Commonwealth v. Lawton , 82 Mass. App. Ct. 528 ( 2012 )

Mills, J.

(dissenting). I respectfully disagree with the majority because I conclude that the admission of multiple complaint testimony was an abuse of discretion, and that it cannot be said that the erroneous admission of significant corroborative testimony “did not influence the jury or had but very slight effect.” Commonwealth v. Arana, 453 Mass. 214, 228 (2009), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). I would reverse the convictions.

1. Background facts. In evaluating the sufficiency of the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), I agree with the majority. However, I use a different standard, a neutral platform, in evaluating the judge’s rulings to admit the multiple complaint testimony. For this analysis, I do not consider the evidence in a light favorable to either party.

2. Complaint evidence. The defendant called the child’s SAIN interviewer,¹ Emily Rivera-Nunez, to illustrate inconsistencies between the child’s trial testimony and his earlier statements to Rivera-Nunez. The defendant argues that during cross-examination the Commonwealth elicited impermissible complaint evidence. See Commonwealth v. King, 445 Mass. 217, 241-248 (2005), cert. denied, 546 U.S. 1216 (2006) (limiting complaint testimony to that of the first person told of the abuse or, under certain conditions, another designated first complaint witness), cert. denied, 546 U.S. 1216 (2006). See also Commonwealth v. Aviles, 461 Mass. 60, 67-73 (2011). It is uncontested that Rivera-Nunez was not a first complaint witness.² “The first complaint doctrine does not, however, ‘prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible.’ ” Id. at 69, quoting from Commonwealth v. Arana, supra at 220-221. We are instructed to analyze the challenged evidence to determine whether it (1) “was independently admissible,” (2) “served some purpose other than to corroborate the [complainant’s] accusation,” and (3) “was sufficiently important to a fair understanding of the Commonwealth’s case so that the probative value of the evidence outweighed any prejudice.” Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 799 (2011), citing Commonwealth v. Arana, supra at 225-226, and Commonwealth v. Dargon, 457 Mass. 387, 400 (2010).

On direct examination, Rivera-Nunez testified about the child’s statements to her during SAIN interviews in 2005 and 2008. She recounted that in the 2005 interview the child said he had been touched inappropriately only once. In the 2008 interview, the child said that the defendant sexually abused him every time he stayed at his grandmother’s house, and that both his mother and the defendant had hit him. These statements were inconsistent with the child’s testimony at trial that he was touched more than once when he was five years old (which was before his first SAIN interview), that he had only one SAIN interview, that he did not tell Rivera-Nunez that either parent hit him, and that he did not say he was touched during every visit to his grandmother’s house. During cross-examination, the Commonwealth questioned Rivera-Nunez extensively about the details of the sexual abuse complaints the child made during the SAIN interviews. Reviewing the record, I count at least fifteen instances of explicit sexual abuse complaint testimony, primarily in the form of prior consistent statements.³

The Commonwealth contends that this testimony was independently admissible for two purposes: to rehabilitate the child following impeachment by prior inconsistent statements, and to counter an implication by the defense of suggestibility in Rivera-Nunez’s interviewing techniques. “While generally, ‘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 his trial testimony,’ Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 482 (2004), the Commonwealth is permitted to rehabilitate the witness by asking questions designed to explain or contradict the inconsistency even though prior consistent statements by the witness are implicated.” Commonwealth v. Vuthy Seng, 456 Mass. 490, 498-499 (2010). See Commonwealth v. Rodriquez, 454 Mass. 215, 222 (2009) (after impeachment, “prosecutor was entitled to elicit from [witness] the reason for his contradictory statement and the substance of his consistent statement”). See also Mass. G. Evid. § 613(b) (2012) (prior consistent statements generally inadmissible absent a charge of recent fabrication). Defense questioning of Rivera-Nunez revealed that the child’s testimony that no one hit him, that the touching did not occur during every visit, that he was touched more than once when he was five years old] and that he only had one SAIN interview was inconsistent with his prior statements to Rivera-Nunez. It is not clear to me how the graphic details of the child’s complaints of sexual abuse explain or contradict those inconsistencies.⁴ The complaints merely corroborate his sexual abuse testimony at trial. I agree with the trial judge that, to any extent that defense questioning left the misleading impression that the child had not mentioned significant sexual abuse to the SAIN interviewer, the Commonwealth was entitled to rebut it.⁵ See Commonwealth v. Vuthy Seng, 456 Mass, at 497. See also Commonwealth v. Aviles, 461 Mass. at 69. Rebuttal may also have been appropriate to address an implication by the defense that the child was influenced by suggestive questioning.⁶

