Mass. Decisions, 1-620 N.E.2d 556 N.E.2d 83, 407 Mass. 927, Com. v. LeFav...
Copyright (c) West Publishing Co. 1993 No claim to original U.S. Govt. works.
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407 Mass. 927
COMMONWEALTH
v.
Cheryl Amirault LeFAVE (and eleven companion cases). (FN1)
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued March 8, 1990.
Decided July 11, 1990.
Defendants were convicted in the Superior Court, Middlesex County, John
Paul Sullivan, J., of indecent assault and battery on a child under the age of
14 and rape of a child under the age of 16, and they appealed. The Supreme
Judicial Court, Abrams, J., held that: (1) expert testimony concerning child
pornography was admissible to establish motive; (2) defendants were not
impermissibly prejudiced by prosecutor's closing argument; (3) fresh
complaint testimony of mother of one of child victims was admissible; (4)
child witnesses were competent to testify; and (5) indecent assault and
battery of a child was not a lesser included offense of rape.
Affirmed.
Liacos, C.J., filed dissenting opinion.
1. CRIMINAL LAW k476.6
110k476.6 k. Miscellaneous matters.
Mass. 1990.
Expert testimony concerning types of poses and props or paraphernalia
generally seen in child pornography was admissible in prosecution for rape and
indecent assault and battery to establish motive for alleged sexual abuse,
although no photographs connecting defendants to victims were found; child
victims had testified that they had been photographed in the nude in various
poses by defendants, and expert testimony suggested motive for photographing
children in those poses.
2. CRIMINAL LAW k476.6
110k476.6 k. Miscellaneous matters.
Mass. 1990.
Types of poses typically depicted in child pornography constituted
information beyond common knowledge or experience of jurors and was proper
subject of expert testimony.
3. CRIMINAL LAW k374
110k374 k. Proof and effect of other offenses.
Mass. 1990.
Expert testimony concerning types of poses and props or paraphernalia
generally seen in child pornography was not inadmissible "other crimes"
evidence in prosecution for indecent assault and battery and rape based on
alleged sexual abuse, where evidence was admitted to establish motive.
4. CRIMINAL LAW k783(1)
110k783(1) k. In general.
Mass. 1990.
Jury instruction regarding use of evidence of child pornography for
purposes of corroboration did not improperly invite jury to consider such
testimony as evidence of "other crimes" or of common scheme to engage in child
pornography in prosecution for indecent assault and battery and rape;
instruction referred to plan or scheme involving picture taking in rape and
indecent assault and battery cases and did not allude to scheme to create and
distribute child pornography.
5. CRIMINAL LAW k1171.1(6)
110k1171.1(6) k. Appeals to sympathy or prejudice; argument as to
punishment.
Mass. 1990.
Prosecutor's remarks during closing argument in indecent assault and
battery and rape prosecution arising from defendant's alleged sexual abuse of
child victims, requesting jury to consider their experience as parents and
grandparents in determining whether victims delayed in reporting abuse because
of threats by defendants, did not impermissibly prejudice defendants;
defendants had attacked victims' credibility on basis of their delay in
reporting abuse, and trial court's curative instructions directed jurors not
be influenced by their status as parents and grandparents.
6. ASSAULT AND BATTERY k83
37k83 k. Admissibility in general.
[See headnote text below]
6. RAPE k48(1)
321k48(1) k. In general.
[See headnote text below]
6. RAPE k48(2)
321k48(2) k. Particulars and details.
Mass. 1990.
Fresh complaint testimony of child victim's mother concerning statements
child made to her following interview with social worker was admissible in
prosecution for indecent assault and battery and rape based on alleged sexual
abuse, although mother's testimony was more detailed than child's testimony.
7. WITNESSES k40(1)
410k40(1) k. In general.
Mass. 1990.
Child witnesses were competent to testify in prosecution for indecent
assault and battery and rape based on alleged sexual abuse, although trial
judge did not ask children specific questions about whether they understood
consequences of telling a lie; children's answers to judge's questions
indicated that they were aware of difference between truthful statement and a
lie and that they understood importance of telling truth in court.
8. INDICTMENT AND INFORMATION k191(8)
210k191(8) k. Charge of rape.
Mass. 1990.
Indecent assault and battery of a child was not a lesser included offense
of rape of a child in prosecution arising from single act of alleged sexual
abuse; at time of offense, indecent assault and battery of a child required
proof of lack of consent or lack of capacity to consent, an additional fact
not required in statutory rape.
-------------------------- Page 556 N.E.2d 85 follows --------------------------
[407MASS928] Juliane Balliro, Boston, for defendants.
Kurt N. Schwartz, Asst. Dist. Atty., for Com.
Before [407MASS927] LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY,
JJ.
[407MASS928] ABRAMS, Justice.
A jury found the defendants, Violet Amirault (Amirault) and Cheryl Amirault
LeFave (LeFave), guilty of indecent assault and battery on a child under the
age of fourteen and rape of a child under the age of sixteen. (FN2) The
convictions involved four child victims, both female and male. On appeal, the
defendants claim that the trial judge erred in (1) permitting testimony on the
subject of child pornography; (2) admitting evidence of fresh complaint; (3)
determining that the child witnesses were competent to testify; (4) denying
the defendants' motion for required findings of not guilty on two
indictments; and (5) denying their motion for mistrial based on the
prosecutor's closing argument. We transferred the case here on our own
motion. We conclude that there was no reversible error. We affirm.
"In order to be considered relevant, 'the evidence must have rendered the
desired inference more probable than it would have been without it.' "
Commonwealth v. Fayerweather, 406 Mass. 78, 83, 546 N.E.2d 345 (1989),
quoting Commonwealth v. Copeland, 375 Mass. 438, 443, 377 N.E.2d 930 (1978).
