After a jury-waived trial in the Superior Court, the defendant was found guilty on ten indictments charging sexual assault.
The defendant appealed from his convictions to the Appeals Court, and we transferred the case to this court on our own motion. Represented by new counsel, the defendant claims error from the admission of unobjected-to fresh complaint testimony; prosecutorial misconduct in the closing argument; and ineffective assistance of trial counsel. We conclude that much of the evidence admitted as fresh complaint testimony did not qualify as such but that there was no substantial risk of a miscarriage of justice in this jury-waived trial. We further determine that the prosecutor's closing argument was proper and that counsel did not render ineffective assistance. Accordingly, we affirm the convictions.
1. Fresh complaint. The defendant asserts that the testimony of the victim and other witnesses exceeded the scope of fresh complaint testimony and was otherwise inadmissible hearsay; and that this inadmissible testimony served to buttress the victim's credibility. The defendant alleges that, in a case that was essentially a contest of credibility, he was prejudiced by the admission of this testimony. Because there was no objection to this testimony,
Examination of the trial testimony reveals the following. The victim testified to the details of the sexual abuse by the defendant; the general substance of a conversation with a friend concerning the abuse
The defendant denied that these assaults had taken place. He claimed he loved the victim as one of his own children, and that the story of abuse was fabricated as retribution for his allegedly harsh discipline. He stated that the mother was motivated by revenge because he had not been a good provider. He also attacked the victim's credibility by cross-examination suggesting that if the abuse had occurred she would have disclosed it earlier; her reasons for not doing so were not believable and it was unlikely that no other family member saw or heard the abuse if it had occurred mainly in the home during a period of six years.
In Commonwealth v. Peters, 429 Mass. 22, 27 (1999), we explained that our fresh complaint doctrine "permits an out-ofcourt complaint seasonably made by the complainant in a sexual assault case to be admitted as part of the prosecution's case-inchief. Evidence of the fact of the complaint is admissible only to corroborate the complainant's testimony [and not] ... to establish the truth of the complaint itself ... a fresh complaint witness may testify both to the fact of the complaint and the details of the complaint as expressed by the complainant" (footnote and citations omitted). Further, we stated that "while a complainant may testify about the fact that she made a complaint to another about a sexual assault, the person complained to, the fresh complaint witness, must be produced to testify about what the complainant said and to be available for cross-examination." Id. at 28. Finally, pursuant to our rule, the admissibility of the fact of the complaint is not dependent on an attack on the credibility of the complainant. Id. at 27- 28. The court expressed its reservations concerning the fresh complaint doctrine, nonetheless continued to believe that fresh complaint evidence should be admissible.
Against this backdrop of the governing principles, we
Having rejected the defendant's interpretation of the Peters case, that any mention of fresh complaint to a witness mandates calling that witness to testify, we consider his additional claims of inadmissible testimony. He contends that the victim should not have related the substance of her conversation with her friend, see note 4, supra; the guidance counsellor's actions in calling the Department of Social Services and her mother; the fact that she told her mother a "little bit" about the abuse and that she told the district attorney's office "roughly the same story" she had recited in court. The defendant argues further
Although the victim should not have testified to the substance of her conversation with her friend under the rubric of "fresh complaint," Commonwealth v. Peters, supra at 30 (complainant "may testify only to the fact that a fresh complaint was made and to whom it was made [and not] about the details of the complaint"), such testimony was admissible as evidence of the victim's state of mind. Luz v. Stop & Shop, Inc. of Peabody, 348 Mass. 198, 208 (1964).
We view it as improper, however, for the victim to indicate the action the guidance counsellor took after learning of the assaults. There was no evidence that this was other than hearsay and it only served as self-corroboration, indicating that the victim was sufficiently credible to cause someone in authority to take certain steps. It was also improper for the victim to state that she spoke to her mother a "little bit" about the situation. The victim may not characterize her fresh complaint, but may testify "only to the fact that [it] was made." Commonwealth v. Peters, supra at 30. Perhaps the most serious infraction was the victim's affirmative answer that she told "roughly the same story" during the videotaped interview prepared at the district attorney's office. This is simply another type of self-corroboration prohibited by Commonwealth v. Peters, supra at 28 ("We can find no decision, or other authority, which permits a complainant to engage in self-corroboration").
