Facts: Mark Flint, the defendant was convicted of
rape of a child and attempt to commit rape of a child because he sexually
assaulted the victim when the victim was a child. The defendant timely appealed
and ordered a transcript of his trial. Eighteen months after he ordered the
transcript, he was informed that the witness testimony was not available. The
defendant filed a motion to reconstruct the missing portions of the record. The
judge conducted hearings on the reconstruction of the record. Following the
hearings, the judge issued his reconstruction of the record and one year after,
the defendant filed a motion for a new trial alleging incomplete and inadequate
record and the admission of evidence in violation of the doctrine of first complaint.
The motion was denied and he appealed.
Issue: Whether the defendant is entitled to a new
trial due to the incomplete and inadequate record and the admission of evidence
in violation of the doctrine of first complaint?
No. The court found that the judge properly adhered to
the procedure delineated in Commonwealth v. Harris for the
reconstruction of the record. He held evidentiary hearing, received all
available trial-related evidence and considered a variety of sources about what
occurred at trial, including his own memory and customary practice, and
resolved the differences between the parties on the basis of the evidence. As
such, the reconstruction of the record are supported by the evidence and
therefore, not erroneous. In addition, the court found that the testimony of
the victim’s wife about conversations between her and the victim that
culminated in disclosure of sexual abuse by the defendant and her observations
of her husband when they visited the apartment where the defendant used to live
was properly admissible under the doctrine of first complaint. Accordingly, the
order denying motion for a new trial is affirmed. (YK)
