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1. COMMONWEALTH vs. JOSEPH MONTANINO.
   view source details | 5 Oct 2023 | Justia
2. COMMONWEALTH vs. JOSEPH MONTANINO.
   view source details | 5 Oct 2023 | Justia

Source details

• COMMONWEALTH vs. JOSEPH MONTANINO.
  Publisher: Justia
  Date: 5 Oct 2023
  Archive.org
  Source type: Court record

  COMMONWEALTH vs. JOSEPH MONTANINO.

  28 Mass. App. Ct. 516

  January 9, 1990 - April 17, 1990

  Middlesex County

  Present: BROWN, SMITH, & JACOBS, JJ.

  Further appellate review granted, 407 Mass. 1004 (1990).

  The record of testimony of a prosecution witness at a rape trial did not demonstrate that he improperly commented on the victim's credibility or testified to any opinion on that subject. [521-522]

  At a rape trial, where the evidence showed that four years had elapsed between the alleged incidents and the victim's first report to the police, the judge erred in instructing on the doctrine of fresh complaint; however, the defendant demonstrated no prejudice from the giving of the instruction. [522-523, 523-524]

  There was no merit to a criminal defendant's contention on appeal that certain evidence he had introduced at trial was inadmissible. [523]

  At a rape trial the judge improperly allowed a question to the victim on direct examination, with respect to his state of mind in reporting the incidents four years after they occurred; however, no prejudice was demonstrated where the witness's ambiguous answer was interrupted and the subject never arose again. [524-525]

  No issue with respect to a criminal defendant's reputation for truthfulness was presented on the appeal from his convictions. [525-526]

  There was no merit to a defendant's contention that the indictments against him should have been dismissed for being insufficiently specific with respect to the dates of sexual offenses. [526]

  INDICTMENTS found and returned in the Superior Court Department on May 31, 1985.

  The cases were tried before James D. McDaniel, Jr., J.

  Henry P. Sorett for the defendant.

  Catherine E. Sullivan, Assistant District Attorney, for the Commonwealth.

  SMITH, J. On May 31, 1985, a Middlesex County grand jury returned two indictments against the defendant. Each

  Page 517

  indictment charged that he had engaged in unnatural sexual intercourse with a fifteen year old youth ("Paul"). [Note 1] The incidents allegedly occurred between January and April, 1981. A jury convicted the defendant of crimes set forth in both indictments. The defendant raises five issues on appeal. They are that the judge committed error in (1) permitting a police officer to give his "opinion" that Paul's testimony was credible, (2) injecting the "fresh complaint concept" in the case, (3) allowing the prosecution to introduce evidence of prior bad acts of the defendant, (4) ruling that the defendant's character witnesses could be cross-examined in reference to their awareness of other allegations of sexual misconduct by the defendant, and (5) refusing to dismiss the indictments for lack of specificity.

  We summarize the evidence. On direct examination, Paul testified that in 1981 he was a member of a Boy Scout troop and that the defendant was the scoutmaster. [Note 2] The first incident occurred following a scout meeting as the defendant was driving him home. Paul stated that, while he was sitting sideways on the defendant's lap and steering the defendant's sportscar upon invitation, his genitals were rubbed by the defendant. Subsequently, the defendant parked the car on a side street near Harvard Square and then unfastened and pulled down Paul's pants. Paul testified that the defendant performed fellatio on him for about fifteen minutes. After the episode, the defendant asked Paul if he was going to tell anyone. Paul said he would not. The defendant then drove him home.

  Paul testified that he told no one of the incident because he was "confused," "embarrassed," "scared," and "just didn't know what was right." He continued to attend scout

  Page 518

  meetings because he "just wanted to try and forget it, that it wouldn't ever happen again." He said he "was confused, but . . . still for some reason trusted . . . [the defendant] because he was . . . [the] Boy Scout leader and . . . [Paul] looked up to him at that time."