Moving on from the victim's own testimony to that of her mother, it is inadmissible hearsay for a witness other than the complainant (or a fresh complaint witness) to testify that complaint was made or how it was made, nor is it permissible for a witness to characterize the conversation in which she receives such information. "[T]he [mother's] emotional response or state of mind [that she was shocked by the] revelations
Detective McDowell was not called as a fresh complaint witness. She should not have been permitted to testify to the substance of her conversation with the victim. That was hearsay, with no applicable exception. Nor is the fact that she spoke to the various other persons during her investigation relevant.
As stated, no objections were lodged to the above inadmissible testimony. When the judge was considering motions in limine regarding the fresh complaint testimony prior to trial, he specifically stated that, because there would be no jury he would hear the evidence "based on the representations ... made, and then rule on any objections ... made either at the time of the testimony or at the completion of the testimony." There being no objections, particularly after such a statement, we cannot say that the judge erred in admitting the testimony. Nor can we conclude that the now-contested admission of the testimony created a substantial risk of a miscarriage of justice.
Because this was a jury-waived trial, we are not here concerned with the effect of this self-corroborating testimony on a jury. We assume that the judge is familiar with the law and did not permit himself to be influenced by such objectionable testimony. See Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000). The remaining testimony that should not have been admitted was, for the most part, brief and fleeting. It was not sufficiently significant to have had a meaningful impact on the judge's decision. Cf. Commonwealth v. Thompson, 431 Mass. 108,
The defendant did object to the friend's description of the victim's emotional state and to the testimony that the friend told her cousin what had happened and received unspecified advice from her. We therefore consider whether there was error in the admission of this testimony and, if so, whether this evidence was sufficiently prejudicial to have harmed the defendant. Commonwealth v. Andrade, 422 Mass. 236, 239 (1996). The statement regarding the victim's physical appearance at the time of the fresh complaint is not admissible as fresh complaint. Commonwealth v. Quincy Q., supra at 874-875 (fresh complaint witness may testify to complainant's statements of facts of assault). It is admissible, however, as evidence of the victim's state of mind. Luz v. Stop & Shop, Inc. of Peabody, 348 Mass. 198, 208 (1964). The testimony regarding the friend's advice to the victim (to notify the guidance counsellor) and her request for advice from her cousin is inadmissible hearsay. It has no relation to fresh complaint and is unnecessary to give meaning to the victim's complaint. Given the lack of significance of this evidence, however, we can say with fair assurance that in this jury-waived trial, the verdicts were not substantially swayed by this error. Cf. Commonwealth v. Thompson, supra at 119.
2. Prosecutor's closing. The defendant claims that two segments of the prosecutor's closing were improper. As the defendant did not object to the contested remarks, our review is limited to determining whether there was error, and, if so,
The first portion of the closing to which the defendant objects is as follows:
"In closing argument, counsel may argue the evidence and the fair inferences from the evidence." Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978). The argument was a fair statement based on the evidence. Detective McDowell had testified without objection that, after she interviewed the defendant at the police station, she told him that she would probably want to speak to him again and that he said "okay" and "gave [her] every reason to believe he would" remain in the area. When she went to look for him, however, he was no longer living in his prior residence. She looked for him "for some time," and spoke with people in the community she thought would know of his whereabouts, but was not able to locate him. Ultimately, after the indictments were returned, a capias was issued for his arrest. The defendant's disappearance from his usual haunts may support a consciousness of guilt argument. See Commonwealth v. Andrews, 427 Mass. 434, 443-444 (1998). On this record, we cannot say that there was not a proper basis for the prosecutor to "suggest" consciousness of guilt as part of his argument.
The defendant further claims that the prosecutor misstated the evidence in closing argument when he said that the defendant first learned of the allegations against him during his interview with Detective McDowell: "When he first met with Detective McDowell was the first time he really knew what the allegations were." The defendant contends correctly that the evidence was that the first information about the allegations came from the victim's mother six days before the police interview, and
3. Ineffective assistance of counsel. The defendant contends that trial counsel was ineffective for failing to object to the multiple examples of inadmissible hearsay or moving to strike the improper testimony and for not objecting to "material misstatements" of the evidence and improper closing argument. To show ineffective assistance, the defendant must show both that (1) "there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and (2) defense counsel's performance "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Although objections on the basis of Commonwealth v. Peters, 429 Mass. 22 (1999), did not lie, as discussed, there were other valid grounds for objecting to parts of the testimony. The judge's ruling at the outset of trial should have alerted trial counsel to object when fresh complaint testimony exceeded the permissible scope, yet he barely ever did so. We can discern no tactical reason for this failure. However, counsel's lapses did not deprive the defendant of an otherwise available, substantial ground of defense. Once more, as this was a jury-waived trial, exclusion of the testimony likely would have had no significant effect on the judge. We emphasize again that our conclusion might be different had there been a jury.
