Commonwealth v. King
Commonwealth v. King
Opinion of the Court
Joseph King appeals from his convictions for forcible rape of a child, arguing that he was prejudiced by improperly admitted fresh complaint testimony and that he was entitled to a mistrial due to the prejudicial impact of certain other testimony. We affirm the judgments.
1. Facts and procedural history. A jury could have found the following facts. The defendant, a longtime friend of the victim’s
On June 5, 1999, the defendant was home with Nathan, Nathan’s sisters, and the defendant’s own daughter, while the parents ran errands. When the parents returned, Nathan was lying on their bed, seemed distracted, and told them he was not feeling well. When the mother told Nathan that she and Nathan’s father were going to look at property the next day, Nathan told her that he did not want to be left alone with the defendant and became upset. His parents decided to take all three children with them. During the family’s excursion the next day, Nathan told his mother that he did not want to be left with the defendant anymore and that the defendant had put his mouth on Nathan’s penis.
As a result of Nathan’s disclosures, King was indicted on two counts of forcible rape of a child, G. L. c. 265, § 22A, and two counts of indecent assault and battery on a child, G. L. c. 265, § 13B. After a jury trial in March of 2001, the judge allowed the defendant’s motion for required findings of not guilty only with respect to the indecent assault and battery charges. The jury convicted the defendant on both rape charges.
2. Fresh complaint. At trial, Nathan (then eight years old) testified that he and the defendant would play video games in the family’s living room. He testified that, while he was playing
Nathan’s mother testified as a fresh complaint witness. She testified that Nathan appeared “scared” at the time he told her that he did not want to be left with the defendant anymore and that the defendant had put his mouth on Nathan’s penis. She testified that Nathan told her that he had tried to tell the defendant to stop, but that the defendant would not. She further testified that Nathan had told her that the defendant “would punish him,” specifically, “[t]hat if [the defendant] couldn’t put his mouth down there, then [Nathan] would have to stand in the comer or couldn’t play [video games].”
The defendant argues on appeal that the mother’s testimony that the defendant had threatened Nathan was improperly admitted because it contradicted Nathan’s testimony, and because it exceeded the scope of proper fresh complaint testimony. In particular, he argues, the mother’s testimony impermissibly supplied an explanation for Nathan’s failure to report the assault at an earlier time.
Massachusetts, unlike many other jurisdictions, allows a witness to testify not only to the fact of a complaint but also to the details of the complaint. Commonwealth v. Lavalley, 410 Mass. 641, 643 (1991). “By the ‘details,’ we mean that the witness may testify to the complainant’s statements of the facts of the assault.” Commonwealth v. Quincy Q., 434 Mass. 859, 874 (2001). There are, however, limits to the content of fresh complaint testimony. “While fresh complaint testimony need not match the victim’s testimony exactly, it is impermissible for a fresh complaint witness to testify about details of an event
The defendant objected to the admission of this evidence. We therefore determine whether the error was prejudicial. See Commonwealth v. Flebotte, supra at 353. The defendant argues that the testimony was improper because it was used to fill a gap in the prosecution’s case. See Commonwealth v. Bailey, 370 Mass. 388, 396 (1976). Specifically, the defendant argues that the mother’s testimony was used for the impermissible purpose of explaining Nathan’s failure to report the sexual assaults at an earlier time. See Commonwealth v. Aspen, 53 Mass. App. Ct. 259, 267 (2001). We are not persuaded that the mother’s testimony filled a gap in the prosecution’s case in this respect, or that it gave rise to prejudice. The mother did not testify that Nathan was threatened by the defendant not to report the assaults. Rather, she testified that Nathan was threatened into allowing the assaults. Moreover, the timing of Nathan’s report of the assault was never an issue at trial. Nathan reported the assaults to his mother while the defendant was still living in his house and while the assaults were ongoing.
Fresh complaint testimony cannot be used to fill a gap in the prosecution’s proof of the essential elements of the crime. See Commonwealth v. Bailey, 370 Mass. at 396. The mother’s testimony did relate to the element of lack of consent, when she testified that Nathan had been threatened by the defendant. Nathan’s own testimony, however, addressed each of the elements of the crime of forcible rape of a child, including lack of consent. He testified that the defendant pulled his clothes down. He testified that the defendant put his mouth on his penis. He testified that he told the defendant he did not want him to put his mouth on his penis. See Commonwealth v. Tatro, 42 Mass. App. Ct. 918, 920-921 (1997) (jury instructions that consent
The erroneously admitted testimony neither filled a gap in the prosecution’s case nor inflamed the jury. We conclude, therefore, with fair assurance and because of Nathan’s clear and articulate testimony, that the erroneously admitted evidence had very slight or no effect on the jury. See Commonwealth v. Gichel, 48 Mass. App. Ct. at 209. See also Commonwealth v. Scanlon, 412 Mass, at 672. Contrast Commonwealth v. Kerr, 36 Mass. App. Ct. 505, 507-508 (1994).
3. Motion for mistrial. During redirect examination, the mother was asked when she reported the incidents to the police. She first responded, “When Jennifer Haines . . . called me.”
The decision to declare a mistrial is within the judge’s discretion. See Commonwealth v. Hoffer, 375 Mass. 369, 372-373 (1978); Commonwealth v. Simmonds, 386 Mass. 234, 241 (1982). “It is the trial judge who is ‘most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors.’ Consequently, it is the trial judge who was best positioned to determine whether there was prejudice to the defendant.” Commonwealth v. Cohen, 412 Mass. 375, 384 (1992), quoting from Arizona v. Washington, 434 U.S. 497, 514 (1978). The mother’s testimony that she went to the police “right after my daughter’s physical” appeared to be a fleeting reference to a point in time and nothing more. It was neither inherently inflammatory nor suggestive of anything improper within the context of the mother’s testimony. There were no further references to the daughter’s physical in the testimony of the mother or any other witness. Here, the judge, with appropriate caution, reviewed the recording of the mother’s testimony and concluded that there were no grounds for a mistrial. No showing of an abuse of discretion has been made by the defendant.
Judgments affirmed.
A pseudonym.
According to Nathan’s mother, Nathan used the phrase “hurt spot” to describe his penis, because in an earlier bicycle accident he had injured his penis.
There was no explanation at that time (or subsequently) that the reference was to Jennifer Hayes, a Brockton police detective; the jurors had heard her identified as such the previous day during jury selection as one of a list of possible witnesses.
Defense counsel explained to the judge at sidebar:
“There is an allegation of abuse against the daughter by this man, and it was after the investigation of the daughter that they then went back and made the allegations about the son, also.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.