Opinion
No. 13–P–731.
06-17-2016
COMMONWEALTH v. Robert F. SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of five counts of rape and abuse of a child without force, three counts of rape and abuse of a child aggravated by an age difference, two counts of dissemination of obscene matter, and one count of sexual intercourse by inducing a chaste minor. The principal victim was the defendant's daughter, who testified that the defendant had sexually abused her for years and had encouraged her half-brother (the defendant's son) to have sex with her. The son was the subject of one of the dissemination charges and the inducing a chaste minor charge. In this consolidated appeal, the defendant challenges various evidentiary rulings at trial, as well as the denial of his motions for new trial and for postconviction discovery. We affirm.
Background. The Commonwealth's case. The daughter testified that her father began sexually abusing her at age nine, when he started to touch her breasts and her vagina. According to her testimony, as she aged, the nature of the abuse, and its frequency, escalated to having her perform “hand jobs” and oral sex on him, and to raping her vaginally, orally, and anally. The defendant would also “reward” the victim for some sexual acts with him, with money or other items, such as compact disks. The daughter also testified that when she, the defendant, and his son began living together, the defendant made the son have sex with her, after which he would often have sex with her as well.
The rapes were often preceded by the defendant showing the daughter pornography. Some of the rapes were done using a vibrator.
The Commonwealth provided testimony from the son that corroborated the daughter's narrative. It also provided forensic evidence that provided further corroboration, e.g., a sperm sample traced to the defendant that was found on the daughter's bedroom floor (where some of the abuse had occurred). Incest-related pornography was found in the defendant's bedroom.
Prior allegation of sexual abuse. At trial, the defendant sought to admit testimony regarding the daughter's prior sexual history. As was developed during a midtrial voir dire outside the jury's presence, see G.L. c. 233, § 21B, the testimony involved an incident where the victim (who was ten years old at the time) allegedly inappropriately touched her younger cousin. When family members asked the victim where she had gotten such an idea, she stated that her mother's former boy friend had touched her in a similar way. In light of this, the daughter was brought to the Kids' Place (a resource center for child victims of abuse), and the family initiated a criminal proceeding against the former boy friend. After the judge in that case cited his concern over the self-incrimination clause of the Fifth Amendment to the United States Constitution with respect to the daughter's conduct with her cousin, the family decided not to press charges and the case was dismissed.
Before trial, the defendant submitted a motion for an in camera hearing about the evidence, which the judge reserved for ruling later in the trial.
During cross-examination of the daughter, the defendant raised the issue of the prior allegation in order to rebut the daughter's testimony that she “didn't really know ... how” to report her father's abuse. After hearing the daughter's testimony on voir dire, the judge allowed the defendant to establish through cross-examination the fact that the daughter had visited the Kids' Place when she was ten years old, and that a District Court proceeding began thereafter. Further exploration of the daughter's allegations against the mother's former boy friend was not allowed.
The defendant's case. The defendant testified, and denied any sexual relationship with the daughter (and any knowledge of her having sex with her brother). His theory of the case was that the daughter had fabricated the allegations against him to deflect attention from her sexual relationship with her brother and her own other misconduct (such as stealing). The defendant testified that any sexual toys or pornography found in his bedroom were related to his sexual relationship with his wife. Addressing the Commonwealth's forensic evidence, he testified that he and his wife used to have the bedroom now occupied by the daughter and had had sex on the floor. In addition, the defendant alleged that during the relevant period, various ailments had rendered him incapable of having sex.