  According to Paul, several weeks elapsed without further incident. During this period, he and the defendant discussed prerequisites to becoming a Star Scout, and the defendant offered to assist him in obtaining the necessary merit badges. They agreed to meet on a Saturday. The defendant picked Paul up at his home in Cambridge and brought him to the defendant's apartment in Somerville. Paul stated that this was the only time he had been there. After describing the apartment, Paul stated that he and the defendant sat down on a couch in the den. The defendant then unfastened Paul's pants as well as his own and performed fellatio on Paul. He stated that the defendant next attempted, without success, to force Paul to perform fellatio on him. According to Paul, the defendant then told him to lie face down on the floor. Paul complied and the defendant lay on top of him and engaged in anal intercourse. Paul testified that after a few minutes he was able to roll over, and the defendant got off him. The defendant, who appeared to Paul to be nervous, asked Paul if he would tell anyone what happened. Again, Paul said he would not. At Paul's request the defendant drove him home. Paul testified that he told no one about the occurrences in the defendant's apartment. He withdrew from the troop a few weeks later. Paul stated that he told the defendant he was quitting as a result of increased time demands of his job, but that the real reason was because of what happened and because he hated the defendant. According to Paul, both incidents occurred between January and April, 1981.

  From the time of the incidents in 1981 until the spring of 1985, Paul remained silent. He testified that his family had moved from Cambridge to Hingham and that at some point he learned the defendant had become a Cambridge police officer. He stated that during this time the incidents with the defendant "started to erase from [his] mind." In the spring

  Page 519

  of 1985, however, he discussed the incidents, for the first time, with his sister-in-law. A few days later, he met with Sergeant Leonard Saviagno (the sergeant) of the Cambridge police department. Paul testified that during the course of a series of interviews with Sergeant Saviagno, he told him "everything" about the two incidents.

  During cross-examination, defense counsel attacked Paul's credibility by focusing on his four-year delay in reporting the incidents. In addition, defense counsel used the contents of Paul's statements to Sergeant Saviagno to probe for inconsistencies with Paul's testimony. Paul admitted he told Sergeant Saviagno that the incidents had occurred at several times different from those to which he testified in his direct examination. He also conceded a failure to inform the sergeant that the defendant had engaged in oral sex with him during the first incident. On redirect examination, Paul explained that these inconsistencies had occurred during his first interview with Sergeant Saviagno when he was nervous and did not know the sergeant. [Note 3]

  1. The "opinion" testimony. Sergeant Saviagno was the next Commonwealth witness. He testified that he met with Paul "three or four times" in the spring of 1985 and they discussed "some incidents" involving the defendant. The prosecutor did not ask Sergeant Saviagno for the details of those conversations. The sergeant, in concluding his testimony on direct examination, stated that as a result of his conversations with Paul "some charges" were brought against the defendant.

  On cross-examination, defense counsel again used the contents of Paul's statements to Saviagno to reemphasize the inconsistencies in Paul's testimony. Saviagno testified that during a tape recorded interview Paul stated that the incidents could have occurred at times different from those given in his

  Page 520

  trial testimony. He also stated that, in the tape recorded interview, Paul had not included any reference to oral sex during the first incident.

  On redirect examination, Saviagno explained the method by which he and Paul, during the initial interview, attempted to narrow the possible dates of the incidents. The prosecutor then asked Saviagno about his job assignments in the Cambridge police department. Saviagno testified, over the defendant's objections, that one of his assignments was as commanding officer of the sexual assault unit and, in that capacity, he had investigated approximately 300 cases of sexual assault. Saviagno was then asked about the process used in interviewing alleged victims of sexual assaults. He testified that the process of interviewing "victims" in those cases varied according to the age, demeanor, and mental state of the "victim." He stated that children, generally, would be interviewed four or five times, whereas adults were typically interviewed only two or three times. The prosecutor then engaged the witness in the following colloquy:

  PROSECUTOR: "And, would you tell us, Sergeant, whether or not you have an opinion as to whether in your initial discussions with victims, [you] tend to get more or less than the complete details that you eventually learn regarding the incident?"

  . . .

  SAVIAGNO: "Yes."

  PROSECUTOR: "And, would you tell us what that opinion is, Sergeant?"

  DEFENSE COUNSEL: "Objection."

