Commonwealth v. Ramsey

927 N.E.2d 506, 76 Mass. App. Ct. 844, 2010 Mass. App. LEXIS 691

• Court: Massachusetts Appeals Court
• Decided: June 3, 2010
• Docket: 08-P-333
• Status: Published

Opinions

Mills, J.

A Superior Court jury convicted the defendant of incest, G. L. c. 272, § 17, and acquitted him of rape of a child, G. L. c. 265, § 23. He complains of multiple violations of the first complaint rule. He also asserts error in the exclusion of an alleged recantation, the improper questioning of a witness, and exclusion of a journal kept by Jane,¹ the complainant. Because of the erroneous admission of some portions of Jane’s hospital records, we reverse.

Background..2 Jane, bom in 1985, was the Commonwealth’s principal witness. She testified that the defendant, her father, sexually abused her, beginning between the ages of ten and twelve, while the family lived in Georgia. The family moved to Massachusetts in 1998 or 1999 and, except for a two-year period, the abuse continued. The Commonwealth’s additional witnesses included Jane’s former boy friend, Robert Fuller (agreed by the parties, pretrial, as the first complaint witness); Shannon Crosby, Jane’s friend; two Wareham police officers; a social worker from the Department of Children and Families (DCF); and a treating social worker. Medical records from two hospitals, Tobey and St. Luke’s, were admitted.

On November 17, 2002, Jane was taken to the two hospitals under circumstances described in the evidence as a suicide attempt.³ She remained at the Tobey Hospital for about four hours, and was transferred to St. Luke’s Hospital for psychiatric care, where she remained for five days. Jane’s combined records from both hospitals consisted of more than eighty pages, and contained allegations Jane made to police officers and hospital staff that her father had repeatedly sexually abused her. The records include approximately twenty allegations of sexual abuse and conclusory statements of rape and incest, including the following: “[Jane] has been raped by her father since age [twelve],” “[i]ncest with father, long-term,” and “she has been sexually abused by father since [approximately] age [twelve].” Additionally, the statement, “[fjather admitted to this,” appears in at least two separate places in the medical records.⁴

The case was, as is often typical, a contest of credibility between the defendant and Jane. There was no physical evidence of the alleged abuse. The jury were permitted to propose written questions to witnesses during the trial,⁵ and many detailed questions were placed to witnesses by the judge during, or at the immediate conclusion of, a witness’s testimony. During jury deliberations, the jury submitted a question that revealed that they had focused their attention on a portion of the hospital records relating an admission by the defendant (the defendant denied having made any such admission). The jury reported deadlock after fifteen hours of deliberation, and were given the Tuey-Rodriquez charge.⁶ Eventually the defendant was acquitted of rape, and convicted on the charge of incest.

Discussion. 1. Admission of hospital records. Prior to trial, the parties argued the admissibility of the hospital records. The defendant requested admission of two brief portions of the records that he argued was evidence of a state of mind corroborative of other statements Jane allegedly made recanting her allegations.⁷ He argued for the exclusion of the remaining portions of the records because the medical records statute, G. L. c. 233, § 79, “does not get the Commonwealth around the requirements of [the first complaint doctrine as articulated in] Commonwealth v. King[, 445 Mass. 217 (2005), cert, denied, 456 U.S. 1216 (2006)].” The Commonwealth argued for the admission of both sets of records, in toto, relying on the medical records exception to the hearsay rule. The judge, who suggested that she agreed with the Commonwealth’s position, reserved decision.

On the second day of trial, prior to the resumption of Jane’s direct testimony, the judge heard further arguments as to the hospital records. The Commonwealth again argued for their admissibility on the basis of the medical records statute, as records of medical treatment, and further contended that the first complaint doctrine did not apply. The defendant’s attorney continued to argue for exclusion on the basis of Commonwealth v. King and “the balance of the rules of evidence.” The judge ruled the records admissible, concluding that the first complaint doctrine did not preclude admission because the records were admissible on other grounds.

