Commonwealth v. White ( 2016 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11919
COMMONWEALTH vs. ROBERT E. WHITE.
Plymouth. February 9, 2016. - October 19, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Rape. Limitations, Statute of. Evidence, Indictment,
Corroborative evidence, Prior misconduct. Practice,
Criminal, Indictment, Instructions to jury.
Indictment found and returned in the Superior Court
Department on October 3, 2008.
The case was tried before Richard J. Chin, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Kathryn Hayne Barnwell for the defendant.
Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
LENK, J. The defendant was convicted in 2014 of one count
of rape of a child, G. L. c. 265, § 23. The underlying
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
indictment, returned in 2008 and amended in 2014, alleged that
he had raped his daughter on "diverse dates" between September
29, 1979, and 1981, when she was between four and six years old.
On appeal, the defendant chiefly raises two sets of claims, both
of which concern the statute of limitations, G. L. c. 277, § 63.
First, he argues that the Commonwealth did not meet its burden
at trial of proving beyond a reasonable doubt that the
indictment was timely brought, and, in addition, that the trial
judge incorrectly instructed the jury as to that issue. Second,
he maintains that, even if the indictment were timely brought,
the Commonwealth failed to provide the requisite independent
corroboration of any incidents of rape that occurred more than
twenty-seven years before the indictment was returned. See
G. L. c. 277, § 63. He maintains, in this regard, that the
corroboration provided by the Commonwealth at trial --
consisting exclusively of evidence of uncharged sexual
misconduct -- was insufficient. He argues also that the judge
failed to instruct the jury as to the corroboration requirement.
We conclude, with respect to the first set of issues, that
the Commonwealth presented sufficient evidence from which the
jury could determine, beyond a reasonable doubt, that the
indictment was timely returned. We also conclude, however, that
the jury instruction concerning how to make this determination
was incorrect, that the erroneous instruction precluded the jury
3
from properly ascertaining whether the indictment was timely,
and that the incorrect instruction resulted in a substantial
risk of a miscarriage of justice. Accordingly, on this basis
alone, the defendant's conviction must be vacated and set aside.
In considering the second set of claims, we construe for
the first time the requirement that a conviction of certain sex
offenses against children, if based on an indictment returned
more than twenty-seven years after the offense, must be
supported by independent, corroborating evidence. See G. L.
c. 277, § 63. We conclude that the corroboration must relate to
the specific criminal act or acts of which a defendant is
accused, and that evidence of uncharged misconduct does not
suffice. Here, most -- although not all -- of the incidents of
rape to which the victim testified took place more than twenty-
seven years before the indictment was returned, and therefore
required corroboration. Because there is a significant
possibility that the jury's general verdict was based only on
the incidents requiring corroboration, and because the
Commonwealth's corroborative evidence -- consisting only of
evidence of uncharged misconduct -- was insufficient as a matter
of law, the defendant's conviction must be vacated on this basis
as well. On remand, should the Commonwealth decide to pursue a
new trial, the defendant may be tried only for those incidents
4
that took place after October 3, 1981, for which corroboration
was not required as a matter of law.
1. Background. a. Abuse. We recite the evidence
presented at trial, reserving certain details for later
discussion. In 1974, the defendant married J.G.C., and adopted
her four-year-old son, S.G. The following year, the defendant
and J.G.C. had a daughter, S.F. Between the time of the
marriage and October, 1981, the family lived together in eight
different places, most in the general vicinity of Wareham. The
last three locations, which are relevant to this appeal, were in
Wareham, where they moved toward the end of 1978 or the
beginning of 1979; in West Wareham, where they moved sometime in
1980; and in Onset, where they moved in September, 1981.
S.F. testified that the defendant had sexually abused her
on numerous occasions beginning in 1979, when the family lived
in Wareham. She stated that the defendant "would come into my
room at night," and then "take off my pajamas and touch me down
in my private areas" using his "fingers[ and] his mouth." This
happened "a few times a week." When the family moved to West
Wareham, sometime in 1980, the defendant would come into her
bedroom and "do the same thing" "a few times a week." S.F.
added that "if I tried to stop him, he would smack me" and "tell
5
me that this is how a father shows his daughter love, that we
have a secret and I can't tell."2
In September, 1981, the family moved to Onset. S.F. did
not testify about any incidents of abuse at that location. Her
brother, however, testified that he was once walking past S.F's
room at the Onset house, and "saw [the defendant] on top of her,
his head in her lap, her on the bed"; S.F. was "laying back" and
"her pants were down."
Sometime in September or October, 1981, when S.F. was six
years old and the family was living in Onset, J.G.C. was sitting
outside the house when "all of a sudden [she] just had a feeling
over [her] . . . dread almost." She "ran in the house," opened
the door to S.F.'s room, and saw the defendant inside the room
with her. The defendant said, "We're cleaning the room."
J.G.C. had not previously seen the defendant help S.F. clean her
room with the door closed. J.G.C. then took S.F. "out for a car
ride" for approximately "an hour." S.F. testified that, during
this ride, J.G.C.
"was asking me . . . Do you have something to tell me?
Is there something you would like to tell me? And she
would, you know, rephrase that particular question over and
2
S.F. also mentioned a "very prominent memory of" abuse at
her "grandmother's house" in Wareham, which took place when she
was "about four." She said that the defendant followed her into
an upstairs bathroom, "put me up onto the sink and . . .
performed oral sex on me" by putting "his mouth on my vagina."
Afterward, "he put my clothes back on and told me to go
downstairs."
6
over. And the only thing I ever wound up disclosing was
that I had a secret with my father and I couldn't tell
anybody."
Shortly after this incident, in October, 1981, the
defendant and J.G.C. separated and, ultimately, divorced. The
defendant moved to an apartment in Wareham, where he lived for
"at least a couple of years." S.F. testified that she visited
the defendant there on a number of occasions, and that
"[w]henever I was sleeping, he would come into the room," "take
off my pants," and "touch my vagina" with "[h]is fingers or his
tongue."
