Opinion
18-P-1114
06-09-2020
COMMONWEALTH v. DENIS BARRETTE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Denis Barrette, was convicted of two counts of indecent assault and battery on a child under the age of fourteen and one count of indecent assault and battery on a person aged fourteen or over; the charges stem from allegations that the defendant sexually assaulted his two stepchildren, Jane and John. On appeal, the defendant argues that the trial judge erred in designating John as Jane's first complaint witness; the judge impermissibly allowed multiple complaint evidence; the judge improperly admitted certain bad act testimony; the judge erred in denying his motion for a mistrial; and the Commonwealth presented insufficient evidence to establish John's age. We affirm.
Pseudonyms.
Background. The jury heard the following facts. The defendant began dating Jane's and John's mother, Mary, around 1993 when Jane was six or seven and John was five. The defendant maintained his own apartment until 2001 when he married Mary. During the intervening years, the defendant would assist Mary in taking care of Jane and John.
A pseudonym.
Jane testified that, on three occasions before she entered the fifth grade, the defendant took her to his apartment and sexually assaulted her. She explained that the defendant would bring her into his bedroom, put her hair in front of her face, lay down next to her, and press his body into hers while he rubbed his hands against her back. The defendant instructed her to not to tell anyone, and told her that, even if she did, no one would believe her. Jane also testified that, on a separate occasion after she had stained a cushion while coloring with colored markers at the defendant's apartment, the defendant shoved a marker in Jane's mouth and another down the back of her pants between her buttocks.
When Jane was approximately nine, she, John, and the defendant were wrestling in Mary's bedroom; at one point, the defendant put his body on Jane while she was lying face down on the bed and began rubbing her legs. Jane testified that, when she got out from under him she ran out of the room, threw a shoe at the defendant, and threatened to call the police if he touched her again. The defendant then threw the shoe back and hit Jane in the eye. Jane testified that the defendant instructed her to lie about the incident and to tell her mother that she got into a fight with John, who was seven at the time. Jane also said that, after the shoe incident, the defendant stopped bringing Jane to his apartment alone.
John testified that, when he was between the ages of eleven and fourteen, while John was walking up the stairs and the defendant was walking behind him, there were times when the defendant would put his hand up between his legs and touch his testicles.
By May 2012, Jane and John resided in Colorado with Steve, Jane's then fiancé; Steve was Jane's husband at the time of the trial. On May 19, 2012, while Jane was at work, she began to have flashbacks of her experiences at the defendant's apartment. Later that day, there was a gathering of approximately ten people at Jane's home. After dinner, Jane felt like she was going to "lose it" and went to the bathroom. Steve eventually checked on her and found her in the bathroom, hysterical; she tried to punch Steve and eventually pushed him away because she could see the defendant's face on him. Steve then went to get John and informed him that something happened with Jane. When John arrived, Jane was hysterical and disclosed to him, for the first time, that the defendant had sexually assaulted her.
A pseudonym.
Jane was employed as a support person for children in crisis at a residential treatment center for at-risk youths aged five to thirteen.
In July 2012, Detective Andrea Fogarty of the Haverhill Police Department contacted Jane and provided her with general information about the investigation process; Jane also sent Fogarty an e-mailed description of what had occurred. On January 7, 2014, John met with Fogarty and disclosed, for the first time, the details of the defendant's assaults on him. On January 16, 2014, Jane met with Fogarty to follow up on her July 2012 report.
On May 12, 2014, an Essex County Grand Jury returned four indictments against the defendant. The first count charged that the defendant had committed an indecent assault and battery on John by touching his genitals when John was under fourteen, in violation of G. L. c. 265, § 13B; the second count charged the same act when John was fourteen or over, in violation of G. L. c. 265, § 13H. Count three charged that the defendant had committed an indecent assault and battery on Jane in violation of G. L. c. 265, § 13B, when she was a child under fourteen by placing a marker between her buttocks; and count four charged that he had committed the same offense by touching Jane's buttocks. After a three-day jury trial, the defendant was convicted of counts one, two, and four and acquitted of count three.
Discussion. (1) First complaint witness. The defendant first argues that the motion judge abused his discretion in designating John, rather than Steve, as the first complaint witness for Jane. We review the trial judge's decision to allow John to testify as the first complaint witness for an abuse of discretion. See Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011).
