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13-P-1427 Appeals Court
COMMONWEALTH vs. FOSTER F., a juvenile.
No. 13-P-1427.
Barnstable. October 9, 2014. - December 10, 2014.
Present: Berry, Hanlon, & Carhart, JJ.
Indecent Assault and Battery. Practice, Criminal, Juvenile
delinquency proceeding, Argument by prosecutor. Evidence,
Juvenile delinquency, Authentication of document, Verbal
completeness. Witness, Victim. Internet.
Complaint received and sworn to in the Barnstable County/
Town of Plymouth Division of the Juvenile Court Department on
March 20, 2012.
The case was tried before Mary O'Sullivan Smith.
Rebecca Rose for the juvenile.
Suzanne D. McDonough, Assistant District Attorney, for the
Commonwealth.
CARHART, J. The juvenile appeals from an adjudication of
delinquency by reason of indecent assault and battery, arguing
2
that the judge erroneously allowed in evidence Facebook1
communications and the entire transcript of the victim's Sexual
Abuse Intervention Network (SAIN) interview. The juvenile also
argues that the prosecutor's improper closing argument warrants
reversal. We reverse.
Background. The jury heard the following testimony. On
January 28, 2012, the juvenile met the victim and her friends
Gwen and Nancy2 at a park in downtown Plymouth. They met to play
a "dating game," wherein the juvenile would spend some time with
each of the three girls and then decide which girl he wanted to
date. While each of the girls had been communicating with the
juvenile through Facebook, they had not met him in person until
they all went ice skating some two weeks earlier. The victim's
and the juvenile's Facebook communications included explicit
sexual exchanges.
On January 28, the juvenile spent time alone talking with
Gwen and, later, Nancy. The victim testified that, when it was
her turn to be alone with the juvenile, she and the juvenile
went behind a monument and began kissing on a bench. At some
point, the victim started to walk away, but the juvenile
convinced her not to leave. She returned, they sat on a
1
"Facebook" is a social networking Web site that allows the
electronic exchange of both written messages and images.
2
The names of the victim's friends are pseudonyms.
3
different bench, and the juvenile began "dry humping" her. The
victim tried to push him away, and started walking away again.
As the two were walking toward the monument, the juvenile pushed
the victim against the monument and started sucking on her ear.
He then sat the victim down and pinned her legs. Despite the
victim's orders to stop, the juvenile placed his hand inside her
pants and inserted several fingers into her vagina. Eventually,
the other girls arrived and the juvenile stopped. Gwen
testified as the first complaint witness and stated that the
victim told her the juvenile had "forcibly fingered [the victim]
against her will."
Before trial, the judge held a hearing on the admissibility
of the Facebook communications with the juvenile. There was no
testimony at the hearing, but the Commonwealth represented that
a police report and testimony from witnesses would provide
sufficient evidence at trial that the juvenile authored the
communications attributed to him. The judge concluded that the
Facebook communications satisfied the requirements of the
business records exception to the hearsay rule, and were
sufficiently authenticated such that the Commonwealth could
introduce them at trial.
The Facebook communications, which were admitted at trial,
detailed numerous entries attributed to the juvenile after the
January 28 incident, including admissions and expressions of
4
remorse. Subsequent messages also attributed to the juvenile
implored the victim to convince her parents not to press charges
and repeated his messages of remorse.
On cross-examination, defense counsel confronted the victim
with several Facebook entries, made before January 28, in which
the victim made sexually explicit comments and appeared to agree
to have sex with the juvenile. The victim testified that she
had only been kidding and that "it [had been] a joke." Defense
counsel also cross-examined the victim on her testimony
regarding the events on January 28.
On redirect, the Commonwealth asked the victim, "And it was
raised on cross-examination that you went to an interview at the
[district attorney's] office?" The victim answered
affirmatively. The prosecutor then asked when the interview had
taken place, where it had taken place, and who was in
attendance. After the victim answered, the prosecutor moved to
have the entire transcript of the SAIN interview marked as an
exhibit. Over the juvenile's objection, the judge allowed the
thirty-four-page document in evidence without any redactions or
limiting instructions. Because it is important to our analysis
of the admissibility of the transcript, we summarize some of the
statements the victim made in the interview.
In the SAIN interview, after responding to initial
introductory questions, the victim stated that she had recounted
5
the details of the alleged sexual assault to several friends.
The victim continued:
"Oh, yeah, and I called [Sam] before we went to bed,
because [Sam] knows [the juvenile]. And [Sam] said that
he's always been like a perv and everything. Like alls
[sic] he does is talk about sex and porn and stuff like
that.
". . .
"And my friend [Chris] told me that he is like a mad perv
and everything.
". . .
"And she like warned me about that, how he's like a wicked
perv and everything."
Discussion. The juvenile argues that the judge erroneously
admitted the Facebook communications and the transcript of the
SAIN interview, and that the prosecutor's closing argument was
unsupported by the evidence. We address each issue separately.
