Opinion
No. 11–P–842.
2012-07-20
COMMONWEALTH v. Stewart REBELL.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant Stewart Rebell was convicted by a jury of sexual intercourse with a child under the age of sixteen by force. G.L. c. 265, § 22A. On appeal, the defendant argues that he was deprived of a fair trial because (1) the trial judge improperly excluded evidence that the child, the defendant's daughter, was not truthful; (2) the child was not competent to testify; (3) testimony violating the first complaint doctrine was admitted; (4) the defendant was excluded from the courtroom after the jury began deliberations; and (5) the prosecutor's opening statement and closing argument were improper. We affirm.
1. Reputation for untruthfulness. Before trial the defendant moved to introduce testimony of the child's first therapist, Laura Bowden, a licensed mental health counselor, to show (1) that the child had not disclosed the alleged sexual assault to Bowden, and (2) that the child was being treated for, among other things, lying. The prosecutor did not object, but requested a specific ruling as to what the defendant could argue in his opening statement. The judge found the evidence admissible, and permitted the defendant's counsel to reference it in her opening statement.
However, before the defense put in its case, the prosecutor requested voir dire of the witness. After hearing the witness's testimony, the judge reversed herself. She ruled that Bowden could testify to the failure to report, but she could not testify that she was treating the child for lying. The judge did permit the introduction of medical records that showed that the child suffered from certain physical and mental conditions associated with velocardiofacial syndrome, as well as her Individualized Education Plan (IEP) which showed that she received special education services and had “difficulty giving a clear, accurate, and sequential retell of a story without questioning or prompting.” Expert testimony concerning a physical or mental condition which affects a witness's ability to testify reliably may be admissible. See Commonwealth v. Polk, 462 Mass. 23, 31–39 (2012) (error to exclude expert evidence of dissociative memory disorder in statutory rape case). Here, however, Bowden was not offered as an expert. Rather, she was offered as a fact witness. “The introduction of evidence concerning the personality characteristics of a witness with a mental impairment, without establishing that the trait at issue is an immutable outgrowth of his or her organic condition, risks not only that a jury might return a verdict improperly out of sympathy or dislike for the witness, but also that a jury might conclude erroneously that the witness ‘acted in a particular way simply because his character suggests that he would.’ “ Commonwealth v. Despres, 70 Mass.App.Ct. 645, 650 (2007), quoting from Commonwealth v. Bonds, 445 Mass. 821, 829 & n. 12 (2006). The judge did not abuse her discretion in excluding evidence that the child was untruthful.
The defense did so: “Laura Bowden was [the child's] therapist for two and a half years prior to these allegations. And these allegations were never disclosed to Ms. Bowden. And you will see during the course of this trial one of the things that Ms. Bowden was treating and discussing in counseling with [the child] was her inability to be truthful.”
It was also well within the judge's discretion to reject the evidence as lay opinion, or as reputation evidence to impeach her credibility. The therapist had treated the child for two and one-half years, initially in group and later in individual and family counselling. She testified on voir dire that the child exaggerated and said things that were not true. However, her contacts with the child “were not shown to be especially deep or extensive.” Commonwealth v. Despres, supra at 652. Compare Commonwealth v. Bonds, supra at 825–826 (testimony was by victim's mother). Nor do we think that Bonds, which held that a mother could testify that her mentally disabled daughter's overly trusting nature had resulted in exposure to dangerous situations, can be read to open the door to a frontal attack on character, honesty being a hallmark of character. See id. at 829–835. Similarly, Commonwealth v. Polk, supra, holds that an expert may be permitted to testify to symptoms of dissociative disorder and the risk of confabulation, but not to character or credibility. “Evidence of specific or particular acts of lying or similar misconduct is not admissible; nor is the opinion of a witness as to the character of the witness being impeached.” Commonwealth v. Dockham, 405 Mass. 618, 631 (1989).
Bowden also did not have an actual basis of knowledge within a relevant community on which to base testimony concerning the child's reputation for truthfulness and veracity. The therapist relied on the mother to inform her of the truthfulness of various representations, and she relied exclusively on the parent's descriptions of the child's behavior at school to inform her view that the child was untruthful at school. The judge did not abuse her discretion when she excluded the testimony for lack of foundation. Compare Commonwealth v. Arthur, 31 Mass.App.Ct. 178, 179–180 (1991).
