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JOHN DOE, Sex Offender Registry Board No. 22351 vs. SEX OFFENDER REGISTRYBOARD.
No. 10-P-1699.
January 4, 2012.
Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender. Due Process of Law, Sex offender.

Eric B. Tennen for the plaintiff.

William H. Burke for the defendant.

RESCRIPT.

The plaintiff appeals from a judgment by a judge of the Superior Court affirming a final classification decision by the Sex Offender Registry Board (SORB) that required the plaintiff to register as a level three sex offender. His principal argument is that SORB may not complete the classification process while he remains indefinitely confined as a "sexually dangerous person" (SDP) pursuant to G.L. c. 123A. We recently rejected a similar argument made by a sex offender who was serving a prison term. Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 683, 687-690 (2011). The question we now face is whether a different result should follow where the sex offender is not serving a criminal sentence but instead is civilly confined as an SDP. Because we conclude that this distinction does not make a difference, we affirm.

As we noted in the Doe decision, the Legislature has enacted specific provisions toward ensuring that sex offenders who are currently confined are classified before they are released. Id. at 688, citing G.L. c. 6, §§ 178E(a ), 178L(1)(a ). In establishing the timetable of the required procedural steps, those provisions do not draw a distinction between confined sex offenders who are "incarcerated" and those who are otherwise held in custody. [FN1] See G.L. c. 6, § 178E(a ), as amended by St.2006, c. 303, § 1 (requiring "the agency which has custody of [a] sex offender" to take a certain step "[w]ithin [five] days of receiving upon sentence [that] sex offender"); G.L. c. 6, § 178L(1)(a ), inserted by St.1994, c. 74, § 2 (requiring SORB to provide a confined sex offender certain notice "[n]ot less than [sixty] days prior to the release or parole of [that] sex offender from custody or incarceration"). The plaintiff has provided no convincing showing based on the language of the statute that the timing of the classification process for sex offenders confined as SDPs was meant to be different than that for sex offenders who are incarcerated.

The plaintiff argues that the indefinite length of an SDP's confinement weighs in favor of delaying final SORB classification until it becomes clear that he will be released. If anything, we think that this distinction cuts the other way. The fact that an SDP theoretically could be released at any time provides more reason to go forward with the classification process now, not less. The facts of the current case are illustrative in this respect. The SORB classification process and the plaintiff's petition to be released from confinement pursuant to G.L. c. 123A, § 9, went forward at the same time. The SORB hearing on the plaintiff's classification level came just two weeks before the plaintiff's scheduled § 9 trial (at which time the jury might have ruled in his favor, resulting in his release). [FN2]

The plaintiff makes one argument that merits extended discussion. An SDP would win release from custody where the Commonwealth failed to carry its burden of proving, beyond a reasonable doubt, that he remains "sexually dangerous." See G.L. c. 123A, §§ 1, 9. The plaintiff argues that such an adjudication may signal that there has been a significant change in the sex offender's underlying circumstances that also warrants reexamination of his SORB classification status. Compare ibid. with G.L. c. 6, § 178K(1). However, under SORB's regulation as currently written, an individual who has been released from SDP custody could petition for reclassification only after he has "remained at liberty for more than five continuous years." 803 Code Mass. Regs. § 1.37C(2)(d)(1) (2004). According to the plaintiff, where the classification process was finalized before such a change of circumstances may have occurred (indeed, perhaps many years before it occurred), then by the time the sex offender was released back into society, his SORB classification might be based on stale, materially inaccurate information. Maintaining that this would deny him procedural due process rights, see Doe v. Attorney Gen., 430 Mass. 155, 161 (1999), the plaintiff invites us to interpret the statute as intending to postpone the final classification for those held in SDP custody until we know their actual release is imminent. See Staman v. Assessors of Chatham, 351 Mass. 479, 487 (1966) (doubts as to a statute's constitutionality "should be avoided if reasonable principles of interpretation permit doing so").

The precise meaning and application of the SORB reclassification regulation is not currently before us, and we therefore do not reach the question whether the regulation might evince more flexibility than the plaintiff ascribes to it.

[FN3] In any event, we decline to interpret the statute in the backhanded manner the plaintiff suggests in order to address a potential due process problem that may never be presented. We leave the adjudication of the plaintiff's ability to seek reclassification--either by regulation or as matter of due process--until the issues become ripe. See Commonwealth v. Bankert, 67 Mass.App.Ct. 118, 121 (2006), quoting fromCommonwealth v. Two Juveniles, 397 Mass. 261, 264 (1986) ("As to constitutional questions, our 'traditional and salutary practice' is not to answer them in the abstract and to wait 'until the circumstances of a case are established' that require an answer to such questions").

Other issues. The plaintiff's additional arguments require little discussion.

1. Recusal. We agree with the Superior Court judge that certain comments that the hearing examiner had posted on a coworker's page on the social networking Web site Facebook, while inappropriate, [FN4] did not require her recusal. Nonetheless, we emphasize that citizens confined pursuant to G.L. c. 123A, and their counsel, are entitled to a quasi judicial proceeding conducted with the utmost dignity and attention to law.

2. Public hearing. "Hearings held by the [SORB] shall not be open to the public." 803 Code Mass. Regs. § 1.10(2) (2002). The plaintiff complains that two correction employees were present at his hearing: one for security and transportation supervision, and the other for security and operation of the videotape equipment. We agree with the judge that the hearing was not, in these circumstances, open to the public. There was good reason for the officers to be present, and we discern no prejudice.

3. Psychotherapist-patient privilege. At the hearing, the plaintiff sought to challenge some of SORB's records as protected by his psychotherapist-patient privilege. See G.L. c. 233, § 20B. See also Mass. G. Evid. § 503 (2011). The plaintiff was insufficiently specific as to which records contained the privileged information, and why. Nevertheless, in her ruling on the motion to exclude the allegedly privileged information, the hearing examiner wrote: "I will do my best to assess [the plaintiff's]'s risk of reoffense and degree of dangerousness without considering the material at issue.... If I do consider any of the material at issue, I will specifically note it." Her decision on the merits is quite detailed and does reference the specific records upon which she relies for each finding. She did not rely on any of the documents alleged to be privileged. We do not reach the underlying question whether any of those documents were in fact privileged.

Judgment affirmed.

FN1. The term "incarcerated" connotes imprisonment rather than civil commitment. See Gagnon, petitioner, 425 Mass. 1015, 1016 (1997) (distinguishing between commitment under G.L. c. 123A and "the incarceration of convicted criminals").

FN2. Notably, the SORB hearing examiner agreed to keep the record in that proceeding open until after the SDP trial.

FN3. At oral argument, SORB seemed to agree with the plaintiff's

interpretation that the five-year waiting period was inflexible. However, SORB was commenting on the regulation in the abstract; it was not presented with having to apply its regulation to a petition that might present a compelling case for reclassification before the five-year period had run.

FN4. In the words of the Superior Court judge, "[t]his argument [for recusal] brings forward a most unfortunate episode wherein the hearing officer in this case was publicly reported as writing remarks on a social networking website that diminished the seriousness of her work as a SORB officer."

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COMMONWEALTH vs. Angel AVILES- Judgements affirmed

2011-12-06T08:10:00.000-08:00

COMMONWEALTH vs. Angel AVILES.
SJC-10846.
September 7, 2011. - December 6, 2011.
Rape. Indecent Assault and Battery. Practice, Criminal, Motion in limine, Objection. Evidence, First complaint, State of mind, Verbal completeness.

INDICTMENTS found and returned in the Superior Court Department on December 28, 2005.

The cases were tried before Tina S. Page, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

William F. Sheehan, of the District of Columbia, & Colby Bruno, Brenda R. Sharton, & Katherine A. Borden, for Victim Rights Law Center & others, amici curiae, submitted a brief.

Present: Ireland, C.J., Spina, Cordy, Botsford, & Gants, JJ.

SPINA, J.

A jury in the Superior Court found the defendant, Angel Aviles, guilty of rape of a child, pursuant to G.L. c. 265, § 23, and indecent assault and battery on a child under the age of fourteen, pursuant to G.L. c. 265, § 13B. The defendant appealed. A divided panel of the Appeals Court affirmed the convictions, seeCommonwealth v. Aviles, 77 Mass.App.Ct. 389 (2010), and we granted the defendant's application for further appellate review. The defendant challenges the admission of testimony concerning a "second complaint" made by the victim, whom we shall call Marie, [FN1] and the admission, under the doctrine of verbal completeness, of a prior consistent statement made by Marie during her grand jury testimony. For the reasons that follow, we affirm the convictions. We also take this opportunity to modify the scope of judicial review of decisions on the admissibility of testimony pursuant to the "first complaint" doctrine as set forth in Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006) (King ), and its progeny.

[FN2]

1. Factual background. We summarize the facts as the jury could have found them, reserving certain details for later discussion.

Sometime during 2002, Marie, her mother, and her younger sister moved into an apartment shared by the defendant and his mother. The defendant had offered them a place to stay in exchange for assistance with his mother, who had health problems. Marie was eight years old at this time. The apartment consisted of a living room, a kitchen, two bedrooms, and a bathroom. The defendant slept in one bedroom, and his mother slept in the other bedroom. When Marie and her family moved into the apartment, the girls slept on an air mattress on the floor of the defendant's bedroom, and their mother slept either on the air mattress or in the defendant's bed. Due to the defendant's work schedule, he generally went to bed before Marie.

On four or five occasions over the course of several months, when Marie and the defendant were alone in his bedroom at night, the defendant got onto the air mattress with Marie, used his legs to pin her down, and touched her buttocks over her clothes. On one occasion, he rubbed Marie's "vagina area" over her clothes. When Marie told the defendant to leave her alone, he returned to his bed. She did not mention these incidents to her mother.

