Commonwealth v. Reznikow

746 N.E.2d 539, 51 Mass. App. Ct. 330, 2001 Mass. App. LEXIS 245
CourtMassachusetts Appeals Court
DecidedApril 12, 2001
DocketNo. 00-P-738
StatusPublished
Cited by1 cases

This text of 746 N.E.2d 539 (Commonwealth v. Reznikow) 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. Reznikow, 746 N.E.2d 539, 51 Mass. App. Ct. 330, 2001 Mass. App. LEXIS 245 (Mass. Ct. App. 2001).

Opinion

Kaplan, J.

A Middlesex Superior Court jury found the defendant guilty of rape of a child under the age of sixteen (G. L. c. 265, § 23) and indecent assault and battery of a child under fourteen (c. 265, § 13B). The defendant appeals from the judgments of conviction.

The complaining witness, Kristin (a pseudonym), was bom on July 30, 1987. Her mother died some eighteen months later. Kristin and her twin brother remained with their father, the defendant herein, in a house in Billerica. There were many others who, over the years, from time to time, lived in the house.

Kristin was twelve years old when she testified at the trial in [331]*331October, 1999.1 The period of abuse, according to Kristin, was from her third to her sixth year, 1990 to 1993. She said the defendant repeatedly, usually in afternoons, called her into his bedroom, shut the door, and had her take her clothes off. The defendant removed his clothes and lay on his bed next to her. Straddling her, he “would put his penis in my mouth and his penis on my vagina,” in either case moving his penis up and down. During these incidents Kristin was “unhappy,” “sad,” “mad”; the defendant was “smiling,” “happy.”

Sometime in 1993, Eileen Scholl, the defendant’s friend, came to stay in the Billerica house with her two grandsons, Patrick and James, then teenagers. Kristin said the defendant’s abuse ceased with Scholl’s arrival.

Kristin, however, began “acting out” in sexual ways, touching herself, her brother, and others, and speaking in sexually explicit words. Eventually, Scholl was led on June 21, 1995, to consult Harriet Otis, a licensed mental health counselor and family therapist practicing in Lowell. Otis met with Kristin on July 5, 1995. According to Otis, Kristin acknowledged she had been touching her brother and the Scholl grandsons. Then Otis asked whether someone had been touching her; Kristin said yes. The questioning continued: When had this happened? “[A] long time ago,” and “more than once.” Was it “still ongoing”? She said yes. Could she tell who it was? “No she couldn’t.” Did she feel safe at home? “No.” Was she protecting “somebody” and was that the reason “she couldn’t name them”? She answered “yes.”

Otis promptly telephoned the Department of Social Services (DSS) and filed a “51A” report of suspected abuse. See G. L. c. 119, § 51A. DSS started an investigation. On July 11 a DSS social worker, Nancy Assemza, had a meeting with the defendant. He denied knowledge of any abuse; to the worker’s mention of reports that Kristin had been acting out, he said he was not troubled by her behavior and was not aware of any misconduct. DSS later filed a care and protection petition in Juvenile Court which resulted in the placement of Kristin in [332]*332foster care with Koshana DiTucci in the town of Byfield.2 This occurred just before Kristin’s eighth birthday in July, 1995. Kristin remained with DiTucci through the time of trial.

DiTucci testified. She observed at first hand Kristin’s continuing acting out. At one point Kristin told DiTucci in general terms about having been abused, but she did not say who was responsible; talking about this came hard. Kristin used to communicate with DiTucci by handwritten notes. In August, 1996, Kristin handed DiTucci a note, but with the caution that it was not to be read until Kristin was back in her own room. The note said, “It was Daddy,” and was signed “Sweetie Pie” (her nickname). Kristin would not speak of this note, but later, in August or September, she made two drawings of stick figures, depicting the “things that my Dad did to me.”

DiTucci acquainted Eileen Hiatt, a psychotherapist who was seeing Kristin at the time, with these drawings. In a therapy session with Hiatt, Kristin made two new drawings showing “what the touchings were.” Below the two figures in one drawing, Kristin had written “my private part and daddy private part are together.” On the other drawing, also of two figures, Kristin wrote, “Has [¿7c] private part is in my mouth and I do not like it.” And during a session on September 9, 1996, after Hiatt asked if anyone had touched her private parts, Kristin wrote “yes,” and when further asked who it was, she wrote “daddy.”

The Middlesex County district attorney’s office took hold. On November 26, 1996, in an interview with Detective Sergeant Daniel Rosa of the Billerica police, Kristin named the defendant as the one who had abused her. On February 13, 1997, Sergeant Rosa spoke with the defendant. After Miranda warnings, the defendant denied abusing his daughter and said DSS workers had been “coaching” her. About a week before the trial Rosa tried to speak with Scholl but she declined to meet him.

The foregoing in substance was the Commonwealth’s case.3

The defendant testified, denying the charges and pointing to [333]*333the improbability of his being at home in afternoons: his schedule as a truck driver in the asphalt paving business would interfere.4 Through cross-examination of Commonwealth witnesses, the defense had tried to show Kristin was progressively led into believing what she now asserted. Dr. Wilfred Derby, a clinical and forensic psychologist, testified for the defense as an expert about children’s memories, research into suggestiveness of interview techniques, and susceptibility of young children to suggestion by adults. DSS had referred Kristin to a therapist, Vicky Glatt, for sexual abuse evaluation. Glatt interviewed Kristin in March, 1999, and testified the girl was weak in recollecting details of the abuse but had confirmed it occurred up to the time of Scholl’s arrival and, Kristin said, more than once a week.5

The defendant does not dispute there was sufficient evidence to support the jury verdicts, for he does not claim the judge erred in denying the defendant’s motions for required findings.

1. The defendant objected at trial to the admission of Otis’s “fresh complaint” testimony on the ground that, as a matter of law, it was unduly prejudicial and cumulative of Kristin’s testimony, and it was not fresh enough, not close enough in time to the supposed criminal behavior (a distance of perhaps two years). The objection was properly overruled.6

On appeal, the defendant changes stance and fixes on those words in Otis’s testimony in which she reported that Kristin affirmed in response to questions that the “touching” (of Kristin as object) was “still ongoing” (at the time of the interview). There is argument that this particular hearsay could not be justified as fresh complaint material because it went beyond (and [334]*334could be read as contradictory to) Kristin’s direct percipient testimony about the duration of the criminal events; thus it could not serve in a corroborative role, and so should be excluded as unemancipated hearsay. We need not debate whether the nominal excess in Otis’s narrative of her interviews with Kristin was so broad as to require exclusion. Compare Commonwealth v. Flebotte, 417 Mass. 348, 351-353 (1994) (error to admit excess); Commonwealth v. Kerr, 36 Mass. App. Ct. 505, 507-508 (1994) (same); Commonwealth v. McCaffrey, 36 Mass. App. Ct. 583, 585-589 (1994) (same), with Commonwealth v. Kirkpatrick, 423 Mass. 436, 444-445 (no error), cert. denied, 519 U.S. 1015 (1996); Commonwealth v. Martins, 38 Mass. App. Ct.

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Bluebook (online)
746 N.E.2d 539, 51 Mass. App. Ct. 330, 2001 Mass. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-reznikow-massappct-2001.