The defendant argues that regardless of the admissibility of the evidence, he was harmed irretrievably by the judge's change of heart, since counsel had already told the jury that the testimony would be forthcoming. See Commonwealth v. Gonzalez, 22 Mass.App.Ct. 274, 280 n. 9 (1986) (judge may alter a ruling on a motion in limine so long as the change does not unfairly prejudice the defendant). We agree that revision of a ruling that a defendant has relied upon in his opening statement is to be avoided. However, in this case, the error was not so unfairly prejudicial as to require a new trial. Compare Commonwealth v. Lane, 462 Mass. 591 (2012); Anderson v. Butler, 858 F.2d 16 (1st Cir.1988) (failure of counsel to call witnesses described in opening constituted ineffective assistance of counsel). The defendant did make a significant promise, namely that a mental health counselor, i.e., a person with some expertise, would say that the child was in treatment for lying. However, the proffered testimony of Bowden as a lay witness did not provide a basis from which a jury could infer that the child suffered from a medical condition that led her to blur the line between truth and fiction.
It was for this reason that the promise was broken.
No witness, lay or expert, would be permitted to directly comment on the truthfulness of the child's allegations in the case. Commonwealth v. Polk, 462 Mass. at 36–37.
As to prejudice, evidence bearing on the child's credibility was admitted from other sources. See Commonwealth v. Teti, 60 Mass.App.Ct. 279, 290–291 (2004). There was other documentary evidence that the child had difficulty telling a story without prompting. The jury learned of her special needs, and were able to make their own assessment of her ability to tell the truth. See Commonwealth v. Fuller, 66 Mass.App.Ct. 84, 90 (2006). The defense argued strenuously that the SAIN
interview recordings showed that she did not know the difference between the truth and a lie, and that she changed her story. The defense offered multiple alternative reasons for the child's allegations, including her fear of punishment, her parents' divorce, and prompting by the mother and police. Bowden did testify, telling the jury that the child never reported sexual abuse to her. The subsequent therapist, Katie McMackin, testified that the child made allegations of inappropriate sexual conduct by a boy at school, and that the child reportedly stated at one point that it was the boy, not her father, who abused her, thus permitting the inference that the child either conflated the two events or made them up. From this testimony, a jury could infer that the child was not truthful about the events in question, and had not been truthful about those events in therapy sessions. The defendant was not unfairly prejudiced by the change in the ruling. See Commonwealth v. DeCicco, 44 Mass.App.Ct. 111, 123 (1998).
The acronym SAIN refers to the Sexual Abuse Intervention Network. See Commonwealth v. Patton, 458 Mass. 119, 121 & n. 1 (2010).
2. Competency of the witness. Upon motion, the judge conducted a voir dire of the child, who was ten years old at the time of trial. She testified that she knew what it meant to tell the truth, and that it was “[a] bad thing” not to tell the truth because “[i]t's a lie.” She knew what to call the judge, and explained that the judge was “[i]n charge of the room.” She testified that she was in fifth grade, and described her classes and where she lived. The child also had failures of memory. She did not immediately identify her father, with whom she had not been living for some time prior to trial. When she was scheduled to testify, she could no longer remember one of the alleged incidents of molestation; defense counsel renewed the competency objection. At trial, the child testified in response to leading questions. She failed to testify to one of the alleged incidents (resulting in a required finding of not guilty), and had difficulty remembering another alleged incident of inappropriate touching by a child at her school.
Competency is “ ‘peculiarly for the trial judge, and [her] determination will be rarely faulted on appellate review.’ Commonwealth v. Whitehead, 379 Mass. 640, 656 (1980). ‘Much which cannot be reproduced by the printed word depends on the child's appearance and manner.... [T]he question for decision is almost always one of fact’ and, unless clearly erroneous, the judge's determination will not be set aside. Commonwealth v. Tatisos, 238 Mass. [322,] 325 [1921].Commonwealth v. Reid, 400 Mass. 534, 542 (1987).” Commonwealth v. Gamache, 35 Mass.App.Ct. 805, 806–807 (1994).
The judge's assessment of competency will not be disturbed. The record shows that the child testified that she knew the difference between truth and a lie, and was able to testify to what she saw and observed. Her memory was flawed, but “[o]ur cases only require a ‘general ability’ to observe and remember.” Id. at 807, quoting from Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986). The child testified to some details of the events at the trial, pointing to anatomical diagrams and describing the manner in which the sexual assault took place. She was subject to cross-examination as to her prior statements, and the defense introduced the recordings of her SAIN interviews, which counsel argued undermined her trial testimony and showed her lack of truthfulness. The assessment of her memory and her credibility was for the jury. See Commonwealth v. King, 445 Mass. 217, 236–237 (2005); Commonwealth v. Gamache, supra.
3. First complaint. At trial, the child's then-current therapist, McMackin, testified as the first complaint witness that the child, in the presence of her mother, told McMackin that her father touched her “to feel good.”
McMackin stated that as the child began to describe what had occurred, she became very agitated, crying and screaming that “Daddy told me not to say anything,” and saying that “Daddy is going to be very mad at me. I am in big trouble.” The therapist testified that the child's breathing changed, that she was hysterical, and that she hid under the blankets.
The mother was present because she had seen the child masturbating and asked the therapist to discuss this with her. When the subject was raised, McMackin reported the child said she did it “because it felt good” and that “[i]t feels good when Daddy does it.”
