Commonwealth v. Lenane
Commonwealth v. Lenane
Opinion of the Court
A Superior Court jury concluded that the defendant
Background. We summarize the evidence presented at trial. The victim was bom in August, 1993, and first met the defendant when she was seven years old, at the time he began dating her mother. The defendant and the victim’s mother began living together and eventually married. The victim initially got along well with the defendant, first calling him “Danny” but eventually calling him “dad” and using his last name as hers at school. In late 2002 and early 2003, the family (consisting of the victim,
The victim and the defendant occasionally were home together while the victim’s mother was at work. On one such occasion, around noon on a weekend in late February, 2003, the living room television was not working, and the victim went to the bedroom shared by her mother and the defendant to watch her favorite program. The defendant was sleeping, clothed, and on top of the bed. The victim sat on the bed, on top of the covers, and watched the program. The defendant woke up, undressed the victim, took off his own clothes, and vaginally raped her. Following the rape, he threatened to kill the victim and her mother if she told anyone about the assault. The victim, still undressed, went to her room. She called her brother, but did not tell him she had been raped.
A few weeks after the rape and after the defendant and the victim’s mother both lost their jobs, the family moved to Weymouth. On an occasion during the spring of 2003 when the victim was home alone with the defendant, the victim went into her mother’s bedroom and stood in front of the bureau putting on makeup. The defendant came into the room, grabbed the victim’s shoulder from behind, pulled her to the bed, undressed her, and, despite resistance from the victim (which included the victim biting his hand), raped her. The defendant first inserted his penis into her vagina, and then turned her onto her stomach and raped her anally. Following the rapes, while holding a knife in his hand, the defendant told the victim not to tell anyone about the incident.
The victim did not report the rapes to anyone until October 2003, when she told her foster sister about what had occurred. By then, the victim’s mother had moved out of the defendant’s home, leaving the victim behind, and the Department of Children and Families (then known as the Department of Social Services, or DSS) placed the victim in foster care. The victim’s foster sister testified at trial as the designated first complaint witness.
Through cross-examination of the victim, the victim’s foster sister, Eileen Velez (the victim’s social worker), and Detective
Discussion. 1. First complaint. As we have observed, a central defense strategy, revealed during defense counsel’s opening statement, was to highlight inconsistencies in the various accounts of the rapes given by the victim in her statements to various other parties. That strategy by its nature required the introduction not only of the fact of multiple reports, but of the details of the various reports.
At trial, after the Commonwealth elicited testimony from the
The next defense objection was made when the Commonwealth attempted to ask the victim about her failure to report the rapes during her interview by a DSS social worker in May, 2003.
Thereafter, the victim was allowed (without objection) to answer a question that asked if she spoke to anyone from the Carver police department about what happened (the victim testified “I think so; I’m not sure”), and was allowed (over a general objection) to answer questions asking if she ever spoke to anyone from the Weymouth police department about what happened (the victim testified “I’m not sure”), or if she spoke to anyone when she was at the District Attorney’s office about what happened (the victim testified that she told the SAIN interviewer about the rapes). The prosecutor also asked the victim whether she had gone to see a doctor.
The Commonwealth then concluded its direct examination of the victim, and (as we have observed) the defense cross-examination began with a detailed exploration of inconsistencies between the victim’s trial testimony and her reports to her
As a general matter, timely objection at trial is required to preserve a claim of error in the admission of evidence. See Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192 (2002). “The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury’s consideration evidence which has no place in the trial.” Abraham v. Woburn, 383 Mass. 724, 726 n.1 (1981). “When objecting, counsel should state the specific ground of the objection unless it is apparent from the context.” Commonwealth v. Marshall, 434 Mass. 358, 365 (2001), quoting from PJ. Liacos, Massachusetts Evidence § 3.8.3, at 85 (7th ed. 1999). The adequacy of an objection to preserve a claim of error must be assessed in the context of the trial as a whole. Commonwealth v. Nardi, 452 Mass. 379, 395 (2008). If evidence is admissible for any purpose, its admission over a general objection is not error. See Commonwealth v. Errington, 390 Mass. 875, 882 (1984).