  THE COURT: "Overruled. He may elaborate."

  SAVIAGNO: "The first, usually the first meeting with the victim is a process of laying the groundwork for an interview, which is just to meet the victim, gain the victim's confidence, to reaffirm the victim that we are there to be supportive, and that the information we get is going to have to be reported and passed on to the District Attorney and get the person comfortable as to what the process is, the court process, supportive processes, psychological

  Page 521

  supports, and let the victim know exactly what they are going to have to contend with in the course of the prosecution of the case."

  In response to other questions, Saviagno explained that in some cases a "victim" might reveal what happened in detail at the first meeting, but in most cases "victims" provide further details of the incident over the course of the interview process.

  The witness was then asked:

  PROSECUTOR: "And at some point in your discussions with . . . [Paul], in this case, Sergeant, did he tell you about the alleged oral sexual contact that had occurred in the car?"

  DEFENSE COUNSEL: "Objection."

  SAVIAGNO: "Yes; he did."

  THE COURT: "No. She can have that."

  SAVIAGNO: "Yes; he did, Your Honor."

  On appeal, the defendant claims that the Commonwealth was allowed to introduce Saviagno's opinion that "the changes in . . . [Paul's] story were consistent with the way in which truthful victims of sexual assaults relate their stories," and the admission of such testimony was error because it allowed the witness to comment on Paul's credibility. See Commonwealth v. Dickinson, 394 Mass. 702 , 706-707 (1985); Commonwealth v. Triplett, 398 Mass. 561 , 567 (1986); Commonwealth v. Ward, 15 Mass. App. Ct. 400 , 401-402 (1983); Commonwealth v. Long, 17 Mass. App. Ct. 707 , 708 (1984), for cases where the court held that one witness cannot be asked for his opinion or cannot otherwise comment on the credibility of other witnesses.

  Contrary to the defendant's assertion, Saviagno did not give his "opinion" on Paul's credibility or on any other topic. Contrast Commonwealth v. Wolcott, ante 200, 207 (1990). Clearly, one of the prosecutor's questions was in a form devised to obtain the opinion of a witness. Despite the form of the question, however, Saviagno's answer did not contain his

  Page 522

  opinion. Rather, his response was a description of the process used in interviewing individuals who claimed to be victims of sexual assaults. [Note 4]

  The limited nature of Saviagno's testimony on redirect examination distinguishes this case from the Dickinson-Triplett-Ward-Long line of cases. The defense had cross-examined both Paul and Saviagno regarding Paul's failure to inform the detective, at least in his initial interview, of all the details of the first sexual assault. The Commonwealth was entitled to have Saviagno explain the interview process in order that the jury could fairly evaluate Paul's initial omission. Compare Kelley v. Boston, 296 Mass. 463 , 465-466 (1937)(one witness allowed to testify as to reason for another witness's omission). By itself, Saviagno's testimony that in "most cases" individuals remember more details at successive interviews was not a comment on Paul's credibility. At no time did he state that in his experience an individual, complaining of a sexual assault, becomes more truthful as the interviews proceed or that he thought Paul was truthful, despite the omission, because he fit the mold of "most cases." Further, the judge's prompt instruction to the jury that it is for the fact finder to determine whether an allegation of sexual assault is true (see n.4), removed any possibility of error.

  In sum, the record shows that Saviagno did not comment on Paul's credibility or testify to any opinions. In the circumstances, his testimony on redirect examination was proper.

  2. The introduction of the "fresh complaint concept" into the trial. At the close of the Commonwealth's evidence, the judge instructed the jury, over the defendant's objection, that

  Page 523

  the testimony in which the "alleged victim . . . told Sergeant Saviagno what happened . . . . That kind of evidence is what we call `fresh complaint evidence,' and it has a limited purpose . . . ." The judge then stated that fresh complaint evidence "is to corroborate the fact that he told somebody at some time about it. It doesn't establish that the crime actually happened. It only establishes and corroborates that he told somebody that the incident happened." In his final instructions, the judge again stated that the fresh complaint evidence could only be used to corroborate that Paul had complained to the police about the incidents.

