Opinion
NOCR201700399
12-26-2018
Commonwealth v. Reynold Buono
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Connors, Thomas A., J.
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS
Thomas A. Connors Justice of the Superior Court
On November 3, 2017, a Norfolk County grand jury returned six indictments alleging that between September 1, 1981 and July 7, 1982, the defendant Reynold Buono forcibly raped a child under G.L.c. 265, § 22A and committed statutory rape under G.L.c. 265, § 23. The defendant now moves for dismissal pursuant to Mass.R.Crim.P. 13 on the ground that the grand jury heard insufficient evidence to warrant issuance of the indictment. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).
On November 5, 2018, the Court conducted a non-evidentiary hearing on the defendant’s motion to dismiss. For the reasons that follow, the motion is Allowed.
Legal Standard
"Generally a court will not inquire into the competency or sufficiency of the evidence before the grand jury." Commonwealth v. Coonan, 428 Mass. 823, 825 (1999). However, under the limited exception recognized in Commonwealth v. McCarthy, supra, "a court must dismiss an indictment" where the grand jury fails to hear "enough evidence to establish the identity of the accused and to support a finding of probable cause to arrest the accused for the offense charged" (footnote omitted). Commonwealth v. Rex, 469 Mass. 36, 40 (2014). Probable cause to arrest "requires more than mere suspicion but something less than evidence sufficient to warrant a conviction." Commonwealth v. Hason, 387 Mass. 169, 174 (1982). To satisfy the probable cause standard, the evidence before the grand jury "must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense." Commonwealth v. Roman, 414 Mass. 642, 643 (1993); see Commonwealth v. Santiago, 452 Mass. 573, 576-77 (2008), quoting from Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) ("factors ‘innocent of themselves, ’ when combined may amount to probable cause"). In passing upon a motion to dismiss an indictment, a court views the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Caracciola, 409 Mass. 648, 649 n.1 (1991).
Factual Background
The evidence presented to the grand jury was as follows.
In 2017, Milton Academy engaged in a confidential investigation into acts of sexual misconduct that may have been perpetrated by adults affiliated with the Academy during prior years. As a result of the investigation, the school filed two sets of reports concerning past allegations of child abuse by such individuals with the Department of Children and Families (DCF) as a mandated reporter pursuant to G.L.c. 119, § 51A. One of these reports filed on March 8, 2017 alleged that Reynold Buono, the head of the theater program at Milton Academy from 1975 to 1987, had sexually assaulted a fifteen-year-old male student. The 51A report alleged that Buono, age 36 at the time, abused the victim during a bike trip to Europe in the summer of 1981 and during the 1981-1982 school year at the defendant’s apartment on campus at Milton Academy and at the victim’s family home in Cape Cod, Massachusetts. A referral was thereafter made to the Norfolk County District Attorney’s Office for further investigation. Detective Valter Pires of the Milton Police Department testified that he interviewed the alleged victim as well as the victim’s friend as part of the investigation into the defendant. Detective Pires’ testimony is summarized as follows.
The victim attended Milton Academy from 1978 to 1985. In 1981, the summer before the victim entered the ninth grade, he, along with several other students from the school, participated in a bike trip in Europe which Buono conducted annually. While in Venice, Italy, the participants stayed at a small inn where there was not enough beds for everyone to have their own. The victim was selected to sleep in a bed with Buono. That evening, the students and Buono went out for dinner and drank alcohol. Upon returning to the inn, the victim fell asleep. At some point, the defendant started snuggling with him The victim described Buono’s actions as "weird" and stated, "I had been drinking and didn’t know what was happening. I panicked. I was confused and embarrassed." (Grand Jury Investigation, Exh. 1 at 9, lines 20-23.) As the victim attempted to get away from Buono, Buono grabbed the victim’s penis. The next morning, the victim told his friend what had taken place.