Soon after moving to the Wareham apartment, the defendant
began dating another woman. This woman moved in with the
defendant, and they eventually married. The two left the
Wareham apartment at some point in 1984 or 1985, moving first to
Haverhill and then to New Hampshire. Through 1988, S.F. and her
brother would periodically visit the defendant in New Hampshire.
In addition, when S.F. was "sixteen, seventeen," in 1991 and
1992, she "started visiting [her] grandparents" in New Hampshire
during "the summertime," and the defendant sometimes "came to
the house" during those visits.
b. Disclosures and trial. In April, 2008, when S.F. was
thirty-two years old, she gave a statement to police alleging
7
that the defendant had abused her when she was a child.3
Thereafter, a Plymouth County grand jury heard testimony from
S.F. regarding the abuse, which was said to have taken place
between 1977 and 1981.4 In addition, they heard testimony from
her brother, who alleged that the defendant also had abused him
on various occasions between 1973 and 1985.5 On October 3, 2008,
a grand jury returned four indictments relating to the alleged
abuse of S.F.,6 and eight related to the alleged abuse of the
brother.7 Following a pretrial motion to dismiss on the basis,
3
S.F. previously had disclosed the abuse to J.G.C. This
happened in 1988, when S.F. was approximately thirteen years
old. At that time, J.G.C. "asked her if she wanted to pursue it
and [S.F.] said no."
4
No accounts of the pre-1979 abuse, which was determined to
be time barred, are in the record.
5
The grand jury also heard testimony from the defendant's
niece, who alleged that the defendant abused her on various
occasions between 1972 and 1978, and from J.G.C., who alleged
that the defendant had raped her sometime in 1974 or 1975, when
she was married to him. Indictments were returned on the basis
of this testimony. However, the indictment concerning the niece
was dismissed as time barred before trial, and that concerning
J.G.C. was dismissed as time barred during trial.
6
These included one count of rape of a child by force,
G. L. c. 265, § 22A, and three counts of indecent assault and
battery, G. L. c. 265, § 13B.
7
These included three counts of rape of a child by force,
G. L. c. 265, § 22A; two counts of assault and battery on a
person under fourteen years of age, G. L. c. 265, § 13B; one
count of assault and battery, G. L. c. 265, § 13A; one count of
assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A (b); and one count of threatening to commit a
crime, G. L. c. 275, § 2.
8
among other things, of the statute of limitations, a judge of
the Superior Court dismissed as time barred three of the four
indictments relating to abuse of S.F. The judge denied the
defendant's motion to dismiss a fourth count -- for rape of a
child by force, G. L. c. 265, § 22A -- relating to abuse of
S.F., and he also declined to dismiss the eight counts relating
to abuse of the brother.
In March, 2014, a trial on the remaining indictments was
held before a Superior Court jury. The Commonwealth presented
testimony from S.F. regarding abuse that she suffered; from her
brother, both regarding abuse that he suffered, and in
corroboration of S.F.'s testimony; and from J.G.C., as the first
complaint witness.8 Because the Commonwealth was required also
to prove that the charges were not barred by the statute of
limitations, see Commonwealth v. Shanley, 455 Mass. 752, 781
n.37 (2010) ("Commonwealth has the burden of proving beyond a
reasonable doubt that the indictments have been timely
brought"), it presented evidence that the defendant resided
outside of Massachusetts during the relevant limitations period,9
8
Pursuant to a separate indictment, J.G.C. testified about
an incident in which the defendant raped her. That indictment
was, as mentioned, dismissed in the middle of the trial as time
barred, and did not go to the jury.
9
The relevant limitations period with respect to most of
the acts in question was fifteen years, to run from the victim's
9
and that, accordingly, the statute had been tolled. See G. L.
c. 277, § 63 (statute tolled if defendant "not usually and
publicly a resident" of Massachusetts). This evidence consisted
of testimony from S.F., S.G., and J.G.C. about the defendant
residing in New Hampshire, and of a 2009 report from the New
Hampshire Division of Motor Vehicles, admitted over objection,
showing that the defendant had a New Hampshire driver's license
and maintained an address in that State.
There were two theories of defense. First, the defendant
contended that S.F.'s memories of abuse were false, being the
result of suggestive questioning by J.G.C. In this regard, the
defendant offered expert testimony from a psychiatrist who
opined that, under certain circumstances, such as suggestive
questioning by an adult, children may develop vivid memories of
events they never actually experienced. The defendant also
presented a statement of stipulated facts regarding certain
comments that S.F. made to a Department of Social Services
(DSS)10 employee in 2004, which the defendant argued were
inconsistent with S.F.'s testimony at trial. The second theory
of defense was that the Commonwealth had not met its burden of
sixteenth birthday. See G. L. c. 277, § 63, as amended by
St. 1996, c. 26. The victim turned sixteen in 1991.
10
This was before the change of the department's name to
the Department of Children and Families in 2008. See St. 2008,
c. 176, § 136.
10
demonstrating that the statute of limitations had been tolled
and that the indictments were timely brought.
The jury returned a guilty verdict on the single indictment
relating to abuse of S.F., on the lesser included offense of
rape of a child. See G. L. c. 265, § 22A. The jury returned
verdicts of not guilty on the remaining indictments, which
related to abuse of her brother.
2. Discussion. On appeal, the defendant raises two sets
of claims related to the statute of limitations, G. L. c. 277,
§ 63. First, the defendant contends that the Commonwealth did
not present sufficient evidence that the indictment on which he
was convicted was returned within the relevant limitations
period. He claims also that, even if the evidence on this point
was sufficient, the jury were not instructed properly how to
determine, on the basis of this evidence, whether the indictment
was timely.
