COMMONWEALTH vs. GEORGE THOMAS LAVOIE

LENK, J After a jury trial, the defendant, George Lavoie, was convicted on five indictments charging forcible rape of his two minor daughters and four indictments charging indecent assault and battery on them. The defendant was acquitted on one indictment charging rape, four indictments charging indecent assault and battery, and one indictment charging open and gross lewdness [Note 1].

The defendant fathered three children by a former wife Thomas, born in 1979, Rebecca in 1980, and Patricia in 1982 [Note 2]. When Patricia was a few months old, the defendant and his former wife (Louise) were separated. Louise retained sole custody of their children, and the couple eventually divorced. After moving out of the marital home in 1982, Lavoie lived at various addresses in western Massachusetts. His older brother lived with him at two of the locations, and the defendant's fiancee lived with him at his most recent address. Although there was no court ordered visitation, the three children voluntarily visited the defendant on a weekly basis, even after they had been adopted by their mother's new husband in 1988. The visits typically lasted from a Friday night to a Saturday afternoon. The three children did not always visit their father together sometimes Thomas went with a friend, sometimes it was just Rebecca and Patricia, and, after May, 1993, Patricia typically went alone. This case arises from allegations by Rebecca and Patricia that the defendant raped and indecently assaulted them during these weekend visits.

The defendant claims on appeal that he is entitled to a new trial because (1) the trial judge wrongly admitted evidence of a

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prior conviction, the prosecutor unfairly distorted the meaning of that prior conviction in her closing argument, and the judge improperly characterized the nature of the conviction; and (2) the judge improperly admitted so-called "fresh complaint" testimony and then wrongly instructed the jurors about how to determine whether the complaint was fresh.

Prior conviction. During direct examination, the defendant denied having ever physically abused his ex-wife. At sidebar before cross-examination, the prosecutor told the judge that the defendant had been convicted of malicious destruction of property for breaking down Louise's door in the course of a domestic quarrel when they were still married and living in the same home [Note 3]. The prosecutor argued that the defendant's testimony raised the issue whether he was in fact abusive or violent [Note 4] and sought leave to introduce evidence of the prior conviction on this basis, conceding that his prior conviction would otherwise be inadmissible [Note 5]. The defendant objected, contending that a conviction of malicious destruction of property was not probative of whether he had been physically abusive toward his wife. The judge admitted the evidence "not in the normal sense of a prior conviction [but] to the extent that [the defendant] claims at least that he was never abusive toward his wife." During the subsequent cross-examination, the defendant acknowledged that in 1983 he had been convicted of malicious destruction of property in the course of a domestic quarrel.

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Throughout cross-examination, however, the defendant continued to deny ever having physically abused his former wife.

General Laws c. 233, s. 21 [Note 6], "prescribes time limits after which convictions cannot be used to impeach a witness." Liacos, Massachusetts Evidence s. 6.9.2, at 304 (6th ed. 1994). Evidence of Lavoie's prior conviction of malicious destruction of property was not admissible under G. L. c. 233, s. 21, to impeach Lavoie because the sentence was apparently imposed approximately thirteen years before trial and there had been no subsequent conviction. While inadmissible under the statute, evidence of the prior conviction nonetheless could have been admitted for relevant, probative, nonimpeachment purposes. Commonwealth v. Jacobs, 6 Mass. App. Ct. 867, 868 (1978) [Note 7]. The Commonwealth suggests that such was the case here.

In essence, the Commonwealth's argument is that by testifying on direct examination that he had never physically abused his ex-wife, the defendant put his prior conviction in issue [Note 8]. Certainly, the defendant himself was not asked on direct examination about a prior record and did not during cross-

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examination deny having a prior record [Note 9], rendering the Commonwealth's contention unpersuasive. We conclude from OUT review of Lavoie's testimony that evidence of his prior conviction of malicious destruction of property was admitted only to impeach Lavoie, and not for any other relevant probative purposes. This was underscored, first at sidebar, when the trial judge said she would admit evidence of the defendant's prior conviction to impeach the defendant's statement that he was never abusive toward his wife. Then, immediately after the defendant acknowledged the prior conviction, the judge instructed the jury that they could consider the conviction "on his credibility with regard to earlier statements that he may have made during the course of his testimony." Later, during her final jury instructions, the judge told the jury that they could consider evidence that the defendant was previously convicted of a criminal offense "only as to Mr. Lavoie's credibility, if you think it has any relevance or significance in that regard, . . . [and not] as any evidence that [the defendant] has a bad character or a propensity or tendency to commit the present offenses of which he stands accused."

Impeachment by a prior conviction in violation of G. L. c. 233, s. 21, is nonconstitutional error. Commonwealth v. Diaz, 383 Mass. 73, 75-82 (1981). "Non-constitutional errors, preserved . . below, are reviewed according to a nonprejudicial error standard. An error is nonprejudicial only '[if] . . . the conviction is sure that the error did not influence the jury, or had but very slight effect . . . .' " Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 119 S. Ct. 523 (1998), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. Young, 22 Mass. App. Ct. 237, 241 (1986).

"Impeachment of a defendant's credibility by means of prior convictions is always subject to possible misconstruction by a jury, who may improperly regard the impeachment as substantive evidence of guilt, despite careful limiting instructions." Commonwealth v. Childs, 23 Mass. App. Ct. 33, 38 (1986), S.C., 400 Mass. 1006 (1987). The defendant's credibility was

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critical in this case because the Commonwealth did not establish guilt by overwhelming evidence. Compare Commonwealth v. Gladney, 34 Mass. App. Ct. 151, 157 (1993). This case was essentially a credibility contest with Rebecca and Patricia accusing the defendant of committing acts which he expressly denied. The Commonwealth's only corroborative evidence was testimony about Patricia's fresh complaint, made twenty-six months after the last alleged incident of abuse. The defense offered testimony from the defendant's brother, fiancee, and son, all of whom had been in the defendant's home when he was purportedly molesting his daughters and who testified that they saw no signs of abuse and did not notice anything suspicious about the relationship between the defendant and his daughters.

