COMMONWEALTH v. Michael K. COWAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of seven counts of indecent assault and battery on a child under the age of fourteen, pursuant to G. L. c. 265, § 13B. On appeal, the defendant argues (1) that the judge erred by making notations on the jury verdict slips, which notations advised the jury of what conduct was charged for each count; (2) that testimony was improperly adduced in violation of the first complaint doctrine; (3) that the defendant should have been provided, pretrial, with notes from the victim's privileged therapy sessions regarding the incident; and (4) that trial counsel was constitutionally deficient in various ways. We affirm the judgments, but vacate the order denying the defendant's motion for new trial and remand with instructions to summons the therapy records so that defense counsel may inspect them in camera, to determine whether further requests for relief may be appropriate in the trial court.
Background. For purposes of this appeal, we recite the facts as the jury could have found them. Between 2008 and 2011, the victim was a frequent visitor at the defendant's home. The defendant was related to the victim's family by marriage, and the two families lived a short distance apart. The victim was a close friend of the defendant's young son. She spent time at the defendant's home regularly and was often left under the defendant's supervision.
During several of these visits, when the victim would have been between the ages of seven and ten, the defendant would “pull out a dining room chair, push it relatively close to behind the couch, and then pull [the victim] onto his lap,” or otherwise approach the victim in various locations around the house, including the living room and the defendant's bedroom. The defendant would then touch the victim's “breast, [her] butt, and [her] vagina” in various ways, for up to several minutes at a time, both over and underneath her clothing. On multiple occasions, the defendant penetrated the victim's vagina with his fingers, and on one occasion he placed her hand on his penis above his clothing. There was also an incident at a nearby resort, during which the defendant touched the victim's “butt and breasts” in the resort pool. The encounters ceased when the defendant moved to Arkansas in 2011 or 2012.
Sometime during September of 2014, when the victim was thirteen years old, the victim first disclosed the assaults to her eighth grade English teacher. The teacher had brought the victim to the office of one of the school guidance counselors. The guidance counselor was not in his office, so the victim began describing the incidents to the English teacher. This initial disclosure to the English teacher was brief and lacked detail, as the guidance counselor soon arrived and assumed control of the situation. The guidance counselor then involved a school adjustment counselor, and eventually the victim was referred to therapists 2 at The Kids’ Place, a resource center for child victims of abuse. One of the therapists filed a 51A report in late September of 2014, but none of the school employees did so at any point.
Several months later, in January of 2015, the victim was interviewed by a police detective with the Sexual Abuse Intervention Network (SAIN Interview). Thereafter, in November of 2015, a Berkshire County grand jury issued ten indictments against the defendant -- nine alleging indecent assault and battery on a child under the age of fourteen, and the tenth alleging rape of a child by force. All nine of the indictments alleging indecent assault and battery used identical language -- they stated, “[The defendant] ․ on diverse dates between on or about [January 1, 2008] and on or about [December 31, 2011] ․ did commit an indecent assault and battery on a child under the age of fourteen years.” The indictments accordingly did not provide any way to distinguish the particular alleged conduct that was associated with a particular indictment.
Prior to trial, on January 3, 2017, the defendant filed a motion to summons the victim's therapy records from The Kids’ Place, pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1970). The materials filed in support indicated (but did not expressly allege) that the records were sought because the victim likely discussed her allegations with the therapists; the defense counsel's affidavit concluded by asserting his belief that the therapists’ records would contain relevant and potentially exculpatory evidence. Among other things, the affidavit cited a portion of the transcript of the SAIN Interview, which indicated that the victim had been referred to the therapists at The Kids’ Place as a result of her disclosure of the assaults; the affidavit also noted that a therapist from The Kids’ Place had filed the 51A report.
After a hearing, the motion judge found that the defendant had failed to demonstrate that the victim had discussed the assaults with the therapists, and denied the motion without prejudice. Undeterred, the defendant renewed the rule 17 motion on February 21, 2017, again emphasizing the role The Kids’ Place played in the reporting of the incidents. This time, defense counsel's affidavit cited a portion of the 51A report, which indicated that the victim had spoken to the reporting therapist about what the defendant had done to her. The same judge denied the renewed motion, and the records were not produced.
At trial, the Commonwealth relied primarily on the testimony of the victim. The Commonwealth also offered testimony from the victim's mother, from a police officer familiar with the locations of the incidents, and from the English teacher, who testified to the brief initial report of the incident as the first complaint witness. On cross-examination of the victim, defense counsel focused on the sequence of events wherein the victim had first discussed the incident with the several school employees. After the Commonwealth rested, the defendant testified, and denied that he had ever touched the victim inappropriately.
