Commonwealth v. Mayotte ( 2016 )

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SJC-11894
COMMONWEALTH vs. LINDA MAYOTTE.
Worcester. January 7, 2016. - August 19, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Rape. Indecent Assault and Battery. Child Abuse. Incest.
Reckless Endangerment of a Child. Intimidation of Witness.
Evidence, First complaint, State of mind, Impeachment of
credibility, Prior inconsistent statement. Witness,
Intimidation, Impeachment. Practice, Criminal, Sentence.
Indictments found and returned in the Superior Court
Department on March 18, 2010.
The cases were tried before Richard T. Tucker, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Eric S. Brandt, Committee for Public Counsel Services, for
the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
HINES, J. A jury convicted the defendant, Linda Mayotte,
of rape of a child, G. L. c. 265, § 23 (three indictments);
indecent assault and battery on a child under the age of
fourteen, G. L. c. 265, § 13B (five indictments); indecent
assault and battery on a child over the age of fourteen, G. L.
c. 265, § 13H (five indictments); incest, G. L. c. 272, § 17;
reckless endangerment of a child, G. L. c. 265, § 13L;
intimidation of a witness, G. L. c. 268, § 13B; resisting
arrest, G. L. c. 268, § 32B; and unlawful possession of a
firearm without a firearm identification card, G. L. c. 269,
§ 10 (h).2 The victim in each of the charged sex offenses was
her adopted son, D.M.3 The defendant challenges the convictions
on three grounds: (1) error in the exclusion of first complaint
evidence relating to her defense that she was the victim, not
the perpetrator, of rape by the complainant; (2) error in the
exclusion of a statement proffered as evidence of the victim's
state of mind; and (3) insufficiency of the evidence to prove
the reckless endangerment indictment based on "serious bodily
2
The jury acquitted the defendant on seven additional
indictments charging her, on a joint venture theory, with sex
offenses committed against her adopted daughter, V.M. (a
pseudonym), by her husband, Joseph Mayotte. Joseph Mayotte was
convicted of rape of a child (two indictments), aggravated rape
of a child, indecent assault and battery on a child (three
indictments), assault with intent to rape, incest, dissemination
of matter harmful to a minor, reckless endangerment of a child,
and failure to secure a firearm.
3
A pseudonym.
3
injury." The defendant also challenges her sentence, claiming
that the judge may have been influenced by improper factors
argued by the prosecutor. Because the application of the first
complaint doctrine to a defendant in a rape prosecution is a
question of first impression, we granted the defendant's
application for direct appellate review of all her claims.
For the reasons explained below, we conclude that the first
complaint rule is a neutral rule of evidence that permits such
testimony whenever the credibility of a sexual assault
allegation is at issue. Although the judge erred in ruling that
the defendant's first complaint evidence was inadmissible as a
matter of law, no prejudice resulted from the exclusion of the
evidence. We also reject the defendant's claim of error in the
exclusion of D.M.'s statement, proffered as evidence of his
state of mind, as it was not probative of or admissible as
evidence of the defendant's state of mind. We vacate the
conviction of reckless endangerment, however, because we agree
that the conduct proved at trial -- that the defendant
recklessly exposed V.M. to the risk of sexual abuse by Joseph
Mayotte -- was insufficient to establish the element of "serious
bodily injury" required under the indictment. Notwithstanding
any impropriety in the prosecutor's sentencing remarks, we
discern no basis to conclude that the judge was influenced by
4
those remarks in sentencing the defendant, and therefore,
resentencing is not necessary.
Background. Based on evidence presented at trial, the jury
could have found the following facts. The defendant and her
husband, Joseph, married in 1987. After attempting to have
biological children, the Mayottes decided to adopt in 2003.
Approximately one year later, they adopted D.M. and V.M.,
siblings living in an orphanage in Kazakhstan. D.M. and V.M.
moved into the Mayotte home in August, 2004. D.M. was twelve
years of age, and V.M. was eight years of age.
After the Mayottes told the children that Joseph's parents
had died in the house, and that ghosts remained in the house,
V.M. became scared of sleeping in her own room. V.M. started to
sleep with Joseph; the defendant no longer slept in the bedroom.
On a regular basis, Joseph touched V.M.'s private areas,
penetrated her vagina and anus, and made her touch his penis.
Joseph also showed V.M. pornographic videotapes.
