Indecent Assault And Battery - Voir Dire
Massachusetts Appeals Court, May 18, 2000

Where a defendant appeals his convictions for assault and battery on a child under the age of 14, we hold that the convictions must be reversed because of the trial judge's error in failing to conduct an individual voir dire of the jurors to determine if any potential juror had been a victim of sexual abuse.

Error Examined

"[D]efendant [Mark Eull] claims that the judge committed prejudicial error in failing to question each juror individually as to whether he or she had been a victim of a childhood sexual offense. There is no question that the judge erred in failing to do so. Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994). However, this omission will not result in reversible error unless the defendant can show that the error "'possibly weakened his case in some significant way. ..."' ... Ordinarily a court will assume prejudice exists from the failure to conduct the requested examination except in those cases where the issues subject to individual voir dire are not involved ... or where overwhelming evidence of guilt is presented. ...

"Here, certainly the subject matter of the individual voir dire was involved and, contrary to the Commonwealth's assertion, there was no overwhelming evidence of guilt. The Commonwealth's case was predicated solely on the testimony of the complaining witness. The defendant suggested that the complainant's allegations were false and motivated by anger over her neglect by her mother and discipline imposed by her grandmother. The defendant challenged the complainant's credibility by showing that she had made prior inconsistent statements relating to when the incidents occurred, where they occurred, whether she screamed or fought during the incidents, and when she first told anyone about the assaults and who she told. There was also evidence presented by the defendant from which one could infer that the complainant may not have been alone with the defendant at the time one of these incidents allegedly occurred. Thus, the outcome of jury deliberations in this case was uncertain. In those circumstances, the defendant has met his burden of showing a possibility that his case may have been significantly weakened by the judge's omission. ..."

Other Issues

"Because we are reversing, we address only those issues which may arise on retrial. We perceive no error in allowing the complaining witness to testify that after the last incident, she 'told' Sherry. As the complaining witness did not repeat what she told Sherry, her testimony was permissible. ... No limiting fresh complaint instruction was required. ... Likewise, the police officer's testimony on direct examination that he observed an interview of the complainant after which he made a determination that charges would be brought was admissible. ... To the extent that on cross-examination the officer testified as to what the complainant said in the interview, a fresh complaint instruction was warranted. Finally, the police officer's testimony did not constitute an affirmation of the truthfulness of the complainant's testimony or the general veracity of sexually abused children. At no point did the officer compare the behavior of the complainant to the general characteristics of sexually abused children. ...

"Judgments reversed. Verdicts set aside."

Commonwealth v. Eull (Lawyers Weekly No. 81-381-00) (5 pages)
(Appeals Court - Unpublished) (No. 98-P-2201) (May 18, 2000).

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