complaint and was therefore entered into evidence erroneously as hearsay.
Judge’s Failure to Instruct the Jury Properly
The Court held that admitting the first complaint evidence without proper jury instruction allowed the jury to consider the first complaint evidence for its full substantive value, allowing Sarah’s credibility to be enhanced by her own testimony rather than using her testimony for the strict purpose of establishing the complainant’s credibility. Because this case depended on the jury’s determination of the complainant’s testimony, the defendant was improperly prejudiced.
Substantial Risk of Miscarriage of Justice
Since the defendant failed to preserve this issue for review after trial, the Court looked at the issue of whether the guidance counselor’s testimony evidence was improperly admitted and if so, whether it created a substantial risk of a miscarriage of justice pursuant to Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). LeMay testified on Cross Examination about the steps she took to assist Sarah in reported her alleged abuse which included her informing Sarah’s parents of the incident, filing a report with the Department of Social Services and assisting Sarah in reporting the incident to the police. The Court found that this testimony served no purpose, was not relevant and should have been excluded because it impermissibly bolstered Sarah’s testimony for the Commonwealth by linking it with LeMay’s actions after Sarah’s disclosure. Also, there were no sufficient curative measures taken to remedy the error in the defendant using this testimony for another purpose (to point out inconsistencies in Sarah’s testimony).
Judgment Reversed; Verdicts Set Aside.
Prepared by GD