In his closing argument, defense counsel highlighted the chain of reports that the victim made to each mandated reporter –- first the English teacher, then the guidance counselor, then the adjustment counselor, and finally the therapists. He posited that the victim did not supply sufficient details for the first three to file a 51A report, or to characterize the incidents as rape or assault, and that those details did not develop until the victim began meeting with the therapists. Counsel argued that this history demonstrated, in conjunction with the spare initial report of the incidents and the gap of over one year between the initial report and the issuance of the indictments, that the victim had only come to characterize the touchings as sexual after months of influence from the therapists.
The judge submitted eight identical indictments to the jury, with accompanying verdict slips, each charging indecent assault and battery on a child under the age of fourteen. Due to the uniformity of the indictments, the judge noted a corresponding alleged offense at the top of each verdict slip, and instructed the jury accordingly:
“And what I've done, again, to hopefully make your job a little bit easier, beneath the crime, which is Indecent Assault and Battery, I identify what the allegation is, and for the first one it says, living/dining room, her hand on penis. Okay. That describes the event that is alleged by the Commonwealth. And the next one is living/dining room, touching the buttocks. The next indictment, living/dining room touching the breast. Next one, living/dining room, touching the vagina. Next one, bedroom, touching the buttocks. Next one, bedroom, touching the breast. Next one, bedroom, touching the vagina. And the last one being the swimming pool, which I believe at Oak ‘N Spruce, touching the buttocks.”
The defendant inspected the verdict slips and did not object to the notations. The jury returned verdicts of guilty on seven counts of indecent assault and battery on a child under the age of fourteen.3
Discussion. 1. The verdict slips. The defendant first challenges the judge's notations on the verdict slips for the eight charges of indecent assault. He argues that those notations usurped the jury's role as fact finder and lent the imprimatur of the court to the allegations, and that he was accordingly deprived of his right to trial by a jury of his peers under the Federal and State Constitutions. He also argues that the failure of his trial counsel to object to the notations constituted ineffective assistance of counsel, and created a substantial risk of a miscarriage of justice. See Commonwealth v. Licciardi, 387 Mass. 670, 676 (1982) (failure to object to use of special questions on verdict slips reviewed for substantial risk of miscarriage of justice).
As noted, the indictments for indecent assault and battery on a child under the age of fourteen all used identical language, even though they charged various incidents of improper conduct spanning four years, from January 1, 2008, through December 31, 2011. There was, accordingly, no way to distinguish between the charged events on the face of the indictments. This situation was addressed by the judge's notations on the verdict slips and by his charge, through which he identified and parsed the various incidents of charged conduct.
This action by the judge was appropriate under the circumstances. The jury were confronted with eight charged crimes, and needed to be advised as to what conduct was charged. The jury needed to reach a unanimous conclusion as to each charge, and each conclusion needed to be based upon the same conduct. See Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987) (“the verdict must be unanimous ․ as to which specific act constitutes the offense charged”). Notably, counsel was aware of the notations and there was no objection to them, or to the corresponding charge.
We do not agree with the defendant that the notations improperly gave the judge's “imprimatur” to the charges. To the contrary, the judge must instruct on what the charges are, and when doing so, make clear that those are allegations only, and that it is the Commonwealth's burden to prove those allegations beyond a reasonable doubt. That is what the judge did here. In his charge, the judge expressly identified the notations as “describ[ing] the event that is alleged by the Commonwealth.” He also made it clear that it was the jury's role to decide whether the Commonwealth had proven its case.4 We note in addition that the jury appear to have carefully parsed the evidence, in returning a verdict of not guilty on one of the alleged incidents. We perceive no error in the use of such notations; nor did they create a substantial risk of a miscarriage of justice. For similar reasons, we also disagree that trial counsel was ineffective in failing to object to the notations.
2. The first complaint doctrine and the evidence of the investigation. The defendant also raises two related arguments regarding evidence that was adduced, at trial, concerning the investigation of the victim's allegations. First the defendant claims that the prosecutor impermissibly elicited testimony in violation of the first complaint doctrine, and that his trial counsel's failure to object to this testimony amounted to ineffective assistance of counsel. The defendant points to a portion of the prosecutor's examination of the English teacher, in which he asked the teacher “what [he did] with that information [from the victim]” and whether the teacher had asked more questions or followed up at all with the victim. The defendant also contends that his trial counsel's decision to elicit further testimony regarding the victim's complaints and the investigation, on cross-examination of each of the Commonwealth's witnesses, constituted ineffective assistance of counsel.
