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Commonwealth v. Mayotte

Supreme Judicial Court of Massachusetts, Worcester

August 19, 2016


          Heard: January 7, 2016.

         Indictments found and returned in the Superior Court Department on March 18, 2010.

         The cases were tried before Richard T. Tucker, J. The Supreme Judicial Court granted an application for direct appellate review.

          Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

          Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [1]

          HINES, J.

         A jury convicted the defendant, Linda Mayotte, of rape of a child, G. L. c. 265, § 23 (three indictments); indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B (five indictments); indecent assault and battery on a child over the age of fourteen, G. L. c. 265, § 13H (five indictments); incest, G. L. c. 272, § 17; reckless endangerment of a child, G. L. c. 265, § 13L; intimidation of a witness, G. L. c. 268, § 13B; resisting arrest, G. L. c. 268, § 32B; and unlawful possession of a firearm without a firearm identification card, G. L. c. 269, § 10 (h) .[2] The victim in each of the charged sex offenses was her adopted son, D.M.[3] The defendant challenges the convictions on three grounds: (1) error in the exclusion of first complaint evidence relating to her defense that she was the victim, not the perpetrator, of rape by the complainant; (2) error in the exclusion of a statement proffered as evidence of the victim's state of mind; and (3) insufficiency of the evidence to prove the reckless endangerment indictment based on "serious bodily injury." The defendant also challenges her sentence, claiming that the judge may have been influenced by improper factors argued by the prosecutor. Because the application of the first complaint doctrine to a defendant in a rape prosecution is a question of first impression, we granted the defendant's application for direct appellate review of all her claims.

         For the reasons explained below, we conclude that the first complaint rule is a neutral rule of evidence that permits such testimony whenever the credibility of a sexual assault allegation is at issue. Although the judge erred in ruling that the defendant's first complaint evidence was inadmissible as a matter of law, no prejudice resulted from the exclusion of the evidence. We also reject the defendant's claim of error in the exclusion of D.M.'s statement, proffered as evidence of his state of mind, as it was not probative of or admissible as evidence of the defendant's state of mind. We vacate the conviction of reckless endangerment, however, because we agree that the conduct proved at trial -- that the defendant recklessly exposed V.M. to the risk of sexual abuse by Joseph Mayotte -- was insufficient to establish the element of "serious bodily injury" required under the indictment. Notwithstanding any impropriety in the prosecutor's sentencing remarks, we discern no basis to conclude that the judge was influenced by those remarks in sentencing the defendant, and therefore, resentencing is not necessary.


         Based on evidence presented at trial, the jury could have found the following facts. The defendant and her husband, Joseph, married in 1987. After attempting to have biological children, the Mayottes decided to adopt in 2003. Approximately one year later, they adopted D.M. and V.M., siblings living in an orphanage in Kazakhstan. D.M. and V.M. moved into the Mayotte home in August, 2004. D.M. was twelve years of age, and V.M. was eight years of age.

         After the Mayottes told the children that Joseph's parents had died in the house, and that ghosts remained in the house, V.M. became scared of sleeping in her own room. V.M. started to sleep with Joseph; the defendant no longer slept in the bedroom. On a regular basis, Joseph touched V.M.'s private areas, penetrated her vagina and anus, and made her touch his penis. Joseph also showed V.M. pornographic videotapes.

         D.M., who struggled to learn English and felt alienated at school, had chronic stomach pains.[4] The defendant would massage his stomach to help him sleep. Starting in January, 2005, the defendant began initiating sexual contact with D.M., including sexual intercourse. According to D.M., sexual contact occurred more than one hundred times between January, 2005, and the spring of 2007. During this time, D.M. made no complaint of sexual abuse to the social worker who conducted home visits on behalf of the adoption agency or the counsellor he saw for twelve sessions. D.M. did not disclose the alleged abuse to his best friend or even his sister, V.M. The sexual contact ceased when the defendant became pregnant with D.M.'s child.[5]

         On June 15, 2007, V.M. told two neighbor siblings that her father, Joseph, had been touching her "private areas." The neighbors' mother called the Department of Children and Families (DCF), and that night, a police officer and a social worker arrived at the Mayotte house to investigate. Each child was asked separately if he or she had been or were being inappropriately touched by a parent. Both children denied any such conduct. The denials continued throughout DCF's follow-up visits to the house during 2007. During one such visit, D.M. told an investigator that he "thought the whole thing was BS."

         In April, 2009, V.M. told D.M.'s girl friend about her father's abuse. The girl friend's mother spoke to the defendant and notified DCF. The defendant and the defendant's friend, Edward Kassor, questioned V.M. in front of the girl friend and the girl friend's mother. DCF initiated a second investigation of the family, and during a May, 2009, house visit, D.M. again told DCF representatives that he was not being abused.

         After two years of denying sexual abuse, D.M. made his first complaint on June 4, 2009. He made the disclosure after the defendant sent him a text message threatening to report him to the police because he had stolen items of her jewelry. D.M. was visibly upset after receiving the message and fought with his girl friend. When pressed, D.M. told his girlfriend about the defendant's sexual acts. The girl friend insisted that D.M. inform the authorities. That same evening, DCF removed D.M. and V.M. from the Mayotte home.

         The defendant testified that she did not rape D.M. and that D.M. used physical force and threats to force her participation in sexual acts with him. According to her testimony, D.M. became sexually "aggressive" in the spring of 2005. On separate occasions, D.M. threw her down on the bed and pinned her arms to her body; grabbed her arm and forced her to the bed; and threw her against a bureau after she bit him while attempting to get away. The defendant testified that she was "trying to still say no" but that "things would escalate very quickly." She claimed that D.M. put his hands on her throat, placed a knife to her throat, and punched her. As for the alleged threats, the defendant testified that D.M.'s "favorite" threat was that he would "go to the police and say that [she] was raping him."

          According to the defendant, D.M. made this threat "[e]very time he didn't like [the defendant's] reaction" to his advances. The defendant claimed that this ongoing threat was the reason why she did not make her own first complaint for almost five years after the alleged abuse by D.M. began. D.M. admitted that he would punch holes in his ...

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