Opinion
No. 14–P–1430.
05-19-2016
COMMONWEALTH v. Richard B. MEYER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted on two indictments for indecent assault and battery on a child; both crimes were charged as subsequent offenses. He appeals, arguing that his cross-examination of the child victim was improperly restricted, causing prejudicial error, when the judge determined that defense counsel had failed to lay an adequate foundation for refreshing the child's memory. We affirm.
Six indictments (with corresponding charges of subsequent offenses) were returned against the defendant. At the close of the Commonwealth's evidence, the defendant's motion for required findings of not guilty was allowed as to two indictments; the jury found the defendant not guilty of two indictments.
At the time of trial, the victim was eleven years old and suffered from a cognitive disability described as cerebellum dysplasia. During her testimony, defense counsel, at sidebar, informed the judge that he was planning to ask the victim witness about her statements to the Sexual Assault Intervention Network (SAIN) interviewer, “anticipating her saying she does not remember.” He then intended to play, in front of the jury, portions of the recorded interview in order to impeach her trial testimony. The judge responded, “Let's see first if she answers the predicate question that she doesn't remember and then I'll take it up.”
The victim's mother testified that “the cerebellum controls mostly everything of [the victim]”—muscle control, fine motor skills, speech—and “she's delayed in every aspect mentally and physically.” “She's a couple of years behind mentally” and “she can tell you what she wants, but sometimes you have to keep asking [the victim] what she needs ... you always have to repeat stuff in order for her to give you the answer.”
In response to counsel's questions, the victim testified that she remembered being at the SAIN interview, that the interview was recorded (recording all the words that were said), that she told the interviewer what the defendant had done to her, and that all of the people that were at her father's house at the time the assault occurred were in the same room where the defendant, while he was sitting at the table, committed the indecent assault. The victim stated that she did not know if seeing the recording would help her remember what she said during the SAIN interview, and she never testified that her memory was exhausted, or any words to that effect. Because the victim did not provide the anticipated answers, defense counsel stated at sidebar that he was “not certain how to proceed.” The judge determined that defense counsel had not laid a proper foundation to permit use of the video to refresh the victim's memory, although he noted that counsel would be permitted to offer any independent evidence to impeach the victim with prior inconsistent statements.
The victim stated that she did not remember whether she told the interviewer that specifically her mother or her father were in the room, or whether the defendant touched her bottom area, or whether he touched her chest and put his hand inside her pants at the same time. Defense counsel did not ask, in response to the negative answers, any follow-up questions or otherwise attempt to determine whether the victim's memory was truly exhausted.
The judge stated that “the narrow question is whether or not you have laid an adequate foundation for refreshing her memory, and given her responses I think the answer is you have not. You certainly can impeach her by putting on independent evidence at some later time in the trial if you believe there was inconsistent statements to what she testified to, but I don't think there is a basis to show her a videotape now for the purposes of refreshing her memory when she hasn't given you the answer that you expected.” There was no objection.
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The defendant contends that, because of the victim's age and cognitive disability, it was unreasonable for the judge to hold him to the same standard as would be required to lay a foundation for refreshing the memory of a witness not suffering from such a condition. He argues that he should have been allowed to show portions of the victim's SAIN interview in front of the jury, to refresh her recollection. As noted, the defendant did not object to the ruling during the trial and, therefore, we determine whether there was error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
“A witness whose memory has been exhausted may have that memory refreshed in the presence of the jury by any means that permits the witness to testify from his or her own memory.” Commonwealth v. Woodbine, 461 Mass. 720, 731 (2012). See Mass. G. Evid. § 612(a)(1) (2016). “The only prerequisite to refreshing recollection is a showing that the witness's memory is clearly exhausted.” Commonwealth v. O'Brien, 419 Mass. 470, 478 (1995).
At trial, as in his argument in this court, the defendant conflates two issues. The first is whether he laid a proper foundation to refresh the victim's recollection. It is clear that he did not. He never asked the victim if her memory was exhausted, or any words to that effect, and she never agreed that watching the video would help her remember. See Commonwealth v. McGee, 469 Mass. 1, 14–15 (2014). “[N]egative responses are not the equivalent of a failure of memory.” Id. at 15, quoting from Commonwealth v. Jenkins, 458 Mass. 791, 796 n. 4 (2011). Even if the victim had done so, the defendant should not have been permitted to refresh her recollection by playing the video in front of the jury. See Commonwealth v. Daye, 393 Mass. 55, 65 (1984) (“A writing may be used to revive a witness's recollection of events observed by the witness, but, so utilized, the writing has no evidentiary value and should not be read to the jury.”); Mass. G. Evid. § 612(a)(1) (“[T]he witness's memory may be refreshed, in the presence of the jury with any writing or other object.... The writing or object should not be read from or shown to the jury.”)
The question whether the video could have been offered to impeach the victim's testimony with her prior inconsistent statements is a different issue. However, here, despite the judge's invitation, the defendant never attempted to lay a proper foundation to authenticate the video and then offer it for that purpose.
We are satisfied that the judge did not abuse his discretion, and certainly that there was no substantial risk of a miscarriage of justice.
Judgments affirmed.