Second, even if the indictment was timely brought, it is
undisputed that the Commonwealth was required, pursuant to G. L.
c. 277, § 63, to provide independent corroboration of any
incidents of rape alleged to have occurred more than twenty-
seven years before the indictment was returned. The defendant
contends that the Commonwealth failed to provide sufficient
corroboration of such alleged incidents, and, in addition, that
the judge declined to instruct the jury, notwithstanding the
11
defendant's request, regarding the Commonwealth's obligation to
provide this evidence.
The defendant also raises four additional claims, three of
which are evidentiary in nature, and one of which relates to
whether the Commonwealth proved certain details listed in the
indictment.
a. Timeliness of indictment. At the time of the alleged
offenses at issue, between 1979 and 1981, the statute of
limitations for rape of a child was six years. See R. L. 1902,
c. 218, § 52. The Legislature subsequently has lengthened the
relevant limitations period several times.11 It is undisputed,
except with regard to the last of these changes, that each
modification occurred before the limitations clock had an
opportunity to expire. See Stogner v. California, 539 U.S. 607,
632 (2003) (under Constitution's ex post facto clause,
limitations period may be lengthened retroactively, but not if
already expired). The contested issue in this case is whether
the most recent modification, like the previous ones, took
11
Effective September 30, 1985, the limitations period was
extended to ten years. See St. 1985, c. 123. In 1987, the
statute was changed so that the ten-year period would begin to
run only from the victim's sixteenth birthday. St. 1987,
c. 489. In 1996, the limitations period was extended to fifteen
years, to run from the victim's sixteenth birthday. St. 1996,
c. 26. Effective December 20, 2006, the limitations period was
lifted entirely. St. 2006, c. 303, § 9 (no limitations, but
indictment returned more than twenty-seven years after offense
requires "independent evidence that corroborates the victim's
allegation").
12
effect before the limitations clock had an opportunity to
expire. See St. 2006, c. 303, § 9.
Prior to December 20, 2006, the statute of limitations for
rape of a child was fifteen years, to run from the victim's
sixteenth birthday. G. L. c. 277, § 63, as amended by St. 1996,
c. 26. Because the victim turned sixteen on August 19, 1991,
that limitations period would have expired fifteen years later,
on August 19, 2006. This would have happened 123 days before
December 20, 2006, when the Legislature entirely abolished the
statute of limitations for rape of a child. See St. 2006,
c. 303, § 9. The Commonwealth contends, however, that the
limitations clock did not expire on August 19, 2006, because the
defendant lived in New Hampshire during the period that the
limitations clock was running, i.e., between August 19, 1991,
and August 19, 2006, thereby tolling the statute. See G. L.
c. 277, § 63 ("period during which the defendant is not usually
and publicly a resident within the commonwealth shall be
excluded").
To prove this claim at trial, the Commonwealth was required
to show beyond a reasonable doubt that, during the period that
the statute was running (between August 19, 1991, and August 19,
2006), the defendant was "not usually and publicly a resident"
of Massachusetts for at least 123 days, i.e., for the length of
time between the victim's birthday on August 19, 2006 (when the
13
limitations clock would have run under the old statute) and
December 20, 2006 (when the Legislature abolished the
limitations period).12 See Commonwealth v. Shanley, 455 Mass. at
781 n.37 (Commonwealth's burden to show indictment timely
brought). The defendant claims that the Commonwealth's evidence
on this point was insufficient and amounted only to
"speculation."
This claim fails. There was evidence that the defendant
remarried, and that he moved with his new wife to New Hampshire
sometime in the late 1980s. There was evidence also that the
defendant's parents moved to New Hampshire soon thereafter; that
S.F. and her brother visited the defendant in New Hampshire at
various times through 1988; that, in the summers of 1991 and
1992, the defendant was seen stopping by his parents' house in
New Hampshire when S.F. was there; and that, in 2009, he had a
New Hampshire driver's license listing an address in that state.
See Commonwealth v. George, 430 Mass. 276, 277 (1999)
(limitations period tolled when defendant resided out of State).
12
We do not accept the defendant's claim that, because the
trial judge erroneously instructed the jury that it needed to
find 777 days of tolling, rather than four months, see infra,
this higher number controls for purposes of our sufficiency
review. Commonwealth v. David, 365 Mass. 47, 55-56 (1974)
(misstatement of burden in defendant's favor did not become "the
law of the case" where "the judge made his ruling not at the
close of the Commonwealth's case but at the close of all the
evidence," and where, accordingly, there was no indication that
defendant's strategy at trial was affected by this mistake).
14
Given this, the jury reasonably could have inferred that, after
the defendant moved to New Hampshire in the 1980s, he continued
to live there until at least the summer of 1992, which is, of
course, more than 123 days after S.F.'s August 19, 1991
birthday.13 See Commonwealth v. Mazariego, 474 Mass. 42, 46
(2016) (inferences drawn by jury need only "be reasonable and
possible" [citation omitted]). Thus, the Commonwealth's
evidence of tolling was sufficient.
b. Erroneous instruction on tolling. The judge gave the
following instruction on how to determine whether the indictment
was timely brought:
"[T]he statute of limitations began to run on
August 19, 1991, and would have expired on August 19, 2006.
However, our statute further provides that certain time may
be excluded from this calculation and states: any period
during which the defendant is not usually and publicly a
resident within the Commonwealth shall be excluded from
determining this period. Because those indictments were
brought in 2008, 777 days after the expiration of the
statute of limitations, the Commonwealth must prove beyond
a reasonable doubt that between August 19, 2006, and the
date of the indictment, that the defendant was not a
resident of Massachusetts for at least 777 days."
13
Our decision in Commonwealth v. Shanley, 455 Mass. 752,
780 (2010), is not to the contrary. There, we held that the
statute of limitations may be tolled only by a defendant's out-
of-State residence during the limitations period, and not by
such residence before the limitations period begins or after it
expires. Id. at 779-780. We did not say, however, as the
defendant contends, that evidence of where a defendant lived
before or after the limitations period is irrelevant to proving
where he lived during the limitations period. Id. at 778-780(evidence that defendant lived out of State beginning in 1990
probative of where he lived when limitations clock began to run
in September, 1993).