One night, Marie, her mother, and her sister were sleeping on the air mattress when Marie awoke to find the defendant kneeling next to her, attempting to remove her jeans. She got up, walked to the bathroom, which was across the hall, and locked herself inside. The defendant managed to unlock the door, and he entered the bathroom. Once inside, he pulled down Marie's jeans and underpants, put his hands on her waist, pulled her close to him, and turned her around so that her back was to him. As Marie was crying, she heard the defendant pull down his own jeans. Then, as Marie testified, the defendant "put his penis into [her] butt," which hurt. When the defendant finished, he told Marie not to tell her mother, or he "would do something to her [mother]." Marie returned to the bedroom, whereupon her mother woke up and asked what was wrong, to which Marie replied, "[N]othing." Marie did not mention the incident in the bathroom to her mother because of the defendant's warning.

Several nights later, Marie became upset when her mother told her that it was time to go to bed. Marie began to cry and resisted going into the bedroom. She then revealed to her mother for the first time that the defendant had "touched" her, although Marie did not provide any details. Marie's mother and the defendant's mother, who had overheard the conversation, immediately confronted the defendant, who denied touching Marie. A few days later, Marie and her family moved out of the apartment and returned to Marie's maternal grandmother's home, where the family had lived before moving in with the defendant. None of the sexual abuse was reported to the police until 2005 when, after seeing the defendant's photograph on television, Marie told her grandmother about the incident in the bathroom. The grandmother informed Marie's mother, who then contacted the police. The defendant was arrested and indicted on charges of rape of a child, and indecent assault and battery on a child under the age of fourteen.

2. Motion in limine concerning proposed first complaint testimony. Marie's mother was designated as the first complaint witness. Before the start of trial in May, 2007, the defendant filed a motion in limine, seeking to limit the scope of admissible evidence to that disclosed in Marie's first complaint to her mother, namely such evidence as pertained to the indecent "touchings," thereby excluding any evidence relating to Marie's disclosure to her grandmother about the alleged rape. The defendant also sought to exclude any evidence that went beyond the scope of Marie's testimony at trial, such as reports to the police. The defendant's motion in limine was the subject of three colloquies before the judge.

During the first colloquy, the prosecutor acknowledged that Marie's disclosure to her grandmother about the rape, which had been precipitated by Marie's observation of the defendant's photograph on television, went beyond the scope of the first complaint doctrine. As such, the Commonwealth would not "get into details" about the issue, but the prosecutor stated that Marie properly could testify to the fact that she had made a complaint to her grandmother. Defense counsel objected to any testimony concerning a conversation between Marie and her grandmother, as well as an "ensuing police report," because it was not first complaint evidence. The judge reserved decision on the matter pending review ofCommonwealth v. Buelterman, 68 Mass.App.Ct. 829 (2007). [FN3]

During the second colloquy, which occurred the following morning, the prosecutor revisited the defendant's motion in limine and clarified that she intended to elicit from Marie testimony that she had seen the defendant on television, but not why he was there. Defense counsel objected on the grounds that testimony regarding the defendant's appearance on television was neither part of Marie's first complaint to her mother nor relevant evidence. The judge pointed out that the first complaint testimony was limited to the indecent assault and battery charge. Defense counsel again asserted that testimony elicited from Marie that she had a conversation with her grandmother after seeing the defendant on television, and that her mother then brought her to the police station, was irrelevant and prejudicial. The judge ruled that although Marie could not disclose the substance of what she had said to her mother or grandmother about the alleged rape, Marie could testify that "as a result of seeing the [d]efendant on television, she made a disclosure to her mother or grandmother." In the judge's view, the Commonwealth was entitled to explain Marie's three-year delay in reporting the alleged rape. Defense counsel objected to this ruling and asked the judge to preserve his objection. The judge did not respond.

During the third colloquy, which occurred very soon after the second, defense counsel sought to revisit the issue of Marie's observation of the defendant's photograph on television. In response to the judge's earlier ruling on the scope of Marie's testimony, defense counsel argued that cross-examination would be "almost impossible" given the circumstances surrounding the defendant's appearance on television (namely, that he was a registered sex offender). After indicating that she would not change her ruling, the judge stated that defense counsel's "objection [was] noted." When defense counsel then asked whether his rights were preserved, the judge responded, "Very much so."

3. Trial testimony. The Commonwealth's only witnesses were Marie and her mother. Marie described the manner in which the defendant had touched her on the air mattress, recounted the details of the incident in the bathroom, and testified that she had disclosed the alleged rape to her grandmother in 2005. Marie gave no details about her conversation with her grandmother, limiting her testimony to the fact that such a conversation had occurred after she saw the defendant's picture on television. Marie also testified that after her grandmother told her mother about the rape, Marie and her mother went to the police. On cross-examination, defense counsel led Marie through a time line of her disclosures to her mother, her grandmother, and the police. He questioned her extensively about her statement to the police, pointing out discrepancies between the statement and her trial testimony, most notably the fact that Marie did not mention in her statement that the defendant had threatened to hurt her mother if Marie told her about the alleged rape. Defense counsel also elicited testimony from Marie that she wanted to live with her grandmother.

Prior to the first complaint testimony from Marie's mother, the judge instructed the jury on the purpose and limitations of such testimony in accordance with King, 445 Mass. at 219, 247-248. Marie's mother then recounted that Marie had told her that the defendant had "touched" her, but that Marie had provided no further details. Marie's mother also testified that she did not notify the police in 2002 because she thought that her children would be safe when they moved out of the apartment. As to the alleged rape, Marie's mother only testified that she had a conversation with Marie in 2005 in which she learned "additional information" about Marie and the defendant, and that, "as a result" of this conversation, she and Marie went to the police and gave statements. [FN4]

The defendant did not testify at trial. Instead, his strategy was to undermine Marie's testimony through cross-examination. In particular, defense counsel elicited testimony from Marie that she would have preferred to live at her grandmother's house, rather than moving in with the defendant and his mother, thereby suggesting that Marie had fabricated the allegations against the defendant in order to change her living arrangements. The defendant presented testimony from one witness, Lori Peberis, a court reporter who had recorded and transcribed Marie's testimony before the grand jury in November, 2005. Peberis testified that during questioning by the Commonwealth in the grand jury proceeding, when Marie was asked whether the defendant had "touch[ed] [her] buttocks area with his hands," Marie responded, "No." On cross-examination, Peberis further testified that in subsequent questioning by the Commonwealth before the grand jury, when Marie was asked if the defendant "had touched her vaginal area with her pants on," Marie responded, "Yes."

4. Preservation of issue for review. The primary thrust of the defendant's appeal is that the judge erred by allowing testimony that two years after Marie's first complaint to her mother, which disclosed only that the defendant had indecently "touched" her, Marie told her grandmother about the alleged rape. As a preliminary matter, the defendant asserts that he fully preserved this issue for appellate review by making numerous objections during the pretrial colloquies on his motion in limine. We agree.

Ordinarily, the mere filing of a motion in limine to prevent the introduction of evidence is insufficient to preserve appellate rights. SeeCommonwealth v. Whelton, 428 Mass. 24, 25-26 (1998) (trial objection necessary to preserve appellate rights notwithstanding motion in limine);Commonwealth v. Gabbidon, 398 Mass. 1, 7 (1986). See also Mass. G. Evid. § 103(a)(3) (2011). However, the adequacy of an objection to the admissibility of the evidence at issue must be assessed in the context of the proceeding as a whole. See Commonwealth v. Galicia, 447 Mass. 737, 746-747 (2006). We have stated that where a defendant has objected to the denial of his motion in limine, and the judge has said words to the effect, "Your objection's noted, and your rights are saved," the defendant is relieved of the necessity to object to the evidence at trial.Commonwealth v. Kee, 449 Mass. 550, 553 n. 5 (2007). See Commonwealth v. Dunton, 397 Mass. 101, 102 n. 2 (1986) (where defendant requested particular instruction before charge but did not object to judge's refusal to give instruction after charge, issue nonetheless preserved for appellate review because judge told defense counsel that defendant's rights "were fully protected"); Commonwealth v. LaSota, 29 Mass.App.Ct. 15, 24 n. 12 (1990) (issue preserved where judge twice noted defense counsel's objection and said that "his rights were preserved"). See alsoRotkiewicz v. Sadowsky, 431 Mass. 748, 751-752 (2000).

Here, although the focus of the third colloquy primarily was on the admission of testimony pertaining to Marie's observation of the defendant's photograph on television, the larger context for defense counsel's objection was his challenge to the judge's ruling during the second colloquy on the scope of Marie's testimony about the disclosure to her grandmother. The judge's preservation of the defendant's rights at the end of the third colloquy necessarily encompassed this broader challenge. The defendant was not required to object again at trial to the admissibility of testimony pertaining to Marie's disclosure to her grandmother because he adequately preserved this issue during the pretrial colloquies, as plainly acknowledged by the judge. Accordingly, we review the challenged testimony under the prejudicial error standard. See Commonwealth v. Flebotte,417 Mass. 348, 353 (1994).

5. First complaint testimony. The defendant contends that the judge committed reversible error by allowing evidence that, three years after Marie made a first complaint to her mother regarding indecent touching by the defendant, she made a "second complaint" to her grandmother that the defendant had raped her. In the defendant's view, the Commonwealth only was entitled to present evidence regarding Marie's first complaint to her mother in 2002. We conclude that, under the first complaint doctrine, the Commonwealth was not entitled to present evidence, either from Marie or her mother, pertaining to Marie's disclosure to her grandmother. However, we further conclude that, in the circumstances of this case, the admission of such evidence did not constitute prejudicial error because it was properly admitted to rebut the defendant's suggestion that Marie had fabricated her accusations against him.