Discussion. 1. Prior allegation of sexual abuse. The defendant argues that the trial judge erred in placing limitations on his use of the daughter's report of a prior allegation of sexual abuse against another. We disagree. The case law recognizes that, notwithstanding the existence of the “rape shield law,” a prior false allegation of rape in some limited circumstances may be admitted at trial. See Commonwealth v. Talbot, 444 Mass. 586, 590–591 (2005). However, the defendant does not appear to be claiming that the prior allegation against the mother's ex-boyfriend was false (and, in any event, he did not put forward any showing to that effect). Rather, the defendant argues that the prior incident informed the daughter as to how she could “benefit” from reporting an account of sexual abuse, thereby supporting his argument that she had fabricated the allegations against him to deflect attention from her own wrongdoing. This theory of relevance fails, if for no other reason, because the defendant has not made any threshold showing as to how the victim received or realized anything beneficial as a consequence of the prior report. See Commonwealth v. Chretien, 383 Mass. 123, 138 (1981) (to admit evidence of the victim's prior sexual conduct, “[t]he defendant must show at least that the theory under which he proceeds is based on more than vague hope or mere speculation”). In fact, the circumstances of the prior allegation, if anything, conflict with the defendant's theory: far from the daughter's report against the mother's former boy friend deflecting from her own wrongful conduct, her conduct became the focus and eventual reason for termination of the criminal proceeding against the alleged perpetrator.
Under the rape-shield statute, G.L. c. 233, § 21B, the admissibility of prior sexual acts involving the victim requires careful balancing, with a strong presumption in favor of exclusion. Commonwealth v. Joyce, 382 Mass. 222, 231 (1981).
The defendant also asserts that the prior allegation against the mother's boy friend would have provided the jury an alternative cause for the daughter's emotional and behavioral problems, as well as for how she thought of the idea of having sex with her brother. This argument, which was not raised below, is simply too flimsy to be of consequence.
The judge thoughtfully crafted his evidentiary ruling based on the voir dire he provided to the defendant. “On ... the evidence presented ... [the defendant] was entitled to no more.” Chretien, supra at 138. Contrast Commonwealth v. Joyce, 382 Mass. 222, 232–233 (1981) (Braucher, J., concurring in the result) (reversal warranted where trial judge refused to permit any voir dire).
As noted, the judge did allow the defendant to elicit from the daughter that she had made a previous report of sexual abuse (in order to rebut her claim that she did not know how to do so). As the defendant points out on appeal, but missed at trial, the alleged sexual abuse by the mother's boy friend actually fit within the time period during which the daughter alleged the defendant had begun to abuse her. Therefore, there was a risk that the jury could have gotten the impression that the daughter's earlier report of sexual abuse involved the defendant, not a third party. Given the limited nature of this risk and the strength of the Commonwealth's case, this potential problem did not create any substantial risk of a miscarriage of justice.
2. First complaint testimony. The Commonwealth did not offer a first complaint witness. Thus, the defendant is left to argue that first complaint testimony was admitted “through the back door.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The defendant argues that three aspects of the trial violated the first complaint doctrine: (1) the prosecutor's opening statement and subsequent testimony about police investigation of the case; (2) various testimony about the Department of Children and Families' (DCF) actions; and (3) certain testimony by the sexual assault nurse examiner (SANE nurse). We address these subject areas in order.
The defendant has identified five references to a police investigation in the prosecutor's opening statement or the trial testimony. He objected to all five such references at trial, and four of the five objections were actually sustained. , The only objection that was overruled went to testimony that the investigating trooper had interviewed school personnel and a friend of the daughter. Even if that reference should not have been allowed to stand (a question we need not decide), any prejudicial impact was minimal and does not warrant reversal. See Commonwealth v. Place, 81 Mass.App.Ct. 229, 232–233 (2012) (violations of first complaint doctrine did not prejudice defendant). Especially in light of the seriousness of the daughter's allegations, we hardly think the jury would have been surprised to learn that the police had conducted an investigation.
In the prosecutor's opening statement, when he alluded to the police getting involved, the judge admonished the prosecutor before he could complete his sentence.
The prosecutor's question about the police coming and talking to the victim, for instance, was sustained but the judge denied the defendant's motion to strike the victim's answer. Contrary to the defendant's assertion that the failure to strike here was error, in his decision on the defendant's motion for new trial, the trial judge noted that he could not hear the witness's answer (or none was given), and thus no record of the answer was created (at least, not one to which the jury were privy).