The friend told Pires that while in Venice, the victim had told him that he had been molested by Buono. The victim had said he had been terrified and had pretended to sleep. His friend was not surprised by Buono’s actions because, as he explained, "We all knew that [Buono] was this menace and had previously tried this stuff." (Grand Jury Transcript at 8, lines 23-24.) The victim’s friend further stated that on the same bike trip, Buono had hugged him and would not let him go and that later, he had told Buono that he could not engage in such behavior with him.
While in Venice, the victim’s friend confronted Buono about what he had done to the victim. He said to Buono, "you fucked up last night," and Buono responded, "You’re right, I did and I won’t do it again." (Grand Jury Transcript at 9, lines 10-11, 20-21.)
After returning from the bike trip, the victim’s mother, unaware of what had transpired during the trip overseas, invited Buono to the victim’s family home in Cape Cod. While visiting the home, Buono attempted to touch the victim’s penis on several occasions but each time, the victim rebuffed him and walked away. Without having any knowledge of his conduct towards her son, the victim’s mother requested that Buono serve as his academic advisor for the upcoming school year at Milton Academy.
As a ninth grader at Milton Academy, the victim struggled academically. Buono began conducting tutoring sessions with him at Buono’s apartment on campus. During the tutoring sessions, Buono would offer the victim beer and dinner and make advances toward him which the victim resisted. At several tutoring sessions, Buono touched the victim’s penis over his clothing. The advances eventually became more intrusive. The victim told Detective Pires that "[o]n two or three occasions [Buono] gave me a blowjob by putting his mouth on my penis." (Grand Jury Investigation, Exh. 1 at 11, lines 15-16.) At that time the victim was fifteen years old and described himself as "unhappy," "confused," and at times suicidal. (Grand Jury Investigation, Exh. 1 at 11, lines 19-20.)
The victim’s friend recalled that the sexual advances and inappropriate touching between Buono and the victim continued after they returned from the bike trip in Italy. Knowing that the victim was depressed, his friend asked his permission to speak with his (the friend’s) mother about what had taken place between Buono and the victim in Italy. The victim’s friend’s mother then spoke with both the assistant headmaster at Milton Academy, Mike Theobald, and the victim’s mother concerning what she had been told by her son. The victim’s mother then wrote a letter to Milton Academy and also met with Theobald. The victim and his mother were advised that Buono would not be allowed to participate in future bike trips. While the victim was not aware if Milton Academy disciplined Buono at the time, he learned that in 1987, Buono did take part in another bike trip.
Although the testimony does not indicate how the victim’s friend knew the behavior continued, it can be inferred from the testimony that the victim had told his friend that the abuse continued during the school year.
At some point in the spring of 1982, Buono took the victim’s friend aside and told him that he had been dealing with his issues and was going to therapy. Buono told the friend that he was getting better and that it was not going to happen again. The friend was unaware about anything further happening with other students after that conversation.
The Court notes that there was no indication in the Grand Jury transcript that this was a direct quotation of Buono’s statement.
The allegations that Buono had inappropriately touched the victim while on the bike trip in Italy, in the spring of 1982, came to the attention of Jerome Pieh, headmaster at Milton Academy during that time. Pieh testified that he discussed the information concerning Buono’s inappropriate behavior with the student with others at the school including some of its trustees, its head of human resources, and legal counsel. Pieh spoke with the victim’s friend’s mother about the allegations, and shortly after arranged to speak with Buono. He informed Buono that he had heard he had touched the genitals of the victim and had given another student, the victim’s friend, a back rub. Buono did not deny the allegations but told Pieh that he had always stopped when a student asked him to. Buono also stated that he was in therapy to deal with his issues, and he permitted Pieh to speak with his therapist. Buono’s therapist informed Pieh that Buono was working on the issues that had surfaced on the bike trip and progress was being made.