The risk of jury misuse of the improperly admitted evidence increased with several other missteps at trial. First, the prosecutor inquired of the defendant as to any prior convictions, asking, "Now, sir, there was also testimony that you had never been in trouble with the law, correct?" This question may have erroneously suggested that the defendant himself had denied having a criminal record [Note 10]. The prosecutor underscored the prior conviction in her closing by arguing that the defendant's conviction contradicted his assertion that he was never abusive toward his wife. The judge also told the jury that they could consider testimony regarding the defendant's alleged abuse of his ex-wife or damage to property belonging to her only "on the issues of Patricia's state of mind with regard to the promptness of any complaint that she may or may not have made to Officer Chapin eventually or to her mother earlier."

In light of all this, and "[b]ecause the decisive, if not sole, issue at trial was witness credibility . . . we cannot say 'with fair assurance' that the improperly admitted evidence did not have a significant impact on the jury's decision." Commonwealth v. Ford, 397 Mass. 298, 302 (1986). A new trial is required.

Fresh complaint testimony. Because the matter may arise again at any retrial, we address the defendant's claim that fresh complaint testimony was improperly admitted. Upon the defendant's objection before trial to the prosecutor's proposed use of fresh complaint testimony, the trial judge conducted a

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voir dire examination of Rebecca, Patricia, Louise, Officer Chapin, and one other proposed fresh complaint witness. The trial judge learned that Rebecca and Patricia returned from two weeks at camp in July, 1995, and, upon their return, Rebecca told their mother that the defendant had sexually abused her during weekend visits. When Louise asked Patricia if the defendant had also abused her, Patricia did not give a verbal response, but only sobbed. Officer Chapin questioned the girls after Louise notified the police. Patricia told him that her father's sexual abuse began when she was four years old and continued until she was eleven years old, the last incident occurring in May, 1993. Patricia continued to visit the defendant until she went away to camp in July, 1995, approximately twenty-six months after the last alleged incident of abuse. Rebecca told Officer Chapin that the defendant sexually abused her from age six through age ten, the last incident occurring sometime in 1990. After hearing the proposed witnesses, the judge allowed fresh complaint testimony only from Louise and Officer Chapin and only about Patricia's accusations [Note 11].

The defendant argues that the trial judge improperly admitted the fresh complaint testimony about Patricia's allegations because a twenty-six month delay between the last incident of abuse and her complaint was too long for the complaint to be considered "fresh" as a matter of law. He did not renew this objection at trial.

"There is no absolute rule of law as to the time within which a sexual assault victim must make her first complaint for that complaint to be admissible in evidence as a fresh complaint. 'The determination whether statements are sufficiently prompt to constitute fresh complaints rests within the sound discretion of the trial judge. The test is whether the victim's actions were reasonable in the particular circumstances of the cage.' " Commonwealth v. Amirault, 404 Mass. 221, 228 (1989) (citations omitted), S.C., 424 Mass. 618 (1997), quoting from Commonwealth v. Comtois, 399 Mass. 668, 673 (1987). Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994).

Patricia first accused her biological father of sexually abusing her approximately twenty-six months after the last alleged

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incident of abuse. "Courts have not insisted on great promptness for fresh complaints in prosecutions involving child sexual abuse. Because child sexual abusers are often related to . . . the child victim, and because the victim's silence has been induced by threats or coercion, courts are flexible in applying the usual fresh complaint strictures." Amirault, 404 Mass. at 22. (citations omitted). The abuser's threats or coercion may be express or implied. Commonwealth v. Brenner, 18 Mass. App. Ct. 930, 932 (1984). "The cases involving child sexual abuse . . . give[] special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child's make-up." Amirault, supra. Although Patricia was thirteen years old when she made the complaint, the judge found that the relationship between Patricia and the defendant was inherently coercive because of the "ongoing lengthy period of time within which she's testified . . . that these incidents went on," and that was ample reason why she might not have made a complaint earlier. "In cases where a young victim has been under the control of, and in reasonable fear of, a defendant who is a close relative, the promptness of a complaint is usually measured from the date when the victim leaves the defendant's control." Commonwealth v. Comtois, 399 Mass. at 672 n.9. In this case, the trial judge found Patricia was out of the defendant's control for only two weeks before she complained. Although the time period surely approaches the outer bounds of the limits of prior cases, we nonetheless conclude that the judge made a careful assessment of the relevant factors [Note 12] and properly exercised her discretion in admitting the testimony.

The defendant argues, and the Commonwealth agrees, that the judge's instruction to the jury on how to determine whether Patricia's complaint was reasonably prompt was in error. As discussed above, the judge told the jurors that they could consider evidence that the defendant allegedly abused Louise in determining the promptness of Patricia's complaint. Rebecca, and not Patricia, [Note 13] had testified at trial and at the pretrial voir dire that her complaint was delayed because of the fear she felt

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after witnessing the defendant abuse her mother; any alleged domestic abuse was accordingly irrelevant to whether Patricia's complaint was prompt. Considered in the context of the entire charge, Commonwealth v. Owens, 414 Mass. 595, 607 (1993), this erroneous and prejudicial instruction, to which no objection was made, did not itself create a substantial risk of a miscarriage of justice but should not be given at any retrial.

Judgments reversed.