See Green v. Richmond, 369 Mass. 47, 59, 337 N.E.2d 691 (1975). Testimony
concerning photographs depicting unnamed and unidentified children in
pornographic poses is not relevant to whether these defendants in this
particular case were more likely to have had the motive[407MASS945] of
committing the acts with which they were charged. The photographs about which
Dunn testified were not related to the defendants in any way; they were not
in evidence. They were not taken by the defendants and had not been in the
possession of the defendants. There was no evidence to show that the children
depicted in the photographs were the children involved in this case. And
there was no evidence that the children in this case were forced to pose with
gun barrels, scissors, dildoes, fruit, vegetables, or animals.
The Commonwealth apparently desired the jury to infer that, because
pornographers often take photographs of children in poses similar to those
described by the children involved in this case, these defendants took
pictures of the victims for the purpose of distributing and marketing the
photographs in the pornographic trade. Without any supporting evidence, that
connection is so remote that it cannot be deemed to pass the threshold test of
relevance. See Commonwealth v. Fayerweather, supra 406 Mass. at 83, 546
N.E.2d 345. There was no evidence presented that the defendants were
engaging in the pornography trade. No pornographic photographs allegedly
taken by the defendants were presented in evidence. In short, Dunn's
testimony was irrelevant to show motive. (FN2) See Commonwealth v. Lamrini,
392 Mass. 427, 433-435, 467 N.E.2d 95 (1984).
We summarize the evidence presented at trial. The defendant Amirault was
the owner and director of the Fells Acres Day School (Fells Acres) in Malden.
Amirault's daughter, the defendant LeFave, worked at Fells Acres as a
teacher. We previously have described the general manner in which Fells Acres
was operated. See Commonwealth v. Amirault, 404 Mass. 221, 224, 535 N.E.2d
193 (1989). When the rest of the school's population went on field trips,
some children occasionally remained at Fells Acres in the care of Amirault,
LeFave, or Gerald "Tooky" Amirault, who also worked at the school and is
Amirault's son and LeFave's brother. The [407MASS929] four victims in this
case were among the children who occasionally were left at the school during
those field trips.
On September 2, 1984, a mother of a Fells Acres child made an allegation of
sexual abuse against Gerald Amirault. (FN3) After Fells Acres was closed in
September, 1984, a parents' meeting was held at the Malden police station,
where parents were informed of the symptoms of sexual abuse and directed to
question their children about a magic room, a secret room, and a clown.
The children's descriptions of the sexual abuse varied in some details, but
were similar over-all. The three female victims each testified that the
defendants took them separately to the "magic room," described as a bathroom
on the second floor of the school with a small, child-sized door. Two girls
testified that both of the defendants touched her naked "bum" and vagina with
their (the defendants') hands or a purple "magic wand." One of the girls
testified that only LeFave touched her vagina and "bum." One child was
forced to touch both of the defendants' "bums" and to kiss their vaginas. One
of the girls testified that both of the defendants inserted their fingers, a
thermometer, and the "magic wand" into her vagina or "bum." A second
-------------------------- Page 556 N.E.2d 86 follows --------------------------
girl testified that LeFave inserted a thermometer and a pencil into her
vagina and rectum.
The male victim testified that the defendants took him to a garage at
Amirault's house. There, Amirault "stuck a stick up [his] bum" and LeFave
"put her mouth on his private spot [penis]." He stated that the defendants
hurt birds and squirrels in front of the children and the teachers; that they
gave him white pills which he never took; and that they tied him, naked, to a
tree in front of the other children and teachers.
Each child testified that she or he was photographed in the nude by one of
the defendants while the abuse occurred. Two of the children described a
black camera on a tripod. The [407MASS930] other two described a black camera
with pictures that came out of its front. While at home, one child
spontaneously demonstrated "sexy" poses in the nude for her mother.
All of the children stated that they were threatened by one or both of the
defendants that if they told anyone about the incidents, they would be sent
away from home or killed by their mothers or that the defendants would kill
the children's parents. A child who attended Fells Acres but who was not a
victim testified that he overheard Amirault tell the male victim that "you
better keep quiet or else I'll cut your mother's arm off."
The parents of the child witnesses testified about their children's
behavior while, or shortly after, attending Fells Acres. All four of the
child victims began to demonstrate pronounced sexual behavior. Two of the
children made sexual advances toward their mothers. Most of the children
began nightly bedwetting, had nightmares, and developed a fear of being
alone. Several reverted to baby talk, screamed and cried when bathed,
exhibited fear at the sight of LeFave, and complained of pain in their genital
areas.
Dr. Renee Brant, a child psychiatrist testifying for the Commonwealth,
stated, in part, that sexualized behavior (FN4) is a symptom of sexual
abuse. Trauma specific behaviors include sexualized behavior such as
masturbation, inserting objects into body cavities, approaching others in a
sexually provocative manner, or asking others to touch their genitals. Trauma
nonspecific behaviors include complaints of stomachaches, headaches,
nightmares, sleep difficulties, aggressiveness, lack of trust, nervousness,
baby talk, bedwetting, withdrawal, lying, separation anxiety, and
hypervigilance.
Dr. Jean Emans, a pediatric gynecologist, examined the three female victims
who testified in this case and made positive findings as to all of them. All
suffered vulvitis. See Amirault, supra at 226, 535 N.E.2d 193. Two had
redness around their labias [407MASS931] and one child also had cracking and
fissuring around her labia and a small bump on her hymen. Dr. Emans testified
that these findings were significant because they are more commonly seen in
sexually abused children than in nonabused children and that it was unusual to
have found vulvitis in three girls under the age of six who attended the same
school.
In their defense, the defendants offered testimony from twelve teachers and
teachers' aides employed at Fells Acres. Those employees stated that they
never heard of a magic room nor did they see any indication of sexual abuse.
One said that she never returned from a field trip to find the defendants
alone with children. Each denied seeing the male tied naked to a tree or that
animals were harmed.