D.M., who struggled to learn English and felt alienated at
school, had chronic stomach pains.4 The defendant would massage
his stomach to help him sleep. Starting in January, 2005, the
defendant began initiating sexual contact with D.M., including
sexual intercourse. According to D.M., sexual contact occurred
4
The pains were later diagnosed as a gall bladder
condition, for which D.M. had surgery in 2006.
5
more than one hundred times between January, 2005, and the
spring of 2007. During this time, D.M. made no complaint of
sexual abuse to the social worker who conducted home visits on
behalf of the adoption agency or the counsellor he saw for
twelve sessions. D.M. did not disclose the alleged abuse to his
best friend or even his sister, V.M. The sexual contact ceased
when the defendant became pregnant with D.M.'s child.5
On June 15, 2007, V.M. told two neighbor siblings that her
father, Joseph, had been touching her "private areas." The
neighbors' mother called the Department of Children and Families
(DCF), and that night, a police officer and a social worker
arrived at the Mayotte house to investigate. Each child was
asked separately if he or she had been or were being
inappropriately touched by a parent. Both children denied any
such conduct. The denials continued throughout DCF's follow-up
visits to the house during 2007. During one such visit, D.M.
told an investigator that he "thought the whole thing was BS."
In April, 2009, V.M. told D.M.'s girl friend about her
father's abuse. The girl friend's mother spoke to the defendant
and notified DCF. The defendant and the defendant's friend,
Edward Kassor, questioned V.M. in front of the girl friend and
the girl friend's mother. DCF initiated a second investigation
5
The defendant gave birth on January 16, 2008.
Deoxyribonucleic acid tests proved that D.M. was the baby's
father.
6
of the family, and during a May, 2009, house visit, D.M. again
told DCF representatives that he was not being abused.
After two years of denying sexual abuse, D.M. made his
first complaint on June 4, 2009. He made the disclosure after
the defendant sent him a text message threatening to report him
to the police because he had stolen items of her jewelry. D.M.
was visibly upset after receiving the message and fought with
his girl friend. When pressed, D.M. told his girlfriend about
the defendant's sexual acts. The girl friend insisted that D.M.
inform the authorities. That same evening, DCF removed D.M. and
V.M. from the Mayotte home.
The defendant testified that she did not rape D.M. and that
D.M. used physical force and threats to force her participation
in sexual acts with him. According to her testimony, D.M.
became sexually "aggressive" in the spring of 2005. On separate
occasions, D.M. threw her down on the bed and pinned her arms to
her body; grabbed her arm and forced her to the bed; and threw
her against a bureau after she bit him while attempting to get
away. The defendant testified that she was "trying to still say
no" but that "things would escalate very quickly." She claimed
that D.M. put his hands on her throat, placed a knife to her
throat, and punched her. As for the alleged threats, the
defendant testified that D.M.'s "favorite" threat was that he
would "go to the police and say that [she] was raping him."
7
According to the defendant, D.M. made this threat "[e]very time
he didn't like [the defendant's] reaction" to his advances. The
defendant claimed that this ongoing threat was the reason why
she did not make her own first complaint for almost five years
after the alleged abuse by D.M. began. D.M. admitted that he
would punch holes in his bedroom wall when he was angry, but
denied any use of force or coercion against the defendant.
Discussion. 1. First complaint doctrine. The defendant
filed a pretrial motion to present "first complaint" testimony
from Kassor, in support of her theory of defense that D.M.,
"wise beyond his years," raped the defendant and controlled her
behavior by threatening to make a false allegation of rape.
After a hearing, the trial judge denied the motion, reasoning
that "[t]he first complaint protocol and doctrine [were] not to
curb any abuses of defendants being prejudiced by not explaining
themselves. They don't have to explain themselves. The law
doesn't require it, and every judge instructs a jury that they
do not have to explain themselves. So there's no prejudice if
she never made a statement."
On appeal, the defendant urges us to permit the application
of the first complaint doctrine to a sexual assault defendant
whose defense at trial is that she was the victim of a sexual
assault by the complainant rather than the perpetrator. She
argues that the first complaint doctrine applies for the benefit
8
of any party who makes an allegation of sexual assault that is
contested by the alleged perpetrator. In the alternative, she
argues that the proffered evidence is independently admissible
as the Commonwealth "opened the door" by eliciting testimony
from multiple witnesses that the defendant "never" complained to
anyone about her charge that she was raped by the complainant.