In his testimony to the grand jury, Pieh asserted that he had received a letter from both the victim’s friend’s parents and the victim’s mother stating that they knew what had happened but that they believed in Buono and hoped Milton Academy would reappoint him. Pieh testified that Buono was reappointed and allowed to continue in his position at Milton Academy. He also testified that Buono was told he was placed on a probationary status and that his remaining at the school depended upon his never repeating the behavior from the bike trip again.
Detective Pires spoke with the victim’s mother and his friend’s mother each of whom denied to Pires that they had written any letter in support of Buono. (Trans., Nov. 3, 2017, p. 12, ll. 14-19.) In his testimony, Pieh stated that he did not know what had happened to the letters he contended the parents had written and he conceded that he had not located them in Buono’s personnel file which Milton Academy had provided him and he had reviewed. (Trans., Aug. 16, 2017, p. 17, ll. 13-23.)
Pieh did not speak directly with Buono again until 1987 at which time a counselor at Milton Academy informed Pieh of a report that Buono had performed oral sex on a fourteen-year-old student. Buono admitted to the allegations. As a result, Milton Academy terminated Buono. There is no termination letter in Buono’s personnel file maintained by Milton Academy. The circumstances surrounding the 1987 allegation and how concerns about allegations of abuse of students made against Buono were handled vis-a-vis statutory reporting requirements also was addressed by Pieh in his testimony. He testified that Milton Academy hired an attorney to represent that student and a meeting was arranged with representatives of the Norfolk County District Attorney’s Office. At that meeting, representatives of the school informed the prosecutor’s staff about the 1987 allegation concerning Buono and that he had been terminated from his teaching position at the school. The attorney hired for the student asserted at the meeting that the student and his family did not wish to initiate any prosecution of Buono.
After that meeting, a memorandum headed "To: File," dated March 10, 1988 was drafted by a trustee of Milton Academy who was also an attorney, and this document was entered as Exhibit 4 before the grand jury. The document states that at the meeting, school representatives had disclosed that Buono had been accused in a prior incident in 1981 of having fondled a student during a bike trip in Europe, and that the school wanted to bring it to the attention of the District Attorney even though the incident involving that student had not taken place in Norfolk County. (Exhibit 4, p. 5.) The memorandum further outlines that the necessity of filing a report concerning the abuse to the then-named Department of Social Services (DSS) was discussed at the meeting. It states that the prosecutor’s office concurred with the school’s view that it was unnecessary to do so and that it was that office’s wish that the attorney for the student involved in the 1987 assault allegation should write a letter which confirmed that a meeting with the prosecutors had taken place, that a report had been made to that office, and that the student did not wish to file a complaint or to cooperate with law enforcement. (Exhibit 4, p. 8.)
Pieh testified that the school having brought the 1987 incident to the attention of the District Attorney’s Office and in reliance on what he termed its ruling that he did not need to make a "double report," did not report any abuse allegation involving Buono to DSS or to local police. (Trans., Aug. 16, 2017, p. 48, 1.1 to p. 49, 1.14.) The school did not report the 1981 allegation against Buono to DSS or to its successor agency DCF until it was included among the two sets of 51A reports involving past allegations of abuse against staff members which it filed in 2017.
The circumstances that led to the confidential investigation conducted on behalf of the school which came to involve the retrospective examination of its files and resulted in its filing of the series of belated 51A reports was outlined in testimony of Detective Pires who interviewed Milton Academy’s Head of School in that year. Pires was told that this activity had been prompted by concerns that had been raised in media concerning sexual misconduct at independent schools. (Trans., Nov. 3, 2017, p. 16, ll. 1-12.)
Ruling
The defendant challenges the sufficiency of evidence warranting his indictment on three grounds. First, the defendant contends that the charges are time-barred under G.L.c. 277, § 63 because the Commonwealth has failed to present evidence corroborating the victim’s sexual misconduct allegations. Second, the defendant argues that the Commonwealth has presented insufficient evidence to establish probable cause of more than two charges of statutory rape. Third, Buono asserts that there is no evidence of force necessary to sustain the three charges of forcible rape under G.L.c. 265, § 22A. Because the Court concludes that the indictments are time-barred under the twenty-seven-year statute of limitations, the charges against the defendant must be dismissed.