In regard to the contention that there was ineffective assistance of counsel for failure to object to the closing argument, because we have concluded that the consciousness of guilt argument was supported by the record, the failure of trial counsel to object cannot amount to ineffective assistance of counsel. Commonwealth v. Oliveira, 431 Mass. 609, 613-614 n.6 (2000).
SOSMAN, J. (concurring, with whom Cordy, J., joins). Eleven years ago, when confronted with a request to reconsider the fresh complaint doctrine, this court decided, with apparent reluctance, to retain "a doctrine which has its origins in outmoded, and invalid, sexual myths." Commonwealth v. Licata, 412 Mass. 654, 658 (1992). Perhaps as a result of the court's discomfiture with the fresh complaint exception to the hearsay rule, the jurisprudence surrounding fresh complaint now carries an assortment of technical restrictions and requirements that are not imposed on other hearsay exceptions.
The theory underlying the fresh complaint doctrine was that persons who were sexually assaulted would complain of the assault immediately, that jurors would therefore be skeptical of any complaining witness who did not make such a prompt complaint, and that, in order to eliminate that skepticism, the prosecutor should be allowed to present evidence of the complaining witness's prompt complaint. See Commonwealth v. Licata, supra at 658. However, with regard to child victims, our fresh complaint jurisprudence has adopted the exact opposite of
In short, the doctrine of fresh complaint rests on a demonstrably false premise, and we retained the doctrine only so that prosecutors would have some means of addressing the regrettable fact that some jurors might still subscribe to that false premise. Commonwealth v. Licata, supra at 658. While other myths pertaining to sexual assault still abound, the phenomenon of long-delayed disclosure of sexual abuse is now familiar and highly publicized. See Ross v. Garabedian, 433 Mass. 360, 368-370 (2001) (Sosman, J., dissenting) (chronicling widespread publicity pertaining to child sexual abuse). As such, the fresh complaint doctrine as we know it is designed to address a problem that either no longer exists or that is rapidly shrinking to insignificance.
Confining the evidence to the strict and somewhat arbitrary contours of the fresh complaint doctrine overlooks the fact that, in most cases, such evidence has taken on its own substantive relevance. Much of this evidence is not even hearsay — it is not offered for its truth, but merely to show that particular
In the present case, the prosecutor invoked only the doctrine of fresh complaint as the basis for introducing the complaining witness's conversation with her school teammate (which was her first disclosure of any sexual abuse). Much of the evidence introduced concerning that conversation went beyond the strict boundaries of the fresh complaint doctrine, yet was highly probative of various contested issues in the case. The defendant's
By the same token, we should recognize that there are cases where fresh complaint testimony, even kept within its traditional limits, offers nothing of probative value. For example, if the sexual assault has been perpetrated by a stranger and the defense rests entirely on identification, with no suggestion that the complaining witness's claim of sexual assault has been fabricated, how does fresh complaint testimony assist the jury's assessment? It does not. Its sole purpose in such a case is to repeat the terrifying and profoundly disturbing details of the assault, appealing to the jurors' emotions on an issue that is not contested as a means of generating sympathetic momentum with which to overcome possible weaknesses in the identification evidence. Enamored of this technique, prosecutors appear content to live with the increasing strictures imposed on fresh complaint in order to reap its benefits in cases where such testimony should logically be excluded.
A reevaluation of our adherence to the doctrine of fresh complaint is, in my opinion, long overdue. Whatever remains of the doctrine ought to be tailored to a contemporary, not an archaic, understanding of the complex process by which victims overcome the many impediments to disclosing sexual assault. And, once modernized, our approach to fresh complaint testimony must recognize the close relationship between the timing, manner, circumstances, and details of the complaining witness's initial disclosure and the theories advanced by the defense, which frequently make such testimony directly relevant to substantive issues in the case, and not merely "corroboration."