Defense witness Dr. William Erickson, a psychiatrist, testified that some
of the behaviors seen in sexually abused children can be attributed with equal
frequency to causes other than sexual abuse. He testified that the most
common source of excessive sexual behavior in children is observed behavior in
the home. He also commented
-------------------------- Page 556 N.E.2d 87 follows --------------------------
on videotaped interviews of the three female victims and stated that, in his
opinion, the interviewer made no effort to distinguish between fact and
fantasy. A psychologist, Dr. Sherry Skidmore, reviewed one taped interview
and testified that the interview procedure was flawed. The pediatrician of
one female victim, Dr. Andrew Guthrie, testified that his examination of the
child in September, 1984, when the school was closed, showed no signs of
vulvitis.
1. The admission of inspector Dunn's testimony on child pornography. The
last prosecution witness was John Dunn, a United States postal inspector
specializing in the investigation of child pornography. Dunn testified that
he had seen approximately one thousand pornographic photographs of male and
female children between the ages of three and six years old. He stated that
"still" photographs included the thirty-five millimeter variety and that
"Polaroid" types were "very common."
[407MASS932] Dunn described the types of poses and props or paraphernalia
generally seen in child pornography. As he testified, he had in front of him
on a podium, out of the jury's view, photocopies of pornographic photographs
involving children that had been seized in unrelated cases. Those photocopies
were not introduced in evidence or displayed to the jury. Dunn was allowed to
refer to particular photographs during his testimony. Defense counsel
repeatedly objected to Dunn's testimony and the use of the photographs. As
Dunn's descriptions of a particular photograph became more detailed, defense
counsel made an oral motion for a mistrial. The judge denied the motion.
Dunn testified that child pornography usually depicts nude or partially
nude children posed in a manner focusing on a genital area. Testifying from
his general knowledge and by direct reference to the photographs, Dunn
described young children engaged in a variety of sexual acts with both male
and female adults. Although he described poses and props similar to those
mentioned by the children here (sticks, pencils, thermometers), he also
described poses and objects that were not alleged to have been involved in
this case.
Dunn briefly described the underground market for child pornography and
testified that there is a market for the types of photographs he had
described. He stated that child pornography involving prepubescent children
is not readily available to members of the public and that it is extremely
difficult for investigators to locate pornographic photographs or to identify
a child in a particular photograph.
On cross-examination, Dunn testified that, to his knowledge, none of the
photographs in front of him depicted either of the defendants or any child
known to have attended Fells Acres. Dunn testified that he spoke with other
postal inspectors' offices and State authorities to determine whether the
defendants or any Fells Acres children appeared in any photograph. To his
knowledge, no such photographs had ever been found.
The defendants claim that they were prejudiced by Dunn's testimony, because
the evidence (1) was "completely irrelevant" (FN5)[407MASS933] ] to the
purpose for which it was admitted and (2) its admission was tantamount to the
admission of "other crimes" evidence and hence prejudicial error. The
defendants also allege error in admitting Dunn's testimony as to child
pornography because the subject was within the jurors' knowledge and therefore
it was
-------------------------- Page 556 N.E.2d 88 follows --------------------------
error to admit expert testimony. They also allege error in the instructions.
[1] The record shows that the Commonwealth offered Dunn's testimony to
establish a motive for the abuse. (FN6) The defendants concede (1) that, as
a general rule, the Commonwealth is entitled to introduce all relevant
evidence of motive, see Commonwealth v. Weichell, 390 Mass. 62, 73, 453
N.E.2d 1038 (1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d
698 (1984); Commonwealth v. Borodine, 371 Mass. 1, 8, 353 N.E.2d 649 (1976),
cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); (2) that
"Dunn's testimony was not offered as evidence of acts committed by the
defendants"; and (3) that the Commonwealth's theory at trial was "that the
children here were sexually molested for the purpose of obtaining pornographic
photographs." "The purpose for which evidence is offered is determinative of
its relevancy." Commonwealth v. Jewett, 392 Mass. 558, 564, 467 N.E.2d 155
(1984). See Commonwealth v. Soares, 384 Mass. 149, 161, 424 N.E.2d 221
(1981). The Commonwealth asserts that Dunn's testimony provided a possible
motive for the sexual abuse and thus was relevant to the issue of motive and,
hence, admissible on that issue. See Weichell, supra;
Commonwealth[407MASS934] v. St. Germain, 381 Mass. 256, 271, 408 N.E.2d 1358
(1980); Commonwealth v. Brown, 376 Mass. 156, 164, 380 N.E.2d 113 (1978);
Commonwealth v. Borodine, 371 Mass. 1, 8, 353 N.E.2d 649 (1976).
[2] Dunn's testimony suggested that, generally, one motive for sexually
abusing children is the production of pornographic photographs for
distribution in an underground market. "Proof of motive need not be by direct
evidence but may be based on inferences which could reasonably be drawn from
the circumstances.... [E]vidence that 'merely suggests rather than "clearly
shows" a motive for the crime may still be ruled admissible.' " (Citations
omitted.) Weichell, supra 390 Mass. at 73-74, 453 N.E.2d 1038, quoting St.
Germain, supra 381 Mass. at 271, 408 N.E.2d 1358. Although the defendants
correctly note that no photographs connected to them were found, they concede
that "[e]vidence to support this theory of motive came from [the four]
children who testified that their pictures were taken coincident with the
alleged acts of abuse." The children testified that they were photographed
while posed in the nude, often with a variety of objects inserted in their
vaginas or rectums. (FN7) Dunn's testimony was relevant to suggest a motive
for photographing the children in these various poses. The judge did not
abuse his discretion by admitting Dunn's testimony as relevant to the issue of
motive. (FN8) See St. Germain, supra 381 Mass. at 271, 408 N.E.2d 1358.
(FN9)
-------------------------- Page 556 N.E.2d 89 follows --------------------------
[3] [407MASS935] The defendants next claim that "the admission of Dunn's
testimony was tantamount to the admission of 'other crimes' evidence not
involving these defendants" and suggest that it was error to admit his
testimony because there was no connection between the defendants or the crimes
here and the "bad acts evidence." We conclude that there was no error. The
judge instructed the jury on the limited purposes for which he admitted all of
the picture-taking testimony: to establish motive. Dunn's testimony was
relevant and admissible for that purpose. If "evidence [here, testimony
regarding the taking of pictures of the children in various poses] ... is
connected with the facts of the case, it may be admitted to establish
'knowledge, intent, motive, method, material to proof of the crime charged.'