We begin with a brief overview of the first complaint doctrine, both to resolve the issue immediately before us and, as will be discussed in greater detail later in this opinion, to put in context our reasons for modifying the scope of judicial review of decisions on the admissibility of first complaint testimony. In King, we replaced the doctrine of "fresh complaint" with the doctrine of "first complaint" to reflect "a contemporary understanding of information that will permit jurors to make a fair assessment of a sexual assault complainant's credibility." King, 445 Mass. at 237. See generally Mass. G. Evid. § 413 (2011). Pursuant to the first complaint doctrine, we "no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of one witness" who, where feasible, will be the first person told of the sexual assault. [FN5] King, supra at 242-243. Such witness "may testify to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief." Id. at 243. Where a first complaint witness testifies at trial regarding the complaint, the complainant also may testify about the details of the first complaint and the reasons why it was made at that particular time. [FN6] See id. at 245. What the complainant may not do, however, is testify to the fact that she "told" others, apart from the first complaint witness, about the sexual assault, even where the details of the conversation have been omitted. See Commonwealth v. Arana, 453 Mass. 214, 223 (2009) (Arana );Commonwealth v. Monteiro, 75 Mass.App.Ct. 489, 493 (2009). See also Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008) (Stuckich ). [FN7] Such testimony "is the equivalent of saying that [the complainant] repeated her account of the incident, i.e., it allows fresh complaint testimony through the back door. Repetition of the narrative tends to enhance the credibility of the complainant to the prejudice of the defendant."Id. at 457.

We agree with the defendant that Marie's testimony that she told her grandmother sometime in 2005 that the defendant had raped her was not admissible under the first complaint doctrine. Although the details of this conversation were omitted, Marie's testimony regarding the fact of her disclosure was essentially the same as permitting her grandmother to testify, thereby lending improper credence to Marie's account. See id. Such testimony undermines the purpose and limitations of the first complaint doctrine. See id. at 456-457.

The first complaint doctrine does not, however, "prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible." Arana, supra at 220-221. See Commonwealth v. Dargon, 457 Mass. 387, 399 (2010) (Dargon ); Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). See also Mass. G. Evid. § 413(b) (2011). For example, "[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case." Arana, supra at 225. We have cautioned that "[i]f testimony, other than that specifically and properly designated as first complaint testimony, serves no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations, it is inadmissible." Id. at 229. However, if the testimony is relevant and admissible for reasons that are independent of the first complaint doctrine, the judge may admit it "after careful balancing of the testimony's probative and prejudicial value." Id. See Dargon, supra at 400. "In this way, the jury will be able to make a fairer and more accurate assessment of the Commonwealth's case." Arana, supra. See Commonwealth v. Monteiro, supra at 495. See also Commonwealth v. Montanez, 439 Mass. 441, 456 (2003) (Sosman, J., concurring) ("Obsession with the strictures imposed on [first] complaint testimony should not blind us to the fact that [first] complaint is not the only basis for admitting such evidence").

Here, although the challenged testimony about Marie's disclosure to her grandmother was not admissible as first complaint evidence, it became relevant and independently admissible evidence during her cross-examination. Defense counsel's questions suggested that her accusations were fabricated to provide a basis for moving out of the defendant's apartment and back to her grandmother's home. See Arana, supra at 226-227. On cross-examination, defense counsel probed Marie's feelings about her living arrangements through a series of inquiries about whether she preferred to stay with her grandmother. Marie's testimony that she told her grandmother about the rape in 2005--three years subsequent to the alleged incident and after she had already returned to her grandmother's house--served to rebut a defense theory of fabrication. Thus, Marie's testimony became relevant [FN8] to a contested issue at trial and was not merely repetition of the fact of her complaint and corroboration of her own accusations. It was a significant part of the Commonwealth's response to the defendant's theory of fabrication. We conclude that there was no prejudice to the defendant because the evidence would have been admissible on redirect examination of Marie.

As to the evidence from Marie's mother, after she testified about her daughter's first complaint, which pertained only to Marie's allegation that the defendant had "touched" her, Marie's mother testified that she had another conversation with Marie in 2005 during which she learned some "additional information" about Marie and the defendant, and that, as a result of this conversation, she and Marie went to the police and gave statements. Marie's mother was not asked about, and did not provide, any details of this second conversation. We have stated that where a complainant makes successive complaints to the first complaint witness, only the initial complaint, here, Marie's disclosure about the indecent touchings, is admissible as first complaint evidence. See Arana, supra at 222-223, and cases cited. Moreover, as to Marie's subsequent complaint, one that pertained to a different alleged crime, the first person to whom the complaint was made was Marie's grandmother, not her mother. Accordingly, the challenged testimony from Marie's mother about learning "additional information" in 2005 was not admissible as first complaint evidence. Nonetheless, we conclude that this evidence, like Marie's own testimony, was properly admitted for the independent purpose of rebutting the inferences raised by defense counsel's inquiries-- inquiries designed to suggest that Marie fabricated her allegations against the defendant in order to return to her grandmother's home--and was necessary for a fair and accurate understanding of the Commonwealth's case. [FN9]

6. Reexamination of first complaint doctrine. Six years after the adoption of the first complaint doctrine, this case presents us with the opportunity to assess its continued vitality. We have considered the history of the doctrine, its development in the years since it first was enunciated in King,and the variety of factual scenarios that have involved first complaint evidence. We now conclude that the doctrine should be retained, but that the scope of appellate review of decisions on the admissibility of first complaint evidence should be modified.

We remain concerned with the fact that sexual assault victims, particularly children, often do not promptly report or disclose such crimes for a variety of reasons, including fear, shame, psychological trauma, or concern that they will not be believed. See King, 445 Mass. at 237-238, 240. See also Commonwealth v. Licata, 412 Mass. 654, 657 (1992) ("It is not difficult to understand a rape victim's reluctance to discuss with others, particularly strangers, the uncomfortably specific details of a sexual attack"). The primary goals of the first complaint doctrine were, and still are, to "refute any false inference that silence is evidence of a lack of credibility on the part of [sexual assault] complainants," King, supra at 243, and "to give the jury as complete a picture as possible of how the accusation of sexual assault first arose." Id. at 247. We continue to believe that by allowing in evidence all the details of the first complaint, the doctrine gives the fact finder "the maximum amount of information with which to assess the credibility of the ... complaint evidence as well as the over-all credibility of the victim." Commonwealth v. Licata, supra at 659, quoting Graham, The Cry of Rape: The Prompt Complaint Doctrine and the Federal Rules of Evidence, 19 Willamette L.Rev. 489, 511 (1983). The fact finder should not be left to speculate on the evidence or to draw erroneous inferences due to incomplete information. See King, supra at 244-245.

Until now, we have considered the first complaint doctrine to be an "evidentiary rule " that is designed "to give support to a complainant's testimony of a sexual assault in cases where the credibility of the accusation is a contested issue at trial" (emphasis added). Arana, 453 Mass. at 228. The admission of evidence in violation of such evidentiary rule, that is, in violation of the established parameters of the first complaint doctrine, will always be deemed error. See, e.g., id. at 222-223; Commonwealth v. Lyons, 71 Mass.App.Ct. 671, 673-674 (2008). Where a defendant has objected to the admission of the evidence, an appellate court then will determine whether the error was prejudicial, see Arana, supra at 228, and where a defendant has not raised an objection, an appellate court will determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850-852 (2010).

As our post-King jurisprudence has developed, it has become apparent that trial judges need greater flexibility to deal with the myriad factual scenarios that arise in the context of purported first complaint evidence. Rules, because of their inherent inflexibility, tend to break down when it becomes necessary to address factual circumstances not yet contemplated by the established rubric. Rather than considering the first complaint doctrine as an evidentiary "rule," it makes greater sense to view the doctrine as a body of governing principles to guide a trial judge on the admissibility of first complaint evidence. See supra at (discussing first complaint principles as set forth in King and its progeny). The judge who is evaluating the facts of a particular case 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. See Mass. G. Evid. §§ 401-403 (2011). See also Commonwealth v. Kebreau, 454 Mass. 287, 296 (2009) ("Any determination concerning first complaint testimony is fact-specific and requires, in the first analysis, a careful evaluation of the circumstances by the trial judge"); Commonwealth v. Murungu, 450 Mass. 441, 445-447 (2008) (judge warranted in determining whether witness other than very first person to whom victim spoke about sexual assault should be permitted to testify as substituted first complaint witness). Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.

The modification we announce today in no way should be construed as a relaxation or erosion of our first complaint jurisprudence. Our observation in King, supra at 243, that "[t]he testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime," remains relevant and significant. The importance of maintaining a balance between the interests of a complainant (who still may be a child) "in having her credibility fairly judged on the specific facts of the case" and the interests of a defendant "in receiving a trial free from irrelevant and potentially prejudicial testimony" cannot be overstated. [FN10] Arana, supra.

7. Admissibility of statement under doctrine of verbal completeness. Last, the defendant contends that the judge committed reversible error by admitting, under the doctrine of verbal completeness, a prior consistent statement made by Marie during her grand jury testimony. With respect to the charge of indecent assault and battery, Marie testified at trial that the defendant had "touched [her] butt" four or five times, and that he had rubbed her "vagina area" once, on each occasion over her clothes. During cross-examination, defense counsel did not attempt to impeach Marie's trial testimony by showing that she had given inconsistent testimony before the grand jury. Instead, he called as a witness Lori Peberis, the court reporter who had recorded and transcribed Marie's grand jury testimony. Peberis testified that during questioning by the Commonwealth in the grand jury proceeding, when Marie was asked whether the defendant had "touch[ed][her] buttocks area with his hands," Marie responded, "No." The Commonwealth sought to introduce a further portion of Marie's grand jury testimony pertaining to where the defendant had touched her. Over objection, the judge allowed the introduction of such additional testimony, limited to what Marie had told the grand jury about the indecent assault and battery. Peberis then testified that when Marie was asked if the defendant "had touched her vaginal area with her pants on," Marie responded, "Yes."

