Commonwealth v. Lawrence Lamphier. ( 2023 )


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  • NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
    23.0, as appearing in 
    97 Mass. App. Ct. 1017
     (2020) (formerly known as rule 1:28,
    as amended by 
    73 Mass. App. Ct. 1001
     [2009]), are primarily directed to the parties
    and, therefore, may not fully address the facts of the case or the panel's
    decisional rationale. Moreover, such decisions are not circulated to the entire
    court and, therefore, represent only the views of the panel that decided the case.
    A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
    2008, may be cited for its persuasive value but, because of the limitations noted
    above, not as binding precedent. See Chace v. Curran, 
    71 Mass. App. Ct. 258
    , 260
    n.4 (2008).
    COMMONWEALTH OF MASSACHUSETTS
    APPEALS COURT
    21-P-25
    COMMONWEALTH
    vs.
    LAWRENCE LAMPHIER.
    MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
    A Superior Court jury convicted the defendant of sexually
    assaulting two of his granddaughters when they were between the
    ages of four and nine.1       On appeal, the defendant claims that
    several trial errors require reversal, alone or cumulatively.
    We affirm.
    Discussion.     1.   Multiple complaints.       The defendant faults
    the judge for permitting his daughter, the first complaint
    witness and the mother of the victims (daughter), and a police
    officer to testify about additional reports of the abuse after
    the first complaint.       Specifically, the daughter testified that
    1 The defendant was convicted of six counts of aggravated rape,
    two counts of rape of a child by force, and four counts of
    indecent assault and battery on a child under fourteen. He was
    acquitted of an additional indecent assault and battery charge
    and of posing a child in the nude.
    she took the victims to a "forensic interview" and instructed
    them that "they needed to be very honest, and they needed to
    tell these people what happened to them"; to a meeting at the
    district attorney's office; and to a "forensic exam[ination]."
    In addition, Officer Jared Ulak testified that there was a one-
    week delay between the initial report of the crimes and the
    execution of a warrant to search the defendant's home because
    "there was a SAIN interview[2] that needed to be performed."    The
    defendant argues that the daughter's and Ulak's testimony was
    inadmissible because it "serve[d] no purpose other than to
    repeat the fact of a complaint and thereby corroborate the
    complainant's accusations," and that the judge failed to conduct
    the "careful balancing" required to determine whether the
    testimony was "relevant and admissible for reasons that are
    independent of the first complaint doctrine" and not unfairly
    prejudicial.   Commonwealth v. Arana, 
    453 Mass. 214
    , 229 (2009).
    Because the defendant did not raise this claim at trial, our
    review is limited to determine whether there was any error and,
    if so, whether it created a substantial risk of a miscarriage of
    2 Ulak's testimony was the first reference at trial to a "SAIN
    interview," a term that was then repeated but never explained to
    the jury. The interview was first referenced in defense
    counsel's questioning of the older victim on cross-examination,
    where it was described as a recorded interview, about four years
    prior to trial, with a woman named Jessica. See Commonwealth v.
    Monteiro, 
    75 Mass. App. Ct. 489
    , 492 n.2 (2009) (explaining
    purpose of Sexual Abuse Intervention Network).
    2
    justice.   See Commonwealth v. McCoy, 
    456 Mass. 838
    , 845-846
    (2010).3
    The prosecutor had a legitimate reason to question the
    daughter briefly about the interviews the victims attended.     The
    defendant's theory of the case was that the daughter manipulated
    the victims into accusing him of abuse because she was angry
    with his decision to stop providing financial support.   To
    suggest that the victims had practiced and fabricated their
    trial testimony, the defendant cross-examined them at length
    about prior statements they had made (and, in the case of the
    older victim, pictures she had drawn) during the initial
    forensic interview and in meetings with "the two lawyers."4
    3 The defendant did not object to the daughter's testimony that
    she took the victims to a forensic interview. When the
    prosecutor began to ask the daughter about something that
    occurred on June 16, 2014, defense counsel interrupted with an
    objection. The judge asked to "just hear the question," the
    prosecutor finished asking whether the victims "had a forensic
    interview at the Children's Advocacy Center in Fall River," and
    the daughter answered, "Yes." Defense counsel did not renew the
    objection. Nor did the defendant object to the daughter's
    testimony that she took the victims to interviews at the
    district attorney's office and to a forensic examination. The
    defendant did object when Ulak was asked the reason for the
    delay in executing the search warrant but did not state a basis
    for the objection. See Commonwealth v. Bonds, 
    445 Mass. 821
    ,
    828 (2006) (issue not preserved where objection at trial is on
    different grounds from those asserted on appeal). In any event,
    whether the defendant preserved his objection to Ulak's
    testimony is immaterial, as we conclude that the testimony did
    not violate the first complaint rule.
