Opinion
10-P-1861
02-22-2012
COMMONWEALTH v. BRETT FOLLETT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Brett Follett, appeals from a jury verdict of guilt on the lesser included offense of rape of a child, G. L. c. 265, § 23. The defendant argues, essentially, that (1) references to the victim's out-of-court statements went beyond permissible first complaint; (2) the judge erred by instructing the jury on the lesser included offense of rape of a child; and (3) the Commonwealth impermissibly impeached a defense witness with his pretrial silence. We affirm.
The defendant was tried on two counts of rape of a child by force. G. L. c. 265, § 22A.
1. Out-of-court statements. The testimony of the victim's cousin was properly admitted under Commonwealth v. Kebreau, 454 Mass. 287, 299-300 (2009), and Commonwealth v. Serrano-Ortiz, 53 Mass. App. Ct. 608, 614 (2002). The testimony of the victim that she talked to her mother and that her mother accompanied her to the hospital was not error. She did not testify about the details of her conversation, and her mother did not testify. Commonwealth v. McCoy, 456 Mass. 838, 851-852 (2010). The victim did not, as the defendant recites in his brief, testify that she spoke to her aunt. The victim's testimony that she told the police that she told the defendant to stop was properly admitted on redirect examination after the defendant questioned the victim in the area. Commonwealth v. Marrero, 427 Mass. 65, 69 (1998). See Commonwealth v. Kebreau, supra at 299. The victim's statement on redirect regarding what she told the nurse was properly admitted as a prior consistent statement to rebut a claim of recent contrivance. Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509-510 (2009). The Sexual Abuse Intervention Network (SAIN) form was independently admissible under G. L. c. 233, § 79. Commonwealth v. Dargon, 457 Mass. 387, 394-396 (2010). Although the word 'assault' should have been redacted, see id. at 396-397, in light of the evidence at trial and the judge's instruction to the jury that if they heard or saw the words 'assault' or 'sexual assault' they were to understand that the words were references to complaints or allegations of sexual assault, it is extremely unlikely that the failure to redact the term created a substantial risk of a miscarriage of justice. See id. at 397-398. The nurse's testimony was admissible as it was relevant to her diagnosis and treatment of the victim. Id. at 396. Neither the nurse's testimony nor the SAIN form was offered to corroborate the victim's testimony, but rather to establish a foundation for the physical evidence and explain the lack of certain physical evidence. Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 702 (2009).
In these circumstances, where there was no piling on and where the evidence complained of was admissible for reasons other than first complaint, there was no error and the probative value of the evidence outweighed any potential unfair prejudice.
2. Instruction on the lesser included offense. Case law is clear that the judge was correct to give the instruction. See, e.g., Commonwealth v. Miller, 385 Mass. 521, 521-525 (1982); Commonwealth v. Dunne, 394 Mass. 10, 18 (1985); Commonwealth v. Knap, 412 Mass. 712, 714-715 (1992). We are not at liberty to modify the case law in this regard, as the defendant urges, but even if we were, we are not so inclined. See Commonwealth v. Moore, 359 Mass. 509, 514- 515 (1971).
3. Impeachment of the witness with silence. Review of the record reveals that the Commonwealth adequately laid a foundation to impeach the witness with his failure to go to the police. See Commonwealth v. Gregory, 401 Mass. 437, 444- 445 (1988); Commonwealth v. Hart, 455 Mass. 230, 238-240 (2009). The testimony was properly admitted.
Judgment affirmed.
By the Court (Cypher, Vuono & Rubin, JJ.),