A. Statute of Limitations
The statute of limitations places a fixed period of time on the criminal prosecution of certain acts. The purpose of such a limitation is "to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Toussie v. United States, 397 U.S. 112, 114-15 (1970). Time limitations for actions may also encourage law enforcement officials promptly to investigate suspected criminal activity. Id.
General Laws c. 277, § 63 provides that the prosecution for most crimes must be commenced within six years of the criminal conduct or within ten years for certain enumerated offenses. However, the Legislature has extended the statute of limitations for certain sexual offenses committed against children. In 1996, the Legislature extended the statute of limitations for forcible rape of a child and statutory rape, as well as certain other offenses, from ten to fifteen years, and in 2006, it again extended the statute of limitations for these crimes. Under the current law, indictments for the criminal offenses of forcible rape and statutory rape may not be filed more than twenty-seven years after the date of the commission of such offenses unless they are supported by independent and admissible evidence that corroborates the victim’s allegation. See G.L.c. 277, § 6.
In Commonwealth v. White, 475 Mass. 724 (2016), the Massachusetts Supreme Judicial Court considered for the first time the requirement of independent corroborating evidence to extend the statute of limitations under G.L.c. 277, § 63. The Court concluded "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." White, 475 Mass. at 725-26. The Court further ruled that the corroborating 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." Id. at 737. In reaching its decision as to what might suffice as independent corroborating evidence, the Court stressed the legislative history of the amendment to § 63 which eliminated the limitations period for prosecution of certain sex offenses involving minors, noting its intention that protection of the interests of victims be balanced with ensuring the safeguarding of the principles of fair trial. Id.
The indictments against the defendant in this case are based on sexual misconduct alleged to have occurred thirty-six years prior to the return of the indictment, between the dates of September 1, 1981 and July 7, 1982. The prosecution was commenced after July 7, 2009, the expiration of the twenty-seven-year period from the most recent possible date of offense within that range. For that reason, prosecution of the case is legally permissible only where there is independent corroborating evidence of the allegations to support the indictments. See G.L.c. 277, § 63. The Commonwealth contends that the defendant’s own admissions provide the requisite corroborating evidence to the grand jury permitting the over twenty-seven-year-old criminal allegation to be viable as subject to prosecution. The admissions the Commonwealth points to, however, all concern allegations of conduct other than that for which the defendant is charged referring instead to other conduct not the subject of this indictment. The Commonwealth has failed to provide the grand jury with independent corroborating evidence of the charged conduct and for that reason, indictments are barred by the statute of limitations under G.L.c. 277, § 63.
The Commonwealth points to evidence that when the defendant was twice confronted about molesting the victim in Italy, once by the victim’s friend the day after it happened and later by the headmaster, he admitted to doing so. It also points to evidence that when confronted by the headmaster in 1987 with allegations that he had oral sex with another student, the defendant admitted to those accusations. Evidence of the defendant’s misconduct on the bike trip in the summer of 1981 and towards another student in 1987, however, cannot serve as corroborating evidence under G.L.c. 277, § 63 because those actions do not "relate[ ] to the specific criminal act at issue" in the indictments a requirement set forth in White, 475 Mass. at 736. Rather, they concern evidence of uncharged conduct which the Supreme Judicial Court specifically has held is insufficient independent corroborating evidence for purposes of G.L.c. 277, § 63. See id.