There were five references to DCF involvement in the trial testimony. The defendant objected to three such references, but those objections were overruled. The defendant argues that such references should not have been allowed in evidence, because any probative value (e.g., to rebut suggestions that the daughter and son may have colluded in developing their respective accounts) was outweighed by its potential for unfair prejudice (by suggesting that DCF must have accepted the daughter's account). We are unpersuaded that the judge abused his discretion in allowing such testimony, and, in any event, given the strength of the Commonwealth's case, we discern no prejudicial error.
In cross-examining the SANE nurse, trial counsel asked several questions about the victim's concerns over the possibility of being pregnant. On redirect, the Commonwealth elicited the entire statement about the victim's pregnancy—that she “wished she were pregnant ... to prove to her mother it [was] true.” The defendant initially objected to this redirect, but then affirmatively withdrew his objection. In view of the doctrine of verbal completeness, we discern no error in the admission of this evidence. See Commonwealth v. Crayton, 470 Mass. 228, 246–247 (2014). In any event, any prejudice posed no substantial risk of a miscarriage of justice.
The implication of this line of questioning was that the victim's fear of pregnancy was wrapped up in her fear that her sexual relationship with her brother would be discovered.
Nor do we see any substantial risk of a miscarriage of justice caused by the daughter's unobjected-to statements attributing her emotional and behavioral problems to the defendant's years of abusing her.
3. Prosecutor's closing argument. The defendant argues that the prosecutor's closing argument improperly appealed to sympathy for the daughter. As the Commonwealth acknowledges, the prosecutor did cross the line when he suggested that the jury put themselves in the shoes of the victim when she was a young child. See Commonwealth v. Olmande, 84 Mass.App.Ct. 231, 234 (2013). However, the judge admonished the prosecutor for that statement and forcefully told the jury to “disregard that portion of [the prosecutor's] argument.” That curative instruction effectively mitigated any error.
The defendant did not object to the prosecutor's other remarks, which he now alleges were error. Such statements essentially fell along two lines: (1) that by the end of the defendant's abuse of the daughter, “he had run out of [sexual] things to do to [her]”; and (2) that the defendant “thought of [the daughter] as a thing, a prostitute.” The substance of these statements was well grounded in the trial evidence. In addition, any rhetorical embellishments made by the prosecutor added little to the inherently disturbing nature of the testimony already presented to the jury. In any event, even assuming that such characterizations went too far, they simply did not rise to the level of creating a substantial risk of a miscarriage of justice. See Commonwealth v. Gaynor, 443 Mass. 245, 273–274 (2005) (closing argument's appeals to sympathy did not rise to substantial likelihood of miscarriage of justice).
For example, the prostitution reference was based on testimony that the defendant would “reward[ ] [the daughter] for [her] sexual acts upon hi[m] ... usually with money ... [or] take [her] out and get a [compact disk] or movies.”
4. Posttrial motions for summons of mental health records. The defendant moved for posttrial discovery of the daughter's mental health records from a particular facility for the years 2005 and 2006 (the period during which the daughter allegedly inappropriately touched her cousin). After learning that the facility did not have any such records, but did have records for 2002 and 2007, the defendant filed two supplemental motions for posttrial discovery seeking those records. The defendant's argument that the trial judge abused his discretion in denying the motions requires little discussion. The defendant now alleges that such records might uncover additional evidence regarding the daughter's allegations against the mother's boy friend (including that she may have fabricated such allegations). Putting aside the defendant's failure to seek such discovery in a timely manner, he simply did not “make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.” Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). In this regard, it bears remembering just how attenuated such evidence was to the question of the defendant's guilt or innocence. In sum, the judge did not abuse his discretion in denying the additional posttrial discovery (thereby preventing the defendant from needlessly intruding into the daughter's privacy). Compare Commonwealth v. Lampron, 441 Mass. 265, 269 (2004) (before allowing pretrial requests for presumptively privileged medical records, defendant must make a threshold showing of good cause, including that the request “is not intended as a general ‘fishing expedition’ ”).
The defendant did not file a notice of appeal from the orders denying these motions. We address the issue briefly, as both parties have briefed the issue on appeal.
Judgments affirmed.
Order denying motion for new trial affirmed.
Orders denying posttrial motions for summons of mental health records affirmed.