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Commonwealth v. White

Supreme Judicial Court of Massachusetts, Plymouth

October 19, 2016

COMMONWEALTH
v.
ROBERT E. WHITE.

          Heard: February 9, 2016.

         Indictment found and returned in the Superior Court Department on October 3, 2008. The case was tried before Richard J. Chin, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Kathryn Hayne Barnwell for the defendant.

          Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

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

          LENK, J.

         The defendant was convicted in 2014 of one count of rape of a child, G. L. c. 265, § 23. The underlying indictment, returned in 2008 and amended in 2014, alleged that he had raped his daughter on "diverse dates" between September 29, 1979, and 1981, when she was between four and six years old. On appeal, the defendant chiefly raises two sets of claims, both of which concern the statute of limitations, G. L. c. 277, § 63. First, he argues that the Commonwealth did not meet its burden at trial of proving beyond a reasonable doubt that the indictment was timely brought, and, in addition, that the trial judge incorrectly instructed the jury as to that issue. Second, he maintains that, even if the indictment were timely brought, the Commonwealth failed to provide the requisite independent corroboration of any incidents of rape that occurred more than twenty-seven years before the indictment was returned. See G. L. c. 277, § 63. He maintains, in this regard, that the corroboration provided by the Commonwealth at trial --consisting exclusively of evidence of uncharged sexual misconduct -- was insufficient. He argues also that the judge failed to instruct the jury as to the corroboration requirement.

         We conclude, with respect to the first set of issues, that the Commonwealth presented sufficient evidence from which the jury could determine, beyond a reasonable doubt, that the indictment was timely returned. We also conclude, however, that the jury instruction concerning how to make this determination was incorrect, that the erroneous instruction precluded the jury from properly ascertaining whether the indictment was timely, and that the incorrect instruction resulted in a substantial risk of a miscarriage of justice. Accordingly, on this basis alone, the defendant's conviction must be vacated and set aside.

         In considering the second set of claims, we construe for the first time the requirement that a conviction of certain sex offenses against children, if based on an indictment returned more than twenty-seven years after the offense, must be supported by independent, corroborating evidence. See G. L. c. 277, § 63. We conclude that the corroboration must relate to the specific criminal act or acts of which a defendant is accused, and that evidence of uncharged misconduct does not suffice. Here, most -- although not all -- of the incidents of rape to which the victim testified took place more than twenty-seven years before the indictment was returned, and therefore required corroboration. Because there is a significant possibility that the jury's general verdict was based only on the incidents requiring corroboration, and because the Commonwealth's corroborative evidence -- consisting only of evidence of uncharged misconduct -- was insufficient as a matter of law, the defendant's conviction must be vacated on this basis as well. On remand, should the Commonwealth decide to pursue a new trial, the defendant may be tried only for those incidents that took place after October 3, 1981, for which corroboration was not required as a matter of law.

         1. Background.

         a. Abuse.

         We recite the evidence presented at trial, reserving certain details for later discussion. In 1974, the defendant married J.G.C., and adopted her four-year-old son, S.G. The following year, the defendant and J.G.C. had a daughter, S.F. Between the time of the marriage and October, 1981, the family lived together in eight different places, most in the general vicinity of Wareham. The last three locations, which are relevant to this appeal, were in Wareham, where they moved toward the end of 1978 or the beginning of 1979; in West Wareham, where they moved sometime in 1980; and in Onset, where they moved in September, 1981.

         S.F. testified that the defendant had sexually abused her on numerous occasions beginning in 1979, when the family lived in Wareham. She stated that the defendant "would come into my room at night, " and then "take off my pajamas and touch me down in my private areas" using his "fingers[ and] his mouth." This happened "a few times a week." When the family moved to West Wareham, sometime in 1980, the defendant would come into her bedroom and "do the same thing" "a few times a week." S.F. added that "if I tried to stop him, he would smack me" and "tell me that this is how a father shows his daughter love, that we have a secret and I can't tell."[2]

         In September, 1981, the family moved to Onset. S.F. did not testify about any incidents of abuse at that location. Her brother, however, testified that he was once walking past S.F's room at the Onset house, and "saw [the defendant] on top of her, his head in her lap, her on the bed"; S.F. was "laying back" and "her pants were down."