15
In other words, the jury were instructed to determine whether
the defendant was "not usually and publicly a resident" of
Massachusetts between S.F.'s birthday on August 19, 2006, and
October 3, 2008, the date of the indictment. See G. L. c. 277,
§ 63. Both parties agree that this was error, since, if tolling
had not taken place by August 19, 2006, the limitations period
would have run, and any tolling thereafter would be irrelevant.
See Commonwealth v. Shanley, 455 Mass. at 780 ("instruction
should have focused the jury's attention only on the defendant's
usual and public residence during the period" when the statute
was running). The defendant, however, did not object to this
instruction, and we therefore must determine whether it resulted
in a "substantial risk of a miscarriage of justice." See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
To decide whether an erroneous jury instruction created a
substantial risk of a miscarriage of justice, "[w]e examine the
jury instructions in their entirety 'to determine their probable
impact on the jury's perception of the fact-finding function.'"
Commonwealth v. Noble, 429 Mass. 44, 47 (1999), quoting
Commonwealth v. Mejia, 407 Mass. 493, 495 (1990). Here, the
erroneous instruction was the jury's sole opportunity to hear an
explanation of the statute of limitations, and, as given, it
told the jury to focus on a period when the limitations clock
16
was not running and during which no tolling could have taken
place. Given this instruction, there was no way the jury could
have made the necessary finding whether the statute of
limitations was tolled during the interval between August 19,
1991, and August 19, 2006. In effect, the jury never had the
opportunity to ascertain whether the indictment was timely.
This "deprived [the defendant] of jury consideration of a
substantial part of his defense"14 and "created a substantial
risk of a miscarriage of justice.15 See Commonwealth v. Noble,
14
The claim that the Commonwealth did not provide
sufficient evidence of tolling was, as discussed supra, one of
defendant's two primary theories of defense, and was argued at
length by defense counsel during closing arguments. Contrast
Commonwealth v. Shanley, supra at 782 (erroneous instruction on
tolling did not require reversal where, among other things,
issue not argued in closing by defense).
15
The Commonwealth argues that the defendant's failure to
object to the erroneous instruction was the result of a
strategic decision, because the judge's error required the jury
to find more days of tolling (777 days) than would have been
required under a correct statement of the law (123 days). See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (appellate court
considers whether "counsel's failure to object was not simply a
reasonable tactical decision" [citation omitted]). There was no
evidentiary hearing on the issue, and the record before us does
not support this contention. We note that the erroneous
instruction would not necessarily be to the defendant's
advantage, as it focused the jury's attention on a two-year
window (2006-2008) close to 2009, when it was shown, via the
defendant's New Hampshire driving record, that he maintained an
address in that State. Arguably, it would have been more to the
defendant's advantage for the instruction to focus on the period
between 1991 and 2006, during which there was no direct evidence
that the defendant maintained a New Hampshire address. In
addition, the record suggests that both the judge and the
parties found the issue of tolling to be difficult and
17
supra at 47 (instruction omitted on affirmative defense that was
supported by evidence). Accordingly, the defendant's conviction
must be vacated.
c. Corroboration. i. Sufficiency of corroboration.
General Laws c. 277, § 63, as amended by St. 2006, c. 303, § 9,
provides that an indictment for rape of a child
"may be found and filed at any time after the date of the
commission of such offense; but any indictment or complaint
found and filed more than [twenty-seven] years after the
date of commission of such offense shall be supported by
independent evidence that corroborates the victim's
allegation. Such independent evidence shall be admissible
during trial and shall not consist exclusively of the
opinions of mental health professionals" (emphasis
supplied).
Here, the defendant was convicted on the basis of an indictment
returned on October 3, 2008. Thus, pursuant to G. L. c. 277,
§ 63, S.F.'s allegations with respect to any incidents taking
place before October 3, 1981 -- i.e., more than twenty-seven
years prior to indictment -- required corroboration by
independent evidence.16
confusing. It appears at least as likely that neither counsel
realized that an error had been made. Finally, there is
evidence that the defendant objected to other parts of the jury
instructions on the statute of limitations, and "[w]e can see no
valid tactical reason for challenging some instructions but not
others." See Commonwealth v. Randolph, 438 Mass. 290, 299
(2002).
16
As discussed infra, the judge did not give an instruction
on the issue of corroboration.
18
At trial, S.F. testified to various incidents of rape, some
occurring before October 3, 1981, and some after.17 The jury,
however, returned a general verdict that did not specify whether
the defendant was convicted on the basis of the pre-October 3,
1981, incidents, which required corroboration, or those that
took place later, for which corroboration was not necessary.
Because we do not know the basis for the jury's verdict, the
defendant's conviction may be affirmed only if there was
corroboration of the pre-October 3, 1981, incidents, as those
might have formed the sole basis for the jury's verdict.18,19
17
The incidents before October 3, 1981, were those in the
family's homes in Wareham and West Wareham, as well as at the
grandparents' house in Wareham. The incidents after this date
were those that took place in the Wareham apartment to which the
defendant moved in October, 1981, after separating from J.G.C.
18
The judge correctly instructed the jury that "[y]ou may
find the defendant guilty only if you unanimously agree that the
Commonwealth has proven beyond a reasonable doubt that the
defendant committed the offense on at least one specific
occasion." Thus, the jury might unanimously have agreed that
the defendant committed rape on one specific occasion before
October 3, 1981, and might not unanimously have agreed regarding
other dates.
19
The Commonwealth contends that this claim was waived.
Even if this were so, most of the acts to which S.F. testified
required corroboration, and, accordingly, there was a
significant possibility that the jury convicted on the basis of
those acts, resulting in a substantial risk of a miscarriage of
justice to the extent that the Commonwealth's corroboration was
insufficient. See Commonwealth v. Kelly, 470 Mass. 682, 701
(2015) (substantial risk of miscarriage of justice if, because
of improper instruction, "there is any significant possibility
that the jury may have based convictions" on impermissible
factual grounds).