  The defendant contends in his brief that the judge committed error when he "interjected the concept of `fresh complaint' into . . . [the] case" because Paul's statements to the police were too remote, as matter of law, to be considered fresh complaints. He further argues that, even if the evidence had been properly admitted on other grounds, it was error for the judge to characterize such evidence to the jury as fresh complaint.

  The claim of defense counsel on appeal (he was also trial counsel) that the details of Paul's statements to Saviagno concerning the incidents were not admissible is surprising in view of what occurred at trial. It was defense counsel, not the prosecutor, who brought out such evidence. Obviously, it was a tactical decision on his part in order to expose possible inconsistencies with Paul's testimony. "In such circumstances, when a statement is used by the defendant to discredit the victim during . . . cross-examination, it may be admissible on more traditional principles without regard to the limitations that govern fresh complaint testimony." Commonwealth v. Lagacy, 23 Mass. App. Ct. 622 , 631 (1987). Such is the case here.

  Because four years elapsed between the time of the incidents and Paul's report to the police, the judge should not have instructed the jury on the doctrine of fresh complaint. Compare Commonwealth v. Lagacy, 23 Mass. App. Ct. at 625-626 & n.7 (twenty-one year old victim's delay of three weeks approaches the outer extreme of admissibility). See

  Page 524

  also Commonwealth v. Coull, 20 Mass. App. Ct. 955 , 957 n.4 (1985)("[t]estimony as to the victim's substantive conversations three years after the events in question could not have been admitted as fresh complaint . . ."). Moreover, there were no special circumstances in this case justifying an extraordinary delay. Paul was fifteen years old at the time of the alleged incidents; he lived with his family; he had virtually no contact with the defendant after the alleged incidents; and, although the defendant later became a police officer in Cambridge, three or four of Paul's relatives were also on the force.

  The defendant, however, fails to point out any prejudice that may have resulted from the giving of the instruction. The jury were informed that testimony concerning the details of Paul's complaints to Saviagno could be considered only for the limited purpose of corroboration of "the fact that the victim told somebody at sometime about [the incidents] . . . ." The jury were specifically informed, more than once, that they could not use the testimony as evidence that the incidents had actually taken place. "We are unwilling to assume that the jury did not heed these instructions." Commonwealth v. Dockham, 405 Mass. 618 , 627 (1989). Further, a reading of the entire charge demonstrates that the fresh complaint instruction did not undercut the judge's careful and complete instructions on prior inconsistent statements and their effect on credibility.

  3. The admission of testimony concerning prior bad acts of the defendant. On direct examination, the prosecutor asked Paul, over the defendant's objection, "Why did you finally tell . . . [Saviagno] after all that time?" Paul responded, "because I had found out that it was still going on --." The defendant, at sidebar, asked for a mistrial or at least that the answer be struck. He claimed that the question and answer alerted the jury to allegations that the defendant had been having sexual relations with other boys and that such evidence was unfairly prejudicial. The judge allowed the question and answer because he stated they were relevant to

  Page 525

  Paul's state of mind in coming forward with his complaint. He denied the defendant's requests.

  The Commonwealth argues, in its brief, that the question was proper because "evidence of the reason for a delayed report of a rape and the circumstances of the report have long been held admissible," and cites Commonwealth v. Rollo, 203 Mass. 354 , 355 (1909); Commonwealth v. Colangelo, 256 Mass. 165 , 166 (1926); Glover v. Callahan, 299 Mass. 55 , 57-58 (1937), as support for its argument.

  The reliance by the Commonwealth on those decisions is misplaced. They hold that a victim of rape may offer evidence that explains the reason that an earlier complaint was not made. However, they are not concerned with the subject of the question under scrutiny here, i.e., why a delayed complaint was being made at a particular time.

  We agree with the defendant that the question was improper, at least on direct examination. [Note 5] Paul's "state of mind" in reporting the incidents about four years after they occurred was not relevant, at least on direct examination. Therefore, it was error, in the circumstances, to allow the question.