The Commonwealth cites several cases to support its contention that the defendant’s admissions to other bad acts should be admissible to corroborate the victim’s allegations. Although the Commonwealth is correct that evidence of prior bad acts may be admissible to show "a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive," see Commonwealth v. Robertson, 88 Mass.App.Ct. 52, 55 (2015), the cases cited by the Commonwealth provide no support for the Commonwealth’s argument that evidence of Buono’s uncharged "bad acts" can provide the corroboration of the victim’s allegations necessary to extend the statute of limitations under G.L.c. 277, § 63. Under White, it is clear that they cannot. 475 Mass. at 736.
The Commonwealth makes a second argument for the presence of legally sufficient corroborating evidence for the charged conduct, citing Buono’s admissions to molesting the victim in the spring of 1982 when he pulled the victim’s friend aside and told him that he had been dealing with his issues and that "it" was not going to happen again. This claim is without merit. There is no indication of what specific conduct Buono was referring to when he told the victim’s friend that "it" was not going to happen again or of what motivated Buono to make those comments at that time. Even if, as the Commonwealth contends, Buono made those comments as a result of the victim’s friend’s mother speaking to the assistant headmaster, there was only evidence before the grand jury that the victim’s friend told his mother about what happened in Italy. Indeed Pieh testified he only spoke with the defendant about the incidents in Italy. There was no probative evidence before the grand jury that could lead to the inference that Buono’s comments in the spring of 1982 were referring to the ongoing sexual assaults during the school year for which he is charged. Such a vague statement cannot be construed as a" ‘specific testimonial fact’ related to the particular incidents of rape described in the ‘victim’s allegation.’" which would suffice to meet the Commonwealth’s burden of proof. See White, 475 Mass. at 740, quoting Commonwealth v. Helfant, 398 Mass. 214, 2019 (1986).
Evidence of the victim’s statements to his friend regarding the continuing sexual abuse by Buono during the school year in 1981-1982 also cannot serve as independent corroborating evidence to satisfy the statute’s requirement. Under White, corroborating evidence "must be a separate source of proof tending, in some way, to show the defendant’s guilt." 475 Mass. at 737. Testimony from a person that a victim first reports sexual assault to, although generally admissible for the limited purposes of aiding the fact finder in assessing the credibility and reliability of the victim’s testimony at trial, is not evidence that the crime occurred. Commonwealth v. King, 445 Mass. 217, 247-48 (2005); see White, 475 Mass. at 739 n.24. Indeed, the model jury instruction crafted by the Court in King sets forth this principal with utmost clarity:
You may consider this evidence only for specific limited purposes: to establish the circumstances in which the complainant first reported the alleged offense, and then to determine whether that first complaint either supports or fails to support the complainant’s own testimony about the crime. You may not consider this testimony as evidence that the assault in fact occurred. The purpose of this ‘first complaint’ evidence is to assist you in your assessment of the credibility and reliability of the complainant’s testimony here in court ...445 Mass. at 247-48 (emphasis supplied). King makes clear the express limitation attendant to admissible first complaint testimony: it is not evidence that the crime itself occurred. Further, its sole utility for the fact finder is to "support or detract" from the reliability of the account of the assault given by the victim alleged in his or her in-court testimony. Thus its proper use is limited only to the issue of bolstering trial testimony credibility, which White has ruled expressly to be insufficient corroborating evidence under G.L.c. 277, § 63.
Finally, the Commonwealth also puts forward in its memorandum in opposition a procedural argument, which it contends makes consideration of the defendant’s motion to dismiss improper in the context of challenge to an indictment. It argues that the analysis of the statute of limitations issue in White should not apply at all because that case concerned a post-trial rather than a pre-trial motion. It argues that even if under White lack of corroboration of the allegations would be fatal at trial, that this should not govern at the pre-trial stage as the statute is an affirmative defense, citing Commonwealth v. Shanley, 455 Mass. 752, 778 (2010).