" Commonwealth v. Imbruglia, 377 Mass. 682, 695, 387 N.E.2d 559 (1979),
quoting Commonwealth v. Murphy, 282 Mass. 593, 598, 185 N.E. 486 (1933). The
testimony of each of the child victims that they were photographed by the
defendants while the defendants sexually abused them was sufficient to suggest
the defendants had a motive for their conduct.
[407MASS936] The cases that the defendants rely on do not advance their
claim. In Commonwealth v. Tobin, 392 Mass. 604, 467 N.E.2d 826 (1984), this
court concluded that "evidence of the relationship between ... other
participants in the second enterprise was not relevant to their involvement in
the earlier and completely separate scheme involving Tobin." Id. at 615-616,
467 N.E.2d 826 (finding no reversible error in improperly admitting evidence
of the second enterprise). Here, there were no allegations that other persons
were involved in the defendants' scheme to sexually abuse the children and
Dunn's testimony was not offered for that purpose. The defendants also rely
on Commonwealth v. Szemetum, 3 Mass.App.Ct. 651, 338 N.E.2d 850 (1975), which
was concerned with the imputation of knowledge, or criminal intent, by
association with unrelated arrests. The factual similarities between
Szemetum and the present case and, hence, its precedential value, are tenuous
at best. Dunn's testimony was not offered to prove criminal intent or to show
that the defendants had knowledge that they or any other persons were engaged
in criminal activity.
[4] The defendants also argue that "[t]he Court's instruction regarding
the use of the evidence of pornography for purposes of corroboration, invited
the jury to conclude that the defendants were part of a common scheme to
create and distribute child pornography." This was not the basis of
counsel's objection at trial. (FN10) Defense counsel's objection at the
[407MASS937] conclusion of the instructions clearly indicated
-------------------------- Page 556 N.E.2d 90 follows --------------------------
that his objection was based on the use of one child's testimony to
corroborate the other, and not that the instructions referred to Dunn's
testimony. Commonwealth v. Drew, 397 Mass. 65, 80, 489 N.E.2d 1233 (1986).
(FN11)
The judge specifically instructed the jury that the defendants were not
charged with child pornography and that no testimony was being admitted as
evidence of that crime. In his instruction, the judge was referring to the
testimony by the children that their pictures had been taken in the course of
the rapes and indecent assault and battery incidents. See note 11, supra.
The instruction at issue did not in any way single out or highlight Dunn's
testimony or the subject of child pornography. Rather, the judge referred
generally to "testimony with respect to the taking of pictures of the
children," which was concerned primarily with the testimony regarding the
taking of photographs given by the four children. Moreover, the instruction
on "common scheme" addressed the credibility of the children and the use of
one child's testimony to corroborate another child's testimony. (FN12)
Defense [407MASS938] counsel clearly understood the instructions that way.
See note 11, supra. That instruction referred to a plan or scheme involving
picture-taking in the rape and indecent assault and battery cases and did not
in any way allude to a scheme "to create and distribute child pornography."
In sum, none of the instructions invited the jury to consider Dunn's testimony
as evidence of "other crimes" or of a common scheme to engage in child
pornography.
[5] 2. The prosecutor's closing argument. The defendants argue that
comments made by the prosecutor in closing "were impermissible attempts to
invoke sympathy and emotion of the jurors" and were "so prejudicial as to
require reversal." We do not agree. (FN13)
In their summations, both defense attorneys pursued that theory by
attacking the credibility of the victims. The defendants emphasized that the
victims delayed in disclosing the sexual abuse and attacked the prosecution's
theory that the defendants' threats caused those delays. During their
-------------------------- Page 556 N.E.2d 91 follows --------------------------
summations, the defendants' attorneys theorized that, as a result of repeated
leading and suggestive questions by parents, police, social workers, doctors,
and prosecutors, the victims fabricated the allegations of abuse.
[407MASS939] The Commonwealth claims that "the prosecutor did nothing more
than fairly respond to the defendants' summation by offering an explanation
for the victim[s'] delay in disclosing the abuse, and asking the jury to
evaluate [the victims'] testimony concerning the threat in light of their own
experience with children of similar age." The Commonwealth argues that,
"[h]aving forcefully used the fact of the victims' delayed disclosures and
questioning by different people to suggest that there were no threats and
sexual abuse, the defendants should not now be allowed to argue that the
prosecutor was foreclosed from responding with equal force in his summation
that the victims' delay in disclosing the sexual abuse was explained by, and
consistent with, being threatened by the defendants." We agree with the
Commonwealth. A "defense counsel's argument may justify a particular rebuttal
from the prosecutor...." Commonwealth v. Kozec, 399 Mass. 514, 519, 505
N.E.2d 519 (1987). The prosecutor's comments were reasonably "within the
prosecutor's right of retaliatory reply." Commonwealth v. Prendergast, 385
Mass. 625, 633, 433 N.E.2d 438 (1982), and cases cited. See Commonwealth v.
Earltop, 372 Mass. 199, 206, 361 N.E.2d 220 (1977) (Hennessey, C.J.,
concurring).
The judge denied the defendants' motion for mistrial made immediately
following the prosecutor's summation. The judge gave a curative instruction,
as requested by the defendants. (FN14) The defendants now argue that that
instruction "[did] little to alleviate the prejudicial effect of the
comments." We do not agree. The judge's instructions specifically addressed
the comments and clearly directed jurors not to be influenced by their status
as parents and grandparents. "We are unwilling[407MASS940] to assume that
the jury would not have heeded these instructions." Commonwealth v.
Errington, 390 Mass. 875, 882, 460 N.E.2d 598 (1984), and cases cited. See
Commonwealth v. Amirault, 404 Mass. 221, 240, 535 N.E.2d 193 (1989).