The first complaint doctrine permits the Commonwealth to introduce evidence from one witness, “generally the first told,” to testify as the first complaint witness. Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). Further complaint testimony ordinarily may not be presented by the Commonwealth, so as to avoid the “piling on” of multiple witnesses against the defendant and because such testimony is often irrelevant and prejudicial. See Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008); Commonwealth v. King, 445 Mass. 217, 243 (2005). Similarly, testimony regarding the investigative process often is not relevant, and improper. Stuckich, supra.
Each of the defendant's arguments fail here, however, because defense counsel clearly made a strategic decision to develop the evidence of how the investigation progressed, in order to suggest that the victim's testimony had been influenced over time. The defense theory was that the victim's initial allegations weren't sufficiently detailed or concerning enough for several mandated reporters to report, and that it was only after the victim worked with therapists who deal with child abuse victims that the allegations ripened into reports of criminal conduct. To that end, defense counsel cross-examined three Commonwealth witnesses -- the mother, the police officer, and the victim -- regarding the progression of the investigation, and the various individuals who heard of the victim's complaints. It was after that cross-examination that the prosecutor elicited the challenged testimony from the English teacher. See Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 318 (2008) (cross-examination on complaint testimony opens door for Commonwealth to address topic).
The defendant argued at closing:
“[T]he first person [the victim] says anything of this nature to at all is to [the English teacher] ․ then she tells [the guidance counselor]. [The guidance counselor] doesn't do anything about it․ He says I don't need to report this. I'm going to pass it off to the adjustment counselor․ [The adjustment counselor] doesn't report it, either․ She tells her mother, get her into The Kids’ Place. The mother gets her into The Kids’ Place, and then the child protective agencies get involved․ [T]hey end up assigning her a long-term counselor ․ and then, by November of 2015, after more than a year of ․ dealing with this situation, [the indictments were issued].”
In sum, defense counsel's decision to further develop testimony regarding the complaints, and defense counsel's failure to object to the prosecutor's line of questioning, appear to have been part of a cohesive defense strategy, and the defendant, who raises the issue only in his direct appeal, has not shown that either decision was manifestly unreasonable. See Commonwealth v. Martin, 427 Mass. 816, 822 (1998) (“An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made”). While the first complaint doctrine acts as a safeguard against the introduction of additional complaint testimony by the Commonwealth, it does not prevent the defendant from opening this door pursuant to a viable defense strategy. Parreira, 72 Mass. App. Ct. at 318.
3. The therapy records. Finally, the defendant argues that his counsel was deficient because counsel failed to adequately support his two rule 17 (a) (2) motions to summons the victim's therapy records from The Kids’ Place. As noted, the thrust of these pretrial motions was that the victim had spoken with the therapists about the assaults, and that the therapy records likely would contain information relevant to the defense. In the first motion, counsel's affidavit recounted the victim's reports to various school officials, but then noted that the 51A report ultimately was only filed by the therapist at The Kids’ Place. The affidavit also noted that the victim's allegations “had become significantly more detailed” at the time of the SAIN interview, and that the victim had stated during the interview that she had been seeing her therapist regularly, including the day before the interview.
The judge, in denying the first motion, stated that:
“[T]he defendant did not point to any evidence demonstrating that the victim discussed with her therapist the sexual assaults․ Simply stated, the defendant has ․ failed to demonstrate that the documents sought are evidentiary and relevant ․ and that this is not a fishing expedition.”
The defendant then filed a renewed motion, which included additional information from the victim's SAIN interview, and a statement from the adjustment counselor, each indicating that the victim discussed the incidents with the therapist. The judge again denied the motion.
Following his convictions, the defendant filed a motion for new trial, in which he argued that his trial counsel had been ineffective by failing to properly support the rule 17 (a) (2) motions with materials that counsel had in his possession through discovery. The defendant pointed to two pages of the SAIN Interview transcript, not cited in either pretrial motion, which further indicated that the victim had discussed the incidents with both therapists. One such reference contained the victim's statement to the SAIN interviewer:
“Well, you say it's ‘molesting.’ My therapist calls it ‘raping.’ But, I think ‘rape’ is when a guy forces himself onto you. He didn't force himself. ‘Cause I just sat there because I was little. I didn't know what was going on.”5
The judge, who had presided at trial, denied this motion as well. The judge's order stated that even with this new information, the defendant had again failed to show that the records were relevant, and thus the defendant could not show that “better work might have accomplished something material for the defense.”