However, the first complaint testimony here was of limited probative value. The Commonwealth fully availed itself of the opportunity to question Rivera-Nunez about her interviewing techniques, and the defense essentially stipulated that she used appropriate methods. Moreover, as suggested by the defense at trial, the Commonwealth could have elicited general testimony as to the existence of the child’s sexual abuse complaints.

Even if a few specific questions were appropriate, the Commonwealth used its cross-examination of Rivera-Nunez to repeat both of the child’s prior complaints in at least fifteen instances of detailed testimony. Over repeated objections and a request by the judge not to go into the details of the 2008 disclosures, the Commonwealth launched this illustrative final volley:

Q.: “[The child] disclosed during the course of the bulk of that interview that his father would lick his butt?”

A.: “Yes.”

Q.: “That his father would touch him in the private area?”

A.: “Yes.”

Q.: “On his front?”

A.: “Yes.”

Q.: “And that his father asked him to, in [the child’s] words, go poo-poo on his father’s hand; is that correct?”

A.: “Yes.”

I agree with the majority that Commonwealth v. Aviles, supra at 73, retroactively sets an abuse of discretion standard for this case. Nevertheless, given the extensive and explicit complaint testimony in this case, I conclude that the admission of this multiple complaint testimony constituted an abuse of discretion. Additionally, by graphically repeating the child’s prior complaints, Rivera-Nunez’s inadmissible testimony provided significant corroboration for the child’s credibility. See Commonwealth v. Arana, 453 Mass. at 228 (new trial required where inadmissible first complaint evidence improperly bolstered complainant’s credibility). Based on the record before us, I cannot say that the erroneous admission of the corroborative testimony “did not influence the jury or had but very slight effect.” Ibid., quoting from Commonwealth v. Flebotte, 417 Mass. at 353.⁷ Accordingly, I would reverse.

1 Complaints of child sexual abuse are investigated through the Sexual Abuse Intervention Network (SAIN).

2 One of the child’s kindergarten teachers testified as the designated first complaint witness.

3 For example, the Commonwealth elicited testimony that the child said “his dad wanted him to do poo-poo on his hand,” “his father would lick his butt,” and “the hand that touched his pee-pee was wrapped around like a circle.”

4 By comparison, Rivera-Nunez’s testimony about how children experience, remember, and discuss past events effectively addressed why a child might, for example, use the phrase “every time” when discussing sporadic abuse.

5 Responding to defense objections, the judge stated, “I think it is fair to lend context. . . to his statements to the SAIN interviewer about the parents beating him. As it was presented, it came out as if he told entirely different things to the SAIN interviewer tho[n] he did at trial....’’

6 Prior to Rivera-Nunez’s testimony, the defense had questioned an expert witness, Dr. Amy Tishelman, about the risk of suggestive questioning in child sexual assault cases. I note that the defense attorney did not elaborate on the concept of suggestibility in his examination of Rivera-Nunez. As the Commonwealth’s cross-examination progressed, the defense acknowledged, more than once, that the SAIN interviewer used appropriate, nonsuggestive questioning techniques and, in substance, that there was no risk of suggestibility during her interviews.

7 I am mindful that the defendant was convicted of multiple counts, with each count supported by different and various evidence, not equally persuasive.