The defendant claims that this additional testimony introduced by the Commonwealth, relating to whether the defendant touched Marie's "vaginal area," pertained to a different subject matter than the testimony introduced by defense counsel, relating to whether the defendant touched Marie's "buttocks." In fact, the defendant continues, the subsequent testimony from Peberis concerned a separate, and additional, touching. Further, in the defendant's view, the testimony introduced by the Commonwealth was not necessary in order to prevent Marie's grand jury testimony from being misleading. Accordingly, the defendant argues that the judge erred in admitting the challenged testimony under the doctrine of verbal completeness. We disagree.

Ordinarily, the prior statement of a witness that is consistent with that witness's trial testimony is inadmissible because the statement "is not made more trustworthy by repeating it." Commonwealth v. Tennison, 440 Mass. 553, 563 (2003). See Mass. G. Evid. § 613(b)(1) (2011). However, a prior consistent statement may be admissible on other grounds. See Commonwealth v. Tennison, supra. Under the doctrine of verbal completeness, "[w]hen a party introduces a portion of a statement or writing in evidence," a judge has the discretion to "allow[ ] admission of other relevant portions of the same statement or writing which serve to 'clarify the context' of the admitted portion." Commonwealth v. Carmona, 428 Mass. 268, 272 (1998), quoting Commonwealth v. Robles, 423 Mass. 62, 69 (1996). See McAllister v. Boston Hous. Auth., 429 Mass. 300, 303 (1999). See also Mass. G. Evid. § 106(a) (2011). Such an evidentiary mechanism helps to ensure that a party does not present "a fragmented and misleading version of events" to the fact finder. Commonwealth v. Carmona, supra. The doctrine of verbal completeness does not open the door for everything in a statement or document. See Kobayashi v. Orion Ventures, Inc., 42 Mass.App.Ct. 492, 498 (1997). To be admitted, "the additional portions of the statement must be (1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement." Commonwealth v. Eugene, 438 Mass. 343, 350-351 (2003). See Commonwealth v. Clark, 432 Mass. 1, 14-15 & n. 8 (2000) (portions of statement sought to be introduced must qualify, explain, contradict, or put into context segments previously introduced); Commonwealth v. Leftwich, 430 Mass. 865, 871-872 (2000) (same); Commonwealth v. Watson, 377 Mass. 814, 825-831 (1979) (discussing scope and limitations of verbal completeness doctrine). Mere relevance to a case is an insufficient basis for admissibility. See Commonwealth v. Eugene, supra at 351.

Here, defense counsel introduced only the portion of Marie's grand jury testimony that helped the defendant's case. In doing so, he "opened the door for the admission of the remainder of [Marie's] statement." Commonwealth v. Tennison, supra at 564. The Commonwealth sought to introduce under the doctrine of verbal completeness a very limited portion of Marie's grand jury testimony--the portion that further explained where the defendant had touched her. Contrary to the defendant's assertion, this additional testimony pertained to the same subject matter as the statements presented by defense counsel. That the part of Marie's grand jury testimony introduced by defense counsel concerned the touching of her buttocks, whereas the part of her grand jury testimony introduced by the Commonwealth concerned the touching of her vaginal area, does not render these two facets of Marie's testimony unrelated or about different subjects. Both pertained to the issue whether the defendant had committed indecent assault and battery by touching Marie inappropriately. Further, both portions of Marie's grand jury testimony were made during the same line of questioning, and they appeared on the same page of the transcript.

The obvious purpose for the Commonwealth's introduction of this evidence was to ensure that the jury were not left with the misimpression that Marie did not testify to a sexual assault before the grand jury. We conclude that all the components of the verbal completeness doctrine were met. The defendant has not demonstrated that the judge abused her discretion when she admitted the additional portion of Marie's grand jury testimony. There was no error.

Judgments affirmed.

FN1. In the interest of privacy, we use the same pseudonym adopted by the Appeals Court. See Commonwealth v. Aviles, 77 Mass.App.Ct. 389, 390 & n. 1 (2010).

FN2. We acknowledge the amicus brief filed by the Victim Rights Law Center,

Boston Area Rape Crisis Center, and Jane Doe, Inc., in support of the Commonwealth. The Women's Bar Association has joined section II of this brief (pertaining to the retention of the "first complaint" doctrine).

FN3. In Commonwealth v. Buelterman, 68 Mass.App.Ct. 829, 830-831 (2007), the court stated that because a complainant was the sole witness for the Commonwealth, her challenged testimony that she had "confided in a friend about what had happened," id. at 830, did not fall within the scope of the "fresh complaint" doctrine. The court then considered whether other similar testimony by the victim constituted inadmissible hearsay. See id. at 831-833. The court upheld the admissibility of the complainant's testimony regarding the fact that she had told other people about a sexual assault, and pointed out that the complainant properly had not testified about the details of those conversations. See id. at 832-833.

FN4. Defense counsel objected to the prosecutor's efforts to have Marie's mother expand on her testimony as to why she went to the police in 2005. The judge sustained the objection.

FN5. In limited circumstances, we have permitted someone other than, and in lieu of, the first complaint witness to testify about an alleged victim's

complaint of sexual assault. See Commonwealth v. Murungu, 450 Mass. 441, 445-446 (2008); Commonwealth v. King, 445 Mass. 217, 243-244 (2005), cert. denied, 546 U.S. 1216 (2006) (King ). Cf. Commonwealth v. Lyons, 71 Mass.App.Ct. 671, 672-673 (2008) (recording of 911 telephone call properly admitted as complainant's first complaint evidence; admission of police officer's "live" testimony in addition to 911 tape recording constituted error).

FN6. If a first complaint witness is not produced at trial, "the complainant may not testify to the fact of the complaint or its details unless the witness to the complaint is deceased or the judge determines that there is some other compelling reason for the witness's absence that is not the fault of the Commonwealth." King, supra at 245 n. 24.

FN7. Our decision in Commonwealth v. Stuckich, 450 Mass. 449 (2008) (Stuckich ), was issued while the present case was pending on appeal. Because Stuckich involved an application of the principles announced in King, and did not create a new rule of law, it is retroactively applicable to the facts herein. See Commonwealth v. Adams, 421 Mass. 289, 293 (1995); Commonwealth v. Breese, 389 Mass. 540, 543 (1983).

FN8. " 'Relevant evidence' is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Mass. G. Evid. § 401 (2011). See Commonwealth v. Schuchardt, 408 Mass. 347, 350 (1990). "Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time consuming, or needless presentation of cumulative evidence." Mass. G. Evid. § 403 (2011). See Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422-423 (1988).

FN9. The present case is not controlled by our decision in Commonwealth v. Kebreau, 454 Mass. 287 (2009) (Kebreau ). In that case, the defendant began sexually abusing the complainant, his daughter, when she was in sixth grade and continued to assault her throughout her high school years. See id. at 289. The complainant's mother was allowed to testify regarding a disclosure made by the complainant, when she was in seventh or eighth grade, that the defendant had been touching her inappropriately. See id. at 290, 294-295. The complainant's academic advisor also was allowed to testify, as an additional first complaint witness, regarding a disclosure made by the complainant, when she was in college, that the defendant had raped her. See id. We concluded that the first complaint doctrine "permits testimony from

two first complaint witnesses ... where each witness testifies to disclosures made years apart concerning different periods of time and escalating levels of abuse, which constitute different and more serious criminal acts committed over a lengthy period" (emphasis added). Id.at 288-289.

Here, the Commonwealth did not seek to introduce evidence from two designated first complaint witnesses testifying about a victim's disclosures made years apart about different and escalating acts of abuse occurring over a lengthy period of time. Instead, the Commonwealth presented evidence from only one first complaint witness, Marie's mother, and sought to have her testify about disclosures made by Marie in 2002 and 2005 concerning criminal acts perpetrated by the defendant over the course of several months. As previously mentioned, with respect to Marie's 2005 disclosure, Marie's mother was not the first person Marie told about the rape. Moreover, unlike the circumstances in Kebreau, the rape alleged here occurred before Marie made a first complaint to her mother, not after. As such, Marie could have disclosed it as part of her first complaint, and her mother properly could have testified about it. We conclude that the particular facts ofKebreau distinguish that case from the present one.

FN10. While the first complaint doctrine prohibits the "piling on" of multiple complaint witnesses, Commonwealth v. Murungu, 450 Mass. 441, 442-

443 (2008), it does not exclude testimony that is "otherwise independently admissible" and serves a purpose "other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations." Commonwealth v. Arana, 453 Mass. 214, 220-221, 229 (2009). The modification that we announce today does not impact the admissibility of such evidence because it is outside the scope of the first complaint doctrine. See id. at 220. See also Commonwealth v. Dargon, 457 Mass. 387, 399 (2010) (certain evidence may be admissible "under an evidentiary rubric other than first complaint").

