Opinion
No. 10–P–1625.
2012-08-14
COMMONWEALTH v. Phillip DUFFY.
By the Court (GRASSO, GREEN, & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a Middlesex Superior Court jury of eight counts of rape of a child, three counts of indecent assault and battery on a child under fourteen, five counts of indecent assault and battery on a person fourteen or older, and one count of posing a child in a state of nudity. On appeal, the defendant challenges the trial judge's allowance of Sexual Abuse Intervention Network (SAIN) testimony and the prosecutor's redirect examination of a witness. We affirm.
Background. Based upon the evidence at trial, a jury could have found the following facts. The defendant is the adoptive father of Amanda. On November 12, 2005, Amanda's friend Candace spent the night at Amanda's home. Amanda was approximately fifteen years old, and Candace was thirteen. The girls spent the evening on the computer, which was located in the defendant's and his wife's bedroom. The defendant asked Candace to have sex with him several times that evening; each time Candace declined. At some point, Amanda left the defendant's bedroom to take a shower. The defendant entered the bedroom and again asked Candace to have sex with him. Candace “gave in” because she was scared of the defendant. The defendant removed Candace's clothes and vaginally penetrated her with his penis. He stopped when he heard Amanda finish her shower, and left the room. Candace put her clothes back on and resumed her activities at the computer. Amanda returned to the bedroom and Candace did not tell her what had happened. On March 7, 2006, Candace received an instant message from an individual claiming to be the defendant and asking Candace for nude pictures of herself. Candace reported the conversation to her school therapist and, two days later, disclosed the rape. Candace also told Amanda about the rape.
A pseudonym.
A pseudonym.
Candace's disclosure prompted an investigation of the defendant by the Department of Children and Families. Investigators visited the defendant's home and seized a computer and other electronic devices. However, the defendant had recently purchased a new computer for his bedroom and had discarded two hard drives which had been associated with the old computer. The defendant acknowledged that he was aware of Candace's allegations when he discarded the old hard drives. Investigators were able to recover from Amanda's e-mail account, to which the defendant and Amanda had access, nude images of Amanda.
Then known as the Department of Social Services.
Amanda initially denied any abuse by the defendant. However, upon learning that investigators had seized the defendant's computer and electronic devices, Amanda acknowledged that the defendant had taken nude pictures of her. Amanda also disclosed, for the first time, that the defendant had been raping her for approximately four years. The defendant was charged with several counts of rape of a child, indecent assault and battery on a child under fourteen, indecent assault and battery on a child over fourteen, posing a child in a state of nudity, and disseminating child pornography. He was found guilty of the rape and indecent assault and battery charges, along with one count of posing a child in a state of nudity, and was sentenced to life in prison.
Amanda initially stated that her brother had taken sexually graphic photos of her. She later stated that an unnamed friend had taken the photos, and then finally admitted that the defendant had taken the pictures of her.
The defendant was also sentenced on the indecent assault and battery charges to nine to ten years from and after the life sentences imposed on the rape charges.
Discussion. The defendant argues that the trial judge erred in allowing Medford Police Detective Patricia Sullivan to testify to the procedural details of a SAIN interview. The Supreme Judicial Court has held that testimony describing the investigative process is inadmissible in a rape trial because “[t]he fact that the Commonwealth brought its resources to bear on [an] incident creates the imprimatur of official belief in the complainant.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The defendant argues that Detective Sullivan's testimony regarding the SAIN interview violated the first complaint doctrine because it was “the equivalent of saying that [the victims] repeated [their] account of the incident, i.e., it allow[ed] fresh complaint testimony through the back door.” Ibid.
The first complaint doctrine, established by Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006), “is an evidentiary rule designed to give support to a complainant's testimony of a sexual assault in cases where the credibility of the accusation is a contested issue at trial.” Commonwealth v. Arana, 453 Mass. 214, 228 (2009).
However, the Supreme Judicial Court “did not intend in Stuckich to imply that, unless a police officer is the first complaint witness, testimony concerning the circumstances giving rise to the police involvement in a sexual assault case will never be admissible as part of the Commonwealth's case-in-chief.” Commonwealth v. Arana, 453 Mass. 214, 226 (2009). The first complaint doctrine does not “prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible,” id. at 220–221, and there may be instances “when testimony that includes, or implies, the fact that a report was made will be admissible for a legitimate purpose other than to corroborate a complainant's testimony.” Id. at 223–224.
Here, as in Arana, Detective Sullivan's testimony regarding the procedural aspects of a SAIN interview was admissible to rebut defense counsel's argument “that certain aspects of the police investigation conducted in the days following [the victims'] report[s] of sexual assault demonstrated ... incompetence on the part of the police.” Id. at 226–227. The testimony also became relevant in light of defense counsel's use of the transcripts of the victims' respective SAIN interviews to impeach their credibility. Detective Sullivan's description of the process giving rise to the statements served the independent purpose of rebutting the defense theory that the victims had fabricated their story “and, in view of the defense strategy, was necessary to present a fair and accurate picture of the Commonwealth's case.” Commonwealth v. Monteiro, 75 Mass.App.Ct. 489, 496 (2009). The first complaint doctrine “is not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth's case-in-chief,” Arana, supra at 228–229, and we cannot say that the judge abused her discretion in admitting the testimony.
The defendant's next contention, that the judge impermissibly allowed the prosecutor to exceed the scope of cross-examination in her redirect examination of Detective Sullivan, requires little discussion. Defense counsel asked Detective Sullivan on cross-examination about the failure of the police to seize and test physical evidence from the defendant's home. He also asked her whether any medical exams had been performed on the victims. These questions were intended to create a reasonable doubt in the jury's mind as to the defendant's guilt, by virtue of an allegedly inadequate police investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485–486 (1980). The prosecutor's question on redirect examination, regarding the evidentiary value of performing a sexual assault exam, related directly to defense counsel's question on cross-examination regarding the failure to perform medical tests on the victims. There was no error.
Judgments affirmed.