Commonwealth v. Santiago9/4/2002
Middlesex.
March 5, 2002
Indecent Assault and Battery. Evidence, Spontaneous utterance, Subsequent misconduct, Fresh complaint.
On April 15, 1998, a grand jury returned two indictments charging the defendant with rape of a child under the age of sixteen years in violation of G. L. c. 265, 23, and indecent assault and battery on a child under the age of fourteen years, in violation of G. L. c. 265, 13B. Both incidents were alleged to have occurred in December, 1990. A jury convicted the defendant of the indecent assault and battery, but acquitted him on the rape charge.
On appeal, the defendant claimed that a statement made by the victim's mother to the police at the time of his arrest in 1998 was improperly admitted as a spontaneous utterance. He also challenged other evidentiary rulings of the trial judge described below. The Appeals Court reversed his conviction, holding that the mother's statement was improperly admitted, and that its admission might have affected the outcome of the trial. Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 678 (2001). We granted the Commonwealth's application for further appellate review. We now affirm the defendant's conviction.
Facts. The jury could have found that, in October, 1990, the victim, thirteen years old at the time, lived in Lawrence with her mother, her siblings, and her mother's boy friend -- the defendant in this case. Around that time, the defendant sexually assaulted the victim by kissing her and touching her breasts. The victim immediately told her uncle, who lived upstairs. The uncle told the victim's mother and confronted the defendant, who thereupon moved out of the house. A short time later the victim's mother moved with her children, including the victim, to the defendant's new home in Lowell.
In the early morning hours of December 13, 1990, the victim awoke to find the defendant lying next to her. He placed his hand over her mouth, threatened to kill her if she screamed, and undressed her. The victim testified that the defendant touched her breasts and inserted his penis into her vagina, but "it didn't all the way in." After the defendant left, the victim cried, spent the remainder of the night sleepless, and then showered and went to school.
That day, the victim told her school guidance counselor about the previous night's assault. The guidance counselor telephoned the victim's mother and the police. When they arrived at the school, the victim, speaking in Spanish, recounted the incident, with the guidance counselor acting as her translator. Accompanied by the guidance counselor, the victim's mother took the victim to a hospital.
The defendant arrived at the hospital a short while later, while the victim was undergoing a medical examination. He agreed to speak to the police, with the guidance counselor again serving as a translator. After receiving Miranda warnings in English and in Spanish, the defendant, who gave an assumed name, told the police that the victim had a long-standing "crush" on him and, the previous night, had asked him to come to her bedroom. He went, he said, to the doorway, but did not enter.
The police then arrested and handcuffed him. According to the trial testimony of an arresting officer and the guidance counselor, as the defendant was being escorted from the hospital, the victim's mother, who had seen the defendant speaking with the police and had witnessed his arrest, ran over and, crying out in Spanish, said that the defendant had told her that he "went into [the victim's] bedroom and kissed her . . . only put his finger into her vagina, but did not have intercourse [with her]." The guidance counselor tran
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