On review of the denial of the motion for new trial, we are of the view that there was no ineffective assistance of counsel; but the reason for this is that counsel filed appropriate pretrial rule 17 motions, at least the second of which the trial judge should have granted.6 “We review a judge's ruling on rule 17 (a) (2) motions for abuse of discretion.” Commonwealth v. Jones, 478 Mass. 65, 69 (2017), citing Commonwealth v. Mitchell, 444 Mass. 786, 791 (2005). We think that here the outcome is dictated by the decision in Commonwealth v. Labroad, 466 Mass. 1037, 1038-1039 (2014). The Labroad court addressed a similar motion, under rule 17, for records of a victim's communications with her psychiatrist, and concluded that the records had to be produced, following the protocol of Commonwealth v. Dwyer, 448 Mass. 122 (2006). Labroad, supra at 1038. As in this case, in Labroad the defendant sought records of conversations during therapy in which a victim described the details of how the defendant allegedly sexually assaulted her. The court concluded on that basis that the records were relevant to the defense:
“The specific information presented made it clear that the complainant discussed the report of sexual assault in some detail with the psychologist․ Because the complainant's explanation of how and when the alleged sexual assault occurred was relevant and had evidentiary value, either as impeachment material or as substantive evidence, and because the defense was based on the complainant's allegedly conflicting and inconsistent statements regarding the assault, a summons ․ should have issued.”
Id. at 1039.
Here counsel made the correct arguments in his rule 17 motion, supported by the transcript of the SAIN Interview. The argument showed that the therapy records likely contain statements by the victim concerning the assaults, which may have been relevant to any cross-examination of the victim. While the motions could perhaps have been more persuasively supported with additional references from the transcript of the SAIN Interview, the arguments made were sufficient.7
In sum, because the defense made a showing sufficient to meet the Labroad standard, the pretrial rule 17 (a) (2) motions should have been granted, and defense counsel should have been allowed to inspect the therapy records. This error does not mean that the convictions must be reversed. Rather, the proper remedy is to remand so that the records can be summonsed and inspected in camera, as “the appellate courts are not in a position to determine whether the error was prejudicial․ Defense counsel is to be permitted access to the documents [to determine if] being deprived of them prior to trial made the defendant's trial unfair, and the defendant may then, if he chooses to do so, file an appropriate motion for relief in the Superior Court.” Labroad, 466 Mass. at 1039-1040.
The judgments are affirmed. The order denying the motion for new trial is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
Affirmed in part; vacated in part and remanded.
FOOTNOTES
2. The record reflects that two therapists from The Kids’ Place were involved -- one filed the initial report pursuant to G. L. c. 51A (51A report), and the other continued to see the victim for therapy sessions during the time period after the initial disclosure.
3. Of the ten original indictments, nine were for indecent assault and battery on a child under the age of fourteen, and one alleged rape of a child by force. One of the nine identical indictments for indecent assault was dismissed on the defendant's motion for a required finding at the close of the Commonwealth's case. The other eight were submitted to the jury, and one was returned with a verdict of not guilty. The jury also returned a verdict of not guilty on the indictment for rape.
4. The judge instructed the jury:“It is my obligation to make sure we have a fair and orderly and efficient trial ․ and that's it. And as I indicated, I play absolutely no role in evaluating the evidence and determining who to believe or not to believe. And most importantly, I play absolutely no role in determining whether the Commonwealth has proven its case beyond a reasonable doubt. That's your responsibility․ In a sense, you are judges when you do that. Just as I'm the judge of the law, you are the judges of the facts.”
5. We recognize that a teenager's lack of understanding of the legal definition of rape is not material.
6. Although this issue has been presented to us as an appeal from the rejection of the claim of ineffective assistance of counsel, we think the appeal subsumes the question whether the trial judge erred in denying the rule 17 motion in the first place. We note that the briefing before us necessarily addressed the facts and law relevant to that issue.
7. Although the defendant did not support his motion with specific evidence of inconsistent statements by the victim, such a showing was not required. The defense was that the allegations were fabricated. Prior statements by the victim, in which she discussed her allegations, were relevant to the defendant's “right to present a defense.” Labroad, 466 Mass. at 1039.