Commonwealth v. Esteves

710 N.E.2d 963, 429 Mass. 636, 1999 Mass. LEXIS 308
Massachusetts Supreme Judicial Court·Decided June 10, 1999·Published·Cited by 12 cases

Opinion

Marshall, J.

A grand jury indicted the defendant on a charge of rape of a child by force, in violation of G. L. c. 265, § 22A, in October, 1994. On September 14, 1995, he was convicted by a jury, and sentenced to a term of imprisonment. The Appeals Court affirmed his conviction. Commonwealth v. Esteves, 46 Mass. App. Ct. 339 (1999). We granted the defendant’s application for further appellate review. Because the erroneous admission of certain hearsay testimony was prejudicial to the defendant, we reverse the defendant’s conviction and remand the case to the Superior Court for a new trial.

1. Background. The Commonwealth presented the following evidence. When the complainant was eleven years old and the [637]*637defendant (her paternal uncle) was approximately eighteen years old, the defendant moved into the home of the complainant’s family. She testified that, starting a few months later and continuing over the course of the next three years, the defendant sexually assaulted or raped her on an almost daily basis. The complainant’s best friend testified that, when the complainant was approximately thirteen years old, the complainant told her of the assaults, but also told her that they had stopped.1 While the defendant lived with her family, the complainant told no one else about the assaults that occurred.2 According to the complainant, in approximately November, 1993, when she was fourteen years old, the attacks ceased when the complainant told the defendant that, if he touched her again, she would tell her mother.

The defendant moved out of the complainant’s home at the end of December, 1993, two weeks before his wedding. Several months later, in April, 1994, the complainant disclosed the assaults to her sister, her maternal aunt, and the police in the following circumstances. The complainant invited a group of friends over while her parents were out of town, a violation of their rules. Her boy friend and two of his friends, the complainant’s female cousin, and the complainant’s best friend spent the night in the complainant’s home. When the complainant’s mother returned home and learned of these events, she was extremely angry and told the complainant that she was going to have a doctor examine her to determine whether she was still “a virgin.” The complainant became very upset and denied having had sexual intercourse with her boy friend. The mother telephoned the boy friend and similarly confronted him. Over the defendant’s objection, she testified that the boy friend told her to take the complainant to a doctor if she wished because, he said, he “didn’t touch” the complainant. That same day, the complainant disclosed to her sister and her maternal aunt that the defendant had sexually assaulted her. After the aunt informed the mother of this, the mother took her daughter to a hospital. The complainant then reported the assaults to the police.

In addition to the complainant and her best friend, who testified as a fresh complaint witness, the complainant’s parents, [638]*638aunt, and sister testified about the complainant’s demeanor when she disclosed the sexual assaults and about the details of the family’s living situation while the defendant lived with them. The complainant’s medical records from her hospital visit following disclosure, which the judge described as “pretty bland,” were admitted in evidence.

The defendant testified in his own defense and denied ever having sexually assaulted the complainant. His mother-in-law and wife testified that the defendant and the complainant had always had a close relationship. The defendant’s strategy was to discredit the complainant, and to show that certain of the alleged events could not have occurred. Defense counsel argued to the jury that the layout of the home precluded the defendant from being alone with the complainant regularly; that the defendant’s employment records established that he did not have access to the complainant at the times she alleged he assaulted her; that the evidence of the complainant’s good relationship with the defendant and his wife belied any claim of earlier assaults; that the lack of corroboration from any family member, despite alleged daily sexual assaults and close living quarters, made the allegations suspect; and that the complainant’s testimony at trial was inconsistent in material respects with her “prior” testimony, all casting doubt as to her credibility. He also suggested that the fury of the complainant’s mother regarding her suspicion of her daughter’s loss of virginity caused the complainant to fabricate her allegations.

2. The boy friend’s hearsay statement. The defendant claims that the judge improperly admitted in evidence the mother’s testimony of her conversation with her daughter’s boy friend, over the defendant’s objection and without any limiting instruction.3 This evidence, he alleges, was prejudicial both because it bolstered the credibility of the complainant by corroborating her [639]*639testimony, and because it undermined the defendant’s claim that the complainant had a reason to fabricate her story.4 The Commonwealth concedes that the statement was inadmissible hearsay, but argues that the error did not prejudice the defendant.

“An error is nonprejudicial only ‘[i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect .... But if one cannot say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.’ Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).” Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 119 S. Ct. 523 (1998). We examine the hearsay statement in the context of the entire case against the defendant to determine whether its admission prejudiced the defendant “in some significant way so as to require a retrial.” Commonwealth v. Cyr, 425 Mass. 89, 95 (1997).

The credibility of the complainant was central to the Commonwealth’s case. The prosecutor began her closing statement by telling the jury that they had to choose between the credibility of the complainant and that of the defendant.5 She then sought to cast doubt on every aspect of the defense. The Corn[640]*640monwealth nevertheless argues that the inadmissible hearsay was not prejudicial because it was “merely cumulative” of other evidence. We recognize that in some cases the admission of inadmissible hearsay may not prejudice the defendant if it is cumulative of other properly admitted evidence. See Commonwealth v. Squailia, ante 101, 106-107 (1999); Commonwealth v. Vinnie, supra at 172, 173. Here, however, the inadmissible hearsay was “cumulative” of the complainant’s own testimony: she testified that she had not had sexual intercourse with her boy friend. His forceful and explicit denial of sexual activity with her could only have bolstered her credibility with the jury. In these circumstances, “[w]e cannot fairly say that, in considering the [credibility of the complainant], the jurors primarily relied on properly admitted evidence to make their decision.” Commonwealth v. Cyr, supra at 95.

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Commonwealth v. Esteves, 710 N.E.2d 963, 429 Mass. 636, 1999 Mass. LEXIS 308 (Mass. 1999).

710 N.E.2d 963 (Commonwealth v. Esteves) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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