"[T]he underlying purpose of first complaint evidence is still 'to counterbalance or address inaccurate assumptions regarding stereotypes about delayed reporting of a sexual assault or about sexual assault victims in general,' rather than affirmative evidence that the alleged sexual assault actually occurred." Commonwealth v. Asenjo, 477 Mass. 599, 603 (2017), quoting Commonwealth v. King, 445 Mass. 217, 240 (2005), cert. denied, 546 U.S. 1216 (2006). See Mass. G. Evid. § 413(a) (2019). "At its core, therefore, the doctrine exists to facilitate credibility determinations where an allegation of sexual assault is at issue." Asenjo, supra, quoting Commonwealth v. Mayotte, 475 Mass. 254, 260 (2016). Under the first complaint doctrine, one designated first complaint witness "may testify to 'the details of the alleged victim's first complaint of sexual assault [including the victim's statement of the facts of the assault] and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief.'" Commonwealth v. Kebreau, 454 Mass. 287, 292 (2009), quoting King, supra at 243. "Because 'a child's circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault,' . . . [the court] 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.'" Mayotte, supra at 259 n.6, quoting Commonwealth v. Montanez, 439 Mass. 441, 454 (2003) (Sosman, J., concurring).
Determining the identity of the first complaint witness is a preliminary question for the judge, who "is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence." Aviles, 461 Mass. at 73. When there is inconsistent evidence regarding the identity of the first complaint witness, the judge normally should conduct a voir dire. See Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008). See also Commonwealth v. Murungu, 450 Mass. 441, 446-447 (2008) (explaining that, "Generally, a voir dire will be the appropriate mechanism" for resolving this preliminary question).
Here, the judge did not abuse his discretion. First, he held a full voir dire hearing; Jane, John, and Fogarty all testified at the hearing. After the hearing, the judge made extensive and thoughtful findings. Specifically, he credited Jane's testimony that she had never told Steve what had happened, not on the occasion where she disclosed to her brother and not up until the time of trial. Furthermore, the judge found that Fogarty sufficiently explained why she initially had believed Steve to be the first complaint witness, why she subsequently learned that her initial understanding was incorrect, and therefore why she opted not to interview Steve. Finally, despite some shortcomings in John's testimony, including discrepancies in terms of where the disclosure occurred and also in terms of what was said, the judge did not find that Steve disclosed anything of substance to John when he informed him that "something happened." See Commonwealth v. Dale, 86 Mass. App. Ct. 187, 191 (2014) ("[A]ny discrepancy between the memory of a victim and the person receiving the complaint . . . goes to the weight of the evidence rather than to its admissibility").
The judge's careful findings here demonstrate clearly that he thoroughly considered the evidence and case law. See Kebreau, 454 Mass. at 292. There is no basis to conclude that his first complaint ruling fell outside the range of reasonable alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
(2) Multiple complaint witness testimony. The defendant next argues that the Commonwealth elicited multiple complaint testimony from Jane. Specifically, the defendant points to Jane's testimony on direct examination, explaining her report of the assault to Fogarty; and her testimony that she told John about the markers after a period of sleep.
The first complaint doctrine permits only one complaint witness -- generally the first person told of the sexual assault. King, 445 Mass. at 243. That doctrine, however, does not "prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible." Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). See id. at 225-226 (testimony about victim's demeanor admissible to rebut defendant's allegation that victim's complaint was fabricated). See also Aviles, 461 Mass. at 75. In determining the admissibility of complaint testimony, judges should also look to "our guidelines for admitting or excluding relevant evidence." Id. at 73. See Mass. G. Evid. §§ 401-403 (2019).
Here, there was no violation of the first complaint doctrine with regard to the other statements identified by the defendant. See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010), quoting Arana, 453 Mass. at 220-221 (first complaint doctrine "does not exclude testimony that 'is otherwise independently admissible'"). This is so because the defendant initiated the line of inquiry that spurred the testimony he now challenges. In his opening statement, previewing his future challenges to Jane's credibility, the defendant questioned why Jane's initial disclosure to Fogarty on May 19, 2012, occurred just three days before Mary filed for divorce from the defendant. He then pointed out that Jane waited until January 2014 to report the assault with the markers to Fogarty, contending that disclosure was intended to assist Mary in gaining custody of Jane's younger sister, Jill. Jane's testimony was therefore admissible to rebut the defendant's allegations challenging Jane's credibility. See Arana, supra; Commonwealth v. Navarro, 86 Mass. App. Ct. 780, 788 (2014), S.C., 474 Mass. 247 (2016) (defendant's claim, that witness's testimony was improperly admitted, rejected because "[t]hat line of inquiry was opened up by the defendant's opening statement"). See also Commonwealth v. Whitman, 453 Mass. 331, 342 (2009) ("Rebuttal is legitimate when it responds to the opponent's case" [quotation omitted]).
We note that the defendant did not object at trial to Jane's testimony about her report to Fogarty. Accordingly, we review to determine whether there was error and, if so, whether any error created a substantial risk of a miscarriage of justice.
A pseudonym for John's and Jane's younger half-sister. Mary gave birth to Jill in 2003 and the defendant is Jill's father. Jill was diagnosed with Down syndrome at birth. Jill also was diagnosed with leukemia.