The defendants also argue that the statements here "are extremely similar"
to the closing remarks in Commonwealth v. Sevieri, 21 Mass.App.Ct. 745,
753-754, 490 N.E.2d 481 (1986). We do not agree. In Sevieri, while
describing each step taken by an assailant during an assault, the prosecutor
repeatedly directed the jurors to place themselves in the position of the
victim. The remarks here were not reasonably susceptible of being interpreted
as an appeal to the jurors to place themselves in the victim's position.
Moreover, the remarks in Sevieri were not made in response to the defendant's
closing argument, as occurred here.
[6] 3. The admission of fresh complaint testimony. The defendant LeFave
challenges the admission of fresh complaint testimony from the mother of one
of the children. (FN15) The mother testified that, when interviewed by a
social worker approximately eighteen months after leaving Fells Acres, her
daughter initially denied being abused, but that within minutes of that
interview's completion, the child told her mother that a clown put a pencil, a
thermometer, and his "pee-pee" in the child's "bum-bum" and "pee-pee." The
mother testified that, at a later time, her daughter stated that LeFave
touched her in the vagina and "bum-bum" with a pencil and a thermometer and
took photographs of the
-------------------------- Page 556 N.E.2d 92 follows --------------------------
naked child. The defendant LeFave asserts that the judge abused his
discretion in admitting the fresh complaint testimony concerning the clown,
arguing that that testimony did not corroborate the child's allegations with
respect to LeFave. The defendant LeFave concludes that, because the complaint
"was in no manner corroborative of the victim's testimony at trial and was
inflammatory and prejudicial, the trial court abused its discretion in
admitting evidence of the ... fresh complaint." [407MASS941] We conclude
that the judge did not err by admitting the "whole statement including the
details" for corroborative purposes only. Commonwealth v. Hanger, 357 Mass.
464, 466, 258 N.E.2d 555 (1970). Commonwealth v. Bailey, 370 Mass. 388, 396,
348 N.E.2d 746 (1976).
In sexual assault cases, evidence of a fresh complaint is admitted "for the
more general purpose of confirming the testimony of the ... [victim]."
Hanger, supra 357 Mass. at 466, 258 N.E.2d 555, quoting Commonwealth v.
Cleary, 172 Mass. 175, 176-177, 51 N.E. 746 (1898). On both direct and
cross-examination, the child was asked about her interview with the social
worker and the child testified that she talked about a clown. The fact that
the mother's fresh complaint testimony was more detailed about the clown than
the child's testimony did not render her fresh complaint evidence
inadmissible. See Bailey, supra 370 Mass. at 396, 348 N.E.2d 746.
During the mother's testimony, the judge instructed the jury that fresh
complaint testimony was being admitted only for corroborative purposes. He
repeated that instruction in his final charge to the jury. The defendant
LeFave does not claim error in the instructions. Compare Bailey, supra, with
Commonwealth v. Spare, 353 Mass. 263, 266, 230 N.E.2d 798 (1967). "The
testimony complained of assumed particular relevance when considered in light
of the various attempts by the defendant's trial counsel to insinuate by
questioning and argument that the testimony of the victims had been influenced
by parents, social workers and members of the prosecution team. The cases
decided in the wake of Commonwealth v. Bailey, 370 Mass. 388, 391-397, 348
N.E.2d 746 (1976), do not support the notion that fresh complaint evidence
should be excluded in cases such as the present." Commonwealth v. Baran,
21 Mass.App.Ct. 989, 991, 490 N.E.2d 479 (1986), and cases cited.
[7] 4. Competency of the child witnesses. In Commonwealth v. Tatisos,
238 Mass. 322, 325, 130 N.E. 495 (1921), this court stated that, in order to
determine competency of a child witness, " '[t]he ultimate test ... must
depend upon the existence of [an] understanding sufficient to comprehend the
difference between truth and falsehood, the wickedness of the latter and
[407MASS942] the obligation and duty to tell the truth, and, in a general way,
belief that failure to perform the obligation will result in punishment.' "
Commonwealth v. Reid, 400 Mass. 534, 542, 511 N.E.2d 331 (1987), quoting
Tatisos, supra. The defendants argue that the judge's examination of the
four child witnesses "failed to completely satisfy the ... [Tatisos ] test
since the inquiries failed to elicit responses demonstrating each child's
awareness that a failure to tell the truth would result in punishment or other
consequences, [and as] a result, the [judge's] determination that each child
was [competent was] based on an incorrect application of the relevant legal
standard." They claim that "[h]ere there is no indication that the four
children ... possessed a general understanding of the consequences of telling
a lie."
In determining competency, "[t]he judge is afforded wide
discretion--indeed, is obliged--to tailor the competency inquiry to the
particular circumstances and intellect of the witnesses." Commonwealth v.
Brusgulis, 398 Mass. 325, 329-330, 496 N.E.2d 652 (1986). "Much which cannot
be reproduced by the printed word depends on the child's appearance and
manner. It is seldom that the discretion of the trial judge can be revised;
its exercise must have been clearly erroneous to justify such action."
Tatisos, supra 238 Mass. at 325, 130 N.E. 495, and cases cited. See Reid,
supra 400 Mass. at 542, 511 N.E.2d 331. Although the judge could have asked
a specific question about whether the children understood
-------------------------- Page 556 N.E.2d 93 follows --------------------------
the consequences of telling a lie, the record supports his competency
findings. The children's answers to the judge's questions indicated that they
were aware of the difference between a truthful statement and a lie and that
they understood the importance of telling the truth in court. There was no
error. See Commonwealth v. Dockham, 405 Mass. 618, 624, 542 N.E.2d 591
(1989); Commonwealth v. Bergstrom, 402 Mass. 534, 540 n. 7, 524 N.E.2d 366
(1988); Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964);
Tatisos, supra 238 Mass. at 325-326, 130 N.E. 495; Commonwealth v. Corbett,
26 Mass.App.Ct. 773, 776, 533 N.E.2d 207 (1989).
[8] 5. Denial of the defendants' motions for required findings of not
guilty on two indictments. Amirault and LeFave were both indicted for the
rape and indecent assault and battery of [407MASS943] the male victim. At
trial, the male victim testified to a single incident where Amirault placed a
stick in his rectum and LeFave put her mouth on his penis while Gerald
Amirault took pictures. Defense counsels' motions for a required finding of
not guilty on the indictments charging the defendants with indecent assault
and battery were denied. The defendants claim that the judge committed error
by denying the motions, arguing that the victim described a single act that
could not support a verdict of guilty on charges of both rape and indecent
assault and battery.