19
Commonwealth v. Sanchez, 405 Mass. 369, 382 (1989) (judgment
vacated because "jury may well have convicted" on impermissible
basis, despite presence of permissible basis [citation
omitted]). See also Commonwealth v. Petrillo, 50 Mass. App. Ct.
104, 111 (2000), cert. denied, 532 U.S. 1030 (2001).
Accordingly, we must determine whether S.F.'s testimony
with respect to the pre-October 3, 1981, acts was supported by
"independent evidence that corroborates [her] allegation."
G. L. c. 277, § 63. In support of its assertion that there was
independent corroboration, the Commonwealth points to the
testimony of S.F.'s brother that, sometime in September, 1981,
when the family lived in Onset, he once saw the defendant
reclining next to S.F. with his head in her lap, while she lay
on her bed with "her pants . . . down." The question before us
is whether this was sufficient corroboration within the meaning
of the statute. In answering this question, we construe for the
first time the phrase "independent evidence that corroborates
the victim's allegation." Id.
The issue presented by the brother's account, as both
parties recognize, is that it did not coincide precisely with
any of the incidents to which the victim testified: S.F.'s
testimony with respect to the pre-October 3, 1981, acts spoke of
abuse that took place when the family lived in Wareham and West
Wareham, while her brother described an incident that happened
20
later, when the family lived in Onset.20 In this way, the
brother's testimony presented evidence of uncharged sexual
misconduct.21 The Commonwealth argues that the statute's
corroboration requirement may be satisfied by such evidence,
which, in its view, "tends to support the conclusion that the
crime described . . . actually occurred." The defendant, on the
other hand, argues that proof of uncharged misconduct does not
suffice because there must be evidence "corroborating each
specific allegation" made by the victim. For the reasons that
follow, we conclude that the Commonwealth must present
corroborating evidence that relates to the specific criminal act
at issue. Consequently, evidence of uncharged misconduct, such
as that presented by the brother, does not itself suffice.
As with all statutes, G. L. c. 277, § 63, "must be
interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfection to be
20
These locations are not elements of the crime.
Nonetheless, in conjunction with evidence of when the family
lived in these locations, they allow for a determination of the
approximate time that the incidents of rape took place.
21
There is no contention that the brother's testimony
formed an independent basis for conviction, as it did not
contain sufficient detail to demonstrate that the defendant
committed rape of a child. Commonwealth v. King, 445 Mass. 217,
222 (2005), cert. denied, 546 U.S. 1216 (2006) (must be "some
degree of penetration" by or of sexual organs).
21
remedied and the main object to be accomplished, to the end that
the purpose of its framers may be effectuated." Commonwealth v.
Clark, 472 Mass. 120, 129 (2015), quoting Hanlon v. Rollins, 286
Mass. 444, 447 (1934).
Based on the statutory language, it is clear that the
victim's testimony alone is not enough to sustain a conviction.
G. L. c. 277, § 63 (evidence must be "independent"). It also is
clear that the required corroboration may not consist
"exclusively of the opinions of mental health professionals" and
that it must be of a sort "admissible during trial." Id. The
Legislature, however, did not further define what it meant by
the phrase "independent evidence that corroborates the victim's
allegation," nor did it state whether evidence of uncharged
sexual misconduct would suffice. Id. We therefore must look
for guidance to the "purpose and legislative history of the
statute." See Commonwealth v. Ray, 435 Mass. 249, 252 (2001),
quoting Massachusetts Hosp. Ass'n v. Department of Med. Sec.,
412 Mass. 340, 346 (1992).
The provision at issue here was added by St. 2006, c. 303,
"An Act increasing the statute of limitations for sexual crimes
against children" (act). By lengthening the limitations period,
which previously had been fifteen years, see G. L. c. 277, § 63,
as amended by St. 1996, c. 26, the Legislature sought "to give
child victims of sexual abuse the time they need to heal, come
22
forward and still have their day in court." See Executive
Department Press Release, [Lieutenant Governor] Healey Signs
Tougher Penalties for Sex Offenders into Law (September 21,
2006).
The text of the statute suggests that there also was
concern that memories of childhood abuse, when recalled decades
later, may not be sufficiently precise to serve as the sole
basis for a criminal conviction.22 See G. L. c. 277, § 63
(victim's childhood memories alone insufficient for conviction,
even if bolstered by "opinions of mental health professionals");
Commonwealth v. Hatch, 438 Mass. 618, 622 (2003) ("primary
source of insight into the intent of the Legislature is the
language of the statute" [citation omitted]). This is
consistent with the act's sparse legislative history, which
reflects the views of some members of the Legislature that
extending the statute of limitations would impinge the
defendant's right to a fair trial. See State House News Service
(July 26, 2006) (statement of Rep. Fagan expressing concern that
extending or lifting statute of limitations might impinge right
22
See Stogner v. California, 539 U.S. 607, 631 (2003),
citing Holdsworth, Is It Repressed Memory with Delayed Recall or
Is It False Memory Syndrome? The Controversy and Its Potential
Legal Implications, 22 Law & Psychol. Rev. 103, 103–104 (1998)
("Memories fade, and witnesses can die or disappear. . . . Such
problems can plague child abuse cases, where recollection after
so many years may be uncertain, and 'recovered' memories
faulty").
23
to "a fair trial" and would not "protect the innocent"
defendant); id. (statement of Rep. Loscocco that "I don't know
if I could remember where I [even] was" twenty-seven years ago).
Thus, the act's provisions apparently were intended not only to
protect the interests of victims, but to safeguard "the
principles of a fair trial." See id. (statement of Rep. Fagan).
See also id. (statement of Rep. Grant that bill is "a
compromise that recognizes both sides of this" issue).