The defendant argues that introduction of the child's “emotional outburst” was improper. Testimony regarding the child's “demeanor and physical condition” is admissible both in the course of the testimony of the first complaint witness and other observers. Commonwealth v. McCoy, 456 Mass. 838, 846 (2010). The therapist also testified that the mother appeared to be shocked. This, the defendant claims, was irrelevant and prejudicial. The prosecutor obtained permission in advance to introduce McMackin's testimony, to which there was no objection, to show that the mother, who was in the midst of a divorce from the defendant, had not put the child up to making a false claim. At trial, the defendant's opening statement referenced the divorce. In her closing, defense counsel suggested both that the child had been coached and that she made the story up because she was afraid of getting in trouble for masturbating. The prosecution was entitled to introduce the evidence to refute a claim of fabrication. See Commonwealth v. Arana, 453 Mass. 214, 225 (2009). The judge did not abuse her discretion, nor was there a substantial risk of a miscarriage of justice, in the admission of the evidence. See Commonwealth v. McCoy, supra at 844–853.
4. Absence from courtroom. The defendant sought the admission of the child's SAIN interviews, and obtained video recordings of the interviews for trial. The recordings were not, however, redacted by the time of trial, and the defendant's counsel played them to the jury in the courtroom as part of his case, with appropriate stops and starts. Prior to the admission of the videos there was discussion with the judge concerning what should happen if the jury wanted to see the videos again during deliberations if they had not yet been properly redacted. Defense counsel suggested the videos be played again for the jury in the courtroom, where they could be stopped and started as before. The judge expressed concern that this could not be done in the presence of the defendant because he did not have a right to be present during jury deliberations. Defense counsel explicitly agreed that the defendant would not be present during the replaying.
The defendant was present throughout this discussion in open court. In her closing argument defense counsel invited the jury to look at the videos again. During deliberations the jury asked to see the videos; the defense still did not have redacted copies. The videos were played in the courtroom in the presence of counsel and the judge, but not the defendant. The judge explained to the jury that the defendant was excused because they were in deliberations.
Defense counsel stated, “I'm agreeable the defendant should not be present, just counsel.”
The defendant is entitled to be present at all critical stages of the proceedings. See Mass.R.Crim.P. 18(a), 378 Mass. 887 (1979); Commonwealth v. Owens, 414 Mass. 595, 602 (1993), and cases cited; Robinson v. Commonwealth, 445 Mass. 280, 285 (2005). This right generally includes communications between the judge and jurors. See Commonwealth v. Robichaud, 358 Mass. 300, 302–303 (1970). It does not extend to jury deliberations, which are “secret and inviolable.” Commonwealth v. Fidler, 377 Mass. 192, 196 (1979), quoting from Woodward v. Leavitt, 107 Mass. 453, 460 (1871).
Here, the defendant had not properly prepared the video exhibits for trial. The evidence he offered was not in a format that would have permitted the jury to see the recordings in the jury room, as would have been customary and appropriate. Had the videos been viewed in the jury room, the defendant would not have been present. Instead of refusing the request, and instructing the jury to heed its memory, the judge attempted to accommodate the jury and the defendant by playing the recordings in a venue
where the jury could see them in redacted form.
We do not view this as a case involving the right to a public trial, see Commonwealth v. Dyer, 460 Mass. 728, 734–736 (2011), as the public likewise had no right to be present with the jury while the jury reviewed admitted evidence as part of their deliberative process.
We treat this accommodation as part and parcel of the deliberative process. See Commonwealth v. Goudreau, 422 Mass. 731, 733–734 (1996) (defendant was not deprived of a fair trial when a videotape was replayed in the courtroom for a deliberating jury in the presence of judge and counsel only).
Ultimately, the redactions were completed and the recordings were sent to the jury room.
Nor can the defendant show any prejudice, where counsel requested the procedure and assented to it in the defendant's presence, and counsel was on hand during the replaying.
No claim has been advanced here that it was improper to permit the judge or counsel to be present. See Commonwealth v. Goudreau, supra (rejecting same).
See ibid. The defendant was not deprived of the right to be present at his trial.
The Commonwealth also maintains that the defendant, through counsel, explicitly waived his right to be present. See generally Commonwealth v. L'Abbe, 421 Mass. 262, 267–268 (1995); Robinson v. Commonwealth, 445 Mass. at 286 (defendant by conduct or agreement can waive right to be present). The defendant argues that his waiver could not be knowing and voluntary, because he was not informed that he had a right to be present. However, he did not have a right to be present, for the reasons stated above.
5. Closing argument. We have considered the numerous challenges to the prosecutor's opening and closing arguments, and find the defendant's contentions to be either unsupported by the record or contrary to established precedent, substantially for the reasons set forth in the Commonwealth's brief at pages 39–50.
Judgment affirmed.