A. Facebook communications. Authentication of a document
is a condition precedent to its admissibility. Commonwealth v.
Siny Van Tran, 460 Mass. 535, 546 (2011). "The requirement of
authentication . . . is satisfied by a foundation sufficient to
support a finding that the item in question is what its
proponent claims it to be." Ibid., citing Mass. G. Evid.
§ 901(a) (2011). "Evidence may be authenticated by
circumstantial evidence alone," and a foundation is adequately
laid "when a preponderance of the evidence demonstrates that the
item is authentic." Ibid. Here, "because the relevance and
6
admissibility of the [Facebook messages] depended on their being
authored by the [juvenile], the judge was required to determine
whether the evidence was sufficient for a reasonable jury to
find by a preponderance of the evidence that the [juvenile]
authored" them. Commonwealth v. Purdy, 459 Mass. 442, 447
(2011). A judge may look to "confirming circumstances" that
would allow a reasonable jury to conclude the evidence is what
its proponent claims it to be. Id. at 448-449. See Mass. G.
Evid. § 901(b)(11) (2014).
Here, the Commonwealth offered a police report, the
Facebook communications, an affidavit from the Facebook keeper
of records, and the anticipated testimony of trial witnesses in
support of its request for admitting the Facebook
communications. The judge found that the communications
themselves provided "adequate 'confirming circumstances' . . .
to render the evidence sufficient for a reasonable jury to find
by a preponderance of the evidence that the [juvenile] authored
the Facebook messages." This finding is supported by the
evidence because the juvenile appeared on January 28 to play a
dating game with the victim, Gwen, and Nancy, exactly as the
person sending messages from the juvenile's Facebook account had
proposed. The juvenile's actions served as a basis for
concluding that the records are authentic, Commonwealth v.
Amaral, 78 Mass. App. Ct. 671, 674 (2011), and there is no
7
dispute that the juvenile was at the park on that day. The
judge could have concluded, based on the proffered evidence,
that it was the juvenile who authored the Facebook messages to
the victim.3
While we agree that the judge could have found the Facebook
messages to be authored by the juvenile, the better practice
3
While we conclude that the Facebook communications were
admissible, we are troubled by the admission of entries
containing the victim's sexual history, specifically, the
victim's statements describing sexual acts she allegedly
previously had performed. Those entries might have been
admissible had the defense prevailed at a hearing on their
admissibility, but no such hearing occurred. General Laws
c. 233, § 21B, inserted by St. 1977, c. 110 (the rape-shield
statute), provides that "[e]vidence of specific instances of a
victim's sexual conduct . . . shall not be admissible" except in
limited circumstances. See Mass. G. Evid. § 412 (2014). A
judge must conduct "an in camera hearing on a written motion for
admission of [such evidence] and an offer of proof" before
deciding whether the evidence is admissible, and must make
written findings if allowing the motion. G. L. c. 233, § 21B.
Neither party requested a hearing or raised the issue before the
judge, and we are unable to determine whether some of the
victim's Facebook entries should have been excluded. Even if
G. L. c. 233, § 21B, does not apply, a judge can exclude
evidence of the victim's sexual history where the primary
purpose of the evidence "is to damage an alleged victim's
credibility in the eyes of the jury by suggesting promiscuity,
and the risk of unfair prejudice outweighs its probative
weight." Commonwealth v. Parent, 465 Mass. 395, 405 (2013).
Admission of the victim's Facebook entries regarding "what she
ha[d] done" served no purpose except to undermine her
credibility before the jurors, who were considering whether the
juvenile committed rape and indecent assault and battery by
performing acts nearly identical to those that the victim
allegedly had performed in the past. This case thus
demonstrates the importance of adhering to the rape-shield
protocol in order that the rights of sexual assault victims be
protected.
8
would have been to instruct the jurors that, in order to
consider the Facebook messages as evidence of the statements
contained therein, they first needed to find by a fair
preponderance of the evidence that the juvenile was the author.
Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 367 (2014),
citing Purdy, 459 Mass. at 447. The judge did not conduct a
charge conference before instructing the jury, nor did she ask
the attorneys at the end of the charge if they were satisfied.
The juvenile did not object to the charge or to the judge's
failure to instruct the jury regarding finding that the juvenile
authored the evidence in question; therefore, we review to
determine whether any error created a substantial risk of a
miscarriage of justice. See Commonwealth v. Freeman, 352 Mass.
556, 563-564 (1967); Commonwealth v. Zimmerman, 441 Mass. 146,
150 (2004). See also Mass.R.Crim.P. 24(b), 378 Mass. 895
(1979). In light of the other evidence presented at trial, we
conclude that it did not.
B. SAIN interview transcript. The Commonwealth sought to
introduce the entire SAIN interview transcript under the
doctrine of verbal completeness. "Ordinarily, the prior
statement of a witness that is consistent with that witness's
trial testimony is inadmissible because the statement 'is not
made more trustworthy by repeating it.'" Commonwealth v.