Based on the above, it is evident that the act was intended
to balance the aforementioned concerns by allowing prosecutions
for such offenses to proceed at any time, while specifying that
indictments returned more than twenty-seven years after the fact
must be supported by "independent evidence that corroborates the
victim's allegation," St. 2006, c. 303, § 9, such that a
conviction cannot be based solely on the victim's recollections
of abuse decades earlier. In addition, the corroborative
evidence "shall not consist exclusively of the opinions of
mental health professionals," id., indicating that this evidence
must do more than bolster a victim's credibility -- it must be a
separate source of proof tending, in some way, to show the
defendant's guilt. See Healey Signs Tougher Penalties for Sex
Offenders into Law, supra ("a new provision extends the statute
of limitations 'to life' if independent admissible evidence,
such as [deoxyribonucleic acid (DNA)] samples, is available to
24
corroborate a victim's allegation" [emphasis supplied]).23 In
sum, it appears that the act advances its aim of protecting "the
principles of a fair trial," see State House News Service, supra
(statement of Rep. Fagan), by requiring that a defendant not be
convicted unless there is at least some evidence of guilt in
addition to the victim's potentially imprecise memories.
While the Legislature did not define specifically what form
this additional evidence must take, the act was formulated
against the backdrop of other corroboration requirements
elsewhere in our statutory and common law. See Commonwealth v.
Clark, 446 Mass. 620, 625 (2006) (courts "look to preexisting
common law as an aid to the construction of undefined terms in a
statute"); Commonwealth v. McLeod, 437 Mass. 286, 290 (2002)
("Where the language of a statute is inconclusive, courts must
look to . . . analogous statutory material, and relevant case
law").
A common thread running through our cases involving other
corroboration requirements is that such evidence must relate to
the specific criminal act at issue. See, e.g., Commonwealth v.
Noble, 417 Mass. 341, 345 (1994) (if "[prior inconsistent grand
jury testimony] is the only source of support for the central
23
A bill introduced the previous year similarly would have
allowed an indictment to "be found and filed at any time" "if a
[deoxyribonucleic acid] sample . . . of the perpetrator is
collected and stored." See 2005 House Doc. No. 650.
25
allegations of the charge," [citation omitted], there must be
evidence corroborating those central allegations; grand jury
testimony that defendant joint venturer knew about murder and
intended to participate was corroborated by evidence of
defendant's interactions with shooter at time of murder);
Commonwealth v. Costello, 411 Mass. 371, 375 (1991) ("alleged
victim's testimony . . . does corroborate many elements of the
defendant's [confession to rape of a child], [but it] does not
corroborate any element of the crime except for the age of the
alleged victim" and was therefore insufficient); Commonwealth v.
Silva, 401 Mass. 318, 324-325 & n.7 (1987) (in perjury case,
testimony that defendant lied must be "corroborat[ed by]
evidence [that] 'tend[s] to establish the defendant's guilt'"
and that is "inconsistent with the innocence of the defendant"
[citation omitted]; testimony that defendant falsely denied
making certain statements was corroborated by evidence that
person who heard statements only could have obtained information
in them from defendant); Commonwealth v. Forde, 392 Mass. 453,
458 (1984) (there must "be some evidence, besides the
confession, that the criminal act was committed by someone, that
is, that the crime was real and not imaginary"; corroboration
provided by victim's dead body); Commonwealth v. DeBrosky, 363
Mass. 718, 728-730 (1973) (construing G. L. c. 244, § 20I, court
stated that there must be some "corroborating evidence" "in
26
support of the testimony of an immunized witness on at least one
element of proof essential to convict the defendant";
corroboration provided by two witnesses who saw person at scene
of crime fitting defendant's description).
We find particularly helpful the analysis in one such case,
Commonwealth v. Helfant, 398 Mass. 214, 215 (1986), in which, as
here, the defendant was charged with a sexual crime ("drugging
for unlawful sexual intercourse"). There, we stated that the
Commonwealth was required by statute to prove the crime with
evidence "corroborat[ing the victim's testimony] in a material
particular." Id. at 219 n.3, citing G. L. c. 272, § 11.
Surveying our cases dealing with comparable corroboration
requirements, we concluded that corroborating evidence must
relate to the specific criminal act at issue, and, in
particular, that it must consist of "some specific testimonial
fact, which, in the context of the case, is probative on an
element of the crime." Id. at 219 (corroboration provided by
testimony that drug used to subdue victim detected shortly
thereafter in her blood stream, and that needle marks were found
on her arm). In that case, the "evidence . . . corroborate[d] a
material particular of the [victim's] testimony -- that the
defendant administered a drug to her" -- as the "defendant could
not be convicted on the drugging charge without proof of the
injection." Id. at 219, 220. Indeed, we cited as corroboration
27
only facts related to the act with which the defendant was
charged, id. at 218-220, despite substantial evidence of prior
sexual misconduct.24 Id. at 224-227.
The standard articulated in Commonwealth v. Helfant is
especially appropriate for defining the corroboration
requirement in the statute at issue here, for several reasons.
It distills our construction of comparable corroboration
requirements, derives from the interpretation of a statute
relating to sexual crimes, and furthers the statutory aim of
ensuring that the occurrence of the criminal act alleged by a
victim is proven, at least in part, by some source other than
the victim's testimony. Here, because the brother's testimony
presented evidence only of uncharged misconduct, and did not
provide "some specific testimonial fact," id. at 129, related to
the particular incidents of rape described in the "victim's
24
Our decision in Commonwealth v. King, 387 Mass. 464, 470
(1982) (uncharged sexual misconduct admissible to corroborate
victim's testimony because such evidence "prove[s] an
inclination to commit the [acts] charged"), is not to the
contrary. There, we held that the Commonwealth was permitted to
present evidence of uncharged sexual misconduct; we did not say
that such evidence would suffice where corroboration is
required. Id. But see People v. Yovanov, 69 Cal. App. 4th 392,
404 (1999) (under similarly-worded statute mandating
corroboration, "uncharged sexual misconduct . . . can be used to
corroborate a victim's allegation of sexual abuse"). The
California court's reasoning was based on legislative history
suggesting that "evidence of any prior sexual offenses is [a]
particularly probative" form of evidence. Id. We are unaware
of any comparable legislative history concerning G. L. c. 277,
§ 63.