The defendants acknowledge that "to determine whether a defendant may be
convicted of two statutory offenses arising from a single incident, 'the
long-prevailing test in this Commonwealth is whether each crime requires proof
of an additional fact that the other does not.' " Commonwealth v. Crocker,
384 Mass. 353, 357, 424 N.E.2d 524 (1981), quoting Commonwealth v. Jones, 382
Mass. 387, 416 N.E.2d 502 (1981). Morey v. Commonwealth, 108 Mass. 433, 434
(1871). At the time of the offense here, indecent assault and battery of a
child required proof of lack of consent or lack of capacity to consent, an
additional fact not required in statutory rape. See Commonwealth v. Reid,
400 Mass. 534, 541, 511 N.E.2d 331 (1987). Thus, we concluded that "indecent
assault and battery of a child ... was not a lesser included offense within
the crime of rape of a child." Id. The defendants do not cite to nor
attempt to distinguish Reid. Rather, they "urge [this] court to adopt the
view of Commonwealth v. Jones," 382 Mass. 387, 416 N.E.2d 502 (1981). That
case is of no aid to the defendants because it does not adopt a "view" that is
any different from Reid. In Jones, we disallowed multiple punishments
because neither offense there required proof of an additional fact that the
other did not. Id. at 393-394, 416 N.E.2d 502.
Judgments affirmed.
LIACOS, Chief Justice (dissenting).
The court today condones the admission in evidence of highly inflammatory
and prejudicial[407MASS944] testimony offered in support of the dubious
proposition that the testimony related to the defendants' "motive." Thus, I
cannot join in part 1 of the court's opinion.
The crimes of which the defendants have been convicted are indeed heinous.
Nevertheless, the facts of this case should not drive the court to a
distortion of sound evidentiary principles nurtured and developed over many
years as an essential guarantee of a fair trial. We should not allow outrage
at the nature of the alleged crimes or sympathy for the alleged victims to
cloud our constitutional duty to determine whether there was prejudicial error
in this case.
The testimony of the expert witness, United States Postal Inspector Dunn,
was not legally relevant to the indictments before the jury. The defendants
were charged with indecent assault and battery on children under the age of
fourteen and rape of children under the age of sixteen. The Commonwealth
offered as evidence of the defendants' motive Dunn's detailed descriptions of
pornographic photographs of children taken by persons not in any way connected
to the defendants. Dunn also described objects, not mentioned by the children
in this case, such as gun barrels,
-------------------------- Page 556 N.E.2d 94 follows --------------------------
scissors, and dildoes, which were inserted into the genitalia of minors who
were completely unrelated to this case. (FN1) Additionally, Dunn was allowed
to engage in a generalized discussion before the jury of the child pornography
industry.
[407MASS946] Even assuming Dunn's testimony about pornography was
marginally relevant, its probative value was far outweighed by its highly
prejudicial effect. (FN3) Dunn testified about the contents of several
unidentified photographs in painstaking
-------------------------- Page 556 N.E.2d 95 follows --------------------------
detail. (FN4) He alluded to props and poses in photographs of unknown origin
similar to pictures described by the children as taken by the defendants in
this case. (FN5) Dunn also described the "underground market" for child
pornography. Dunn testified that it is very difficult to identify a
child-victim from a particular piece of pornography. He finally testified
that there is no central source in this country to help identify a child
victim in a particular photograph.
Dunn's testimony suggested to the jury that these very photographs could
have been photographs of the children in this case. Without any supporting
evidence, and placed just beyond the view of the jury, these photographs were
used by the witness in the presence of the jury. This testimony and Dunn's
related testimony served more to inflame the passions of the jury than to
assist them in deciding an issue in this case.
[407MASS947] The defendants were not charged with violating the laws
prohibiting child pornography. Yet Dunn's testimony suggested to the jury
that the defendants had violated the pornography laws--based not on the acts
of the defendants but on the acts of unnamed and unknown third parties.
(FN6) Even if the jury did not infer that the photographs described depicted
the children in this case, the testimony was nonetheless highly prejudicial.
Testimony concerning child abuse perpetrated by anonymous persons on anonymous
children could have improperly played on the jury's sympathy for the children
in this case. In addition, there was inherent prejudice in Dunn's allusion to
objects, including scissors, dildoes, vibrators, and gun barrels, which were
inserted into the genitalia of minors depicted in photographs unconnected with
this case, and in his discussion of sexual poses with animals, also not
mentioned by the children in this case. This testimony served only to stir
the indignation and disgust of the jury, distracting them from the relevant,
admissible evidence in this case.
The judge compounded the prejudice in his instruction to the jury on
"common scheme." The judge, while instructing the jury that the defendants
were not charged with the crime of violating pornography laws, nevertheless
instructed the jury that they could consider "the taking of pictures of the
children" because "it may have shown a common scheme." The court today
states that the judge was referring to the testimony by the children that
their pictures had been taken during the course of the abusive conduct. The
court does not[407MASS948] --but should--ask what a reasonable jury could
glean from the charge. See Commonwealth v. Claudio, 405 Mass. 481, 484, 541
N.E.2d 993 (1989). The instruction given can be viewed reasonably as a
reference to Dunn's expert testimony which, after all, dealt exclusively with
the taking of pictures of children. The jury could have understood
participation in the underground pornography industry, described by Dunn, as
the "common scheme" to which the judge alluded. The judge stated to the jury
that the testimony "was allowed in for the limited purpose of establishing
what might have been a motive." This appears
------------------------- Page 556 N.E.2d 96. follows --------------------------
to be a direct reference to Dunn's testimony about pornography. (FN7) In my
view, this is one of those rare cases where the trial judge abused his
discretion by admitting in evidence testimony which was not only irrelevant
but which was highly prejudicial. See Commonwealth v. Richmond, 371 Mass.
