Commonwealth v. Costello

635 N.E.2d 255, 36 Mass. App. Ct. 689, 1994 Mass. App. LEXIS 617
CourtMassachusetts Appeals Court
DecidedJune 22, 1994
Docket92-P-1025
StatusPublished
Cited by6 cases

This text of 635 N.E.2d 255 (Commonwealth v. Costello) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Costello, 635 N.E.2d 255, 36 Mass. App. Ct. 689, 1994 Mass. App. LEXIS 617 (Mass. Ct. App. 1994).

Opinions

Dreben, J.

After a four-day trial, a jury found the defendant, Richard A. Costello, guilty of unlawfully having intercourse with a child under sixteen years of age, in violation of G. L. c. 265, § 23. The defendant challenges the conviction on numerous grounds, none of which requires reversal.

The jury could have found the following facts. The parents of the complainant became friendly with the defendant, Costello, in the mid 1970’s, when the complainant, Claudia,2 was about seven years old. Claudia, her parents, and her sisters were then living in Canton. The events referred to in the indictment occurred seven years later when Claudia was fourteen years old.

At the beginning of the relationship between the defendant and Claudia’s parents, Costello visited the family on the weekends and one or two times during the week. In 1978 or 1979, Costello began to visit two or three times each week but only during the daytime when Claudia’s father was working, and he left before her father returned home. Claudia and her sisters had an “uncle-type relationship” with Costello at the time.

Subsequently, Claudia’s family moved to Walpole, and around October, 1984, her parents separated. Claudia went to live in Attleboro with her mother, her younger sister, and her brother, where she continued her close friendship with Costello. Her twin sister and older sister stayed in Walpole with their father.

The Attleboro house, which Costello eventually made his home, had three bedrooms upstairs, one bedroom downstairs, and a finished basement. The defendant did not have a room of his own but slept with Claudia’s mother or on the couch downstairs. The incidents that are the subject of the indictments began in October of 1984, a few weeks after Claudia’s mother moved to the Attleboro home, and continued through February of 1985. Costello eventually moved out of the Att-[691]*691leboro house sometime in April of 1985. During the summer of 1985 Claudia’s mother and Costello resumed their relationship but only for a short time. Ultimately, Claudia’s parents reconciled their differences and moved back together.

In May of 1987, Costello instituted a paternity action, seeking custody or visitation rights to Claudia’s brother, who was born in November, 1981. Upon hearing that Costello wanted custody, Claudia told her mother of her sexual encounters with the defendant.

The sexual encounters. The indictment charges Costello with committing unlawful acts of sexual intercourse with and abuse of a child from on or about October 1, 1984, to about February 28, 1985. At trial, Claudia testified to four incidents during this period: October 9, 1984, November 24, 1984, December 1984, and the middle of or late February, 1985. The following is a summary of Claudia’s testimony about these incidents.

The October 9, 1984, incident occurred in her brother’s upstairs bedroom. The brother was sleeping in his mother’s room, as he often did. Claudia was sleeping in her brother’s room. She was awakened by Costello “tickling [her] bum and rubbing his . . . hand up and down [her] back.” Claudia was scared, and she protested. Costello persisted, and sexual intercourse followed.

On November 24, 1984, Claudia was again asleep in her brother’s bedroom when she was awakened by Costello. This time Claudia insisted that they leave the upstairs for fear they would be discovered. Claudia and Costello went downstairs to the room used as a living room. As she sat on a day bed smoking a cigarette, Costello came behind her with his hands around her chest. She asked him, “Am I crazy or are you crazy?” To which he answered, “No, we are both crazy.” Costello removed his clothing, and they engaged in another episode of sexual intercourse.

In December of 1984, Claudia had fallen asleep watching television on the day bed in the living room. She was again awakened by Costello and again they had intercourse.

[692]*692In mid or late February, 1985, Claudia was in the basement of the house playing pool with Costello. She sat down on the bench of an exercise machine and performed some weightlifting repetitions. Costello went up behind her and started to do pushups. She got up and sat on Costello’s bed in the basement; there they had the fourth act of intercourse. According to Claudia’s testimony, this was the last occasion on which she and Costello had sexual relations.

Fresh complaint testimony. At trial, the Commonwealth called Claudia’s therapist, Frederick Auerilo, a psychiatric social worker, to testify as a fresh complaint witness.3 Over the defendant’s objection, he was permitted to testify as to statements made by her.

Claudia’s discussion with the therapist took place twelve months after the last incident, and the issue before us is whether the delay was too long. She first saw Auerilo in January, 1986 (at the suggestion of a physician treating her for gastrointestinal symptoms), and, under questioning by him in February, 1986, told him of her relationship with the defendant. Although reluctant to discuss her encounters with the defendant, she indicated to the therapist that there had been sexual relations more than once. She was uncomfortable in listing the exact dates. The therapist gave her “kind of many parameters, and I said, did it happen within the past year?” She answered, “Yes.” At a later time she was more specific and stated, “May or June of 1985 [was] a time when they had intercourse.” The therapist did not testify to any other aspects or details of the incidents.

Prior to Auerilo’s fresh complaint testimony, Claudia, when questioned at trial as to why she didn’t tell her parents, had explained:

Q. “Did you ever have any conversation with the defendant about your telling your mother?”
[693]*693A. “Later on I, you know, I was like, I had told him that my mother was going to find out. And he is like, [Claudia], your mother can’t. And he said, your mother will kick you and I both out of the house. And I was like, [w]ell, I guess I can just go live with my father or something. And he says, [Claudia], your father hates me and you don’t think for a minute that if he found out that you were doing this with me, that he is going to want you to live there.”
Q. “Did you ever tell your father?”
A. “No.”
Q. “Why didn’t you?”
A. “Because I was scared, and I thought that — I thought it was my fault. I thought I brought, I thought I was making him do it, or I thought that, you know, in order for him to be a friend of mine, or in order for me to have someone close to me, that if he had to do this, you know, that wasn’t a big sacrifice to me then. You know, it was like, well, at least I have somebody, you know, with me.”

Claudia also testified that after the defendant moved out of the house, she was “very, very upset” because “he filled a lot of void in my life.” Thereafter, she continued to see him until her mother told her if she ever saw him again, she would “kick me out of the house.”

In determining whether the delay in reporting the encounters is reasonable, the analysis “should be flexible and attended by due consideration of factors which reasonably might cause a child to repress the urge to cry out to a third person.” Commonwealth v. Swain, ante 433, 439 (1994).

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Commonwealth v. Costello
635 N.E.2d 255 (Massachusetts Appeals Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
635 N.E.2d 255, 36 Mass. App. Ct. 689, 1994 Mass. App. LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-costello-massappct-1994.