         Sometime in September or October, 1981, when S.F. was six years old and the family was living in Onset, J.G.C. was sitting outside the house when "all of a sudden [she] just had a feeling over [her] . . . dread almost." She "ran in the house, " opened the door to S.F.'s room, and saw the defendant inside the room with her. The defendant said, "We're cleaning the room." J.G.C. had not previously seen the defendant help S.F. clean her room with the door closed. J.G.C. then took S.F. "out for a car ride" for approximately "an hour." S.F. testified that, during this ride, J.G.C.

"was asking me ... Do you have something to tell me? Is there something you would like to tell me? And she would, you know, rephrase that particular question over and over. And the only thing I ever wound up disclosing was that I had a secret with my father and I couldn't tell anybody."

         Shortly after this incident, in October, 1981, the defendant and J.G.C. separated and, ultimately, divorced. The defendant moved to an apartment in Wareham, where he lived for "at least a couple of years." S.F. testified that she visited the defendant there on a number of occasions, and that "[w]henever I was sleeping, he would come into the room, " "take off my pants, " and "touch my vagina" with "[h]is fingers or his tongue."

         Soon after moving to the Wareham apartment, the defendant began dating another woman. This woman moved in with the defendant, and they eventually married. The two left the Wareham apartment at some point in 1984 or 1985, moving first to Haverhill and then to New Hampshire. Through 1988, S.F. and her brother would periodically visit the defendant in New Hampshire. In addition, when S.F. was "sixteen, seventeen, " in 1991 and 1992, she "started visiting [her] grandparents" in New Hampshire during "the summertime, " and the defendant sometimes "came to the house" during those visits.

         b. Disclosures and trial.

         In April, 2008, when S.F. was thirty-two years old, she gave a statement to police alleging that the defendant had abused her when she was a child.[3]Thereafter, a Plymouth County grand jury heard testimony from S.F. regarding the abuse, which was said to have taken place between 1977 and 1981.[4] In addition, they heard testimony from her brother, who alleged that the defendant also had abused him on various occasions between 1973 and 1985.[5] On October 3, 2008, a grand jury returned four indictments relating to the alleged abuse of S.F., [6] and eight related to the alleged abuse of the brother.[7] Following a pretrial motion to dismiss on the basis, among other things, of the statute of limitations, a judge of the Superior Court dismissed as time barred three of the four indictments relating to abuse of S.F. The judge denied the defendant's motion to dismiss a fourth count -- for rape of a child by force, G. L. c. 265, § 22A -- relating to abuse of S.F., and he also declined to dismiss the eight counts relating to abuse of the brother.

         In March, 2014, a trial on the remaining indictments was held before a Superior Court jury. The Commonwealth presented testimony from S.F. regarding abuse that she suffered; from her brother, both regarding abuse that he suffered, and in corroboration of S.F.'s testimony; and from J.G.C., as the first complaint witness.[8] Because the Commonwealth was required also to prove that the charges were not barred by the statute of limitations, see Commonwealth v. Shanley, 455 Mass. 752, 781 n.37 (2010) ("Commonwealth has the burden of proving beyond a reasonable doubt that the indictments have been timely brought"), it presented evidence that the defendant resided outside of Massachusetts during the relevant limitations period, [9] and that, accordingly, the statute had been tolled. See G. L. c. 277, § 63 (statute tolled if defendant "not usually and publicly a resident" of Massachusetts). This evidence consisted of testimony from S.F., S.G., and J.G.C. about the defendant residing in New Hampshire, and of a 2009 report from the New Hampshire Division of Motor Vehicles, admitted over objection, showing that the defendant had a New Hampshire driver's license and maintained an address in that State.

         There were two theories of defense. First, the defendant contended that S.F.'s memories of abuse were false, being the result of suggestive questioning by J.G.C. In this regard, the defendant offered expert testimony from a psychiatrist who opined that, under certain circumstances, such as suggestive questioning by an adult, children may develop vivid memories of events they never actually experienced. The defendant also presented a statement of stipulated facts regarding certain comments that S.F. made to a Department of Social Services (DSS)[10] employee in 2004, which the defendant argued were inconsistent with S.F.'s testimony at trial. The second theory of defense was that the Commonwealth had not met its burden of demonstrating that the statute of limitations had been tolled and that the indictments were timely brought.

