Commonwealth v. Foster F., a juvenile

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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
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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.