Commonwealth v. Follett

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Docket Number

10-P-1861

Judges

Cypher

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Smart Summary

Factual and Procedural Background

The defendant, Brett Follett, was tried on two counts of rape of a child by force under G. L. c. 265, § 22A. The jury found him guilty of the lesser included offense of rape of a child under G. L. c. 265, § 23. The defendant appealed the verdict raising several issues concerning evidentiary rulings and jury instructions.

Legal Issues Presented

Whether references to the victim's out-of-court statements exceeded the permissible scope of first complaint evidence.
Whether the trial judge erred in instructing the jury on the lesser included offense of rape of a child.
Whether the Commonwealth impermissibly impeached a defense witness by using his pretrial silence.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Kebreau, 454 Mass. 287, 299-300 (2009)	Admissibility of victim's out-of-court statements under first complaint doctrine.	Testimony of victim's cousin was properly admitted under this precedent.
Commonwealth v. Serrano-Ortiz, 53 Mass. App. Ct. 608, 614 (2002)	Admissibility of first complaint testimony.	Supported admission of victim’s cousin’s testimony.
Commonwealth v. McCoy, 456 Mass. 838, 851-852 (2010)	Limits on testimony about victim's conversations to avoid hearsay error.	Victim's testimony about talking to her mother was not error as details were not disclosed.
Commonwealth v. Marrero, 427 Mass. 65, 69 (1998)	Permissible admission of victim’s statements on redirect examination after defense questioning.	Victim’s statement to police was properly admitted on redirect examination.
Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509-510 (2009)	Admissibility of prior consistent statements to rebut claims of recent contrivance.	Victim's statement to nurse admitted as prior consistent statement.
Commonwealth v. Dargon, 457 Mass. 387, 394-396 (2010)	Admissibility of Sexual Abuse Intervention Network (SAIN) form under G. L. c. 233, § 79.	SAIN form admissible despite minor error; jury instruction mitigated prejudice.
Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 702 (2009)	Use of nurse’s testimony and SAIN form to explain physical evidence, not to corroborate victim.	Testimony used to provide foundation for physical evidence and explain absence of some evidence.
Commonwealth v. Miller, 385 Mass. 521, 521-525 (1982)	Proper jury instruction on lesser included offenses.	Supported the trial judge’s instruction on the lesser included offense.
Commonwealth v. Dunne, 394 Mass. 10, 18 (1985)	Jury instructions on lesser included offenses.	Confirmed correctness of the jury instruction given.
Commonwealth v. Knap, 412 Mass. 712, 714-715 (1992)	Legal standard for instructing on lesser included offenses.	Reinforced the appropriateness of the instruction.
Commonwealth v. Moore, 359 Mass. 509, 514-515 (1971)	Precedential authority on jury instruction standards.	Rejected defendant’s request to modify case law on instructions.
Commonwealth v. Gregory, 401 Mass. 437, 444-445 (1988)	Foundation required for impeachment by pretrial silence.	Commonwealth properly laid foundation to impeach defense witness with silence.
Commonwealth v. Hart, 455 Mass. 230, 238-240 (2009)	Standards for impeachment using pretrial silence.	Testimony was properly admitted as impeachment evidence.

Court's Reasoning and Analysis

The court analyzed the evidentiary rulings and jury instructions in light of established Massachusetts case law. Regarding the victim’s out-of-court statements, the court found that the testimony was properly admitted under the first complaint rule and related doctrines, with no undue prejudice given the context and jury instructions. The court noted that certain statements were admitted for purposes other than corroboration, such as explaining physical evidence, and that minor errors (e.g., failure to redact the word "assault") were harmless due to jury instructions and the overall evidence.

On the instruction of the lesser included offense, the court cited binding precedent confirming the correctness of the judge’s instruction and declined to modify the existing case law as urged by the defendant.