563, 565-566, 358 N.E.2d 999 (1976). For this reason, and because the
evidence of guilt was highly dependent on the jury's assessment of the
credibility of witnesses, I would reverse the convictions. I dissent.
FN1. Six against Cheryl Amirault LeFave and five against Violet Amirault.
FN2. The admission of Dunn's testimony also violated the well-established
rule in this Commonwealth that an expert may not give his opinion based on
evidence which is inadmissible. Department of Youth Servs. v. A Juvenile,
398 Mass. 516, 527-528, 531, 499 N.E.2d 812 (1986). LaClair v. Silberline
Mfg. Co., 379 Mass. 21, 32, 393 N.E.2d 867 (1979). Commonwealth v. Russ, 232
Mass. 58, 73, 122 N.E. 176 (1919). We have rejected the suggestion that we
should follow Fed.R.Evid. 703 and Proposed Mass.R.Evid. 703, which allow an
expert to testify based on "facts or data [which] need not be admissible in
evidence." Department of Youth Servs. v. A Juvenile, supra 398 Mass. at 528,
499 N.E.2d 812. We do, however, allow an expert to "base an opinion on facts
or data not in evidence if the facts or data are independently admissible and
are a permissible basis for an expert to consider in formulating an opinion"
(emphasis supplied). Id. at 531, 499 N.E.2d 812. The photographs about
which Dunn testified are not "independently admissible"; the evidence of
highly prejudicial photographs, entirely unrelated to this case, were not and
could not have been admitted in evidence. In my view, the judge abused his
discretion in allowing Dunn to refer to these photographs and to describe them
in his testimony.
FN2. Amirault was convicted on three indictments, and LeFave on four
indictments, of indecent assault and battery on a child under the age of
fourteen. Amirault was convicted on two indictments, and LeFave on three
indictments, of rape of a child under the age of sixteen.
FN3. In Commonwealth v. Amirault, 404 Mass. 221, 535 N.E.2d 193 (1989), we
affirmed the convictions of Gerald Amirault.
FN4. Sexualized behavior here includes more frequent and compulsive
masturbation, insertion of objects into body cavities, touching the genitals
of parents and other children, exhibitionism, and imitation of intercourse.
FN5. In their brief, the defendants argue that "the Commonwealth's clear
purpose in eliciting testimony descriptive of selected photographs depicting
individuals similar to these defendants and acts similar to those described by
the children in this case was to permit the inference that what happened there
could have happened here as well. The fact that individuals other than these
defendants allegedly perpetrated similar acts against unknown children under
unknown circumstances at unknown times, does not render it more probable that
these defendants sexually abused these children for any purpose.... In the
absence of even a scintilla of evidence that these defendants engaged in the
trade or sale of pornography, evidence that others may have done so was
completely irrelevant."
FN6. During a bench conference, the judge stated that he allowed Dunn's
testimony for limited purposes, "primarily, motive.... The proving of the
peculiar way of doing the act is--you know, probably buttresses the fact that
that was their motive."
FN7. The male victim testified that, when he was nude, Gerald Amirault
photographed him as the defendant Amirault posed him with a stick inserted in
his rectum. He also testified that Gerald Amirault photographed him while he
was posed with LeFave's mouth on his penis.
Although the children did not use the same terminology as Dunn, they did
describe a variety of objects. The male victim said the stick "looked like
a gun." He also described how the defendants harmed a bird, a squirrel, a
"hot dog" dog, and a raccoon. Some of the female victims referred to
"wands."
FN8. The judge instructed the jury that "testimony with respect to the taking
of pictures of children," which would include Dunn's testimony, "was allowed
in for the limited purpose of establishing what might have been the motive, if
there was one. Ultimately, as I indicated, it would be allowed in for a
motive, but the motive is not an element of the crime.
"The Commonwealth does not have to establish a motive in this case, but
evidence of a motive was admitted in this case. But the Commonwealth does
not have to make that out. It is not part of the essential element of any
of the crimes which I will charge you with later on in my instructions."
FN9. The defendants challenge the admission in evidence of Dunn's expert
testimony arguing that Dunn's description of the photographs before him
required no special knowledge and should not have been admitted under the
guise of expert opinion. "Our traditional view of what is a proper subject of
expert testimony has been that, if other criteria are met, such testimony is
admissible if, in the judge's discretion, the subject is not within the common
knowledge or common experience of the jury.... [T]he question [is] whether,
in the wide discretion of the trial judge, the subject was one on which the
opinion of an expert would have been of assistance to the jury." (Citations
omitted.) Commonwealth v. Francis, 390 Mass. 89, 98, 453 N.E.2d 1204
(1983). See Commonwealth v. Dockham, 405 Mass. 618, 628, 542 N.E.2d 591
(1989); Commonwealth v. Pikul, 400 Mass. 550, 553, 511 N.E.2d 336 (1987);
Simon v. Solomon, 385 Mass. 91, 105, 431 N.E.2d 556 (1982).
------------------------- Page 556 N.E.2d 96_ follows --------------------------
There was no error. The photographs here were not admitted in evidence or
even displayed to the jury. It would have been within the judge's
discretion to conclude that the types of poses typically depicted in child
pornography constituted information beyond the common knowledge or
experience of the jurors and that Dunn's expert testimony would have aided
the jurors. See Commonwealth v. Russ, 232 Mass. 58, 73, 122 N.E. 176
(1919).
FN10. Contrary to the suggestion in the dissent, post, that this instruction
could be viewed as referring to Dunn's testimony, vigilant defense counsel did
not understand the instructions as referring to Dunn's testimony. The record
indicates that defense counsel objected to the instruction because the
reference to common scheme permitted the jurors to "consider ... with respect
to 'commonality,' the fact of a charge or an accusation in another
indictment.... The instruction would permit them [the jurors] to 'tailgate'
... guilt from one indictment just by virtue of the fact that ... there was an
accusation contained in a second indictment." That is the sole basis of the
defendants' objection to the instruction. To the extent the defendants now
argue that the instructions referred to Dunn's testimony, we conclude that the
instructions do not refer to Dunn's testimony. We are bolstered in our
conclusion by the fact that defense counsel did not so understand the
instruction at trial and did not object to the instruction on that ground.