The Commonwealth counters that (1) the doctrine of first
complaint applies only to statements made by a complaining
witness in a sexual assault prosecution, and (2) the defendant's
statement was inadmissible hearsay.
We agree with the defendant that the first complaint rule
is a neutral rule of evidence, applicable whenever the
credibility of a sexual assault allegation is at issue. In the
circumstances of this case, however, the judge's error in
excluding the defendant's first complaint as a matter of law did
not result in prejudice to the defendant. Because the
defendant's first complaint proffer would have been insufficient
in any event to rebut the Commonwealth's assertion that she
"never" complained of rape by the complainant, we reject her
claim that it was independently admissible as a prior consistent
statement. Last, we reject summarily the Commonwealth's
argument that such testimony should be deemed inadmissible on
hearsay grounds because, consistent with the purpose of the
9
first complaint doctrine, such evidence was not offered for its
truth.
a. Origin of first complaint doctrine. In resolving the
issue before us, we are guided by what we have understood to be
the rationale underlying the first complaint doctrine.
Previously termed the "fresh complaint" rule, the first
complaint doctrine is based on an English common-law assumption
that a rape victim who did not immediately speak out about the
sexual assault "was in effect [asserting] that nothing violent
had been done." Commonwealth v. King, 445 Mass. 217, 228-229
(2005), cert. denied, 546 U.S. 1216 (2006), quoting Anderson,
The Legacy of the Prompt Complaint Requirement, Corroboration
Requirement, and Cautionary Instructions on Campus Sexual
Assault, 84 B.U. L. Rev. 945, 978 & n.198 (2004). "American
courts, in turn, endorsed the belief that the failure of a rape
victim to make a prompt complaint of a sexual assault was akin
to an inconsistent statement at odds with the complainant's
court room testimony about the rape." King, supra at 229. The
fresh complaint doctrine addressed three concerns regarding
potential juror bias in a rape prosecution: that jurors may
still believe that a true rape victim immediately discloses the
assault; that jurors may draw adverse inferences from the
absence of evidence suggesting a prompt complaint; and that
10
jurors remain skeptical of rape allegations.6 Id. at 230. As a
result, prosecutors are permitted to rebut any inference of
fabrication with witness testimony that the complainant did in
fact tell someone, and that the complaint was prompt or "fresh."
Id. at 229.
In King, 445 Mass. at 237-238, this court replaced the
"fresh complaint" rule with the "first complaint" doctrine, in
recognition of empirical studies showing that immediate
disclosure of sexual assault is not universal. We determined
that "ostensible 'delay' in disclosing a sexual assault is not a
reason for excluding evidence of the initial complaint; the
timing of a complaint is simply one factor the jury may consider
in weighing the complainant's testimony." Id. at 242. In
balancing the competing interests, we limited first complaint
testimony to that of one witness -- the first person told of the
assault. Id. at 243. We were mindful that multiple complaint
witnesses could "unfairly enhance a complainant's credibility as
6
Because "a child's circumstances commonly make it
difficult, if not impossible, for the child to make a prompt
complaint of sexual assault," Commonwealth v. Montanez, 439
Mass. 441, 453-454 (2003) (Sosman, J., concurring), citing
Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994), we
expanded the fresh complaint rule to permit "a child's much
later report of sexual assault . . . whenever there is a
reasonable explanation for the child's failure to make a prompt
complaint." Montanez, supra. We later applied this reasoning
to adult complainants. See Commonwealth v. King, 445 Mass. 217,
240 (2005), cert. denied, 546 U.S. 1216 (2006).
11
well as prejudice the defendant by repeating for the jury the
often horrific details of an alleged crime." Id.
b. Scope of first complaint doctrine. Although the issue
has arisen solely in the context of a jury's assessment of the
credibility of a complaining witness in a sexual assault
prosecution, nothing in our jurisprudence precludes the
application of the first complaint doctrine to a defendant in a
sexual assault prosecution. As demonstrated by our cases, the
first complaint rule owes its genesis to the confluence of two
factors: (1) that the central issue is a sexual assault rather
than some other nonsexual crime; and (2) the need to provide to
the jury "as complete a picture as possible of how the
accusation of sexual assault first arose." King, 445 Mass. at
247. At its core, therefore, the doctrine exists to facilitate
credibility determinations where an allegation of sexual assault
is at issue. This purpose is no less important when a jury is
called upon to assess such an allegation made by a defendant.