  We believe that the interrupted answer of the witness does not require a new trial. The information conveyed in the answer was only stated once, in response to a single question. It was never mentioned again to the jurors. In addition, we note that the answer was ambiguous and well might have left some question in the jurors' minds as to whether what "was still going on" was similar conduct.

  4. Remaining issues. The last two issues do not require detailed discussion. The defendant claims that the judge committed error when he ruled that, if the defendant presented evidence of his good reputation for truthfulness, then the prosecutor would be permitted to cross-examine the witnesses by asking them if they had heard specific allegations

  Page 526

  of other misconduct by the defendant. The short answer to the defendant's claim is that the judge did not make the ruling described in the defendant's brief. Further, the defendant's reputation for truthfulness was not attacked at trial. Therefore, he would not have been entitled, in any event, to present evidence of his truthful nature. See Commonwealth v. Sheline, 391 Mass. 279 , 288-289(1984) (introduction of testimony that contradicts the testimony of a defendant does not constitute an attack on the defendant's character for truthfulness).

  The indictments described the date of the offenses as "between January and April, 1981." The defendant argues that the indictments should have been dismissed because they were insufficiently specific. The indictments meet the test of describing the offenses "with as much certainty as the known circumstances of the case would permit." Commonwealth v. Burke, 339 Mass. 521 , 523 (1959). There is nothing in the record to indicate that a more specific date could have been calculated. Further, the defendant does not present facts that demonstrate he was prejudiced in his ability to present an alibi defense. He admitted driving Boy Scouts home from meetings and letting them steer his automobile. He conceded that Paul had been in his apartment, though he claimed never alone. He presented no evidence of lack of access to the victim. Rather, his defense was to deny the charges and do his best to impeach the victim's credibility. There was no error in the denial of the defendant's motion to dismiss the indictments.

  Judgments affirmed.

  FOOTNOTES

  [Note 1] Two additional indictments against the defendant were returned at the same time. Those indictments charged the defendant with indecent assault and battery on two other youths who were under fourteen. After a trial, the defendant was convicted on one indictment and acquitted on the other. See Commonwealth v. Montanino, 27 Mass. App. Ct. 130 (1989).

  [Note 2] Paul was fifteen years old at the time of the alleged incidents, nineteen years old when he first discussed and reported the incidents, and twenty-one years old at the time of the trial.

  [Note 3] The defendant testified. He denied having engaged in any sexual acts with Paul. He also denied that Paul had ever been alone with him in his apartment and explained Paul's accurate description of the apartment's interior by stating that Paul and other Boy Scouts had regularly attended meetings there. An assistant scoutmaster corroborated the defendant's testimony about the meetings in the apartment.

  [Note 4] Saviagno's repeated use of the word "victims" to describe those individuals was unfortunate. The judge, however, put the word in proper perspective for the jury. During defense counsel's recross-examination of Saviagno, the judge told the jury that the status of an individual complaining to the witness of sexual assaults was that of "[a]lleged victim, . . . I think that is safe to say, it is an alleged victim . . . . A person is not proved to be a victim at that point in the investigation [the interview process], obviously." A moment later the judge informed the jury that "whether an allegation [of sexual assault] is true or false is for a finder of fact when it is prosecuted."

  [Note 5] In view of our decision that the error was not prejudicial, we need not decide whether the question could properly have been asked on redirect examination, in light of the cross-examination of Paul. See Commonwealth v. Errington, 390 Mass. 875 , 879-881 (1984).

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  COMMONWEALTH vs. JOSEPH MONTANINO.
  Publisher: Justia
  Date: 5 Oct 2023
  Archive.org
  Source type: Court record

  COMMONWEALTH vs. JOSEPH MONTANINO.

  27 Mass. App. Ct. 130

  October 6, 1988 - March 21, 1989

  Middlesex County

  Present: GREANEY, C.J., SMITH, & FINE, JJ.

