Opinion
No. 11–P–1554.
2013-02-25
COMMONWEALTH v. Albert S. HOBSON.
By the Court (BERRY, FECTEAU & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault of a child under the age of sixteen years with intent to commit rape, and indecent assault and battery of a child under the age of fourteen years. On appeal, he argues that the admission of prior bad act evidence deprived him of due process and that certain admitted testimony violated the first complaint doctrine. We affirm.
Background. We summarize the evidence as follows. At the time of the assault, the victim, referred to as M, was eleven years old. She was living with her mother, brother (AJ), and other siblings on Queen Street in Fall River. In the summer of 2005, the defendant, who is M's father, found some of his pornographic videotapes in M's room at the Queen Street address. Angered, he called M into her room and made her watch one of the videotapes with him. After, the defendant ordered M to shower and put on a pair of stockings, and slapped her in the face when she refused. M then put on the stockings. Next, the defendant pulled his penis out of his pants and forced M to touch it. He also tried to touch her breasts. He forced M “down on the bed” and while she struggled, he inserted his penis into her vagina. The incident ended when M hit the defendant in the head with a “lava lamp.” Before trial, the Commonwealth moved in limine to introduce prior acts of violence by the defendant against the children. The judge ruled that the Commonwealth only could introduce acts of violence that occurred on the day of the alleged crimes. The judge did note, however, that prior acts of violence towards the children by the defendant might become admissible on redirect to respond to the issue of why there was a delayed disclosure.
At trial, M's mother testified that the defendant would have her wear stockings or thigh-highs during their sexual relations. The Commonwealth also had a witness describe certain pornographic videotapes in which the defendant had participated, and in which women wore stockings that were cut out in the crotch area.
Also at trial, AJ testified as the first complaint witness. He stated that the day after the incident, M told him that “dad had tried to rape” her and that she “had hit him in the head with a lava lamp.” AJ further testified that he disclosed this to his mother two years later. He stated that he delayed telling his mother because he “was just afraid, really, afraid what would happen to my dad, what would happen to me, my sister, my mom, everybody.” He was cross-examined as to the two-year delay in telling his mother. On redirect, AJ was permitted to testify to the reasons for his fear. After AJ's testimony, the judge instructed the jury on the first complaint doctrine.
Q.: “What were you afraid of?”
A.: “Of him.”
Q.: “Why?”
A.: “Because many years of abuse.”
Q.: “What do you mean by that?”
A.: “Verbal abuse, physical abuse, I didn't want to be around a person like that.”
Discussion. On appeal, the defendant argues that evidence of his violence towards M, AJ, and their mother was irrelevant and unduly prejudicial. However, defense counsel suggested that both M and AJ delayed reporting the allegations to their mother, and, therefore, the evidence was relevant to rehabilitate their credibility. See Commonwealth v. Hall, 66 Mass.App.Ct. 390, 394–395 (2006). Furthermore, because AJ never testified that he told his mother the contents of M's disclosure—his testimony was, “I told my mother”—there was no first complaint violation. See Commonwealth v. King, 445 Mass. 217, 234 (2005).
During opening statement and on cross-examination, defense counsel argued that the incident, based on the delay between when it occurred and when AJ made his disclosure, was fabricated.
Finally, testimony regarding the pornographic videotapes, together with the mother's testimony that the defendant always made her wear stockings during their sexual relations, was admissible as corroborative of M's testimony that the defendant made her wear thigh-high stockings when he sexually assaulted her. See Commonwealth v. Iguabita, 69 Mass.App.Ct. 295, 300–301 (2007). Moreover, immediately after the testimony concerning the pornographic videotapes, the judge instructed the jury as to the limited purpose for which the evidence was offered. A similar limiting instruction was repeated in the judge's charge to the jury.
We note that the prior acts with the mother were not sexual assaults.
“This testimony is presented not for you to conclude the defendant is a bad person, ... or [to] draw some inference from just the possession of videotapes that someone might refer to as pornographic, this evidence is presented to you solely for your consideration on the issue of whether there is some course of conduct, some pattern of behavior that you might attribute to the defendant.”
Judgments affirmed.