Even when the first complaint rule was assumed to be
available only to the named complainant in a sexual assault
prosecution, we stressed the importance of an informed
determination of credibility: "The doctrine . . . is not
intended to be used as a shield to bar the jury from obtaining a
fair and accurate picture of the Commonwealth's case-in-chief."
Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009). In a
12
similar vein, we ask whether the application of the doctrine to
a defendant in a sexual assault prosecution undermines or
otherwise perverts this purpose. It does not. The issue of
witness credibility is the same whether the person claiming such
assault is the defendant or the complainant. A defendant in a
sexual assault prosecution, who claims to have been so assaulted
by the complainant, faces the same credibility obstacle in
proving his or her defense as the Commonwealth faces in proving
the indictment. In our view, therefore, the identity of the
party making the allegation of sexual assault does not dictate
the application of the doctrine. The defendant is no less
entitled than the Commonwealth to the benefit of a principle
intended to mitigate the inherent obstacles to establishing the
credibility of a sexual assault allegation.
Our reluctance to limit the application of this doctrine
for the benefit of the Commonwealth reflects the concern we
expressed in Commonwealth v. Morales, 464 Mass. 302, 308-310
(2013), that one-sided evidentiary rules are inherently unfair.
In Morales, we rejected the defendant's argument that the rule
we articulated in Commonwealth v. Adjutant, 443 Mass. 649, 650
(2005) (permitting defendant to show prior acts of violence by
victim), should apply only to the defendant. Morales, supra at
309. We noted that if evidence of "prior acts of violence by
the victim will assist a jury . . . , it follows that evidence
13
of [such acts] committed by the defendant will do the same."
Id. Thus, in deference to the same fairness concerns, we are
persuaded that the first complaint doctrine must be neutral, and
that it may apply whenever the credibility of a sexual assault
allegation is a live issue in the case.
The Commonwealth argues that application of the first
complaint doctrine to defendants will cause jury confusion as
well as create a trial within a trial. We agree with the
defendant, however, that such concerns do not militate against
allowing a defendant in a sexual assault prosecution to proffer
first complaint evidence. The matter properly may be relegated
to the trial judge who, in the exercise of his or her
discretion, is adequately equipped by the existing rules of
evidence to prevent any such confusion. See generally Mass. G.
Evid. §§ 403, 413 (2016). See also Mass. R. Crim. P. 11 (a),
(b), as appearing in 442 Mass. 1509 (2004); Mass. R. Crim. P.
14 (a) (1) (B), as amended, 444 Mass. 1501 (2005).
2. The defendant's first complaint evidence. Having
determined that a defendant in a sexual assault prosecution may
offer first complaint evidence as part of the defense to the
charge, we review the judge's ruling to determine if it resulted
in prejudice to the defendant. Here, defense counsel objected
numerous times to the judge's rulings on the defendant's proffer
of first complaint evidence. Counsel objected at the motion
14
hearing and the judge affirmatively recognized the objection on
the record. Counsel then renewed the objection at trial.
Because the issue was preserved, we review the decision "to
ensure 'that the error[s] did not influence the jury or had but
very slight effect.'" Arana, 453 Mass. at 228, quoting
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Reviewing the error under this standard, we discern no
prejudice to the defendant. The defendant's proffer did not
specify any details of the proposed testimony. The sole
reference to the substance of the testimony was as follows:
"This testimony would be elicited from Edward Kassor, a close
friend of [the defendant's]." In the absence of any necessary
details, this proffer would have had little or no probative
value as first complaint testimony. Had the judge considered
the proffer, rather than denying it as a matter of law,
clarification would have been required. Further inquiry would
have revealed the defendant's equivocal statement to the police
that she "tried to tell [her] friend Ed," which falls short of
an affirmation that she did in fact disclose the alleged rape by
the complaining witness. See Commonwealth v. Murungu, 450 Mass.
441, 445-446 (2008) (expressions of "unhappiness, upset or other
such feelings" not statement of sexual assault). Considering
the vague nature of the defendant's proffer and the strength of
the Commonwealth's case, we are persuaded that the omission of
15
her first complaint evidence "did not influence the jury or had
but very slight effect" (citation omitted). Flebotte, 417 Mass.
at 353.