Aviles, 461 Mass. 60, 75 (2011), quoting from Commonwealth v.
9
Tennison, 440 Mass. 553, 563 (2003). However, "[w]hen a party
introduces a portion of a statement or writing in evidence[,]
the doctrine of verbal completeness allows admission of other
relevant portions of the same statement or writing which serve
to 'clarify the context' of the admitted portion." Commonwealth
v. Carmona, 428 Mass. 268, 272 (1998), quoting from Commonwealth
v. Robles, 423 Mass. 62, 69 (1996). The doctrine of verbal
completeness is limited, Commonwealth v. Crowe, 21 Mass. App.
Ct. 456, 479 (1986), and "does not open the door for everything
in a statement or document." Aviles, supra. "To be admitted,
'the additional portions of the statement must be (1) on the
same subject as the admitted statement; (2) part of the same
conversation as the admitted statement; and (3) necessary to the
understanding of the admitted statement.'" Ibid., quoting from
Commonwealth v. Eugene, 438 Mass. 343, 350-351 (2003). See
Mass. G. Evid. § 106 (2014).
Here, the juvenile cross-examined the victim on the limited
issue whether she agreed to go with the juvenile to an area
where they could not be seen by the others. Very little of the
remainder of the transcript either explains or clarifies the
victim's response to that question. See Crowe, supra ("[I]t is
necessary that the portion of the statement that the [proponent]
seeks to introduce qualify or explain the segment introduced by
the [the other party]"). Using the SAIN interview transcript to
10
point out the victim's prior inconsistent statement was a proper
manner of impeachment, and defense counsel's cross-examination
did not open the door to the unrelated, inadmissible evidence
contained in the transcript.4
The interview contained character evidence, which generally
"is not admissible to prove that [a person] acted in conformity
with that character on a particular occasion." Commonwealth v.
Bonds, 445 Mass. 821, 829 (2006), quoting from Liacos, Brodin, &
Avery, Massachusetts Evidence § 4.4.1, at 130 (7th ed. 1999).
See Commonwealth v. Roberts, 378 Mass. 116, 129 (1979)
("[C]haracter may not be used to show criminal propensity"). In
the interview, the victim stated three times that different
friends told her the juvenile was a "perv." Such comments, in
the context of a sexual assault trial where the central issue is
credibility, were devastating. While evidence of a juvenile's
general reputation may be admissible, see ibid., citing
Commonwealth v. Binkiewicz, 342 Mass. 740, 755 (1961), "evidence
in the form of private opinions is not." Commonwealth v.
Walker, 442 Mass. 185, 198 (2004), and cases cited. The beliefs
of three of the victim's friends that the juvenile was a "perv"
4
The SAIN interview transcript also contained what could be
characterized as multiple first complaint statements. While
some of those statements independently may have been admissible,
the judge, at the very least, should have conducted a hearing on
the issue and given an appropriate limiting instruction. See
Aviles, supra at 69.
11
is not evidence of general reputation, ibid., and the fact that
defense counsel used the SAIN interview transcript to impeach
the victim on a totally unrelated topic does not make the entire
transcript admissible. "It involved a different subject, and as
such, was not admissible under the rule of completeness."
Commonwealth v. Gaynor, 443 Mass. 245, 271 (2005).
Moreover, the interview was replete with the victim's prior
consistent statements. "Such statements are generally
inadmissible to corroborate in-court testimony or a witness's
credibility, but they are admissible when offered in response to
a claim of bias, inducement, or recent contrivance."
Commonwealth v. Saarela, 376 Mass. 720, 722 (1978). See Mass.
G. Evid. § 613(b) (2014). No such claims were made in this
case.
Admitting the entire SAIN interview transcript "did not
serve to clarify the context of the portion that was admitted
during cross-examination or serve to correct any distortion that
might have been caused by a fragmented version of events."
Gaynor, supra. "We are unable to conclude that no prejudice
occurred . . . [as t]he central determination before the jury
was the credibility of the" victim. Commonwealth v. Arana, 453
Mass. 214, 228 (2009). The transcript contained inadmissible
first complaint statements, prior consistent statements, and
12
character evidence, and should not have been admitted in its
entirety. We conclude that these errors require reversal.
C. Closing argument. The juvenile's final argument is
that reversal is required because the prosecutor's statement in
closing, that the victim told her friend, "[The juvenile] just
raped me," was unsupported by the evidence. "A prosecutor must
limit comment in closing statement to the evidence and fair
inferences that can be drawn from the evidence." Commonwealth
v. Kelly, 417 Mass. 266, 270 (1994). While those particular
words were not used by the victim, the argument captured the
gist of the victim's testimony. The statement could have been
phrased better; however, we see no error in the argument.
Adjudication of delinquency
reversed.
Verdict set aside.