Before resuming direct examination of the defendant on the third day of trial, defense counsel requested reconsideration of that ruling and specifically requested excision of “the revelations of complaint that are listed in those records.”⁸ The request was denied.

The hospital records were not emphasized at trial.⁹ However, a treating social worker testified to her examination of the medical records, and the judge, responding to a question from the jury, explained that all of the medical records would be sent to them. The judge instructed the jury to refer to the records during deliberations. Additionally, both attorneys referred to the medical records in closing.

Moreover, during their deliberations, the jury asked to be told the identity of the hospital employee who made the notations appearing on a particular hospital intake form. Examination of the record reveals that these notations referred to Jane’s claim of sexual abuse, including the statement that “[fjather admitted to this. Police called & fa[ther] placed under arrest.”¹⁰ Defense counsel acknowledged that he had overlooked this statement during his review of the hospital records and requested a curative instruction stating that the defendant “did not admit to these allegations.” The judge refused to give this instruction on the basis that whether the father admitted to the allegations was a jury question. Instead, the judge instructed:

“What I can say to you, though, is that this information that’s written on here is information that came from [Jane], including this phrase, “father admitted to this.” That is information that came from [Jane], You probably understood that anyway. But just to make sure that you knew that the hospital didn’t go out and do its own independent investigation before whoever it was wrote this wrote it.”

Defense counsel noted his dissatisfaction with the adequacy of the curative instruction, and moved for a mistrial based on the prejudicial impact of the hospital records. The judge denied this motion.

On appeal, the defendant argues that the wholesale admission of Jane’s medical records contained multiple complaint testimony in violation of the first complaint doctrine. We agree.

2. Hospital records and the first complaint doctrine. We begin our analysis by determining “whether the challenged testimony, viewed in the context in which it was offered, strayed beyond the permissible boundaries of the [first complaint] doctrine.” Commonwealth v. Arana, 453 Mass. 214, 222 (2009). In this case, the records were not admissible as first complaint evidence. As discussed above, by pretrial agreement, Robert Fuller was the designated first complaint witness. The hospital records, which contain additional complaints by Jane of abuse by her father, written statements of hospital personnel reiterating the complaints, and conclusory statements of rape and incest, were inadmissible as first complaint evidence.

Our next task is to determine “whether evidence which was inadmissible as first complaint was nevertheless independently admissible in the judge’s discretion on the basis of some other evidentiary principle.” Id. at 224. However, the mere “existence of a potential alternative evidentiary basis for the admission of repetitive extrajudicial complaint evidence does not guarantee its admissibility.” Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 494 (2009). Instead, if “after careful balancing of the testimony’s probative and prejudicial value, testimony is found by the judge to be relevant and admissible for reasons that are independent of the first complaint doctrine, in the context of a particular case, it is within the judge’s discretion to admit the testimony” (emphasis added). Arana, supra at 229. “The evidence . . . must serve a separate function, and must be of sufficient importance to a fair understanding of the Commonwealth’s case.” Monteiro, supra at 495.

The judge in this case evaluated the hospital records on various grounds. Pretrial she indicated that the records were likely admissible as an exception to the hearsay rule because they were made for purposes of diagnosis and treatment, concluding that the first complaint doctrine was a different exception to the hearsay rule. Later, in overruling the defendant’s objection to the records during direct examination of Jane, the judge ruled that the records were admissible as statements made during treatment and thus were not barred by the first complaint doctrine. These rulings are incorrect as matters of law¹¹ because, as discussed above, the judge must first determine whether the testimony serves a purpose other than corroborating Jane’s testimony and then weigh its probative and prejudicial value. Arana, supra at 229. The judge did not conduct such an inquiry in this case and, even more troubling, there does not appear to be a separate purpose for introducing the further evidence of complaint contained in the medical records.¹² The medical records statute, which is merely a separate evidentiary principle, does not, on its own, constitute a separate purpose for admitting further complaint testimony. See Monteiro, supra at 495. Furthermore, even if there were a separate purpose for admitting the further evidence of complaint contained in the medical records, it would be an abuse of discretion to admit them in toto, containing the statements that they do, without any redaction or competent instruction to the jury. The error is preserved, and thus we review under the familiar principles of the prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).¹³