As to the defendant's claim that her first complaint
testimony was independently admissible because the Commonwealth
"opened the door" with its questions to various witnesses, see
Commonwealth v. Kebreau, 454 Mass. 287, 298-299 (2009)
(admitting statement of sexual assault for purpose of
rehabilitation), we discern no error in the judge's exclusion of
her statement on this ground.
"[A] prior consistent statement made before the witness had
incentive to fabricate may be admitted for the limited purpose
of rebutting the claim of recent fabrication." Commonwealth v.
Tennison, 440 Mass. 553, 563 (2003). See Mass. G. Evid.
§ 613(b)(2) (2016). However, "the impeachment of a witness by
prior inconsistent statements or omissions does not, standing
alone, entitle the adverse party to introduce other prior
statements made by the witness that are consistent with [her]
trial testimony." Commonwealth v. Bruce, 61 Mass. App. Ct. 474,
482 (2004), citing Commonwealth v. Retkovitz, 222 Mass. 245,
249-250 (1915).
The defendant complains that the prosecutor elicited
testimony from numerous witnesses, establishing that the
defendant did not disclose the alleged rape to them
16
individually. The substance and the timing of the statement are
dispositive of this claim. First, the statement allegedly made
to Kassor was ambiguous, and thus not a prior consistent
statement in that it did not explicitly assert a claim of rape.
Indeed, the proffered statement was neither a first complaint
nor corroboration of a first complaint. See Murungu, 450 Mass.
at 445-446. Second, it was undisputed that the defendant did
not make the statement until after D.M. had made his complaint
and after both children had been removed from the home.
Commonwealth v. Rivera, 430 Mass. 91, 99–100 (1999) (prior
consistent statement made after motive to fabricate arose
inadmissible). Therefore, the judge committed no error in
excluding the alleged statement from the evidence on this
ground.
3. Exclusion of D.M.'s statement. The defendant filed a
separate motion in limine, seeking to introduce D.M.'s statement
to his grandfather, "I can beat any system," as evidence
probative of the defendant's state of mind. More specifically,
the defendant proffered the statement to establish that she felt
"powerless" in her parental relationship with D.M., such that
she succumbed to his threats and was forced into sexual conduct
with him. Citing Commonwealth v. Benjamin, 430 Mass. 673, 679
(2000), the judge denied the motion on the ground that "[p]rior
bad acts of the victim and its effect on the state of mind of a
17
defendant is allowed only in self-defense cases." The judge
ruled that defense counsel was permitted to ask D.M., "Do you
believe you can beat any system?" However, after D.M.
responded, "No," counsel was not allowed to impeach him by
calling the grandfather as a witness for that purpose.
The judge properly excluded the grandfather's testimony as
hearsay because it was not shown to relate to either D.M.'s or
the defendant's state of mind. Admissibility required a
demonstrated nexus between D.M.'s statement and the defendant's
state of mind. On this record, however, the defendant failed to
make an adequate showing that D.M.'s statement was related to
the rape prosecution, that the defendant was aware of it, and
that it was a factor in the charged conduct. In the absence of
these facts as a foundation for admissibility, we do not fault
the judge's ruling that D.M.'s statement did not bear on the
defendant's state of mind.
However, we agree with the defendant that the judge should
have allowed defense counsel to impeach D.M. with his statement
to the grandfather. See Commonwealth v. Mahar, 430 Mass. 643,
649-650 (2000) (adopting proposed Mass. G. Evid. § 806 to permit
impeachment by prior inconsistent statement). The modified
question, "Do you believe you can beat any system?" permitted by
the judge did not accomplish this purpose. Without the ability
to establish D.M. as the declarant in boasting of his ability to
18
"beat any system," defense counsel lost the benefit of
impeachment of D.M. with his prior inconsistent statement.
Nonetheless, this limit on impeachment did not result in
prejudice to the defendant. See Commonwealth v. Roberts, 433
Mass. 45, 51 (2000); Commonwealth v. Smiledge, 419 Mass. 156,
159 (1994). In allowing the modified question, the judge "did
not preclude all inquiry" on the issue. Commonwealth v. Tweedy,
54 Mass. App. Ct. 56, 60 (2002).
4. Reckless endangerment indictment. The defendant claims
the indictment charging reckless endangerment of a child on the
basis of serious bodily injury was not proved and, therefore,
the resulting conviction must be reversed. We agree.
