Opinion
11-P-2102
04-12-2013
COMMONWEALTH v. DAVID OLIVEIRA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was initially convicted by a jury in the Superior Court on two counts of rape of a child, three 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 over the age of fourteen. After three appeals, three remands and a second trial, the defendant was again convicted on all counts except one count of indecent assault and battery. We address the defendant's numerous claims of error seriatim, referring to the evidence where relevant to the issue under consideration. Evidence of prior bad acts. The defendant was convicted of victimizing his girlfriend's young daughters, beginning when they were three and six years old respectively. The jury could find that the abuse continued for at least five years while the defendant, his girlfriend, her daughters, and then a son born to the defendant and his girlfriend, all lived together. On appeal the defendant asserts that he preserved objections to the introduction of evidence about controlling and abusive behavior on his part that did not form a basis for any of the charges, but was, he claimed, unduly prejudicial. The Commonwealth asserts that the defendant objected but piecemeal to the evidence of which he now complains. We need not resolve this particular dispute because we conclude that the evidence was properly admitted, even if considered under the prejudicial error standard. Evidence of the controlling nature of the relationship between the defendant and his girlfriend's daughters was highly relevant to explain the extended duration of the behavior forming the basis of the charges. It was probative on the daughters' failure to report the abuse, on the contradictory statements made by the older daughter as well as the older daughter's statement that she had a 'perfect family.' Commonwealth v. Cheremond, 461 Mass. 397, 409 (2012). We are also unpersuaded that the evidence was unduly prejudicial. The nature of the uncharged conduct, while reprehensible and perhaps distasteful to the jury, does not necessarily lead to the conclusion that it was accompanied by sexual abuse; in fact the defendant was acquitted of the charge of indecent assault and battery on the younger daughter.
The grand jury returned indictments charging the defendant with two counts of rape of a child (G. L. c. 265, § 23), three counts of indecent assault and battery on a child under the age of fourteen (G. L. c. 265, § 13B), and one count of indecent assault and battery on a child over fourteen (G. L. c. 265, § 13H). Following a jury trial, the defendant was convicted on all counts. The defendant filed motions for a new trial and the production of records. The motion judge, also the trial judge, denied the motions and, after sua sponte transferring the case to its own docket, the Supreme Judicial Court ordered production and review of the requested treatment records, to be followed if appropriate, by another motion for new trial. Commonwealth v. Oliveira, 431 Mass. 609 (2000) (Oliveira I). On remand, the trial judge permitted appellate counsel to review some, but not all, of the records. See Commonwealth v. Oliveira, 438 Mass. 325, 327-329 (2002) (Oliveira II). On direct appeal, the Supreme Judicial Court vacated the trial judge's ruling and again remanded the case to the lower court. Oliveira II, supra at 337-342. On the second remand, the judge authorized the defendant's counsel to inspect all of the records in question. The defendant then filed another motion for new trial. The motion was allowed as to all five indictments pertaining to one complainant, and denied as to the indictment pertaining to the second. The parties filed cross appeals. On appeal this court affirmed the Superior Court judge's order allowing the motion for new trial on the indictments pertaining to the first complainant, reversed the order denying the motion for new trial on the sole indictment pertaining to the second, and remanded the case for further proceedings. Commonwealth v. Oliveira, 67 Mass. App. Ct. 1112 (2006) (Oliveira III). On the third remand, new counsel was appointed. The jury acquitted the defendant of indecent assault and battery on one complainant, and convicted him on all counts relating to the other.
The evidence, generally summarized, was that the defendant made the daughters kneel on pencils and rice, prevented them from seeing their fathers, required the older daughter to abandon the family dog in the woods, rapped them on their hands with a fork, listened on an extension to their phone conversations, whipped them with a belt, called one daughter a 'slut' for not wearing shorts under her school uniform as he had instructed, and 'grounded' them excessively -- in one instance grounding one daughter for an entire summer.
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Medical records. The defendant asserts error in the judge's exclusion of certain of the older daughter's mental health records, proffered by him for impeachment purposes. The medical records exception to the hearsay rule requires that the records be kept in the ordinary course by health care providers for the purpose of diagnosis and treatment. Bouchie v. Murray, 376 Mass. 524, 528 (1978). The presumption of reliability rests on the likelihood that a person seeking treatment will be motivated to speak the truth to a care provider. This condition is not met here, and the judge did not abuse his discretion. Commonwealth v. Hubbard, 371 Mass. 160, 175-176 (1976).
The records sought to be introduced were progress notes made by a social worker. They contained hearsay or totem pole hearsay statements made to the social worker, not by the daughter but by other members of her family. They had limited value, if any, in the area of impeachment as they provided a familiar portrayal of a rebellious teenager. Contrast Commonwealth v Nichols, 37 Mass. App. Ct. 332, 337 (1994). (reversible error to exclude evidence 'exceptionally probative' on issue of victim's credibility). In any event, in their portrayal of the older daughter, the records were largely duplicative of other evidence admitted through live testimony. Cf. Commonwealth v Civello, 39 Mass. App. 373, 377-378 (1995).
Conclusion. As we do not accept the specific assertions of error made by the defendant on appeal, we are likewise not in agreement with the claim that their cumulative effect requires reversal.
Judgments affirmed.
By the Court (Grainger, Brown & Rubin, JJ.),