For material error as indicated, the judgment is reversed, the verdict is set aside, and the case is to stand for a new trial if the Commonwealth should be so disposed. So ordered.CommonwealthGangi, 243 Mass. 341 CommonwealthColangelo, 256 Mass. 165 GloverCallahan, 299 Mass. 55 CommonwealthEllis, 319 Mass. 627 CommonwealthHoward, 355 Mass. 526 CommonwealthHanger, 357 Mass. 464 CommonwealthIzzo, 359 Mass. 39 CommonwealthTempesta, 361 Mass. 191 CommonwealthMcGrath, 364 Mass. 243 CommonwealthBailey, 370 Mass. 388 CommonwealthLund, 5 Mass. App. Ct. 884 CommonwealthEdwards, 7 Mass. App. Ct. 868 CommonwealthHealey, 8 Mass. App. Ct. 938 CommonwealthHannaford, 10 Mass. App. Ct. 903 CommonwealthWilson, 12 Mass. App. Ct. 942 CommonwealthKing, 387 Mass. 464 CommonwealthBrenner, 18 Mass. App. Ct. 930 CommonwealthCoull, 20 Mass. App. Ct. 955 CommonwealthAdams, 23 Mass. App. Ct. 534 CommonwealthComtois, 399 Mass. 668 CommonwealthMcDonough, 400 Mass. 639 CommonwealthRockwood, 27 Mass. App. Ct. 1137 CommonwealthDockham, 405 Mass. 618 CommonwealthGonsalves, 23 Mass. App. Ct. 184 CommonwealthDensten, 23 Mass. App. Ct. 981 CommonwealthLagacy, 23 Mass. App. Ct. 622 CommonwealthMontanino, 409 Mass. 500 S.C. 28 Mass. App. Ct. 516 APPENDIX A. v. (1923): one hour. v. , 166 (1926): immediately afterwards (another complaint made three to four months later was held inadmissible as fresh complaint). v. , 56 (1937): two hours.
We conclude that Suse's corroborative testimony, which was limited to a bare report of the fact of the crimes, cannot be ruled incompetent as matter of law. See Commonwealth v. Lund, 5 Mass. App. Ct. 884, 885 (1977). In reaching this conclusion, however, we should state that this case approaches the extreme. If the judge had excluded the complaint to Suse, he would also have been acting properly within his discretion.
The failure to object to the number of fresh complaint witnesses did not constitute "serious incompetency," as there is no indication in the case law that a motion to limit the number of fresh complaint witnesses would have been allowed. See Commonwealth v. Bailey, 370 Mass. at 393 (three witnesses testified to details of fresh complaint); Commonwealth v. Sherry, 386 Mass. at 690 (fresh complaint testimony of three witnesses and hospital report containing victim's account of incident admitted); Commonwealth v. Lund, 5 Mass. App. Ct. 884 (1977) (five fresh complaint witnesses); Commonwealth v. Manning, 6 Mass. App. Ct. 430, 434 (1978) (three fresh complaint witnesses plus medical report). See also Commonwealth v. Izzo, 359 Mass. at 42-43.
Commonwealth v. Ellis, 319 Mass. at 630. Compare Commonwealth v. Lund, 5 Mass. App. Ct. 884, 885 (1977). These flexibilities in the application of the usual fresh complaint strictures are necessitated by the facts that the perpetrators of such offenses are often relatives or close friends of the youthful victim, have his or her confidence, and by persuasion or threat, express or implied, induce the child's silence.
Commonwealth v. McCarthy, 12 Mass. App. Ct. 722, 728 (1981). See generally Commonwealth v. Cleary, 172 Mass. 175, 177 (1898); Commonwealth v. Rollo, 203 Mass. 354, 355 (1909); Commonwealth v. Ellis, 319 Mass. 627, 629-630 (1946); Commonwealth v. Hanger, 357 Mass. 464, 466 (1970); Commonwealth v. Lund, 5 Mass. App. Ct. 884, 885 (1977); Commonwealth v. Manning, 6 Mass. App. Ct. at 434; Commonwealth v. Bishop, 9 Mass. App. Ct. 468, 473 (1980); Commonwealth v. Hannaford, 10 Mass. App. Ct. 903, 903-904 (1980). 3.
Commonwealth v. McGrath, 364 Mass. 243, 247 (1973). See Commonwealth v. Lund, 5 Mass. App. Ct. 884 (1977). It was obvious from the testimony laying the foundation for the admission of the fresh complaint evidence that the statements were admissible, and the judge so ruled ("it is certainly fresh complaint") when testimony of it was first offered. It is clear that the judge, in overruling the defendant's objections to the testimony of two police officers as to the victim's complaints, was relying on his initial ruling that the complaints were fresh. See Commonwealth v. Howard, 355 Mass. 526, 530 (1969); Commonwealth v. Edwards, 7 Mass. App. Ct. 868 (1979).
With a minor exception, that statement was no more explicit than the testimony the victim had already given on direct examination. See Commonwealth v. Lund, 5 Mass. App. Ct. 884, 885 (1977), and cases cited; Commonwealth v. Bedard, 6 Mass. App. Ct. 959 (1978); Commonwealth v. Edwards, 7 Mass. App. Ct. 868 (1979); Commonwealth v. Bishop, 9 Mass. App. Ct. 468, 473 (1980). If the objection was that some of the activities recited in the statement were too remote in time from the date of one or more of the offences alleged in the indictments, that point should have been made clear to the judge when the statement was offered in evidence. See Commonwealth v. Ellis, 319 Mass. 627, 629 (1946).
The fresh complaints presented nothing that had not already come in through the victim's testimony. See Commonwealth v. Bailey, 370 Mass. 388, 391-397 (1976); Commonwealth v. Lund, 5 Mass. App. Ct. 884, 885 (1977). Moreover, the judge's jury charge contained clear instructions on fresh complaint which were, if anything, more favorable to the defendant than those to which he was entitled.
Commonwealth v. Cooper, 4 Mass. App. Ct. 782 (1976). Moreover, the child's complaint could be regarded as reasonably prompt in light of the evidence that the defendant had threatened him that the police would take his father away if he told him. Commonwealth v. Lund, 5 Mass. App. Ct. 884 (1977). Commonwealth v. Bedard, 6 Mass. App. Ct. 959 (1978).
Nothing more was required. The relevant cases are collected in Commonwealth v. Lund, 5 Mass. App. Ct. 884 (1977). Judgments affirmed.