"[A]rticle 12 of the [Massachusetts Declaration] of Rights
. . . requires only such particularity of allegation as may be
of service to a person charged with crime in enabling him [or
her] to understand the charge and prepare him [or her] defense."
Commonwealth v. Farmer, 218 Mass. 507, 509 (1914); G. L. c. 277,
§ 34. "An indictment conforming with the statutory form is
sufficient." Commonwealth v. Baron, 356 Mass. 362, 364 (1969).
However, an indictment that entirely omits a charge or does not
conform to the substance of the statutory language defining the
elements of the crime does not offer a defendant adequate notice
of the nature of the charges against him or her. See
Commonwealth v. Garrett, 473 Mass. 257, 267 n.12 (2015)
19
(indictment for armed robbery with firearm cannot support
conviction of armed robbery with dangerous weapon).
Here, a grand jury indicted the defendant on one charge of
recklessly exposing V.M. to "a substantial risk of serious
bodily injury," pursuant to G. L. c. 265, § 13L. The indictment
omitted completely any reference to the alternative theory on
which the charge might be brought, "sexual abuse" of the child.
See G. L. c. 265, § 13L. As defined in the statute, "serious
bodily injury" results in "permanent disfigurement, protracted
loss or impairment of a bodily function, limb or organ, or
substantial risk of death." G. L. c. 265, § 13L. The
Commonwealth presented no evidence at trial regarding serious
bodily injury to V.M. The evidence related entirely to the
defendant's responsibility for her husband's sexual abuse of
V.M. The judge, however, introduced the theory that the
defendant recklessly exposed V.M. to a substantial risk of
"sexual abuse" during his instructions to the jury. In doing
so, he improperly expanded the indictment to encompass both
theories of liability. See Garrett, 473 Mass. at 267. The end
result is that the defendant was convicted of a crime for which
she had not been indicted by a grand jury. See Commonwealth v.
Barbosa, 421 Mass. 547, 554 (1995) (art. 12 bars felony
conviction without grand jury indictment). Therefore, we
disagree with the Commonwealth that the reckless endangerment
20
charge based on sexual abuse was "contextualized" by a "multi-
count indictment" that included numerous sexual assault charges.
Due process requires that defendants be given sufficient notice
of the charges against them, notice that was not given here.
Farmer, 218 Mass. at 509.
5. Sentencing. The defendant requests resentencing
because the prosecutor made numerous improper statements at
sentencing that potentially could have influenced the judge's
determinations. Specifically, the prosecution urged the court
to "send a message to the defendants in the community of
Worcester County" that crimes against children would not be
tolerated. The prosecutor also stated that the defendant had
"lied" and had "falsely accused" the victims. Without comment,
the judge sentenced the defendant to three concurrent terms of
from eighteen to twenty-two years in State prison -- lower than
the sentence of from thirty to thirty-three years requested by
the Commonwealth and higher than the sentence of from five to
seven years recommended by the defendant.
A sentencing judge enjoys significant latitude in
sentencing. Commonwealth v. Celeste, 358 Mass. 307, 310 (1970).
We will not vacate a sentence "unless we have been able to
identify clear legal error." Commonwealth v. Woodward, 427
Mass. 659, 685 (1998). Where there is a "suggestion of
impropriety," Commonwealth v. Stuckich, 450 Mass. 449, 462
21
(2008), the judge may voluntarily and explicitly reject reliance
on improper arguments. See Commonwealth v. Goodwin, 414 Mass.
88, 91-92 & n.3 (1993). However, a judge's decision not to
disavow such arguments explicitly does not in and of itself
provide evidence that a judge deviated from his or her duty.
Goodwin, supra at 92.
Although the Commonwealth concedes that it was improper to
ask the judge to "send a message" to the Worcester County
community regarding crimes against children, we are not
persuaded that the judge considered the prosecutor's comments.
We affirm the defendant's sentences, except as to that imposed
on the reckless endangerment conviction.
Conclusion. We conclude that a defendant may proffer first
complaint evidence where the defendant claims to be the victim
of sexual assault and that claim is a live issue in the case.
The exclusion of the defendant's first complaint, however, did
not result in prejudice. We vacate the defendant's judgment of
conviction as to the charge of reckless endangerment and order
judgment for the defendant as to that charge. We affirm the
other judgments of conviction.
So ordered.