         The jury returned a guilty verdict on the single indictment relating to abuse of S.F., on the lesser included offense of rape of a child. See G. L. c. 265, § 22A. The jury returned verdicts of not guilty on the remaining indictments, which related to abuse of her brother.

         2. Discussion.

         On appeal, the defendant raises two sets of claims related to the statute of limitations, G. L. c. 277, § 63. First, the defendant contends that the Commonwealth did not present sufficient evidence that the indictment on which he was convicted was returned within the relevant limitations period. He claims also that, even if the evidence on this point was sufficient, the jury were not instructed properly how to determine, on the basis of this evidence, whether the indictment was timely.

         Second, even if the indictment was timely brought, it is undisputed that the Commonwealth was required, pursuant to G. L. c. 277, § 63, to provide independent corroboration of any incidents of rape alleged to have occurred more than twenty-seven years before the indictment was returned. The defendant contends that the Commonwealth failed to provide sufficient corroboration of such alleged incidents, and, in addition, that the judge declined to instruct the jury, notwithstanding the defendant's request, regarding the Commonwealth's obligation to provide this evidence.

         The defendant also raises four additional claims, three of which are evidentiary in nature, and one of which relates to whether the Commonwealth proved certain details listed in the indictment.

         a. Timeliness of indictment.

         At the time of the alleged offenses at issue, between 1979 and 1981, the statute of limitations for rape of a child was six years. See R. L. 1902, c. 218, § 52. The Legislature subsequently has lengthened the relevant limitations period several times.[11] It is undisputed, except with regard to the last of these changes, that each modification occurred before the limitations clock had an opportunity to expire. See Stogner v. California, 539 U.S. 607, 632 (2003) (under Constitution's ex post facto clause, limitations period may be lengthened retroactively, but not if already expired). The contested issue in this case is whether the most recent modification, like the previous ones, took effect before the limitations clock had an opportunity to expire. See St. 2006, c. 303, § 9.

         Prior to December 20, 2006, the statute of limitations for rape of a child was fifteen years, to run from the victim's sixteenth birthday. G. L. c. 277, § 63, as amended by St. 1996, c. 26. Because the victim turned sixteen on August 19, 1991, that limitations period would have expired fifteen years later, on August 19, 2006. This would have happened 123 days before December 20, 2006, when the Legislature entirely abolished the statute of limitations for rape of a child. See St. 2006, c. 303, § 9. The Commonwealth contends, however, that the limitations clock did not expire on August 19, 2006, because the defendant lived in New Hampshire during the period that the limitations clock was running, i.e., between August 19, 1991, and August 19, 2006, thereby tolling the statute. See G. L. c. 277, § 63 ("period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded").

         To prove this claim at trial, the Commonwealth was required to show beyond a reasonable doubt that, during the period that the statute was running (between August 19, 1991, and August 19, 2006), the defendant was "not usually and publicly a resident" of Massachusetts for at least 123 days, i.e., for the length of time between the victim's birthday on August 19, 2006 (when the limitations clock would have run under the old statute) and December 20, 2006 (when the Legislature abolished the limitations period) .[12] See Commonwealth v. Shanley, 455 Mass. at 781 n.37 (Commonwealth's burden to show indictment timely brought). The defendant claims that the Commonwealth's evidence on this point was insufficient and amounted only to "speculation."

         This claim fails. There was evidence that the defendant remarried, and that he moved with his new wife to New Hampshire sometime in the late 1980s. There was evidence also that the defendant's parents moved to New Hampshire soon thereafter; that S.F. and her brother visited the defendant in New Hampshire at various times through 1988; that, in the summers of 1991 and 1992, the defendant was seen stopping by his parents' house in New Hampshire when S.F. was there; and that, in 2009, he had a New Hampshire driver's license listing an address in that state. See Commonwealthv.George, 430 Mass. 276, 277 (1999) (limitations period tolled when defendant resided out of State). Given this, the jury reasonably could have inferred that, after the defendant moved to New Hampshire in the 1980s, he continued to live there until at least the summer of 1992, which is, of course, more than 123 days after S.F.'s August ...


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