END OF DOCUMENT

Level 3 sex offender from Fall River charged with possession of child porn

2011-12-02T17:40:00.000-08:00

Level 3 sex offender from Fall River charged with possession of child porn

Woman Sues Town, School Chiefs In Nude Sexting Case - Boston News Story - WCVB Boston

2011-12-01T17:39:00.000-08:00

Woman Sues Town, School Chiefs In Nude Sexting Case - Boston News Story - WCVB Boston

States’ differing laws on trafficking impede nationwide crackdown

2011-12-01T08:34:00.000-08:00

States’ differing laws on trafficking impede nationwide crackdown

Ex-Lowell woman pleads guilty in sons' abuse, is freed after 16 years - Lowell Sun Online

2011-12-01T03:27:00.000-08:00

Ex-Lowell woman pleads guilty in sons' abuse, is freed after 16 years - Lowell Sun Online

Revere man pleads guilty to child rape

2011-10-27T07:18:00.000-07:00

Revere man pleads guilty to child rape

Registered sex offender arrested on kidnapping, assault charges | SouthCoastToday.com

2011-10-26T05:04:00.000-07:00

Registered sex offender arrested on kidnapping, assault charges | SouthCoastToday.com

2011-10-25T06:51:00.000-07:00

Registered sex offender arrested on kidnapping, assault charges | SouthCoastToday.com

Search on for missing boy in NH

2011-10-18T03:56:00.000-07:00

Search on for missing boy in NH

Girl, 14, Pulled Into Car Near School - Boston News Story - WCVB Boston

2011-10-15T05:04:00.000-07:00

Girl, 14, Pulled Into Car Near School - Boston News Story - WCVB Boston

Senate bill tightens rules for parole | WWLP.com

2011-10-13T12:23:00.000-07:00

Senate bill tightens rules for parole | WWLP.com

Ayer sex offender's bail revoked - Lowell Sun Online

2011-10-07T05:32:00.000-07:00

Ayer sex offender's bail revoked - Lowell Sun Online

2011-10-06T07:22:00.000-07:00

Lowell woman may not have been fit for 1997 trial, judge rules

Victim’s kin: Killer should ‘rot in prison’

2011-10-05T03:41:00.000-07:00

Victim’s kin: Killer should ‘rot in prison’

Accused pimp of 2 teen girls in court today

2011-10-04T18:29:00.000-07:00

Accused pimp of 2 teen girls in court today

Community VOICES Annual Fundraiser

2011-10-02T15:54:00.001-07:00

FOR IMMEDIATE RELEASE:
Contact: Sandy DiBacco
Community VOICES
508-541-6360
sdibacco@communityvoices.net
communityvoices.net
Community VOICES Annual Fundraiser

Waltham, MA, October 3, 2011 — Community VOICES (Voices of Involved Citizens Encouraging Safety) is holding its fourth annual fundraiser on Friday, October 21 at 7:30 pm at the Embassy Suites, 550 Winter Street, Waltham, MA.

In addition to the cocktail party, dancing, and silent auction, this year we proudly welcome and honor local individuals who have dedicated their lives to protecting our children. Spirit of Compassion Award recipients include State Representative James Arciero, Judy Norton - Director of Victim Services for the Massachusetts Sex Offender Registry Board, and Sergeant Pi Heseltine with the Massachusetts State Police. The Jeffrey Curley Dedicated Service Award will be presented to the Violent Fugitive Apprehension Unit of the Massachusetts State Police.

You won’t want to miss this silent auction and your opportunity to win items such as Bruins tickets, a family four-pack of Disney passes, tickets to the Radio City Christmas Spectacular, autographed sports memorabilia and so much more.

Community VOICES is an non-profit organization that offers advocacy, resources and educational information to community groups, individuals and community leaders, with the goal of raising awareness regarding sexual assault, child sexual assault, internet predators and missing and endangered children. In early 2011, VOICES began working with a number of local and national organizations to pilot Massachusetts’s first Courthouse Dog program.

For additional information, please visit: www.communityvoices.net. If you have any questions or would like to order tickets, please contact Sandy at 508-541-6360 or sdibacco@communityvoices.net.

Bill would extend statute of limitations on child sex crimes

2011-09-28T03:36:00.000-07:00

Bill would extend statute of limitations on child sex crimes

http://www.fbi.gov/boston/press-releases/2011/pennsylvania-man-charged-with-traveling-to-have-sex-with-a-minor-in-massachusetts-and-production-of-child-pornography?utm_campaign=email-Immediate&utm_medium=email&utm_source=fbi-in-the-news&utm_content=33826

2011-09-26T19:03:00.000-07:00

http://www.fbi.gov/boston/press-releases/2011/pennsylvania-man-charged-with-traveling-to-have-sex-with-a-minor-in-massachusetts-and-production-of-child-pornography?utm_campaign=email-Immediate&utm_medium=email&utm_source=fbi-in-the-news&utm_content=33826

Lowell rape suspect indicted - Lowell Sun Online

2011-09-23T08:24:00.000-07:00

Lowell rape suspect indicted - Lowell Sun Online

Veteran Gardner officer charged with child rape - Boston.com

2011-09-22T06:49:00.000-07:00

Veteran Gardner officer charged with child rape - Boston.com

R.I. relative of Mass. teen charged with arranging her rape as a child | Rhode Island news | projo.com | The Providence Journal

2011-09-22T06:47:00.000-07:00

R.I. relative of Mass. teen charged with arranging her rape as a child | Rhode Island news | projo.com | The Providence Journal

Sex offender back in jail after address dispute - Lowell Sun Online

2011-09-18T09:25:00.000-07:00

Sex offender back in jail after address dispute - Lowell Sun Online

Andover home invasion case retrial goes to jury

2011-09-16T19:11:00.000-07:00

Andover home invasion case retrial goes to jury

Level 3 offender charged in rape at Lowell shelter - Lowell Sun Online

2011-09-16T07:34:00.000-07:00

Level 3 offender charged in rape at Lowell shelter - Lowell Sun Online

Ayer sex offender held on $50G on assault charges - Lowell Sun Online

2011-09-15T09:12:00.000-07:00

Ayer sex offender held on $50G on assault charges - Lowell Sun Online

Lowell sex offender pleads innocent to prostitution charge - Lowell Sun Online

2011-09-14T06:07:00.000-07:00

Lowell sex offender pleads innocent to prostitution charge - Lowell Sun Online

Sex offender Racine due in court - Lowell Sun Online

2011-09-14T06:02:00.000-07:00

Sex offender Racine due in court - Lowell Sun Online

Courthouse Dogs: Improving the Investigation and Prosecution of Crime

2011-09-07T08:53:00.000-07:00

Courthouse Dogs:
Improving the Investigation and Prosecution of Crime

http://www.communityvoices.net/Amicus.html

Monday, September 26, 2011

First session: 10:00 – 12:00 p.m.

Second session: 2:00 – 4:00 p.m.

Chelmsford, MA Police Station

Community VOICES and The Office for Victims of Crimes will be sponsoring a training seminar for law enforcement, prosecutors, victim advocates, forensic interviewers and other professionals working in this field. The training will be provided by Ellen O’Neill-Stephens, JD, a veteran deputy prosecuting attorney, and Celeste Walsen, DVM . The subject matter will be on “Courthouse Dogs Improving the Investigation and Prosecution of Crimes.” They will be accompanied by their courthouse dog, Molly B, who was trained by Canine Companions for Independence.

The first session will focus on the professional training needed for a dog to successfully do this type of work, how to acquire this type of dog, and the benefits of using courthouse dogs while investigating crimes.

The second session will focus on the use of courthouse dogs during the prosecution of crimes including pretrial interviews, court hearings, trial testimony and sentencing. It will also include information of how to recognize signs of stress experienced by witnesses during their testimony.

Attendance for this event is limited to thirty (30) people. Therefore, please be sure to register as soon as possible to reserve your place, and to ensure that each person has adequate time for interaction with Molly B and to partake in Q&A discussions with the panel.

To register for the event, please contact: plabarre@communityvoices.net or via phone 617-515-2079

If you are unable to attend on September 26, 2011, Courthouse Dogs and Molly B. will be available Tuesday, September 27, 2011 11:00 to answer questions and offer information in front of the Grand Staircase, State House Boston, Massachusetts.

No registration is required for the event on September 27, 2011.

Spilka, Vallee working with DA against Internet predators

2011-09-07T07:04:00.000-07:00

Spilka, Vallee working with DA against Internet predators

Child-porn case transferred to federal court - Lowell Sun Online

2011-09-06T07:24:00.000-07:00

Child-porn case transferred to federal court - Lowell Sun Online

Lowell child molester is jailed - Lowell Sun Online

2011-09-06T06:48:00.000-07:00

Lowell child molester is jailed - Lowell Sun Online

9/11 pilot’s daughter: ‘We’re at peace’

2011-09-06T04:53:00.000-07:00

9/11 pilot’s daughter: ‘We’re at peace’

Finding answers to school safety

2011-09-02T05:50:00.000-07:00

Finding answers to school safety

Mourners cry for reform as Milford DUI victim laid to rest

2011-08-31T05:09:00.000-07:00

Mourners cry for reform as Milford DUI victim laid to rest

Police nab suspect in Quincy rape attempt

2011-08-28T04:29:00.000-07:00

Police nab suspect in Quincy rape attempt

Jaffrey: Man sentenced to 20-40 in rape of child | Ledger-Transcript

2011-08-23T15:42:00.000-07:00

Jaffrey: Man sentenced to 20-40 in rape of child | Ledger-Transcript

DA: Make sex offenders list online IDs - Lowell Sun Online

2011-08-21T19:58:00.000-07:00

DA: Make sex offenders list online IDs - Lowell Sun Online

Sex assault suspect indicted - Lowell Sun Online

2011-08-16T19:06:00.000-07:00

Sex assault suspect indicted - Lowell Sun Online

Lowell sex offender charged with molesting boy for four years - Lowell Sun Online

2011-08-16T05:22:00.000-07:00

Lowell sex offender charged with molesting boy for four years - Lowell Sun Online

Court: Child porn not enough for offender status

2011-08-11T18:31:00.000-07:00

Court: Child porn not enough for offender status

Pickup taken from home of dead NH girl, 11

2011-08-03T11:00:00.000-07:00

Pickup taken from home of dead NH girl, 11

Victim’s kin push law to protect social workers

2011-08-02T05:15:00.000-07:00

Victim’s kin push law to protect social workers

Missing NH girl’s body found in river near home

2011-08-01T18:37:00.000-07:00

Missing NH girl’s body found in river near home

Female body found at dam near missing girl’s home

2011-08-01T11:40:00.000-07:00

Female body found at dam near missing girl’s home

Pols: Throw Net on offenders

2011-08-01T06:20:00.000-07:00

Pols: Throw Net on offenders

http://www.thebostonchannel.com/news/28696167/detail.html

2011-07-28T13:25:00.000-07:00

http://www.thebostonchannel.com/news/28696167/detail.html

Plan to shutter courts causes stir in MetroWest - Framingham, MA - The MetroWest Daily News

2011-07-25T18:16:00.000-07:00

Plan to shutter courts causes stir in MetroWest - Framingham, MA - The MetroWest Daily News

Sex offender gets six months for probation violation - Quincy, MA - The Patriot Ledger

2011-07-25T18:08:00.000-07:00

Sex offender gets six months for probation violation - Quincy, MA - The Patriot Ledger

Appeals court upholds Salem man's rape, kidnapping convictions

2011-07-23T10:29:00.000-07:00

Appeals court upholds Salem man's rape, kidnapping convictions

Gov. Deval Patrick’s parole reforms gather dust

2011-07-22T05:26:00.000-07:00

Gov. Deval Patrick’s parole reforms gather dust

Justice for all, including potential jurors

2011-07-20T11:19:00.000-07:00

"Were you ever sexually abused as a child?"

