Commonwealth v. Upton U.

795 N.E.2d 575, 59 Mass. App. Ct. 252, 2003 Mass. App. LEXIS 952
CourtMassachusetts Appeals Court
DecidedSeptember 10, 2003
DocketNo. 01-P-1148
StatusPublished
Cited by4 cases

This text of 795 N.E.2d 575 (Commonwealth v. Upton U.) 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. Upton U., 795 N.E.2d 575, 59 Mass. App. Ct. 252, 2003 Mass. App. LEXIS 952 (Mass. Ct. App. 2003).

Opinion

Perketta, J.

On appeal from his adjudications of delinquency on two counts of indecent assault and battery on a child under the age of fourteen years, the juvenile claims errors in the trial judge’s refusal to sanction the Commonwealth for what the juvenile alleges was a failure to preserve potentially exculpatory evidence, and in the allowance of fresh complaint and rebuttal testimony in evidence. We affirm the adjudications.

1. The facts. There was evidence as to the following facts. At the time of the alleged abuse in question, the juvenile was fourteen years old and the babysitter for three siblings, Carol (age five), Mary (age two), and Michael (age seven).2 While babysitting, and as Michael watched television in another room, the juvenile would expose himself to Carol and Mary and make them touch his penis.

Carol testified that the juvenile would put his “private” on her “private,” that when he did so, he told her that “vanilla” would come out of his “private” part, that he “had [Mary] lick” his penis but that when he asked her, Carol, to do the same, she refused, and that he exposed himself “almost ever[y] time” that he babysat. Carol also related that on one occasion when the juvenile was exposing himself to her, Michael “peeked in through the door.”

Michael told the jury that when the juvenile babysat, he would watch television while the juvenile and his sisters went into another room for about thirty minutes. Michael testified that on one occasion he went into their room and saw Carol standing on the bed and Mary “leaning down to [the juvenile’s] private,” and “trying to lick his private.” He, Michael, said nothing and left the room.

Janet, the children’s mother, related how she had left Carol and Mary in the juvenile’s care while she and Michael attended a science fair. Upon her arrival home, Janet heard Carol talking about something and the juvenile telling Carol “don’t say that” and calling Carol a “liar.” When Janet asked the juvenile what [254]*254the commotion was about, Carol said that the juvenile “let me touch . . ..” The juvenile, his face red, interrupted Carol and said “my private.” At this point, the juvenile’s mother arrived to take him home. As he was leaving, he said: “Ask [Michael]. [Michael] knows she said this before.”

After the juvenile’s departure, Janet asked Carol about the conversation that she had overheard. Carol then told her mother what the juvenile had been doing to her and Mary and how she (Carol) had touched the juvenile’s penis. Carol also told her that when she rubbed the juvenile’s penis, “he peed on [the] floor” and told her it “was vanilla, but she said it looked like he was peeing.”

Janet reported these disclosures to law enforcement officials, and Carol was interviewed at the district attorney’s office. Mora Cesarini, a detective with the local police department, testified that she had observed and taken notes during the Sexual Abuse Intervention Network (SAIN) interview with Carol. Cesarini related that during Carol’s interview, Carol stated that the juvenile showed her his penis, that sometimes she rubbed it, that “if you rubbed it so hard vanilla would come out,” and that sometimes the juvenile “would touch his private to her private.” Cesarini also testified that she turned her notes of the interview over to the SAIN interviewer from the district attorney’s office who, in turn, wrote a report based upon Cesarini’s notes. This procedure was the same as that used by the department of psychiatry at Children’s Hospital.

To demonstrate that the allegations were the result of Carol’s precociousness, the juvenile presented evidence to show that the first time he babysat for the children, Carol walked in on him while he was using the bathroom. He told his mother and Janet about this occurrence, and Janet told the juvenile’s mother that she would speak to Carol. On other nights that he babysat, Carol ran about the house unclothed. This was also a topic of conversation between the two mothers. During the time period here relevant, the juvenile’s sister and her boyfriend would babysit the children. Carol would sit in the boyfriend’s lap, hugging him and calling him “Daddy.” She once walked in on the boyfriend while he was using the bathroom. There was also evidence to the effect that Carol would put her hands in her [255]*255pants, that she and her siblings spoke about their bodies, and Carol talked about the fact that she did not have a penis.

Because the juvenile also presented expert testimony on the importance and significance of the manner in which the SAIN interview was conducted, the Commonwealth was allowed to present the rebuttal testimony of Susan Meyer, a licensed social worker, who testified upon interviewing techniques and behavior patterns of sexually abused children.

The jury found the juvenile delinquent on two counts of indecent assault and battery on a child under the age of fourteen years as to Carol, and not delinquent on the one count of rape of a child as to Mary.

2. Failure to preserve evidence. Because the SAIN interview of Carol was not videotaped, the juvenile filed a pretrial motion seeking to preclude Carol, Janet, and Cesarini from testifying. He claimed that the failure to videotape the interview was tantamount to the loss or destruction of exculpatory evidence. The judge denied the motion, and the juvenile did not renew his objection on this ground when any of the three witnesses testified.3 The claim on appeal is that because the SAIN interview was not videotaped, Cesarini should not have been allowed to testify.4

Although we have acknowledged the fact that the electronic recording of SAIN interviews is good practice, we have never required that such recordings be made. See Commonwealth v. Allen, 40 Mass. App. Ct. 458, 463 & n.9 (1996). Cf. Com[256]*256monwealth v. Diaz, 422 Mass. 269, 271-273 (1996) (a defendant has no right to an electronic recording of police interrogation); Commonwealth v. Baldwin, 426 Mass. 105, 110-113 (1997), cert. denied, 525 U.S. 820 (1998); Commonwealth v. Lo, 428 Mass. 45, 48 (1998) (a defendant has no right to electronic recording of psychiatric examination conducted in accordance with Blaisdell v. Commonwealth, 372 Mass. 753 [1977]). Rather, as stated in Commonwealth v. Baldwin, 426 Mass. at 113, “wide-ranging cross-examination, including inquiry as to why an accurate record was not made of [the interview], is the appropriate antidote to potential overreaching, bias, or mischaracterization of evidence by an agent of the State.”

In the instant case, counsel for the juvenile was given broad range on his cross-examination of Cesarini regarding the lack of a video of the SAIN interview as well as any failure by her to preserve her handwritten notes of that interview. Moreover, counsel questioned the Commonwealth’s expert rebuttal witness, see part 4, infra, as to the potential importance of an interviewer’s body language, the tone and phrasing of the questions, and other like issues. In light of defense counsel’s cross-examination of the Commonwealth’s expert witness and the substantial similarities in the essential points of the testimony of Carol, Janet, and Cesarini, we conclude that there is no basis for reversing the juvenile’s adjudications of delinquency due to the lack of a recording of Carol’s SAIN interview.

3.

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Bluebook (online)
795 N.E.2d 575, 59 Mass. App. Ct. 252, 2003 Mass. App. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-upton-u-massappct-2003.