Concerning impeachment of a defense witness by pretrial silence, the court found that the Commonwealth had properly laid the foundation for this impeachment technique and that the testimony was admissible under controlling authority.

Holding and Implications

Judgment affirmed.

The court upheld the jury’s verdict of guilt on the lesser included offense of rape of a child. The decision directly affects the parties by affirming the conviction and does not establish new legal precedent, as it relies on established case law and routine application of evidentiary and procedural rules.

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COMMONWEALTH v. BRETT FOLLETT.

Cypher

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Brett Follett, appeals from a jury verdict of guilt on the lesser included offense of rape of a child, G. L. c. 265, § 23. The defendant argues, essentially, that (1) references to the victim's out-of-court statements went beyond permissible first complaint; (2) the judge erred by instructing the jury on the lesser included offense of rape of a child; and (3) the Commonwealth impermissibly impeached a defense witness with his pretrial silence. We affirm.

The defendant was tried on two counts of rape of a child by force. G. L. c. 265, § 22A.

1. Out-of-court statements. The testimony of the victim's cousin was properly admitted under Commonwealth v. Kebreau, 454 Mass. 287, 299-300 (2009), and Commonwealth v. Serrano-Ortiz, 53 Mass. App. Ct. 608, 614 (2002). The testimony of the victim that she talked to her mother and that her mother accompanied her to the hospital was not error. She did not testify about the details of her conversation, and her mother did not testify. Commonwealth v. McCoy, 456 Mass. 838, 851-852 (2010). The victim did not, as the defendant recites in his brief, testify that she spoke to her aunt. The victim's testimony that she told the police that she told the defendant to stop was properly admitted on redirect examination after the defendant questioned the victim in the area. Commonwealth v. Marrero, 427 Mass. 65, 69 (1998). See Commonwealth v. Kebreau, supra at 299. The victim's statement on redirect regarding what she told the nurse was properly admitted as a prior consistent statement to rebut a claim of recent contrivance. Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509-510 (2009). The Sexual Abuse Intervention Network (SAIN) form was independently admissible under G. L. c. 233, § 79. Commonwealth v. Dargon, 457 Mass. 387, 394-396 (2010). Although the word 'assault' should have been redacted, see id. at 396-397, in light of the evidence at trial and the judge's instruction to the jury that if they heard or saw the words 'assault' or 'sexual assault' they were to understand that the words were references to complaints or allegations of sexual assault, it is extremely unlikely that the failure to redact the term created a substantial risk of a miscarriage of justice. See id. at 397-398. The nurse's testimony was admissible as it was relevant to her diagnosis and treatment of the victim. Id. at 396. Neither the nurse's testimony nor the SAIN form was offered to corroborate the victim's testimony, but rather to establish a foundation for the physical evidence and explain the lack of certain physical evidence. Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 702 (2009).

In these circumstances, where there was no piling on and where the evidence complained of was admissible for reasons other than first complaint, there was no error and the probative value of the evidence outweighed any potential unfair prejudice.

2. Instruction on the lesser included offense. Case law is clear that the judge was correct to give the instruction. See, e.g., Commonwealth v. Miller, 385 Mass. 521, 521-525 (1982); Commonwealth v. Dunne, 394 Mass. 10, 18 (1985); Commonwealth v. Knap, 412 Mass. 712, 714-715 (1992). We are not at liberty to modify the case law in this regard, as the defendant urges, but even if we were, we are not so inclined. See Commonwealth v. Moore, 359 Mass. 509, 514- 515 (1971).

3. Impeachment of the witness with silence. Review of the record reveals that the Commonwealth adequately laid a foundation to impeach the witness with his failure to go to the police. See Commonwealth v. Gregory, 401 Mass. 437, 444- 445 (1988); Commonwealth v. Hart, 455 Mass. 230, 238-240 (2009). The testimony was properly admitted.

Judgment affirmed.

By the Court (Cypher, Vuono & Rubin, JJ.),