The question stunned the potential juror. She knew of the child abuse charges the defendant faced, had answered general questions gauging her ability to be fair, but had no idea when she approached the judge’s bench that she would be required to reveal her deepest secret. She paused, while the judge, the clerk, the lawyers, the stenographer, and the defendant himself--all huddled around her--listened intently.

In each of the dozens of child abuse trials I prosecuted, I saw firsthand the devastating effect this question, and the ones that followed ("when did the abuse happen? where? what was your relationship with the perpetrator? what was the nature of the abuse?") had on many potential jurors. Citizens who dutifully reported to perform their jury service left the courtroom shattered, often sobbing. “Thank you, you’re excused,” the only response offered, is insufficient.

A 1994 Supreme Judicial Court opinion requires this invasive probing whenever defendants charged with child sex crimes opt to compel potential jurors to answer whether they were victims of childhood sexual abuse. Citizens who have done no wrong, have brought no suspicion upon themselves, are obliged to report to court to reveal, under pain of perjury, their most painful memories. The Court noted that without such forced questioning, adult survivors of childhood sexual abuse might be reluctant to "discuss such a private and highly emotional event with a judge," and the defendant might be prejudiced if they were seated on the jury. Other than remarking that such questioning was a "sensitive issue," the Court failed to address safeguards protecting childhood sexual abuse survivors from the trauma of revealing their abuse.

We can do better than inflict unnecessary anguish on citizens reporting for jury duty while still ensuring a fair trial for defendants. I am not advocating new laws exempting sexual assault victims from jury duty (nor, I suspect, would most victims want to be deemed ineligible for such service). Rather, there are policies that court administrators, judges, and district attorneys, in collaboration, can implement immediately.

First, the written materials sent to citizens called for jury duty, including the questionnaire they are required to fill out, should disclose that in cases involving sexual offenses against minors, potential jurors may be required to answer at an individual interview whether they have ever been the victims of childhood sexual offenses. Judges presiding over child sex crime trials could also alert the jury pool about the individual interview questions. Forenotice of those questions would greatly alleviate the anguish they cause.

Second, judges should cut off further questioning and excuse potential jurors once they indicate they have been sexually abused. Some judges already do that; many do not, but rather pry into additional details. Such further questioning only exacerbates the emotional distress the forced disclosure causes. In all of my trials, only once was a juror who disclosed past sexual abuse seated on the jury, and even then that juror had to be excused during jury deliberations when it became apparent that the past abuse interfered with impartial consideration of the evidence. Would such a policy make it easier to contrive an excuse from jury duty? Anyone who would fabricate past childhood sexual abuse just to duck service ought not to be deciding an important case anyway.

Third, each district attorney--who all employ victim witness advocates--could ensure that an advocate is in each courtroom during jury selection to assist any potential juror who is compelled to disclose a past victimization. These trained professionals could provide contact information, advice about procedures for further disclosure if desired, and point the potential juror toward available resources and services.

Currently, victims of past childhood abuse are left on their own to deal with pain our system demands they revive. This has been going on for years, obvious to all involved in the selection of juries deciding child sex crimes. It doesn't have to be that way. We can and should be more caring, not with more laws, but by demanding our elected and appointed leaders implement measures ensuring justice for all, including potential jurors.

Michael Chinman, who was a candidate for Norfolk District Attorney in 2010, is on the Advisory Board for Community Voices, a victims’ advocacy organization.

2011-07-19T05:49:00.001-07:00

COMMONWEALTH vs. Royce HILL.
No. 10-P-803.
December 2, 2010. - July 18, 2011.
Armed Home Invasion. Practice, Criminal, Sentence, Appellate Division. Rules of Criminal Procedure.

INDICTMENT found and returned in the Superior Court Department on November 8, 1995.

The case was tried before Patrick F. Brady, J., and a motion to correct sentence, filed on April 6, 2010, was considered by him.

Robert Herrick for the defendant.

Kris C. Foster, Assistant District Attorney, for the Commonwealth.

Present: Trainor, Katzmann, & Rubin, JJ.

RUBIN, J.

The defendant in this case was charged with one count of armed home invasion (with handgun) in violation of G.L. c. 265, § 18C; one count of robbery in violation of G.L. c. 265, § 19; two counts of rape in violation of G.L. c. 265, § 22(b ); two counts of assault and battery in violation of G.L. c. 265, § 13A; and one count of indecent assault and battery on a person fourteen years or older in violation of G.L. c. 265, § 13H.

On March 9, 1998, after a jury trial, the defendant was convicted of all charges. That same day, the judge sentenced the defendant as follows: forarmed home invasion, twenty to twenty-five years in prison; for each of the two counts of rape, nineteen to twenty years in prison, each sentence to run concurrently with the home invasion conviction; for indecent assault and battery, four to five years to be served concurrently with the home invasion conviction; and for unarmed robbery, twenty to twenty-five years in prison to run concurrently with the home invasion conviction. The remaining two convictions of assault and battery were placed on file.

On March 9, 1998, the defendant filed an appeal in the Appellate Division of the Superior Court Department, requesting review of his two concurrent sentences for rape.

On May 6, 1999, the Appellate Division amended the defendant's sentence, requiring the sentences on the rape convictions to be served consecutively to, instead of concurrently with, the armed home invasion sentence. [FN1] That is, the Appellate Division effectively almost doubled the defendant's term of incarceration.

While the defendant's appeal was pending before the Appellate Division, the Legislature amended the home invasion statute, G.L. c. 265, § 18C. Under that amendment, which was adopted on July 23, 1998, and went into effect on October 21, 1998, the Legislature added language to the home invasion statute that included the following:

"Whoever commits said crime while being armed with a firearm, shotgun, rifle, machine-gun, or assault weapon shall be punished by imprisonment in the state prison for 20 years. Said sentence shall not be reduced to less than ten years nor shall the person convicted be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct...."

St.1998, c. 180, § 57.

Prior to this amendment, anyone convicted of armed home invasion could have been given a State prison sentence of life or any term of not less than twenty years. Under the 1998 amendment--which was subsequently repealed by St.2004, c. 150, § 17--the statute created the "anomalous situation in which armed home invasion committed by means of a dangerous weapon such as a knife was punishable by life imprisonment, but the same crime committed with a far more dangerous weapon, such as a firearm or a machine gun, could not be." Commonwealth v. Burton, 450 Mass. 55, 58 (2007). Nonetheless, the legislative language was found to be clear, and the Supreme Judicial Court held that the amendment was to be applied as written. See Commonwealth v. Brown, 431 Mass. 772, 780-781 (2000). The defendant here failed to argue to the Appellate Division the applicability of the 1998 amendment.

On March 22, 2010, the defendant filed a motion pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), seeking a correction of his sentence on the armed home invasion charge. In his motion, the defendant argued that the Appellate Division was bound to apply the law as it stood at the time when it considered the case. In particular, he contends that the Appellate Division should have applied what he describes as the "general rule" that a defendant may have the benefit of statutory changes mitigating the punishment for the crime he committed that are adopted while his case is pending. See Commonwealth v. Vaughn, 329 Mass. 333, 338-339 (1952). The judge denied the defendant's motion, and he has now appealed.

Discussion. We must first face the preliminary question whether rule 30(a) may be used to challenge a sentence imposed by the Appellate Division. Rule 30(a) provides that a prisoner may "file a written motion requesting the trial judge to ... correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts." The defendant's contention is that his sentence for armed home invasion, which was affirmed by the Appellate Division, was an illegal sentence. This claim falls squarely within the plain language of rule 30(a). The Commonwealth notes that sentences imposed by the Appellate Division are "final." G.L. c. 278, § 28B, inserted by St.1943, c. 558, § 1. Rule 30(a), however, is, among other things, the ordinary mechanism for bringing collateral challenges to "final" sentences. See Commonwealth v. Callahan, 419 Mass. 306, 309-310 (1995) (considering a rule 30[a] motion brought to challenge a final sentence imposed by the Appellate Division); Commonwealth v. Christian, 429 Mass. 1022, 1023 (1999) (the purpose of rule 30[a] is not to provide an avenue of direct appellate review, but to allow defendants "to challenge the legality or the technical basis of a sentence ... at any time"). [FN2]

Turning to the merits, the Commonwealth argues that the Appellate Division was without authority under G.L. c. 278, § 28B, to grant the relief sought by the defendant. [FN3] We agree. Section 28B provides in relevant part that the Appellate Division "shall have jurisdiction to amend the judgment by ordering substituted therefor a different appropriate sentence or sentences or any other disposition of the case which could have been made at the time of the imposition of the sentence or sentences under review." Although it may not be the only possible interpretation of this provision, [FN4] the best reading of the statutory language is that the Appellate Division is allowed to impose only such sentences or other dispositions as could have been imposed by the sentencing court at the time the sentence or disposition under appeal was handed down. [FN5] This reading is consistent with the review process set up by the remainder of the statute, which allows the Appellate Division to review "sentences to the state prison imposed by final judgments in criminal cases, except in any case in which a different sentence could not have been imposed." G.L. c. 278, § 28A, inserted by St.1943, c. 558, § 1. The defendant has not argued that there is any longstanding Appellate Division construction of the statute to the contrary.