The court is not persuaded of the merits of the Commonwealth’s claim in this case that the challenge to indictment on statute of limitations grounds is properly brought. First, as the defendant has pointed out in his submission, § 63 in its express language states that "any indictment or complaint found or filed shall be supported by independent evidence that corroborates the victim’s allegation." (Emphasis supplied.) In discussing that § 63 permits consideration of an allegation which arose in excess of 27 years earlier, the Supreme Judicial Court in Commonwealth v. Stevenson, 474 Mass. 372, 379 (2016) took special note of how this "may exacerbate concerns regarding the reliability of hearsay evidence presented in a nonadversary setting such as the grand jury." The Court then observed: "But the legislature contemplated the inevitability of such cases being brought under G.L.c. 277, § 63, and provided for additional protections when such charges are sought." Id. The Court’s focus in its language upon the risks attendant where charges involving decades-old allegations are sought in the grand jury forum and its citing of the counterweight to those risks served by the corroboration requirement serves to undercut the Commonwealth’s procedural argument lodged against the defendant’s motion.
In this connection, the court would also note the case of Commonwealth v. Perella, 464 Mass. 274, 276 (2013) in which the Supreme Judicial Court affirmed a trial court’s allowance of a pre-trial motion to dismiss indictment on statute of limitations grounds.
Accordingly, the Court concludes that as a result of application of governing law under G.L.c. 277, § 63, the indictments are barred by the statute of limitations. Although the charges against the defendant must be dismissed based under G.L.c. 277, § 63, the Court briefly addresses the defendant’s remaining arguments.
B. Probable Cause to Support the Indictments
The defendant argues that the Commonwealth has presented insufficient evidence to establish probable cause of more than two charges of statutory rape under G.L.c. 265, § 23. Specifically, he contends that because the testimony regarding the statutory rape charges was that "[o]n two or three occasions" Buono performed oral sex on the victim, no more than two charges of rape of a child can be sustained. The Court agrees. It is the Commonwealth’s burden to set forth "reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense." Roman, 414 Mass. at 643. The victim’s statement that the defendant performed oral sex on him on "two or three occasions" expresses reasonably trustworthy information of only two occurrences of oral sex and uncertainty as to the third. Accordingly, there is not sufficient evidence to support a finding of probable cause to support an indictment for the third charge.
Buono also asserts that the Commonwealth has not presented any evidence of force necessary to sustain the charges of forcible rape under G.L.c. 265, § 22A. This argument is without merit. "To prove that a defendant used ‘force’ to compel sex, the Commonwealth may rely on actual force, threatened force, or ‘constructive force.’" Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 417 (2010), citing Caracciola, 409 Mass. at 651-53. Constructive force requires proof that the victim was afraid or submitted to the defendant because of intimidation. Commonwealth v. Newcomb, 80 Mass.App.Ct. 519, 521 (2011). "The focus is on the circumstances ‘in which the victim is placed, the impact of those circumstances ... on the victim’s power to resist and the defendant’s conduct[, ] all [of which] are relevant to the determination whether conduct complained of by the victim was accomplished by force and against the victim’s will.’" Commonwealth v. Armstrong, 73 Mass.App.Ct. 245, 255 (2008), quoting Caracciola, 409 Mass. at 651.
Here, the Commonwealth presented evidence that the defendant gave the victim alcohol during the tutoring sessions where he allegedly assaulted the victim and that the defendant persisted with his advances despite the victim’s resistance. See Wallace, 76 Mass.App.Ct. at 417, citing Commonwealth v. Blache, 450 Mass. 583, 591-92 (2008). Additionally, there was evidence that the defendant as the victim’s academic advisor and tutor was an authority figure and therefore could exert power and exercise pressure over the victim that others could not. See Commonwealth v. Shore, 65 Mass.App.Ct. 430, 432 (2006) (age and authority disparity considered when determining consent). Such evidence is sufficient to find probable cause that the defendant raped the victim with "force" to sustain an indictment under G.L.c. 265, § 22A.
Order
Because the charges against the defendant are barred by the statute of limitations under G.L.c. 277, § 63, his motion to dismiss is Allowed.