28
allegation," the Commonwealth's proof fell short. See G. L.
c. 277, § 63.
We recognize that, so construed, G. L. c. 277, § 63, sets a
high bar for prosecuting sexual offenses against children that
are alleged to have occurred many years before. Nonetheless,
our own cases suggest that this bar is not insuperable.25 Cf.
Commonwealth v. Feijoo, 419 Mass. 486, 496 (1995) (defendant
recorded sexual acts with minors and preserved recordings);
Commonwealth v. Abrahams, 85 Mass. App. Ct. 150, 151 (2014)
(defendant charged with rape of child left DNA evidence);
Commonwealth v. Villalta-Duarte, 55 Mass. App. Ct. 821, 822, 823
(2002) (confession to rape of child corroborated by testimony
that, around time of rape, victim "developed a 'serious' diaper
rash in her vaginal area" and "small scratches on her face").
Accordingly, because the Commonwealth's corroboration of
the pre-October 3, 1981, incidents fell short, and because the
jury returned a general verdict that could have been based
solely on those incidents, the defendant's conviction must be
vacated. At any new trial, the Commonwealth will be limited to
proceeding on the basis of incidents for which sufficient
evidence was introduced, i.e., incidents after October 3, 1981.
Because the evidence was insufficient with respect to the
25
See Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59, 64-
65 (2009) (defendant's confession to rape of child corroborated
by testimony of percipient witness).
29
incidents on or before October 3,1981, the defendant may not be
retried for those incidents.26
ii. Lack of instruction on corroborating evidence. The
defendant maintains that, because independent corroboration was
required for the incidents that occurred prior to October 3,
1981, the jury should have been instructed regarding the
Commonwealth's obligation to provide corroborating evidence. We
agree.27
"When a party makes a request legally correct and
pertinent to the issues presented by the case, it is incumbent
on the judge to instruct the jury in a manner which
substantially covers the particular point in question."
Commonwealth v. Dane Entertainment Servs., Inc., 19 Mass. App.
Ct. 573, 578 (1985), S.C., 397 Mass. 197 (1986). In other
contexts where corroborating evidence is required, we have said
that it is appropriate for a trial judge to instruct the jury
26
Accordingly, we need not address the defendant's argument
that there was insufficient evidence that the incidents in West
Wareham took place via "mouth on vagina," as alleged in the
indictment, since those incidents took place before October 3,
1981.
27
Because the corroborative evidence offered by the
Commonwealth was, as explained, insufficient as a matter of law,
there will be no need for an instruction on this issue at any
new trial, as the defendant may not be retried for acts for
which corroboration was necessary, i.e., those on or before
October 3, 1981. We nevertheless choose to address the issue
"in order to provide guidance" to judges and parties in future
cases. See Commonwealth v. Agosto, 428 Mass. 31, 35 n.6 (1998).
30
about the Commonwealth's obligation to provide such evidence.
See, e.g., Commonwealth v. Dyous, 436 Mass. 719, 727 n.11 (2002)
(approving judge's instruction on credibility of immunized
witness, which included statement that "defendant cannot be
convicted solely on the testimony of a person granted immunity"
and that there must be "some corroboration" "on at least one
element of proof essential to convict the defendant"). Cf. K.M.
Tuttman, Massachusetts Superior Court Criminal Practice Jury
Instructions § 4.18 (Mass. Cont. Legal Educ. 2d ed. 2013) ("You
may convict a person of perjury based on the testimony of a
single witness only if there is also evidence of a direct or
clear and compelling character that will support no explanation
that is consistent with the innocence of the defendant"). This
is so because, while it is the judge's role to determine whether
sufficient corroborative evidence has been presented, the jury
must decide whether to credit that evidence.28
28
See Weiler v. United States, 323 U.S. 606, 610 (1945) (in
perjury case, "[t]wo elements must enter into a determination
that corroborative evidence is sufficient: (1) that the
evidence, if true, substantiates the testimony . . . ; (2) that
the corroborative evidence is trustworthy. To resolve this
latter question is to determine the credibility of the
corroborative testimony, a function which belongs exclusively to
the jury"); United States v. Bryant, 420 F.2d 1327, 1331 (D.C.
Cir. 1969) ("The corroboration doctrines in this jurisdiction
require not only the existence of evidence sufficient to avoid a
directed verdict, but also that the case be sent to the jury
with instructions . . . that it is their responsibility as
jurors to determine whether evidence which they credit
establishes such corroboration").
31
Here, the defendant's proposed instruction was, in essence,
"legally correct."29 See Commonwealth v. Dane Entertainment
Servs., Inc., supra. It was also "pertinent to the issues
presented by the case," id., as the credibility of the
corroborating evidence (i.e., the brother's testimony) was
contested at trial. This being so, the jury should have been
instructed regarding the Commonwealth's obligation to provide
independent evidence that related to the specific criminal acts
at issue and that is probative on an element of the crime.30 See
Commonwealth v. Helfant, 398 Mass. at 220.
d. Evidentiary issues. We address briefly certain
evidentiary issues raised by the defendant that may arise at any
new trial.
i. New Hampshire driver's record. The defendant's New
Hampshire driver's record was admitted in evidence without
having been disclosed during pretrial discovery, see Mass. R.
29
The defendant requested an instruction that "you must
determine whether the indictments, if brought [more than twenty-
seven] years [after] the alleged conduct, are supported by
independent corroborating evidence." While the judge was not
obligated to give the instruction in exactly this form, see
Commonwealth v. Johnston, 467 Mass. 674, 702 (2014), the
defendant's request accurately reflected the law as stated in
G. L. c. 277, § 63, and required that some instruction on the
issue be given.
