Commonwealth v. DiGiacomo

782 N.E.2d 1094, 57 Mass. App. Ct. 312, 2003 Mass. App. LEXIS 170
CourtMassachusetts Appeals Court
DecidedFebruary 6, 2003
DocketNo. 01-P-76
StatusPublished

This text of 782 N.E.2d 1094 (Commonwealth v. DiGiacomo) 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. DiGiacomo, 782 N.E.2d 1094, 57 Mass. App. Ct. 312, 2003 Mass. App. LEXIS 170 (Mass. Ct. App. 2003).

Opinion

Smith, J.

On March 18, 1997, a Middlesex County grand jury returned multiple indictments charging the defendant with a series of sexual assaults upon six complainants. The charges arose during the time that the defendant served as vice-principal of the Brooks Hobbs Middle School (Brooks Hobbs) in Medford. The complainants were six young girls who were students at the school.

A Superior Court jury returned guilty verdicts on four indictments in regard to two of the complainants, Maura and Nicole.1 The defendant was found not guilty on the indictments charging him with sexual assaults on three other complainants; an indictment naming a sixth student as a complainant was the subject of a nolle prosequi prior to trial.

On appeal, the defendant claims that the judge committed error by (1) admitting prejudicial and irrelevant hearsay; (2) excluding notations in treatment records referring to Nicole’s lack of veracity; (3) excluding evidence of Nicole’s reputation for lack of truth and veracity; and (4) prohibiting the defendant from inquiring of Nicole about sexual assault allegations made against her. The defendant also claims that in discovery the Commonwealth improperly failed to disclose two oral statements made by the defendant that were later used at trial.

Facts. We recite the facts as the jury could have found them, reserving certain details for discussion in conjunction with the issues raised.

[314]*3141. Facts regarding Nicole. The defendant was charged in regard to Nicole with two counts of child rape, one count of assault of a child under the age of sixteen with intent to commit rape, four counts of indecent assault and battery on a person having reached the age of fourteen, and three counts of indecent assault and battery on a child under the age of fourteen. The Commonwealth entered a nolie prosequi on one count of child rape, the charge of assault with intent to rape, and one count of indecent assault and battery. The jury returned guilty verdicts on two of the counts of indecent assault and battery and not guilty verdicts on the remaining counts.

Nicole was bom in January of 1982, and came to the United States from Haiti in 1994. Along with her younger brother, Nicole went to live with a Haitian foster family in Medford. She spent her entire fifth and sixth grade years at Brooks Hobbs.

Nicole first met the defendant in the middle of her fifth grade year. By that time, both of her parents were dead and she was a ward of the Department of Social Services (DSS). The defendant befriended Nicole and she began visiting him in his school office several times each day. Often, the defendant would summon her to his office for visits during home room time, during and after lunch, during academic classes, and after the school day. During the visits, the defendant would sometimes close his office door. On some occasions, Nicole would ask the defendant for lunch money. He lent her small amounts but never asked her to repay him. At other times, the defendant gave Nicole gifts of money in amounts of twenty, fifty, eighty, and ninety dollars.

When the defendant was not present in his office, Nicole would enter the defendant’s office and wait for him. Sometimes she searched through his desk for money, snacks, or hand lotion. Shirley Kountze, the principal of Brooks Hobbs, spoke to the defendant about Nicole being in his office when he was not there. The defendant told Kountze that he gave Nicole permission to be in his office when he was absent. Kountze told the defendant that she did not want students visiting his office unsupervised. Later, Kountze had to speak to the defendant a second time when she again caught Nicole going through the defendant’s desk when he was not there.

The defendant gave Nicole his home telephone number and [315]*315at times she would telephone him and ask him to bring her to his home in Medford. During her fifth and sixth grade years, Nicole and her brother would often go to the defendant’s home to play pool. The defendant admitted that, with a single exception, he was the only adult at his home on those occasions.

Nicole would also telephone the defendant to ask for rides to a shopping mall and he would agree to her requests. On those occasions, he would usually not park his car outside her house but would wait around the comer. Once at the mall, his routine was to drop Nicole off and instruct her to telephone him when she was ready to be driven home.

According to Nicole, the defendant first began to sexually assault her when she was in her fifth grade year. The first incident occurred after she entered the defendant’s office. The defendant closed the door behind her, and while Nicole sat in a chair, he opened her shirt and felt her breasts. The sexual assaults occurred about once a week when Nicole was in the fifth grade and about once every other week when she was in the sixth grade. The incidents occurred not only in the defendant’s office but also in his home and in his car. The defendant told Nicole not to tell anyone, that his children would be angry at him, and that he would go to jail.

Matías Gonzales, Nicole’s DSS social worker, spoke with Nicole’s foster mother on May 22, 1996, about the relationship between Nicole and the defendant. As a result of that conversation, Gonzales contacted the defendant and asked him why he was giving money to Nicole. The defendant explained that he liked to help poor children. Gonzales told the defendant to stop giving money to Nicole, that she was in DSS custody, that she had problems, and that his gifts were confusing to her.

In October of 1996, Nicole left Medford to live with another foster family in Brockton and attended Brockton High School. The defendant mailed letters to Nicole at her new foster home and at her new school, enclosing cash and stamps, and imploring her to write back to him.

Just prior to Thanksgiving in 1996, Gwendolyn Blackburn, director of an English program at Brooks Hobbs, learned about [316]*316the money and gifts that the defendant had been giving to Nicole and confronted him privately. The defendant explained that he was just being kind and friendly. Blackburn told the defendant that his relationship with Nicole was too close and that it was improper for an educator to give gifts and money to a student.

Nicole spent the Thanksgiving weekend in 1996 with her brother and her first foster family in Medford. On the day after Thanksgiving, Nicole telephoned the defendant and asked him to take her shopping. The defendant picked up Nicole and her brother and brought them to his house. He was the only adult there. While her brother played pool in the basement, Nicole watched television in the living room. At that time, according to Nicole, the defendant told her that she was pretty and that he loved her. The defendant approached her on the couch and unfastened her bra. When Nicole’s brother came upstairs unexpectedly, the defendant pretended to be tidying up the house. Nicole went to the bathroom and fixed her clothes. The defendant then gave Nicole about ninety dollars and drove her and her brother to the mall. The defendant waited in the car for forty-five minutes while the children shopped. Then he drove them back to the Medford foster home.

The next day, when Nicole returned to her second foster home, she had new purchases from the money the defendant had given her, including shoes, a jewelry box, perfume, clothes, and holiday gifts for friends.

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Bluebook (online)
782 N.E.2d 1094, 57 Mass. App. Ct. 312, 2003 Mass. App. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-digiacomo-massappct-2003.