Commonwealth v. Howard

677 N.E.2d 233, 42 Mass. App. Ct. 322, 1997 Mass. App. LEXIS 52
CourtMassachusetts Appeals Court
DecidedMarch 20, 1997
DocketNos. 95-P-1046 & 95-P-1711
StatusPublished
Cited by17 cases

This text of 677 N.E.2d 233 (Commonwealth v. Howard) 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. Howard, 677 N.E.2d 233, 42 Mass. App. Ct. 322, 1997 Mass. App. LEXIS 52 (Mass. Ct. App. 1997).

Opinion

Greenberg, J.

In a two-count indictment the defendant was accused of forcible rape of a child (G. L. c. 265, § 22A), [323]*323and assault with intent to rape a child (G. L. c. 265, § 24B). The victim was a young girl short of her ninth birthday. Prior to trial, the assault charge was the subject of a nolle prosequi. After trial, the jury brought in a verdict of guilty on the count charging forcible rape of a child, and the defendant was sentenced to a term of imprisonment of from eight to twelve years at the Massachusetts Correctional Institution, Cedar Junction. On his direct appeal from the judgment of conviction, the defendant presses three points: (1) the judge improperly admitted incompetent evidence; (2) the prosecutor engaged in improper closing argument; and (3) the sentence imposed for his conviction was unduly harsh and partially based on impermissible factors. We affirm the conviction but remand the case for resentencing before another judge.

The jury could have found the following facts. The victim was living with her mother in the town of Athol at the time of the incident. After having been asleep for some time, she was rudely awakened by the defendant, in whose care the victim’s mother had left her. He was standing near her bed with his jeans “a little above his knees.” He wore no underwear and she could see his penis “sticking straight up.” While she was still in bed, the defendant leaned over and covered her mouth to prevent her from crying out. He placed his penis inside her vagina “a little” while his body moved “sort of back and forth.” She indicated that she felt some pain when he penetrated her.

Just after this occurred, the victim told the defendant that she had to go to the bathroom. Instead, she went downstairs to seek help from her mother’s friend who was asleep on the couch in the living room. At that point, the defendant fled from the house. Next, the victim’s mother returned home with a friend. The victim told her mother the entire story. After the police were summoned, her mother took her to the local hospital.

In addition to the victim’s testimony about the event, and the fresh complaint testimony of several witnesses, a physician testified that at the time he examined her at the hospital, there was “some redness” outside the victim’s vagina extending “a centimeter or more inside.” He opined that the discolor? tion had been caused by some sort of friction and was possibly “consistent with ... an attempt [to] insertf ] a . . . penis [in the] vaginal area.” He added that it could well [324]*324be found that there were other possible causes, including the action of someone’s finger.

1. The improper admission of incompetent evidence. At trial, the prosecutor called Athol police detective, Robert F. Bou-chard, as a witness. He testified that he spoke with the victim at the police station the day after the incident. During the course of the interview, he received a telephone call from “[a] person identifying himself as Billy Howard.” The caller inquired about thé case. Although Bouchard had previous contact with the defendant, he did riot recognize the caller’s voice on the telephone. The officer told the caller that he was conducting “a sexual assault investigation, and that the [caller] should turn himself’ into the police. According to Bou-chard, the caller responded “that he was going to turn himself in later in the day.” The caller did not come to the police station. The defendant objected to Bouchard’s testifying as to what the caller said after Bouchard stated that he did not recognize the caller’s voice.1

Bouchard’s testimony about the caller’s response, i.e., that he would come to the police station, can be read as evidence of consciousness of guilt. It amounted to an admission that he did, indeed, sexually abuse the complainant. The admission in evidence of the contents of the telephone call was error.

A caller’s mere self-identification, without more, is insufficient authentication to admit the substance of a telephone conversation. That principle was adopted in Commonwealth v. Harris, 232 Mass. 588, 591 (1919), where the Supreme Judicial Court quoted Professor Wigmore: “No one has ever contended that, if the person first calling up is the very one to be identified, his mere purporting to be A is sufficient, any more than the mere purporting signature of A to a letter would be sufficient.” Ibid., quoting from 7 Wigmore, Evidence § 2155, at 760 (Chadboum rev. 1978). Later, in Commonwealth v. Hartford, 346 Mass. 482, 488 (1963), the court set forth the basic rule that “the mere fact that the speaker said he was the defendant [is] not enough to render the conversation admissible.” It follows that, standing alone, [325]*325Bouchard’s testimony that the caller identified himself as “Billy Howard” does not amount to a proper foundation for admission of the response.

Here, because Bouchard testified that he did not recognize the voice on the telephone as that of the defendant, authentication must derive from other confirming circumstances. Commonwealth v. Hartford, supra. See Rich v. Weeks, 279 Mass. 452, 455-456 (1932) (substance of telephone conversation admitted based on circumstantial identification of defendant); Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) (defendant was only male resident at telephone number dialed by witness, and statements made by speaker tended to confirm identity as defendant).

The Commonwealth argues that the following circumstances support the identification of the defendant as the caller. First, only ten hours elapsed between the incident and the telephone call, making it unlikely that anyone would have learned of the incident and formulated a plan to trap the defendant. Second, after agreeing to look after the complainant until her mother returned, the defendant fled the premises before the mother returned, thereby demonstrating consciousness of guilt. Third, there is no indication that anyone other than the defendant had any reason to place such a call to the police station.

These factors are not enough to support admission of this testimony; they are simply circumstances that the jury might consider to draw an inference that the defendant was the perpetrator. Here, the caller did not reveal any special knowledge about the events under investigation that the defendant alone would have possessed. The caller merely identified himself as Billy Howard, asked what was going on at the police station, and' claimed that he would go there later in the day. There was error in the admission of Bouchard’s testimony regarding this conversation.

We conclude, however, that the error was not prejudicial. Cf. Commonwealth v. LaPlante, 416 Mass. 433, 441 (1993) (in light of other evidence, lack of foundation for admission of a business record was not prejudicial). The victim was a highly competent witness displaying a familiarity with details of sexual conduct not likely known to an eight year old child; the defendant exhibited a consciousness of guilt when he fled the premises prior to the return of the victim’s mother; and a [326]*326physician testified that the redness outside the victim’s vagina was consistent with penile penetration. There were several fresh complaint witnesses who corroborated her story. In view of this strong circumstantial case, it is difficult to see how the evidence of the telephone call impermissibly tipped the scales against the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
677 N.E.2d 233, 42 Mass. App. Ct. 322, 1997 Mass. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-howard-massappct-1997.