  At the trial of a defendant charged with indecent assault and battery on a child under the age of fourteen, during which the defendant introduced evidence of his good reputation in the community, including his reputation for morality and for not being the type of person who would be sexually involved with boys, the judge did not abuse his discretion in allowing the prosecutor to cross-examine the defendant's character witnesses about whether they had heard reports of prior allegations of sexual misconduct by the defendant, where the judge's actions both before and during the trial reduced the risk of prejudice that might have been caused by the cross-examination. [132-139]

  No occasion for reversal of a conviction of indecent assault and battery on a child under the age of fourteen, (the defendant was acquitted by the same jury on a second indictment naming the victim's older brother as the complainant) was presented by the defendant's contention that the jury's consideration of that charge was tainted by the admission of out-of-court statements by the older brother, which the defendant alleged were used to bolster the younger brother's credibility, where the jury was twice instructed that the statements might be considered only for the purpose of corroborating the older brother's testimony, and only if they found the statements to qualify as a fresh complaint; where the older brother's testimony was not presented in evidence as vouching for the younger brother's credibility, and the Commonwealth did not argue that theory to the jury; and where the judge instructed the jury to consider each indictment against the defendant separately. [139-140]

  At the trial of two indictments charging indecent assault and battery on a child under the age of fourteen, the judge did not err in the circumstances in denying the defendant's motion to dismiss one of the indictments for lack of specificity as to when the offense occurred. [140]

  Page 131

  INDICTMENT found and returned in the Superior Court Department on May 31, 1985.

  The case was tried before Robert J. Hallisey, J.

  Henry P. Sorett (Anne W. Chisholm with him) for the defendant.

  Catherine E. Sullivan, Assistant District Attorney, for the Commonwealth.

  SMITH, J. The defendant, a police officer, was the subject of two indictments charging him with indecent assault and battery on a child under the age of fourteen. [Note 1] The two victims named in the indictments are two brothers, Michael and Robert (fictitious names), ages eleven and thirteen at the time of the alleged offenses. The defendant was tried by a jury and was convicted on the indictment that charged him with indecent assault and battery on Michael and acquitted on the indictment that named Robert as the complainant. The defendant raises three issues on appeal. They are that the judge committed error in (1) allowing the prosecutor to cross-examine the defendant's character witnesses in reference to their awareness of other allegations of sexual misconduct by the defendant, (2) allowing fresh complaint testimony of Robert and his mother, and (3) refusing to dismiss for lack of specificity the indictment naming Michael as the victim.

  The Commonwealth presented the following evidence. In the fall of 1982, Michael, then ten years old, joined a Boy Scout troop of which the defendant was the scoutmaster. His brother, Robert, had been in the same troop. Every Monday night, the defendant or the assistant scoutmaster would give Michael a ride to the church hall where the troop met and back to Michael's house. One Monday night in October, 1983, a month after Michael's eleventh birthday, the defendant gave

  Page 132

  Michael a ride home. The two were alone in the defendant's sportscar. The defendant asked Michael if he wanted to "drive" the automobile. Michael said "yes," climbed over to the driver's side, sat in the defendant's lap, and began steering the automobile.

  As Michael sat in the defendant's lap, the defendant put his hand down Michael's pants, sliding his hand inside the underpants and down to the boy's testicles. The defendant rubbed Michael's testicles for about a minute. Frightened, Michael said nothing. He then jumped from the defendant's lap back to the passenger's side. The defendant asked if he "minded." Michael said nothing the rest of the way home. When Michael went inside the house, his family was asleep. The next morning he told his mother what had happened.

  The defendant testified and admitted that there had been occasions when he was alone with Michael or his brother, driving them to and from Boy Scout meetings, but denied that he had sexually assaulted them. He also presented several witnesses who testified to his good reputation in the community. We now consider the issues raised by the defendant on appeal.

  1. Cross-examination of character witnesses. Prior to the trial, defense counsel informed the trial judge and the prosecutor that he intended to call several persons as character witnesses. He stated that the witnesses would testify that the defendant had an excellent reputation in the community for truthfulness, honesty, integrity and morality. In regard to the last character trait, defense counsel informed the judge that the witnesses would also testify that the defendant had an excellent reputation for not being the type of person who would be sexually involved with boys. Defense counsel then made a motion that the judge order the Commonwealth not to cross-examine the character witnesses as to whether they had heard of prior allegations concerning the defendant's sexual misconduct with boys. The judge took no action on the defendant's motion at that time.