Consequently, because the amendment to G.L. c. 265, § 18C, on which the defendant would rely was enacted after the trial judge sentenced the defendant, the order denying the defendant's motion to correct sentence is affirmed.

So ordered.

FN1. The defendant does not contest the lawfulness of the Appellate Division's ordering that his sentences for rape be served consecutively to, rather than concurrently with, the home invasion sentence. Cf. Hicks v. Commonwealth, 345 Mass. 89, 91 (1962), cert. denied, 374 U.S. 839

(1963) (holding that the Appellate Division may on the defendant's appeal impose a longer sentence than the trial judge imposed without violating double jeopardy principles).

FN2. We express no opinion whether the defendant had available to him any alternative avenue for challenging his sentence.

FN3. The Commonwealth makes an alternative argument that the 1998 amendment was a substantive partial repeal of G.L. c. 265, § 18C, and not merely procedural, and that, therefore, it did not apply to individuals whose cases were pending when it was adopted. See G.L. c. 4, § 6. See also Nassar v. Commonwealth, 341 Mass. 584, 589-590 (1961). This position, however, is not sustainable. The text of the amendment is clear in creating a new, lesser punishment for a certain class of individuals convicted of "said crime." It cannot be read to create a new, lesser crime or to repeal the existing statute, but only to impose a new, lesser sentence.

FN4. For example, because the statute uses the verb "made," which ordinarily is used to modify "dispositions," but not "sentences"--which are ordinarily described as having been "imposed" or "pronounced"--one might argue that the clause "which could have been made at the time of the imposition of the

sentence or sentences under review" modifies only the phrase "any other disposition of the case," rather than the entire clause that precedes it, including "appropriate sentence or sentences." This reading would, however, lead to bizarre results, as there is no apparent reason for distinguishing such "other disposition[s]" the Appellate Division may impose from "sentences" it may impose.

FN5. We note that a "disposition" made by the court necessarily includes any sentence imposed, as well as any suspended sentence, term of probation, or combination of the three.

END OF DOCUMENT

Cops: Man raped mentally retarded woman in Plymouth

2011-07-17T06:13:00.000-07:00

Cops: Man raped mentally retarded woman in Plymouth

2011-07-15T05:30:00.001-07:00

http://www.thesunchronicle.com/articles/2011/07/14/news/9883639.txt

Lowell Riverwalk sex-assault suspect nabbed - Lowell Sun Online

2011-07-14T05:34:00.000-07:00

Lowell Riverwalk sex-assault suspect nabbed - Lowell Sun Online

SJC reverses Attempted Kidnapping conviction (Cordy dissenting) - The defendant approached an 11 year old boy and told him to "get in the car"

2011-07-12T07:46:00.000-07:00

COMMONWEALTH vs. Meraldo RIVERA, Jr.
SJC-10802.
March 10, 2011. - July 12, 2011.
Attempt. Kidnapping. Evidence, Intent.

COMPLAINT received and sworn to in the Dorchester Division of the Boston Municipal Court Department on December 29, 2008.

The case was tried before James W. Coffey, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Alexandra H. Deal for the defendant.

Kris C. Foster, Assistant District Attorney (LaKeshia Parker, Assistant District Attorney, with her) for the Commonwealth.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.

IRELAND, C.J.

In 2009, the defendant was tried before a jury on a complaint charging him with the attempted kidnapping of an eleven year old boy. G.L. c. 274, § 6. At the close of evidence, the defendant moved for a required finding of not guilty, which was denied. The defendant was found guilty, was sentenced to two years in a house of correction, with six months to serve followed by probation, and was required to register as a sex offender. He appealed, and we transferred the case to this court on our own motion. He argues that the trial judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence to convict him, and that his statement to police was improperly admitted in evidence. [FN1] Because we conclude that there was insufficient evidence of his intent to kidnap the boy, we reverse the judgment and set aside the finding. Judgment shall enter for the defendant.

Facts. We present the essential facts in the light most favorable to the Commonwealth.

On September 1, 2008, at approximately 1:30 P.M., the boy was walking along Dorchester Avenue in the Dorchester section of Boston, on his way to a pharmacy to pick up prescriptions for his mother. The boy testified that "a man," later identified as the defendant, "drove right next to [him]" and stopped his vehicle, a four-door sedan. The driver's window was open. Even though the boy could not recall the first thing the defendant said to him, he "stepped back" so that he was approximately three feet from the sedan, and "heard someone say, 'Get into the car.' " [FN2] The boy "said 'no' and then walked away." He went "straight to the pharmacy," which was fifty yards away. The entire exchange took approximately "[t]wo seconds," and the boy was not "face-to-face close" to the defendant. The defendant drove away. In response to the prosecutor's question whether the boy thought the defendant was following him, the boy stated, "Kind of, yeah."

On cross-examination, in response to the question whether the defendant followed him, the boy stated that he did not notice anything because he did not look at the vehicle after he said "no" and walked away. The boy testified that the defendant was driving back "toward the street" as he headed toward the pharmacy, and that the defendant did not pull his vehicle over a second time or speak to the boy again. The defendant never showed a weapon, got out of his vehicle, or threatened the boy.

A witness, who was in her vehicle parked across the street, saw the interaction between the boy and the defendant. She "believe[d] the car was there for a few minutes" after the interaction because she was able to note the registration plate number. After the defendant drove away, the witness saw the boy again, approached him, and asked what had happened. [FN3] The boy then went home. The witness telephoned the police and gave them a description of the vehicle and its registration plate number.

The police found the defendant a short time later; he was arrested. A police officer testified that, while the defendant was in a holding cell, he read the defendant his Miranda warnings but did not have the defendant sign a waiver form. The officer testified that the defendant was a little "tipsy" but he was able to understand fully what the defendant said to him. The officer asked the defendant some questions. Relevant here is the defendant's response to the officer that he had wanted the boy to go home with him where he planned to "listen to music" with him.

The defendant did not call any witnesses and did not testify. His defense was presented through cross-examination and argument.

Discussion. In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt. Commonwealth v. Kelley, 370 Mass. 147, 150 (1976). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). No essential element of the crime may be left to a jury's conjecture, surmise, or guesswork. Commonwealth v. Kelley, 359 Mass. 77, 88 (1971).

We begin by addressing the defendant's contention that his statements to police that he wanted to take the boy home to listen to music with him were improperly admitted. [FN4] We need not address the issue because, as detailed below, even considering the defendant's statements, we conclude that there was insufficient evidence to support his conviction.

The crime of attempted kidnapping requires, in relevant part, the intent to "forcibly or secretly" confine or imprison another person "against his will," G.L. c. 265, § 26, and an overt act toward the commission of the crime, G.L. c. 274, § 6. Commonwealth v. Banfill, 413 Mass. 1002, 1003 (1992). A child of "tender years" is not able to give consent to be taken from a parent's custody. Commonwealth v. Colon, 431 Mass. 188, 189-192 (2000) (defendant's taking willing twelve year old girl to out-of-State motel was against will of parents; girl's "consent" to kidnapping immaterial).

In the context of the kidnapping statute, the word "confine" has been interpreted to mean "any restraint of a person's movement." Commonwealth v. Brown, 66 Mass.App.Ct. 237, 241 (2006), quoting Commonwealth v. Lent, 46 Mass.App.Ct. 705, 710 (1999). The parties have not cited, and we have not found, any discussion in our case law concerning the meaning of the phrase "secretly confine." According to Professor LaFave, confinement is "secret" in nature "when it serves to isolate or insulate the victim from meaningful contact or communication with the public, that is, when the confinement is in a place or in a manner which makes it unlikely that members of the public will know or learn of the victim's unwilling confinement within a reasonable period of time." 3 W.R. LaFave, Substantive Criminal Law § 18.1(c), at 17 (2d ed.2003). This court indorsed this definition, albeit implicitly, in Commonwealth v. Perry, 432 Mass. 214, 215 (2000), where the defendant was convicted of murder in the first degree and kidnapping. In that case, in addition to the use of force to confine the victim, the defendant prevented the victim from telephoning his mother and from meeting with visitors who came to the house where he was being held. Id. at 231. The court concluded that the evidence was sufficient to prove that the defendant confined the victim "by force and in secret." Id. See Commonwealth v. Brown, supra at 238-239 (although part of victim's confinement was forcible, defendant used ruse to get her to follow him to isolated place).

The defendant argues that the Commonwealth's evidence was insufficient to prove that he had the intent forcibly or secretly to confine the boy. We agree.

In Commonwealth v. Banfill, supra at 1003, this court reversed the defendant's conviction of attempted kidnapping on similar facts. There, the defendant, who was driving a truck, stopped three to five feet from the complainant, a thirteen year old girl, and asked directions to a certain street. Id. at 1002. Because the defendant "looked at [her] funny" and was asking his question "in a weird way," the girl lied, telling him that she was only visiting her grandmother and did not know where the street was. Id. Just as she was about to leave, he "told [her] to get in" his truck. Id. The girl ran away. Id. The entire interaction lasted approximately twenty-five seconds, and "the defendant did not 'make a move toward' her in any way, ... open the truck door or display a weapon, and he did not 'try to grab out' at her." Id. at 1002-1003. The court held that the defendant's motion for a required finding of not guilty should have been allowed. Id. at 1003. Because the court found insufficient evidence of the defendant's intent to kidnap the child, the court did not reach the issue whether the defendant's statement to "get in" his truck constituted an overt act. Id.