30
Where appropriate, the jury should be instructed that
this corroboration may not consist solely of the opinions of
mental health professionals. See G. L. c. 277, § 63. The
Commonwealth did not offer such evidence in this case.
32
Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501(2005), and without the "double certification" required by Mass.
R. Crim. P. 40 (a) (1), 378 Mass. 917 (1979). See Reporters'
Notes to Rule 40, Mass. Ann. Laws, Rules of Criminal Procedure,
at 1739 (LexisNexis 2015). This was error.31
The defendant contends also that introduction of this
record violated his confrontation rights, a claim that depends
on whether the document was produced "under circumstances which
would lead an objective witness reasonably to believe that the
[document] would be available for use at a later trial[.]"
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009),
quoting Crawford v. Washington, 541 U.S. 36, 52 (2004). We
cannot determine from this record the circumstances under which
the document was created. Compare Commonwealth v. Parenteau,
460 Mass. 1, 8, 9 (2011) ("registry [of motor vehicles]
certificate was dated . . . nearly two months after the criminal
complaint . . . had issued against the defendant. As such, it
plainly was made for use at the defendant's trial"; "business
records are not admissible at trial 'if the regularly conducted
business activity is the production of evidence for use at
31
Nevertheless, because there is a "reasonable prospect"
that these deficiencies may be cured on retrial, we are not
precluded from considering the driver's record in assessing
whether the evidence of tolling was sufficient. Commonwealth v.
DiBenedetto, 414 Mass. 37, 46 n.14 (1992), S.C., 427 Mass. 414(1998).
33
trial'" [citation omitted]). More information about the
document's provenance must be elicited if it is to be admitted
on retrial without accompanying testimony.
ii. Evidence from DSS investigation. The defendant argues
that his right to present a defense was impaired by the judge's
ruling that he could not introduce evidence from a 2004 DSS
investigation involving S.F.'s daughter. Documentation from
that investigation showed that J.G.C. urged S.F. to file an
ultimately unsubstantiated report of abuse on behalf of her
child. The defendant argued in his motion to introduce portions
of this report that it showed J.G.C.'s "bias in perceiving
certain conduct as evidence of sexual abuse," and therefore
supported the defendant's claim that J.G.C. implanted false
memories in S.F. through suggestive questioning. The judge
ordered this evidence excluded as not "relevant."
A "defendant is not necessarily deprived of the right to
present his theory of defense simply because the judge excludes
a piece of evidence supporting such theory." Commonwealth v.
Jones, 464 Mass. 16, 19 n.5 (2012). "Here, exclusion of the
proffered testimony did not prevent the defendant from
presenting his theory" that J.G.C. engaged in suggestive
questioning. Id. The defendant pursued this theory in his
cross-examination of all three of the Commonwealth's witnesses -
- S.F., her brother, and J.G.C. -- and in his closing argument.
34
Indeed, J.G.C. herself agreed during questioning by defense
counsel that, after discovering S.F. alone with the defendant in
the victim's bedroom in Onset, she "badgered" S.F. about whether
she had been abused.
Given that the defendant was permitted to present his
theory of defense, the question remains whether it was an abuse
of discretion to exclude the proffered evidence on the ground
that it was not relevant to that defense. Commonwealth v. Dunn,
407 Mass. 798, 807 (1990) ("Whether evidence is relevant in any
particular instance" is a "question[] within the sound
discretion of the [trial] judge"). It was not unreasonable for
the judge to conclude that evidence of J.G.C.'s behavior in an
unrelated 2004 DSS investigation was not relevant to whether she
engaged in suggestive questioning twenty-five years earlier. We
discern no abuse of discretion.
e. Evidence of prior bad acts. The defendant argues that
the Commonwealth's evidence on the acts charged in the
indictment was "overwhelmed" by evidence of prior bad acts,
i.e., acts against S.F. prior to September 29, 1979, the date of
the first act listed in the indictment. He notes, in
particular, that his family moved to Wareham in late 1978 or
early 1979, and that the incidents alleged to have taken place
35
in Wareham might, therefore, have occurred before September 29,
1979.32
The general rule in "sexual assault cases[ is that] some
evidence of uncharged conduct may be admissible," but that a
"judge should . . . intervene[] to prevent the 'danger of
overwhelming a case with such bad act evidence.'" Commonwealth
v. Dwyer, 448 Mass. 122, 128-129 (2006), quoting Commonwealth v.
Roche, 44 Mass. App. Ct. 372, 380 (1998). Here, however, the
judge had no reason to intervene at the time the evidence was
presented, because the date at issue -- September 29, 1979 --
was inserted into the indictment only after the close of all the
evidence, in response to the defendant's argument that incidents
before that date were time barred.33 After the date was
inserted, the judge properly provided a forceful curative
instruction that the jury was to disregard entirely evidence of
acts from before September 29, 1979.34 "Jurors are presumed to
follow such instructions." Commonwealth v. Gonzalez, 473 Mass.
32The defendant notes also that the incident in the
bathroom of the grandparents' house in Wareham took place when
S.F. was "about four." Given that S.F. turned four on August
19, 1979, approximately one month before the period covered by
the indictment, it is not clear whether this incident took place
during the period covered by the indictment. See note 2, supra.
33
Previously, the indictment had alleged that the incidents
of rape took place "on diverse dates between 1979 and 1981."
34
The judge instructed that "you are only to consider
conduct within th[e] periods [in the indictment]. You are not
to consider any incident outside of that time period."
36
415, 427 (2015) ("the judge instructed the jury that they were
to disregard the references and not to take them into account in
any way").
3. Conclusion. The judgment of conviction is vacated and
set aside, and the case is remanded to the Superior Court for
further proceedings, as required, consistent with this opinion.
At any new trial, the defendant may be tried only for incidents
alleged in the indictment which are alleged to have occurred
after October 3, 1981.
So ordered.