Commonwealth v. Flebotte
Commonwealth v. Flebotte
Opinion of the Court
Richard Flebotte was convicted by a jury of raping his daughter, Dora (not her real name), when she was something over two years old. There was evidence that he
1. Examination of jury venire to determine that the jurors stood indifferent. Except for a limited category of cases in which the defendant is a special target for racial prejudice or in which interracial sex or murder is involved, a judge is not bound to ask questions of prospective jurors beyond those required by G. L. c. 234, § 28, nor is the judge, except in those instances, required to conduct individual voir dire examinations of members of the venire. Compare Commonwealth v. Lumley, 367 Mass. 213, 216-217 (1975), and Commonwealth v. Moffett, 383 Mass. 201, 214 (1981), with Commonwealth v. Sanders, 383 Mass. 637, 640-641 (1981); Commonwealth v. Young, 401 Mass. 390, 395-400 (1987); Commonwealth v. Stephens, 15 Mass. App. Ct. 461, 465 (1983); Commonwealth v. Bodden, 24 Mass. App. Ct. 135, 138-140 (1987); Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 363-366 (1991); and Commonwealth v. Proulx, ante 494, 497 (1993). See Smith, Criminal Practice & Procedure §§ 1708, 1717, 1718 (2d ed. 1983 & Supp. 1993). The trial judge in this case did not commit reversible error by declining to inquire of the venire during empanelment whether any member had been the victim of child abuse when he or she was a child, or by declining to conduct individual voir dire examinations.
As events played out, a question to the venire about whether any member had experience of sexual abuse might
2. Whether fresh complaint evidence was within the scope of the primary evidence given by the victim. At the time of trial, Dora was three months shy of age five. Her testimony demonstrates the difficulties which lawyers encounter when questioning very young children. See Commonwealth v. Kirouac, 405 Mass. 557, 559-562 & n.4 (1989). Frequently, Dora made no verbal reply to questions put by either the prosecutor or defense counsel. In comparison to the witness in Kirouac, however, Dora was loquacious and responsive. Yet in all the many pages of examination, her testimony ultimately describes only one act of sexual molestation: that her daddy had put his “peanut” in her mouth and that white stuff had come out.
Three witnesses gave fresh complaint testimony which went beyond corroborative detail in that their testimony de
The posture of the defendant toward fresh complaint testimony at trial was equivocal. Defense counsel filed no pretrial motion in limine. The first occasion on which the defendant made an effort to limit what a witness might testify to about what Dora had said was when Dora’s mother was on the stand. During her testimony, defense counsel asked for a limiting instruction. The judge thereupon delivered a clear and forceful instruction to the jury explaining the fresh complaint exception to the hearsay rule and informing the jury that they were to consider evidence about what Dora had said about sexual assaults upon her only for the purpose of corroboration. The jurors were told they were to disregard testimony about what Dora had said insofar as it did not corroborate what they remembered Dora having said when she testified. On the fourth day of trial the defense filed a motion in limine asking the judge “to prohibit the prosecutor and the prosecution witnesses from referring to any alleged complaint of sexual touching or rape that is beyond the scope of the testimony of the alleged victim.” That motion was denied without prejudice and the judge continued to deal with the scope of fresh complaint by repeating to the jury his limiting instruction on every occasion when a witness began to give fresh complaint testimony.
In telling the jury that fresh complaint testimony was admissible only insofar as it corroborated the primary complaint of the putative victim, the judge acted in accord with cases which had touched on the question before the defendant’s trial, such as Commonwealth v. Bailey, 370 Mass. 388,
For a witness to testify about “fresh complaints” which describe offenses not mentioned by the primary victim witness is beyond the scope of permissible fresh complaint testimony. See Commonwealth v. Bailey, 370 Mass, at 396; Commonwealth v. Scanlon, 412 Mass. 664, 670 (1992); Commonwealth v. Tingley, 32 Mass. App. Ct. at 710. There was forewarning in this case that the three witnesses previously referred to might describe acts beyond the one Dora had testified to. Of course they could testify to apparent cigarette burns which they had seen on her body, but it was not proper for them to testify about what Dora had said about the fire stick from her Daddy’s belly. Dora had not mentioned that. It was less than satisfactory to deal with what one might call the overflow fresh complaint testimony by telling the jury to disregard it if, so far as they remembered, it did not corroborate Dora’s testimony. Instances will occur when that is the best a trial judge can do because overflow fresh complaint spills out unexpectedly, but when, as in this case, the punch is telegraphed, it is better to conduct a voir dire examination of the witness so that the judge may prune out extraneous matter before the jury hears it. Particularly in sexual assault cases, the extraneous evidence may have a gripping quality and asking the jury to disregard it may be tantamount to asking the jury to ignore that an elephant has walked through the jury box.
3. Limitation on cross-examination. The defense makes an altogether unpersuasive claim of denial of right to cross-examine the child, Dora, about certain family photographs. It was apparent to the judge that authentication of the photographs was going to be a difficult matter with a witness not quite five years old. The judge told defense counsel if he authenticated the photographs through another witness, he would entertain further examination of the child about the pictures later. Defense counsel never followed up. There was no error.
Judgment affirmed.
Barring extraordinary circumstances (none are claimed in this case), when an indictment is placed on file without a sentence, no appeal lies concerning the charge made in that particular indictment, Commonwealth v. Delgado, 367 Mass. 432, 438 (1975), unless a sentence is later imposed. Ibid.
Concurring Opinion
(concurring). The majority concedes that this was not a well-tried case. I agree, albeit reluctantly, that any error here was, in all the circumstances, harmless beyond a reasonable doubt.
I often have counseled that the judge and the prosecutor, as well as the defense counsel, are equally responsible for ensuring that defendants receive a fair trial. Of course, “a judge is not bound to ask questions of prospective jurors beyond those required by G. L. c. 234, § 28,” ante at 677, but certain questions cry out for inclusion within the remaining broad range of discretion, when, as here, the charge is child sexual abuse, and the question requested during empanelment is whether any member has been the victim of child abuse when he or she was a child.
Reference
- Full Case Name
- Commonwealth vs. Richard Flebotte
- Cited By
- 6 cases
- Status
- Published