On this record, “[w]e cannot say that the judge’s error in admitting the improper [evidence] was not prejudicial.” Ibid. The records contain overwhelming repetitions by various members of the hospital staff of the allegations of abuse.¹⁴ In addition, the “central determination before the jury was the credibility of [Jane].” Arana, supra at 228. Again, as in Arana, the jury did not believe Jane’s entire story because the defendant was acquitted on the charge of rape. “In a case such as this one, which turned on credibility, there is a particularly high probability of prejudice from the admission of duplicative complaint evidence.” Monteiro, supra at 497.

The erroneous admission of the medical records, including the statement that “[fjather admits to this and was placed under arrest,” was powerfully inculpatory. The jury’s question regarding this particular notation reflects that they were focused on it. Other questions from the jury during deliberations, questions posed by the jury to witnesses during trial, and the jury’s deadlock after fifteen hours of deliberation persuade us that the jury were being extremely careful and that the case was very close. The statements contained in the hospital records, including both the multiple complaints by Jane and the father’s alleged admission, should not have been before the jury, and served impermissibly to corroborate Jane’s testimony in a case in which credibility was the central issue. We cannot fairly conclude “that the error did not influence the jury, or had but very slight effect” and thus the conviction must be reversed. Flebotte, supra at 353, quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

3. Other issues. We briefly comment on other issues that may arise in the event of a retrial.

a. Voir dire. The defendant argues that the voir dire on first complaint was insufficient. In the event of a retrial, the judge and the attorneys will have the benefit of Arana, supra, and Commonwealth v. Stuckich, 450 Mass. 449 (2008).

b. Testimony of Shannon Crosby. Crosby, a friend of Jane, was permitted to testify that she went to the police to make disclosures in which Jane’s complaint was embedded. The judge noted the testimony as “appropriate to set the context for why [Jane] did what she did, why it goes, I think, to her credibility.” In the event of retrial, the parties and the judge will have the benefit of Arana, supra.

c. Exclusion of evidence of alleged prior allegations by Jane. The defendant sought to admit evidence of, and cross-examine Jane about, a previous allegation of abuse against the defendant that Jane had allegedly made and recanted while the family was living in Georgia. The judge excluded the evidence, finding that the defendant’s offer of proof was insufficient because there was no independent basis that it was a false allegation. There was no error. See Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 490-491 (1987); Commonwealth v. Costa, 69 Mass. App. Ct. 823, 831 (2007). The narrow exceptions in Commonwealth v. Bohannon, 376 Mass. 90 (1978), do not apply.

d. Jane’s journal. The defendant sought to admit an entry from Jane’s journal, asserting that it constituted evidence that Jane intended to lie. The defendant’s argument is so remote that the judge’s refusal to admit the testimony could not have been an abuse of discretion.¹⁵

Conclusion. The admission of the medical records in toto violated the first complaint doctrine and was error requiring reversal of the judgment of conviction of incest. The jury verdict is set aside.

So ordered.

1 A pseudonym.

2 The dissent narrates a version of the facts that “the jury were entitled to find . . . .” In the majority opinion, we recite the facts in order to form the predicate for our review of potential prejudice flowing from improperly admitted evidence.

3 The evidence is conflicting as to what, if any, medications were ingested by Jane.

4 In total there are over twenty instances of complaint in the hospital records. We note that the first complaint doctrine is applicable not only to the testimony of a five witness, but also to “any testimony containing an embedded report of sexual assault, other than the complainant’s first complaint.” Commonwealth v. Arana, 453 Mass. 214, 231 (2009). See Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 494-496 (2009).

5 Accordingly, questions from the jury were directed by the judge to the defendant, the treating social worker, Jane, one police officer, and Jane’s mother.

6 See Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851); Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973).

7 The defendant sought to introduce the following statement that Jane made to hospital personnel: “I’m very sorry for what I’ve done. I don’t know what I’m doing.”

We disagree with the dissent’s position that the defendant’s desire to have recantation evidence admitted precludes his objection to other inadmissible portions of the hospital records.