In the case before us, the defense objections to the prosecutor’s questions that exceeded the boundaries of admissible first complaint evidence were intermittent and lacking in specificity. None of the defendant’s objections cited first complaint as the basis for the objection. Indeed, the Commonwealth contends that the defense objections were inadequate to preserve the claims now pressed by the defendant on appeal. We need not resolve the question, however, because the defendant’s claims do not warrant relief even if considered under the more generous standard applied to claims preserved at trial.
We have little difficulty in concluding that the admission of the evidence that exceeded the parameters of allowable first complaint testimony did not prejudice the defendant. Instead, the evidence constituted part of the defense strategy to impeach the victim’s credibility. “Where the inconsistencies contained in the cumulative . . . complaint testimony were more important to the defense than the Commonwealth, there is no harm to the
2. Oz7zer issues. We briefly address two other claims raised by the defendant on appeal. First, we discern no abuse of discretion in the denial of the defendant’s motion for a mistrial, which he made after Detective Critch testified that she went to the Plymouth County jail to speak to the defendant.
We similarly discern no cause to disturb the judgment by reason of the trial prosecutor’s use of the words “broken hymen” to refer to a finding contained in the report of an examining physician that the victim’s hymen was “not intact.” Though the prosecutor employed a poor choice of words in departing from the terminology in the report, the judge administered the standard instruction that arguments are not evidence. Moreover, before using the term “broken hymen” to colloquially describe a hymen that was “not intact,” the trial prosecutor read to the jury from the report itself, and the jury had the report with them during their deliberations.
Judgments affirmed.
The first episode occurred in Plymouth County and resulted in the defendant’s convictions on charges of rape of a child by force, G. L. c. 265, § 22A, indecent assault and battery of a child under fourteen, G. L. c. 265, § 13B, and threat to commit a crime, G. L. c. 275, § 2. The second episode occurred in Norfolk County and resulted in the defendant’s convictions of two charges of rape of a child by force, and assault and battery (a lesser included offense of a charge of assault by means of a dangerous weapon), G. L. c. 265, § 13A.
The defendant also claims that the trial prosecutor made an improper comment during her closing argument and that the trial judge erred in denying his motion for a mistrial after a prosecution witness mentioned his pretrial incarceration.
We note that trial in the present case took place after announcement of the first complaint doctrine in Commonwealth v. King, supra, but before its refinement in such subsequent cases as Commonwealth v. Murungu, 450 Mass. 441, 447-448 (2008), Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008), and Commonwealth v. Arana, 453 Mass. 214, 226-227 (2009). At the time of trial, then, it was not clear precisely how the first complaint doctrine would apply to the testimony at issue in this case.
The defendant covered similar ground during a voir dire of the victim, outside the presence of the jury, immediately before trial began.
On redirect, the victim explained that she denied abuse because she did not want to be placed in foster care.
The question and objection were as follows:
Q.\ “After speaking to [the foster sister] about what happened, did you then talk to someone else?”
Defense counsel: “Objection.”
The question and objection were as follows:
Q.: “Prior to telling [the foster sister], were you ever asked by anyone that you’re aware of from the Department of Social Services about being touched?”
Defense counsel: “Objection. Side bar, please.”
In response to a preserved claim of error, “the Commonwealth must show that any error ‘did not influence the jury, or had but very slight effect.’ ” Commonwealth v. Dargon, 457 Mass. 387, 399 (2010), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
While these cases were analyzed under the less exacting standard of a substantial risk of a miscarriage of justice, there is nothing in them that suggests that the result would have been different under a prejudicial error standard. The salient point in the present case is that the defendant purposefully sought to exploit inconsistencies in the victim’s various reports of the rapes as a central element of his trial strategy, and that strategy of necessity required the admission in evidence of the multiple complaints themselves.
The question and answer were as follows:
Q.: “And what did you do on January 15th, 2004?
A.: “I went to the Plymouth County jail to speak to the suspect.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.