Commonwealth v. Polk

965 N.E.2d 815, 462 Mass. 23, 2012 WL 1215233, 2012 Mass. LEXIS 259
CourtMassachusetts Supreme Judicial Court
DecidedApril 13, 2012
StatusPublished
Cited by35 cases

This text of 965 N.E.2d 815 (Commonwealth v. Polk) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Polk, 965 N.E.2d 815, 462 Mass. 23, 2012 WL 1215233, 2012 Mass. LEXIS 259 (Mass. 2012).

Opinion

Gants, J.

The defendant was convicted by a jury in the Superior Court on two indictments charging statutory rape, in violation of G. L. c. 265, § 23.1 The alleged victim was his then [24]*24fifteen year old niece, Molly.2 The defendant appealed from his convictions, and we granted his application for direct appellate review. On appeal, the defendant argues that the judge erred by excluding expert psychological testimony regarding “dissociation” and the evidence from Molly’s past that suggested that Molly had that disorder. The defendant contends that the exclusion of that evidence was prejudicial because it denied him the opportunity adequately to explain to the jury the significant possibility that Molly’s allegations were either fabricated or arose from a distortion of memory. We conclude that the exclusion of this evidence was prejudicial error and therefore reverse the convictions and remand the case for a new trial.

Background. We summarize the evidence admitted at trial that is relevant to this appeal. Molly’s adoptive mother is the defendant’s sister. In August, 2007, Molly, her adoptive parents, and three of her four siblings traveled from their home in Minnesota and stayed with the defendant’s family at their home in Massachusetts for one week.3

Six months after the visit, on February 14, 2008, Molly attended a meeting at school led by her godmother that discussed the topic of sexual abuse. During the meeting, according to Molly, “all of a sudden, it just popped up in my head of what happened in Boston.” After the meeting, Molly told her godmother that “someone had touched her in ways that he shouldn’t have.” Her godmother asked her who had touched her, and she said it was her “Uncle Bill,” referring to the defendant, and then started to cry. When asked how he had touched her, Molly [25]*25said that “he had sex with me.” After the revelation, the godmother took Molly home, where Molly told her parents, who took her to the Midwest Children’s Resource Center (center). At the center, she was interviewed by a nurse, and the interview was recorded on videotape. She was also examined by a physician. The results of this physical examination were normal, revealing no signs of trauma or sexually transmitted disease.

At trial, Molly testified that, on the next to last night at the defendant’s home (first night), she, the defendant, and Martha, the defendant’s then ten year old daughter, went upstairs to the first floor to watch a movie on the television, while Molly’s three siblings and two of the defendant’s five children stayed downstairs in the basement to watch another movie. The defendant and Molly sat on one couch; Martha sat alone on another. The defendant placed a blanket over both him and Molly, and then put his hand under her shirt and touched her breasts. Nothing else happened, and she later went to bed.4

The next night (second night), Molly and the defendant watched television alone on the first floor, while three of her siblings and two of the defendant’s children were in the basement television room. The defendant again touched Molly’s breasts and told her to go downstairs and take off her underwear, which she did.5 When she returned to the first-floor room, they kissed and the defendant, now on his knees on the floor, put his finger in, and later licked, her vagina. He then told Molly to sit on top of him, which she did. He took out his penis, which went into her vagina when she sat on him, but she said it hurt and they stopped. She then went to the downstairs bedroom, where her sister lay awake on the upper bunk. The defendant later entered the room to say good night, kissing Molly on her lips while she lay on the lower bunk.

On cross-examination, Molly was shown portions of her videotaped interview. With respect to the first night, Molly admitted that she had told the nurse at the center that Martha did not see the defendant touching her breasts because Martha from her vantage point on the other couch could not see Molly [26]*26and the defendant. But Molly agreed at trial that she and the defendant, while on the couch, would have been within Martha’s field of vision. Molly also admitted that she had made no mention of a blanket during her videotaped interview at the center. When the assistant district attorney and a detective sergeant interviewed Molly in Minnesota in October, 2009, she told them, “I don’t remember the first night.”

At trial, Molly initially said that she did not remember whether the defendant touched her at any other time during the week. But when the detective sergeant had interviewed Molly in March, 2008, she told him that the defendant had swiped his arm against her breasts approximately ten times while sitting with her and Martha at the piano. When asked at trial whether she recalled that actually happening, she replied, “Yes, because of the video I watched,” but then admitted that she had not mentioned this touching during the videotaped interview. At trial, she said that the touching at the piano happened only when Martha had left the room, but she had earlier told the detective sergeant that it happened while Martha was in the room.

Molly had also told the detective sergeant in March, 2008, of another incident with the defendant during her week-long vacation at his home where, three or four times, the defendant bmshed her thigh with his foot while they leaned against a table watching television. At trial, she did not remember whether that touching happened, or whether she had spoken of it during her interview with the detective sergeant.

Defense counsel informed the judge that he wished to advance two separate theories as to why Molly’s allegations of sexual abuse were not credible. First, he contended that at the time she made her first complaint to her godmother, Molly was seeking “attention” and “sympathy” because her adoptive family was in turmoil as a result of the conduct of her adopted sister Jane.6 She sought attention during a group discussion of sexual abuse by accusing her uncle of sexual abuse, because, as a result of [27]*27Molly’s prior exposure to abuse before her adoption at the age of nine, it had been “drilled into her in the most traumatic time in her life that this is what uncles do.” She did not expect her allegation to cause a “blow up” because sexual abuse by an uncle was a “pretty ordinary” event in her preadoption childhood and none of her uncles had ever been prosecuted for such abuse.

This theory required the admission of evidence as to what Molly had seen, said, heard, or experienced regarding the sexual abuse committed against her and others by Molly’s biological father’s brothers. Defense counsel made a proffer to the judge of the evidence of abuse in support of this theory. He proffered that Molly’s biological mother had testified in a deposition that Molly, when she was approximately five years old, said that an uncle had touched her “in between her legs” when she was taking a bath. In a voir dire, Molly did not recall being sexually molested in her bath, but she testified that she did remember that an uncle had anally penetrated her with his penis while she lay on a bed when she was younger than six years old.7

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Bluebook (online)
965 N.E.2d 815, 462 Mass. 23, 2012 WL 1215233, 2012 Mass. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-polk-mass-2012.