The defendant further contends that John, as a first complaint witness, impermissibly was permitted to testify that Jane had told him about the defendant's assault with the markers. At trial, Jane testified that she did not remember whether she had told John about the markers when she made the initial complaint to him or later the next morning, as she had fallen asleep during the conversation and resumed it the following morning. The defendant did not object at that point, but only later, when the prosecutor asked Jane if they had begun the conversation again in the morning. At that point, the judge instructed the prosecutor to move on and she did, after a sidebar exchange; defense counsel did not ask the judge to strike the testimony at issue at sidebar or elsewhere.
The defendant describes Jane's statement that she didn't remember whether she spoke about the markers the night before or in the morning as multiple first complaint testimony. We do not agree. The fact that Jane told her brother about the markers -- whether it was at the time of the initial complaint or the next morning -- was admissible to rebut the defendant's argument that she fabricated the story about the markers when she spoke to Fogarty two years later in order to assist in her mother's divorce proceedings. Further, even if this inconclusive testimony about when the incident with the markers was discussed was admitted in error, we see no risk of a miscarriage of justice, if, for no other reason, than that the defendant was acquitted of the indictment charging him with assaulting Jane with the markers.
(3) Bad act evidence. The defendant next argues that the judge committed reversible error in admitting certain bad act evidence. As the defendant's objection was preserved, we review for error, and, if there was error, whether the error was prejudicial. Commonwealth v. Crayton, 470 Mass. 228, 252 (2014).
Generally, "[e]vidence of [prior bad acts] is not admissible to prove bad character. . . . It may, however, be admissible for other relevant purposes" (quotation omitted). Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 412 (1997). "So long as the probative value of such evidence is not . . . outweighed by the danger of prejudice -- a matter for the trial judge to determine -- we will not disturb its admission absent palpable error." Id. See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014) ("We uphold a judge's decision to admit prior bad acts absent an abuse of discretion").
In Crayton, 470 Mass. at 252, the Supreme Judicial Court noted that the "case law has not always been consistent regarding the standard for excluding 'other bad acts' evidence. . . . We therefore clarify that 'other bad acts' evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk" (emphasis added). Id. at 249 n.27.
Prior to trial, the defendant moved in limine to exclude various bad acts he expected the Commonwealth's evidence to include. The judge allowed the motion in part and denied it in part: he denied the motion to exclude evidence that the defendant was verbally and physically abusive towards John; that he looked into the shower and turned the water temperature down while John was showering; and that the defendant would take John into the shower with him. The judge found that evidence relevant to provide the jury with context for the relationship between the two; it explained John's delayed disclosure; and it demonstrated the defendant's sexual interest in John. The judge concluded that the probative value of that evidence outweighed the prejudicial effect to the defendant.
The judge also denied the defendant's motion to exclude evidence that the defendant would hit Jane on the head; that he frequently would walk by and touch her in some way; that he threw a shoe at Jane, hitting her in the face; that he would examine her diary and her belongings; that he would stand in the doorway while Jane showered; and that he would force her to undress in front of him. The judge found this evidence relevant because it illustrated the power the defendant held over Jane; it explained Jane's delayed disclosure; and it demonstrated the defendant's sexual interest in Jane. The judge concluded that the probative value of that evidence outweighed the prejudicial effect to the defendant.
We note that the judge excluded evidence that the defendant (1) forced Jane to eat Tabasco sauce, because this "occurred before the [indicted conduct]" and "shows a certain degree of cruelty, which is not relevant"; (2) threw out Jane's homework and dance medals, ripped her clothes, put dirty dishes and trash in her bed, and put feces on her toothbrush, which "veer[ed too] much into cruel and poor parenting" and were "unduly prejudicial to the defendant"; (3) urinated in Jane's shampoo; (4) showered with John when he was six years old, which might constitute "grooming behavior," but had "minimal" relevance given that it occurred long before the indicted conduct; (5) demonstrated a lack of concern for his daughter Jill; (6) "ma[de] fun of [John] at track meets" and threw out his medals, which the judge considered unduly prejudicial; (7) discussed Jane's menstrual cycle with John, which he found unduly prejudicial; and (8) "destroy[ed], mark[ed], or defac[ed] pictures in the house."
We see no error. This evidence pertaining to the power and control the defendant displayed over John and Jane was admissible to show Jane's and John's state of mind and to explain why they waited to disclose the sexual assault. See Commonwealth v. McKinnon, 35 Mass. App. Ct. 398, 404-405 (1993), citing Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973). The evidence showing the defendant's sexual interest in Jane and John was admissible to provide the jury with evidence of the defendant's state of mind. See Commonwealth v. Cordle, 404 Mass. 733, 744 (1989); Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015). The evidence also was relevant to illustrate the context of the defendant's relationship with Jane and John. See Commonwealth v. Walker, 33 Mass. App. Ct. 915, 916 (1992), quoting Commonwealth v. Young, 382 Mass. 448, 463 (1981) ("It was well for the jury to have a view of the entire relationship between the defendant and . . . the . . . victim[]"). See also Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994) ("[S]ome evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and 'the probative existence of the same passion or emotion at the time in issue'").
