Commonwealth v. Dale (Lawyers Weekly No. 11-101-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1909 Appeals Court COMMONWEALTH vs. ANDRE DALE. No. 12-P-1909. Suffolk. February 7, 2014. – August 25, 2014. Present: Trainor, Katzmann, & Hanlon, JJ. Indecent Assault and Battery. Evidence, First complaint, Relevancy and materiality, Cross-examination, Photograph. Child Abuse. Indictment found and returned in the Superior Court Department on November 17, 2009. The case was tried before Patrick F. Brady, J. David D. Nielson for the defendant. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth. KATZMANN, J. A Superior Court jury convicted the defendant of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B, as a lesser included offense of rape of a child under sixteen years of age, G. L. c. 265, § 23.[1] The principal issue in this appeal is the admissibility of first complaint testimony where the victim has no memory of the complaint. In light of the primary purpose of first complaint evidence, we determine that such testimony is admissible. The defendant also contests the admission of testimony of a subsequent complaint, of testimony pertaining to the victim’s bodily functions, and of photographic evidence showing injuries to the victim and her brother. We affirm. 1. Background. We summarize the facts as a jury could reasonably have found, reserving certain details for discussion with the specific issues raised. The series of incidents underlying the conviction began when the victim was seven or eight years old. The incidents occurred when the victim, S.B., and her older brother, M.B., lived with their great aunt, Tina Dale (Tina), and great uncle, Fred Dale (Fred).[2] The defendant is the victim’s cousin, the son of Tina and Fred; the victim and her brother referred to him as “Uncle Eddie.” During the period of the assaults, the defendant lived in the same house as the victim and had a room of his own. He only stayed in the house several nights a week. The victim testified that, on multiple occasions over the course of several years, the defendant would sexually assault her in the Dales’ residence. She testified that the first incident began when the defendant called her into his room after she was in bed. He told her that he was “checking for scars “[to see] if everything was okay,” and he pulled down her underwear and examined her visually. […]