FN11. The judge instructed the jury that "there was some evidence that was
not admitted in for all purposes, it was only admitted in for a limited
purpose.... I allowed in testimony with respect to the taking of pictures of
the children. Now, the defendants are not charged with a crime of taking
pictures of the children. That is not the reason it was allowed in. It was
allowed in for limited purposes. First of all, it may have shown a common
scheme, and it is up to you to decide that and not for me. But it may be of
assistance in determining whether there was corroboration among the children
consistent with my earlier instruction on 'common scheme.' Likewise, it was
allowed in for the limited purpose of establishing what might have been the
motive, if there was one." (Emphasis supplied.)
FN12. The instruction on "common scheme" stated that "with respect to the
credibility [of the child witnesses], you may consider whether evidence was
introduced in connection with one indictment that the [defendants] engaged in
conduct that was similar in nature to the conduct charged in another incident
or in other indictments. If you find beyond a reasonable doubt the
defendant[s] did engage in the conduct alleged in one indictment and you find
that the conduct and the conduct alleged in another or other indictments has
sufficiently similar characteristics, then, you may, but you need not, infer
that the acts charged in the indictments were part of a common plan or scheme
committed by the defendant[s]. If you find that the defendants engaged in
conduct which amounts to a common scheme or plan, you may consider whether the
testimony of one or more children involved in the scheme or plan corroborates
the testimony of another child or other children involved in the scheme or
plan."
FN13. In his closing argument, the prosecutor stated, "You have heard no
evidence that anybody pushed [the child victim, M.T.] to talk. Once that
child received some reassurance that her mother loved her, that her mother
would not be hurt, that she would not be hurt, the child began to open up....
She told you, as she said back at the very beginning of this case, that she
was afraid to tell because she was told that her mother would be killed and
she would be sent away. Some of you have children, some of you have
grandchildren. Think about the impact that that kind of a threat will have on
a four year old child....
"I suggest to you, ladies and gentlemen, that when you consider the
totality of the evidence in this case, that when you apply your common
sense, your everyday experience in your own lives with your own children or
grandchildren ... or brothers or sisters, that you will find, based on the
evidence, that these defendants are guilty as charged."
FN14. The judge instructed as follows: "Reference was made in argument by
one of the counsel with respect to the fact that many of you are parents and
grandparents, and no doubt you are. However, of course, that is irrelevant to
the deliberations. What you must do is stand indifferent to the outcome and
decide this case not on the fact that you are parents or grandparents but
solely on the evidence that you have heard during the course of the trial and
in accordance with the law and without regard to extraneous matters such as
the fact that you happen to be parents and grandparents."
------------------------- Page 556 N.E.2d 96_ follows --------------------------
FN15. The fresh complaint testimony pertained to indictments involving one of
the child victims and the defendant LeFave only.
FN1. Dunn mentioned, among other things, "barrels of guns," "scissors,"
"pieces of fruit," "pieces of vegetables," "vibrators," "dildoes," and
"animals."
FN3. When reviewing the admission of motive evidence in past decisions, this
court has referred to the probative worth of the evidence weighed against its
prejudicial effect. See, e.g., Commonwealth v. Todd, 394 Mass. 791, 798, 477
N.E.2d 999 (1985); Commonwealth v. St. Germain, 381 Mass. 256, 271, 408
N.E.2d 1358 (1980); Commonwealth v. Imbruglia, 377 Mass. 682, 695, 387
N.E.2d 559 (1979); Commonwealth v. Brown, 376 Mass. 156, 165, 380 N.E.2d 113
(1978). Implicit in every relevance determination is the question whether the
probative value outweighs the prejudicial effect. See P.J. Liacos,
Massachusetts Evidence 409-411 (5th ed. 1981 & Supp.1985).
The defendants in this case objected to the testimony and moved for a
mistrial. The judge clearly was on notice as to the danger of allowing
such testimony.
FN4. The following are examples of the nature of Dunn's testimony. "They're
posed laying ... prone on a bed or couch with their hands back, and they're
nude from maybe the chest area down, with their genitals exposed ...
Sitting--in a sitting position, with their legs spread apart and their hands
down by their genitals.... There are two here with a--you can see the arms, I
can't tell--somebody's arms, and then the child."
FN5. No photographs taken by the defendants were ever found to corroborate
the testimony of the child witnesses.
FN6. The court, ante at 89, quotes from Commonwealth v. Imbruglia, 377 Mass.
682, 695, 387 N.E.2d 559 (1979), which originally read: "When, however, the
evidence is not too remote in time, or is connected with the facts of the
case, it may be admitted to establish 'knowledge, intent, motive, method,
material to proof of the crime charged.' " Id., quoting Commonwealth v.
Murphy, 282 Mass. 593, 598, 185 N.E. 486 (1933). The court glosses over the
fact that the photographs described in this case had absolutely no connection
with the facts of this case. Inserting into the quotation a parenthetical
phrase ("here, testimony regarding the taking of pictures of the children in
various poses") does not make the evidence any more relevant to the facts of
this case.
FN7. The court appears to recognize that the judge was indeed referring to
Dunn's testimony. In note 8, ante at 88, the court, purportedly attempting to
show that the judge gave a limiting instruction on motive, quotes from the
same section of the charge which it later claims did not refer to Dunn's
testimony. The court states: "The judge instructed the jury that 'testimony
with respect to the taking of pictures of children,' which would include
Dunn's testimony, 'was allowed in for the limited purpose of establishing what
might have been the motive, if there was one' " (emphasis supplied). In note
10, ante at 90, the court states, "[W]e conclude that the instructions do not
refer to Dunn's testimony." The court cannot have it both ways.
(
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