(4) Motion for mistrial. The defendant next argues that the judge erred in denying his motion for a mistrial. We "review the denial of a motion for a mistrial for abuse of discretion." Commonwealth v. Silva, 93 Mass. App. Ct. 609, 614 (2018). "The test is not whether [this Court] would have made a different decision, but whether the judge made a clear error of judgment in weighing the [relevant] factors such that his decision falls outside the range of reasonable alternatives" (quotation omitted). Id.
At trial, Jane testified that, in 2012, when she initially contacted Fogarty, her emotional state made it very hard to talk about the events that happened and, as a result, she did not want to participate in any investigation. However, in January 2014, Jane went to the Haverhill Police Department to speak with Fogarty because she was concerned about the safety of her sister, Jill. On cross-examination, the defendant asked Jane whether a guardian ad litem had contacted her for the purpose of advising the Probate and Family Court with respect to custody of Jill. Jane responded that the guardian ad litem "did not say that. She was determining what Jill had gone through since Jill did not come forward herself." The defendant objected, and the judge struck the answer immediately. The next day, the defendant moved for a mistrial, and the judge denied the motion. The judge offered to give a specific curative instruction, but the defendant objected and none was given. The defendant now argues that he was deprived of a fair trial because Jane's testimony created the highly prejudicial inference that the defendant had done something to Jill.
The defendant also refers to his motion in limine to exclude any reference to allegations that the defendant mistreated Jill. That motion was denied. At trial, the judge explained that a generic concern for the welfare of her younger sister was relevant on the issue of Jane's state of mind in coming forward when she did. The judge found that the testimony that the Commonwealth elicited from Jane regarding a concern for Jill fit within that ruling. We see no error in that ruling, and the defendant himself elicited the testimony that he now claims should have given cause for a mistrial. We see no error.
We see no abuse of discretion in the judge's denial of the motion for a mistrial. The judge earlier had agreed that Jane's concern for her younger sister, Jill, was admissible and relevant on the issue of why Jane came forward when she did. The reference to a possible prior bad act by the defendant against Jill was brief and ambiguous and, as noted, the judge immediately struck the testimony. See Commonwealth v. Baptista, 86 Mass. App. Ct. 28, 32 (2014) ("In the circumstances, no abuse is visible. The reference was fleeting and vague; it did not apprise the jury of the defendant's prior bad acts"). Contrast Commonwealth v. Roe, 90 Mass. App. Ct. 801, 805 (2016) ("The failure to strike the reference to the prior touching along with the lack of a prompt curative instruction prejudiced the defendant"). Further, the judge and counsel extensively discussed a proposed curative instruction and the judge was prepared to give one. However, the defendant objected and so none was given.
(5) Sufficiency of the evidence. Finally, the defendant argues that the evidence was insufficient to establish John's exact age or the specific date of the offenses against him. Since proof of age is not required for the charge of indecent assault and battery on a person fourteen or older, we review only the charge of indecent assault and battery on a child under the age of fourteen. See Commonwealth v. Dobbins, 96 Mass. App. Ct. 593, 595-596 (2019) (holding that Commonwealth need not prove age beyond reasonable doubt under G. L. c. 265, § 13H). Compare Commonwealth v. Rockwood, 27 Mass. App. Ct. 1137, 1139 (1989) ("An essential element of an offense under G. L. c. 265, § 13B, is the age of the victim").
Under G. L. c. 265, § 13B, "[t]he elements of . . . indecent assault and battery on a child under fourteen are an intentional touching (1) that is harmful or offensive and committed without justification or excuse; (2) that is indecent (i.e., that offends contemporary standards of decency and moral values); and (3) that is committed on a child under the age of fourteen." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 616 (2010) (Doe No. 151564 ), citing G. L. c. 265, § 13B.
Examining the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), we conclude the Commonwealth met its burden. John testified that, when he was between the ages of eleven through fourteen, when he went up the stairs in his home in front of the defendant, the defendant would put his hands between John's legs and touch his testicles. He testified that this happened every time he went up the stairs with the defendant behind him. "If I was ever in front of him close enough for him to reach me, he would put his hands up between my legs . . . he would touch my testicles." Nothing more was required. General Laws c. 265, § 13B, does not require the Commonwealth to allege or prove the specific date or time the indecent assault and battery occurred, only that it was committed on a child under the age of fourteen. See Doe No. 151564 , 456 Mass. at 616; Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 573 (2006).
For the foregoing reasons, we are satisfied that the judgments should be affirmed.
Judgments affirmed.
By the Court (Hanlon, Blake & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 9, 2020.