8 At this time defense counsel also objected to the admission of the hospital records on the grounds of relevance.

9 The dissent suggests that the defendant intended to use the allegations appearing in the hospital records to support his challenge to Jane’s credibility based on recantation. However, the defendant’s opening statement reflects that he intended to rely, and did principally rely, on the testimony of Jane’s mother and grandmother to establish that Jane recanted.

In his opening, defense counsel’s only reference to the medical records was that the jury “will have other information in the medical records that [they] will be able to look at,” and then described Jane’s statement discussed in note 7, supra. This fleeting comment went to Jane’s state of mind and made no reference to the objectionable portions of the records. Moreover, the jury had before them other evidence that the father had been placed under arrest on the basis of accusations by Jane, thereby furnishing context for Jane’s recantations to her mother and grandmother.

10 The father’s alleged admission, phrased in slightly different terms, appeared in two separate notations contained in the hospital records:

“[Patient] disclosed being sexually assaulted by father since age of [twelve years]. Father admits to this and was placed under arrest. [Patient] reporting she is now concerned her mother is going to be mad because she has disclosed. [DCF] called into Tobey [emergency room] interviewed [patient] & now interviewing mother & other [siblings].”

“[Patient] disclosed that she has been repeatedly sexually assaulted by father since age [twelve]. Father admitted to this. Police called [& father] placed under arrest [DCF] also called to interview [patient] her mother & her siblings.”

11 We note that, at the time of trial in this case, the parties and the judge did not have the benefit of cases exploring the first complaint doctrine, such as Commonwealth v. Stuckich, 450 Mass. 449 (2008), and Arana, supra.

12 In Arana, supra at 227, further evidence of complaint was admissible in order to rebut the defendant’s allegation that the complainant fabricated the accusations to provide a basis for a civil lawsuit. In Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009), such evidence was admissible because the defense exploited discrepancies in the testimony of one of the victims and had “opened the door on cross-examination”; thus, “the Commonwealth was entitled to attempt to rehabilitate the witness.” Here, the medical records were introduced prior to any cross-examination of Jane.

In Commonwealth v. Dargon (No. 1), 74 Mass. App. Ct. 330, 336, further appellate review granted, 455 Mass. 1101 (2009), multiple complaint evidence was admissible because the defense strategy was a “cataloging of the numerous individuals the victim encountered, suggesting in essence that if the victim had been telling the truth, she would have told more of those” people. The defense strategy in Dargon manipulated the first complaint doctrine (because only the first person whom the victim told of the abuse could testify as to the allegation) and thus the Commonwealth was “permitted, within reason, to admit evidence of the victim’s prior consistent statements.” Id. at 337. That is not the situation in this case.

Additionally, the portion of the hospital records that was admitted in Dargon over the defendant’s objection consisted only of the victim’s detailed description of the sexual assault. Dargon, supra at 333. However, the records admitted in this case do much more. In addition to reiterating allegations of sexual abuse, they contain statements of hospital personnel repeating the allegations, conclusory statements of rape, and a diagnosis of incest. Furthermore, it appears that the records in Dargon were at least partially redacted. Id. at 333.

13 No mention was made by either party or the judge of the prohibition in the medical records statute that “nothing therein shall be admissible as evidence which has reference to the question of liability.” G. L. c. 233, § 79. See Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998) (notations on hospital intake form stating that complainant had been “assaulted” should have been redacted); Commonwealth v. Dwyer, 448 Mass. 122, 137 (2006) (“statements bearing on the question of liability” and “ultimate conclusions” should be redacted).

14 We are particularly troubled by the portions of the hospital records that state a diagnosis of “[ijncest with father, long-term,” the statement that Jane “has been raped by her father since age [twelve],” and the statement that “father admits to this and was placed under arrest.”

15 The defendant also argued that the judge should not have permitted the prosecutor to ask Jane, her mother, or her maternal grandmother about their failure to contact Jane following her accusations. The judge did not abuse her discretion in permitting the questioning, where it was relevant to the witnesses’ bias.