Criminal – First complaint doctrine – Harassment prevention order

Listen to this article

Where a defendant was convicted of indecent assault and battery on a person over the age of 14, he is entitled to a new trial because (1) a detective’s duplicative complaint testimony should not have been admitted and (2) a harassment prevention order against the defendant should not have been admitted in its unredacted form and without any limiting instruction.

“The defendant appeals from his conviction, after a jury trial, of indecent assault and battery on a person over the age of fourteen, in violation of G.L.c. 265, §13H. On appeal, he contends that evidence outside the permissible scope of the first complaint doctrine was admitted, that evidence of an unredacted harassment prevention order was improperly admitted, that the prosecutor strayed outside the bounds permitted for opening statements and closing arguments, and that reversal is required considering the errors individually or cumulatively because they unfairly bolstered the credibility of the victim (whom we shall call Sara), which was the central issue at trial. The Commonwealth concedes that ‘the admission of multiple complaint evidence’ and the unredacted harassment prevention order, without instruction, was error and that those errors merit a new trial. Despite this concession, we independently review the claims and, having done so, agree that the errors entitle the defendant to a new trial. …

“The defendant argues that the victim’s disclosure to a detective sergeant of the Lawrence police department violated the first complaint doctrine and impermissibly enhanced Sara’s credibility by lending an imprimatur of official belief to her allegations. …

“The detective sergeant’s duplicative complaint testimony should not have been admitted. …

“The defendant next argues that the unredacted harassment prevention order obtained by Sara against the defendant immediately after she reported the assault to the detective sergeant should not have been admitted. … The jury were not instructed on the less stringent standard required for the issuance of a harassment prevention order than for a criminal conviction. … Furthermore, given that the order was based on the same conduct at issue here, the jury could conclude that a ‘judge had already … decided the credibility dispute that [they] were being asked to consider.’ … Thus, the harassment prevention order lent considerable weight to Sara’s credibility and should not have been admitted in its unredacted form and without limiting instruction.

“We agree with the parties that the cumulative effect of these two errors warrants a new trial. …

“For these reasons, the judgment is vacated, the verdict is set aside, and the matter is remanded for further proceedings consistent with this memorandum and order.”

Commonwealth v. Calcano-Jimenez (Lawyers Weekly No. 81-142-22) (7 pages) (Docket No. 21-P-1097) (Dec. 2, 2022).

Click here to read the full text of the opinion.