The Commonwealth argues that the Banfill case is distinguishable because here there was sufficient evidence that the defendant intended to "secretly confine" the boy, where the defendant followed the boy after the boy refused to get into the vehicle and admitted that he wanted the boy to come home with him to listen to music.

Concerning whether the defendant followed the boy, the Commonwealth asserts that there was sufficient evidence of the defendant's criminal intent because he "commanded" the boy to "get into the car," and because the boy testified that he "[k]ind of, yeah" thought that the defendant followed him. Assuming, without deciding, that following a child in these circumstances would be sufficient evidence of an intent forcibly or secretly to confine a child, the testimony that the defendant "[k]ind of, yeah" followed the boy is equivocal as to whether the defendant actually followed him after their interaction. Moreover, the boy testified on cross-examination that he did not "notice anything" about the defendant's vehicle because he did not look at it once he walked away. In addition, the eyewitness believed that the defendant's vehicle "was there for a few minutes" after the defendant's interaction with the boy. She did not testify that the defendant subsequently followed the boy before he drove away; rather, she testified that he drove away while the boy was in the pharmacy. SeeCommonwealth v. Eramo, 377 Mass. 912, 913 (1979), quoting Commonwealth v. Croft, 345 Mass. 143, 145 (1962) ("When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof").

We also are not persuaded that the defendant's statements that he "wanted to take [the boy] home" to "listen to music" are sufficient to support an inference of a specific intent to "isolate or insulate the [boy] from meaningful contact or communication with the public." [FN5] 3 W.R. LaFave, supra. As discussed, there is no evidence that the defendant did anything but drive away after the boy refused to get into the vehicle. [FN6] SeeCorson v. Commonwealth, 428 Mass. 193, 197 (1998), quoting Commonwealth v. Mandile, 403 Mass. 93, 94 (1988) (evidence insufficient if it relies on conjecture and speculation).

Conclusion. For the reasons set forth above, we conclude that the judge erred in denying the defendant's motion for a required finding of not guilty.

Judgment reversed.

Judgment for the defendant.

CORDY, J. (dissenting).

The defendant's conviction of attempted kidnapping must be affirmed if a reasonable jury could infer that he formed the intent to "without lawful authority, forcibly or secretly confine[ ] or imprison[ ] another person within this commonwealth against his will," G.L. c. 265, § 26; see Commonwealth v. Saylor, 27 Mass.App.Ct. 117, 121-122 (1989), and, having failed in the perpetration, took an overt act toward the commission of that crime. G.L. c. 274, § 6. Commonwealth v. Bell, 455 Mass. 408, 412 (2009).

A rational fact finder could have determined that the defendant ordered an eleven year old boy, with whom he was not acquainted, to get into his car, with the admitted intention of taking the boy to the defendant's home. Because this is sufficient evidence to infer that the defendant took an overt act to "secretly confine" the boy, [FN1] I would not have reversed his conviction. See G.L. c. 265, § 26.

As a threshold matter, the defendant's order that the boy "get into the car" is plainly an overt act toward the commission of the crime of kidnapping. On the question of secret confinement, I agree with the court, ante at, that the statutory term "confinement" "has been broadly interpreted to mean any restraint of a person's movement." Commonwealth v. Brown, 66 Mass.App.Ct. 237, 241 (2006), quoting Commonwealth v. Lent, 46 Mass.App.Ct. 705, 710 (1999). An adult's asportation of a child, inside a moving car, plainly would have been a "restraint" of the child's "movement." Id. The issue becomes whether the attempted act of the defendant bore sufficient indicia of secrecy.

[FN2]

The court states, ante at, that in Commonwealth v. Perry, 432 Mass. 214, 215 (2000), we implicitly indorsed Professor LaFave's definition of the phrase "secretly confine[ ]" as confinement "in a place or in a manner which makes it unlikely that members of the public will know or learn of the victim's unwilling confinement within a reasonable period of time." 3 W.R. LaFave, Substantive Criminal Law § 18.1(c), at 17 (2d ed.2003). However, the court's opinion in Commonwealth v. Perry, supra, does not cite to Professor LaFave's treatise. Nor does it discuss, as a factor bearing on the culpability of a defendant, the likelihood that "members of the public will know or learn" of the confinement. In the Perry case, there was evidence that the victim was often bound, gagged, and physically abused over a period of months in the defendant's mother's home, ultimately leading to the victim's death. The court concluded that the evidence against the defendant on the charge of kidnapping (either by forcible or secret confinement) was sufficient on theories of both joint and individual liability where the defendant knew the victim was bound and gagged, participated in some of the acts of abuse, and would stand blocking the entry to the stairs leading to the room where the victim was held when certain visitors came to the house. Id. at 231. I do not read that case, or any other case we have decided, to support the proposition that we have adopted Professor LaFave's precise definition of secret confinement.

It seems to me that the evidence here was sufficient for a rational juror to conclude that the defendant attempted secretly to confine the boy. The defendant, without ascribing legal significance to the word, attempted what in everyday usage would be called an "abduction" of the boy. That is, by his own admission, the defendant intended first to confine the boy inside his car and then in a private home without legal authority. If successful, the defendant would have accomplished this without the knowledge of the boy's parents or legal guardians and, had a vigilant witness not recorded the defendant's registration plate number, without leaving any independent information that authorities could use to ascertain the missing boy's whereabouts. This is sufficiently "secret" as the term must be understood by its ordinary usage. See Boston Police Patrolmen's Ass'n v. Boston, 435 Mass. 718, 720 (2002), quoting Champagne v. Champagne, 429 Mass. 324, 326 (1999) (general and familiar rule is that statute must be interpreted "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language").

Even still, under Professor LaFave's definition, a rational jury could conclude that the defendant intended to confine the boy in a manner rendering it "unlikely that members of the public [would] know or learn of the victim's unwilling confinement within a reasonable period of time." 3 W.R. LaFave, supra. The evidence was sufficient to establish that the defendant planned to take the boy inside a car, drive him to an unknown residence, and, at the very least, hold him for an indefinite amount of time, all without informing anyone who could assiduously assure that the boy was safe. This would afford an ample and "reasonable period of time" for the boy's parents to become struck with panic or, worse yet, for the boy to be harmed, before any appropriate members of the public could meaningfully learn of the confinement in time to come to his aid.

The court states that the police found the defendant outside his home listening to music, and that the defendant's mother was inside the home, as support for its conclusion that the evidence was insufficient to support an inference that the defendant intended to "isolate or insulate the [boy] from meaningful contact or communication with the public." Ante at & n. 5, quoting 3 W.R. LaFave, supra. This view of sufficiency could be read to suggest that a putative kidnapper who confines a child against his will, inside a car or private home, might escape liability if the car is not completely removed from public view or if there is another person in close enough proximity that the child could theoretically communicate his or her discontent with the confinement. Such a reading would be contrary to our law. Commonwealth v. Perry, supra at 216-218 (victim forcibly and secretly confined even though family acquaintance and others were aware that he was staying at defendant's home and being systematically abused there).

In this case, when ordered into the car, the boy had the presence of mind to continue on to the pharmacy to pick up his mother's prescriptions. Had he not been so alert, and had he entered the confines of the defendant's car, I fail to see how this would not be a clear-cut case of kidnapping. In falling short, it constituted an attempted kidnapping. Therefore, I respectfully dissent.

FN1. The defendant also argues that the statute requiring him to register as a sex offender violates his substantive due process rights. Because of our conclusion, we need not address this issue.

FN2. A detective, who had spoken to the boy and written a police report, testified on cross-examination that the boy told him that the defendant asked him where he was going and whether the boy "wanted a ride." The detective did not recall that the boy said that the defendant said, "Get into the car."

FN3. There was conflicting testimony whether the witness talked to the boy while he was in the pharmacy or after he came out.

FN4. The defendant did not move to suppress his statements or object to the

officer's testimony concerning the defendant's implicit waiver of his Miranda rights. He did file several motions in limine, including a motion in limine for a "voir dire" as to his statements, which is noted on the docket as "filed."

FN5. Although it is not dispositive, we note that police found the defendant sitting in his vehicle outside his home, listening to music. There is no evidence to support an inference that the defendant intended to prevent the boy from contact with the public if the two sat in his vehicle while listening to music. In addition, one of the police officers who went to talk to the defendant testified that the defendant's mother and "another gentleman" were at home at that time. There is no evidence to support an inference that the defendant believed that he would be alone in the home with the boy or that he could isolate him despite the presence of others. But see, e.g., Commonwealth v. Perry, 432 Mass. 214, 216-218 (2000) (victim forcibly and secretly confined even though family friend knew victim lived with defendant and was concerned about his well-being); Commonwealth v. Titus, 32 Mass.App.Ct. 216, 221 (1992) (kidnap victim confined in vehicle). See also 3 W.R. LaFave, Substantive Criminal Law § 18.1(c), at 17 (2d ed. 2003) (confinement usually in vehicle or residence; can occur even if third party is present).

FN6. Because of our conclusion concerning the defendant's intent, we need not address whether the defendant's statement to "get into the car" constituted on overt act. See Commonwealth v. Banfill,413 Mass. 1002, 1003 (1992)

FN1. The court is correct to point out, ante at, that the eleven year old boy is a child of "tender years" and is per se held "against his will" if he is held without the consent of his parents or legal guardian.Commonwealth v. Colon, 431 Mass. 188, 191 (2000). See Commonwealth v. Nickerson, 5 Allen 518, 526 (1863); Commonwealth v. Moyles, 45 Mass.App.Ct. 350, 354 (1998).

FN2. The Commonwealth did not argue that the defendant's command, "Get into the car," was sufficient to show an intent forcibly to confine the boy. See G.L. c. 265, § 26.

END OF DOCUMENT