    4 Defense counsel had also previously referred to the forensic
    examination, which was favorable to the defense, in his opening
    statement, telling the jurors they would "hear that physical
    3
    Thus, before the daughter testified, the jury already knew that
    the victims had reported and described the defendant's conduct
    at these interviews -- which also explains why defense counsel
    did not object when the prosecutor asked the daughter about them
    and why the judge did not engage in any "balancing."
    The brief references to the subsequent interviews did not
    violate the first complaint doctrine.   "[T]he admission of
    multiple reports of a victim's allegations of [sexual assault]
    is permissible where the evidence serves an independent purpose
    and is necessary to present a fair and accurate picture of the
    Commonwealth's case."   Commonwealth v. Saunders, 
    75 Mass. App. Ct. 505
    , 510 (2009), citing Commonwealth v. Monteiro, 
    75 Mass. App. Ct. 489
    , 495 (2009).   Here, the testimony was necessary and
    appropriate to establish the timeline and circumstances of the
    victims' various statements that had been previously introduced
    as impeachment evidence during their cross-examinations.      See
    Commonwealth v. Torres, 
    86 Mass. App. Ct. 272
    , 277-278 (2014).
    "The evidence was received for the independent purpose of
    rebutting the inferences raised by the defendant's inquiries --
    inquiries designed to show recent fabrication on the part of the
    victim -- and was necessary for a fair understanding of the
    examinations were done of the children and nothing physically
    was found to support [their] allegations." The victims' medical
    records would later be admitted in evidence without objection.
    4
    Commonwealth's case."   Saunders, supra.
    2.   Testimony linking the forensic interviews with the
    search warrant.   The defendant argues that Ulak's testimony
    about waiting to obtain the search warrant until the victims'
    forensic interviews had been conducted was improper for the
    additional reason that it was introduced to suggest that the
    police believed the victims.    See Commonwealth v. Stuckich, 
    450 Mass. 449
    , 457 (2008); Monteiro, 75 Mass. App. Ct. at 494.      We
    disagree.   Ulak was among the officers who executed the search
    warrant at the defendant's home.      Establishing the timing of the
    search in relation to when the allegations surfaced was
    important for the Commonwealth's case.5     Ulak's testimony was not
    offered in a manner to stamp "the imprimatur of official belief"
    on the victims' testimony.     Stuckich, supra.   He did not discuss
    the details of the investigations as in Stuckich, 
    supra at 456
    ,
    nor did he describe the nature and purpose of the SAIN interview
    process as in Monteiro, supra at 492, 494.
    Moreover, by the time Ulak testified, the jury had already
    heard the victims' testimony, including the older victim's
    testimony that the defendant kept condoms, lubricant, and a cup
    5 During the search, the police did not find the incriminating
    evidence that the older victim said the defendant hid above the
    basement ceiling tiles -- a fact that was favorable to the
    defendant. The timeline for obtaining the warrant, however,
    supported an inference that the defendant had the opportunity to
    remove any incriminating evidence before the search occurred.
    5
    into which he ejaculated hidden in the ceiling tiles in his
    basement.    They had also heard the first complaint evidence and
    many of the statements the victims had made during their
    forensic interviews.    The jury would not have been surprised to
    learn that the police sought a search warrant after the victims'
    interviews were completed.
    The defendant's argument that "[t]he Commonwealth elicited
    further testimony on this issue" through Sergeant Joey Faria is
    meritless.   Faria, the lead investigator on the case, was called
    as a defense witness, and he testified on direct examination
    about the content of the victims' statements during their SAIN
    interviews and at subsequent meetings at the district attorney's
    office.   He also testified, on direct examination by defense
    counsel, about the execution of the search warrant.     The
    Commonwealth was free to question Faria about the same subjects
    during cross-examination.
    3.    Vouching.    The defendant claims that Faria, the
    daughter, and the Commonwealth's expert pediatrician all
    improperly vouched for the victims' testimony.
    a.    Faria.   As noted, the defense called Faria as a witness
    and elicited testimony about inconsistencies between the
    victims' testimony at trial, their statements in their forensic
    interviews, and what they said during trial preparation meetings
    at the district attorney's office.    On cross-examination, the
    6
    Commonwealth was permitted to ask Faria, over objection, whether
    "the vast majority of what [the older victim] said during [the
    trial preparation] meeting was consistent with" her prior
    disclosures, to which Faria answered, "Yes, it was."      The
    defendant contends that this amounted to improper vouching for
    the older victim's credibility.
    Earlier during the Commonwealth's cross-examination of
    Faria, the judge indicated that because the defense questioning
    had suggested that the victims' testimony was "recent
    contrivance," the Commonwealth would be permitted to elicit some
    prior consistent statements.     See Commonwealth v. Caruso, 
    476 Mass. 275
    , 284-285 (2017); Mass. G. Evid. § 613(b)(2) (2022).
    However, the judge was not inclined to permit the Commonwealth
    to take Faria through the victims' consistent statements "line
    by line."    The judge did not abuse his "broad discretion,"
    Caruso, 
    supra at 285
    , by permitting the Commonwealth to rebut
    the defendant's claim of recent contrivance in this abbreviated
    way.
    b.   The daughter.   When asked, over objection, how she
    explained to the victims "that they would not or could not see
    their grandfather" after their disclosures, the daughter
    answered, "Oh, I had just told them that it wasn't safe, and I
    had to protect them, and they could not go over there anymore."
