Commonwealth v. Snow

626 N.E.2d 888, 35 Mass. App. Ct. 836, 1994 Mass. App. LEXIS 88
CourtMassachusetts Appeals Court
DecidedJanuary 25, 1994
Docket93-P-25
StatusPublished
Cited by4 cases

This text of 626 N.E.2d 888 (Commonwealth v. Snow) 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. Snow, 626 N.E.2d 888, 35 Mass. App. Ct. 836, 1994 Mass. App. LEXIS 88 (Mass. Ct. App. 1994).

Opinion

Fine, J.

After trial by jury in the Superior Court, the defendant was convicted on two indictments each of rape of a child under sixteen and indecent assault and battery on a child under fourteen. His principal claim on appeal is that the judge erred in allowing testimony from two witnesses about the alleged victim’s “fresh complaints,” and testimony from the alleged victim concerning the defendant’s possession of a gun. We agree with the defendant that the “fresh complaint” evidence should not have been admitted and that the error was not harmless.

We first summarize the testimony of the alleged victim, nineteen years old at the time of trial. He stated that, beginning when he was ten, for a period of two years, the defendant fondled, sodomized, and committed fellatio on him. The abuse began in 1980, when he was living in Cambridge with his younger sister, his mother, and, intermittently, her boyfriend, the defendant. The abuse continued during June and July of 1981, while the alleged victim was living with the defendant in Waltham and the alleged victim’s mother was looking for a new place for the family to live, and then for an additional period following the family’s move, with the defendant, to a new apartment in Cambridge. The abuse ended in September of 1982, when the alleged victim entered the seventh grade, although the defendant continued to live with the family on and off until 1987. Because he was frightened and intimidated by the defendant, and embarrassed, the alleged victim told no one about the sexual encounters until the winter of 1988, approximately six years after they had ended and one year after the defendant had moved out of his home. Over objection, the alleged victim explained his fear of the defendant by testifying that, while staying at the defendant’s apartment in Waltham, he felt a gun under the mattress of the bed they shared. In the winter of 1988, the alleged victim told his best friend about the abuse, and a year or so later, he told his mother.

*838 The alleged victim’s mother was the next witness. She testified, over objection, that the alleged victim, crying and “an emotional wreck,” disclosed to her for the first time in 1989 that, before school in the morning while he was in the fifth grade, and also while he was staying with the defendant in Waltham, the defendant had sexually abused him. The alleged victim’s mother was followed on the stand by the alleged victim’s best friend who testified, over objection, that he had had a conversation with the alleged victim during the winter of 1988. The alleged victim, crying, appearing upset, scared, and nervous, and with difficulty speaking, told the witness that, when he was “a little kid,” the defendant made him “suck his dick.” The alleged victim also told the witness that he had never told anyone about the abuse because he was frightened and intimidated by the defendant.

The defendant testified in his own behalf and denied that he had ever committed a sexual assault of any kind upon the alleged victim. He also presented evidence of his working hours at the time of the alleged incidents which tended to show that he might not have been present when some of the acts were alleged to have occurred. In addition, he presented evidence conflicting with the testimony of the alleged victim and his mother about the extent of the mother’s presence in the Waltham apartment during the alleged victim’s stay there.

1. The admissibility of the evidence of “fresh complaint.''’ The fresh complaint doctrine is an exception to the general rule that a crime victim’s out-of-court statement is inadmissible if it is merely repetitive of his trial testimony. See Commonwealth v. Bailey, 370 Mass. 388, 391 (1976); Commonwealth v. Gardner, 30 Mass. App. Ct. 515, 523 (1991). Although there is “no absolute rule as to the time frame within which a sexual assault victim must make a first complaint for that complaint to be admissible in evidence as a fresh complaint,” Commonwealth v. Dockham, 405 Mass. 618, 625 (1989), the complaint must be reasonably prompt in the circumstances. The concept of reasonable promptness is especially flexible when the complainant is a young child. *839 See Commonwealth v. Comtois, 399 Mass. 668, 673 (1987); Commonwealth v. Amirault, 404 Mass. 221, 228 (1989); Commonwealth v. Dockham, 405 Mass. at 625; Commonwealth v. Dion, 30 Mass. 406, 413, and appendix B at 416 (1991); Commonwealth v. Johnson, ante 211, 215, and appendix at 219-220 (1993); Commonwealth v. McKinnon, ante 398, 399 (1993).

The circumstances in this case, the alleged victim’s age, the defendant’s relationship with his mother, the defendant’s membership in the alleged victim’s household for substantial periods, his reasonable fear as a result of finding the gun, and his understandable embarrassment certainly justified a substantial delay in reporting the sexual abuse. On the other hand, there was no evidence that the defendant ever threatened the alleged victim, and a year had passed after the defendant had left the alleged victim’s home before he first reported the sexual abuse to his friend. In all the circumstances, we do not think that conversation, approximately six years after the abuse ended, was sufficiently prompt to justify its admission as a “fresh complaint.” Nor was the alleged victim’s report to his mother a year later reasonably prompt in the circumstances. No case in this Commonwealth, of which we are aware, has allowed “fresh complaint” testimony after so long a delay. See Commonwealth v. Johnson, supra at 216, and cases cited in appendix at 219-220. Compare Commonwealth v. McKinnon, supra at 399-400. We conclude that it was error for the trial judge to allow the two witnesses to relate to the jury the alleged victim’s out-of-court statements about his sexual abuse by the defendant.

2. The prejudicial effect of the fresh complaint evidence. We proceed to consider the more difficult question whether the errors were harmless.

There are several factors in the case which suggest that the errors might have been harmless. The alleged victim testified, without objection, that he told no one about the sexual abuse until his conversation with his best friend in 1988. He also told the jury, without objection, of his conversation *840 about the abuse with his mother. Thus, the statements related to the jury by the two “fresh complaint” witnesses, which were brief and generalized, added little of substance to the alleged victim’s own testimony. Further, at least the alleged victim’s mother’s testimony was used by defense counsel to some advantage. In an attempt to show bias on the part of the alleged victim, defense counsel brought out that very shortly before the conversation between the alleged victim and his mother about the sexual abuse, she had had a date with the defendant and afterwards had talked to the alleged victim, who did not like the defendant, about possibly resuming the relationship.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Smith
794 N.E.2d 1241 (Massachusetts Appeals Court, 2003)
Commonwealth v. Morin
756 N.E.2d 37 (Massachusetts Appeals Court, 2001)
Commonwealth v. Perreira
644 N.E.2d 253 (Massachusetts Appeals Court, 1995)
Commonwealth v. Clements
629 N.E.2d 361 (Massachusetts Appeals Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
626 N.E.2d 888, 35 Mass. App. Ct. 836, 1994 Mass. App. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-snow-massappct-1994.