    To the extent that this testimony could be understood as
    7
    vouching for the victims' testimony, we are confident that it
    had no influence on the jury.     Contrast Commonwealth v.
    Flebotte, 
    417 Mass. 348
    , 353 (1994).    The daughter testified, as
    the first complaint witness, that the victims disclosed the
    defendant's abuse to her.     She testified that she then called
    the defendant and asked him to turn himself in to the police,
    and that she herself went to the police to report the crimes.
    Furthermore, both victims testified that they did not disclose
    the abuse at first because the defendant told them not to, as he
    would go to jail.    The younger victim added that she decided to
    tell anyway because she "recognized" the defendant "was an
    unsafe person."     The daughter's challenged testimony "did not
    prejudice the defendant because it was merely cumulative of
    properly admitted evidence."     Commonwealth v. Wilson, 
    427 Mass. 336
    , 348 (1998).
    c.   The pediatrician.    The prosecutor asked the
    Commonwealth's expert pediatrician, who was called as a witness
    primarily to explain why the victims' physical examinations
    showed no evidence of sexual abuse, about the difference between
    a circumcised penis and an uncircumcised penis.6    The defendant
    6 The parties stipulated that the defendant was not circumcised.
    During cross-examination of the older victim, the defense
    introduced a picture of the defendant's erect penis that she had
    drawn during her forensic interview. It arguably did not depict
    any foreskin. The older victim testified that "the skin would
    8
    objected on grounds of relevance and reliability, because the
    expert worked with children rather than adults.     The judge
    allowed the questioning based on the witness's medical training.
    We discern no abuse of discretion.     See Commonwealth v.
    Richardson, 
    423 Mass. 180
    , 182 (1996).     The defendant did not
    object, on vouching grounds or otherwise, when the pediatrician
    testified that circumcised and uncircumcised penises look
    similar.   The testimony was relevant because the defendant
    maintained that the appearance of his penis exonerated him, and
    it was admissible to help the jury to understand the evidence.
    See Mass. G. Evid. § 702(a) (2022).
    4.    Hearsay admission.   During direct examination by the
    prosecutor, the daughter testified about the defendant's
    statements to her during a telephone conversation the night she
    reported the crimes to the police.7    On redirect examination, the
    prosecutor asked whether she also heard the defendant tell her
    mother (the defendant's wife) "that he didn't want her to find
    out this way."   The daughter answered, "Yes," but then added,
    "Well, I didn't hear him.   I'm sorry.   She had said to me in a
    be over it until he got erect." The defense contended that she
    was coached to give this answer.
    7 When the daughter asked the defendant over the telephone to
    turn himself in, he responded, "[N]o, that if he did that, it
    would kill him. And did he want [the daughter] to kill [her]
    mother, as well, because no one would be there to take care of
    her." Significantly, during this conversation the defendant did
    not deny the victims' allegations.
    9
    conversation --."   The defendant objected and moved to strike.
    The judge immediately said, "Sustained.   The jury's to disregard
    that last statement."   The judge then called the parties to
    sidebar, where it became clear that the prosecutor believed that
    the daughter had heard the defendant's statement first-hand.
    The judge released the jury for the morning break and held a
    voir dire of the daughter, after which he determined that her
    testimony about the defendant's statement was inadmissible
    hearsay.   When the jury returned, the judge reiterated that the
    daughter's "partial answer" had been struck, and that the jury
    were to "disregard anything that was said in regards to that."
    The defendant did not object, and the statement was not
    mentioned again.8
    For the first time on appeal, the defendant argues that the
    judge's instructions were confusing and misleading and, in
    effect, permitted the defendant's statement "that he didn't want
    [his wife] to find out this way" to stand.   We agree that the
    instructions were not precise as to which portion of the
    daughter's testimony the jury were required to disregard.      But
    defense counsel did not object to the curative instruction or
    ask the judge to clarify, an indication that he believed the
    8 In the final charge, the judge reminded the jury, "You may not
    consider any answer which I struck from the record and told you
    to disregard."
    10
    instruction was adequate at the time.     Because the judge "had no
    opportunity to clarify further . . . we must determine whether
    any error created a substantial risk of a miscarriage of
    justice."    Commonwealth v. Beaudry, 
    445 Mass. 577
    , 587 (2005).
    The absence of any objection, further attempt to clarify, or
    motion for a mistrial persuades us that, to whatever extent the
    curative instruction might not have adequately addressed the
    hearsay testimony, there was no substantial risk of a
    miscarriage of justice.
    Judgments affirmed.
    By the Court (Rubin,
    Massing & D'Angelo, JJ.9),
    Clerk
    Entered:    February 8, 2023.
    9   The panelists are listed in order of seniority.
    11