  The defendant renewed his motion at the close of the Commonwealth's case. At a lobby conference, the judge ruled that, if the character witnesses testified that the defendant had a

  Page 133

  good reputation for morality, they could be cross-examined as to their awareness of prior allegations that the defendant had been sexually involved with boys. In particular, the judge ruled that the witnesses could be cross-examined as to whether they had heard of the allegations that were the basis of the previously severed indictments (see note 1). The defendant objected to the denial of his motion.

  The defendant presented sixteen character witnesses. Two were excused by the judge because their opinion as to the defendant's reputation in the community was based upon an insufficient foundation. The remaining character witnesses included police officers, Boy Scout officials, the city solicitor of Cambridge, and a high-ranking member of the Mormon church who also was a physician. They testified about the defendant's service in the Boy Scouts and as a police officer. The Boy Scout officials told the jury that the defendant had received several awards, including the Eagle Scout and Silver Beaver awards, and described the exacting standards that applied to the defendant's selection as an award recipient. All the character witnesses testified that the defendant had an excellent reputation in the community for, among other things, morality and for not being the type of person who would be sexually involved with boys.

  Seven of the fourteen character witnesses were cross-examined concerning their awareness of the allegations that formed the basis of the severed indictments. Before the first character witness was subjected to cross-examination, the judge suggested to the prosecutor that she consider leaving out several details of the allegations in her questions. She complied with the judge's suggestion and omitted from the questions any reference to the name of the complainant in the severed indictments and any details of the allegations, including the information that the allegations concerned rape of a child. Typically, the form of the question to the witness was along the lines of: "Are you aware that there is another complaint [or allegation] against the defendant involving an incident between January and April of 1981, in Somerville [or Cambridge] involving another member of the troop?" Four witnesses testified that

  Page 134

  they were aware of at least one of the allegations against the defendant. On redirect examination they were permitted to explain why they believed the defendant's reputation in the community was nevertheless good.

  One of the character witnesses who testified for the defendant was the city solicitor of Cambridge. He was also president of the Cambridge Boy Scout council. He testified that the defendant had an excellent reputation in the Boy Scout community in Cambridge for truth and a superb reputation both for morality and for not being the type of person who would be sexually involved with boys. On cross-examination, he testified that he had heard of the prior allegations that had formed the basis of the severed indictments. The prosecutor then informed the judge at a bench conference that she wanted to question the witness in regard to a prior allegation of sexual misconduct made against the defendant involving a boy, independent of the allegations that resulted in the severed indictments. That complaint had been made by a Boy Scout to Boy Scout officials concerning an indecent assault allegedly committed on him by the defendant at a camp in New Hampshire. The judge found that such an allegation had been made. He allowed, over the defendant's objection, the prosecutor's request. The prosecutor then asked the witness whether another Boy Scout official had told him "about a complaint he received from another member [of the] defendant's troop, relative to some alleged sexual activity that occurred between the defendant and that Scout at the New Hampshire camp; did he tell you about that?" The witness acknowledged that he had had such a conversation. On redirect examination, the witness was allowed to testify, over the Commonwealth's objection, that the Boy Scouts had conducted an investigation of the New Hampshire allegation and determined that the defendant was not guilty of the charge. Later, the witness stated the police had brought no charges against the defendant. The prosecutor then asked the witness, "You learned, sir, that they administered a polygraph examination --." There was an objection, and the witness interposed, "I did not." The judge then interrupted the questioning and excused the witness. After a recess, the judge charged the jury,

  Page 135

  at the request of the defendant, that "cross-examination of a reputation witness can appropriately inquire whether the witness was aware or had knowledge of certain other things which it is suggested are inconsistent with the quality about which he testified on direct, the defendant had a good reputation. But, we're not concerned about the truth in this case of those other matters, and you must keep in mind that the sole issue that you're going to decide is whether or not the Commonwealth has proved that the defendant is guilty of the matters involving the two [named] boys. So, keep your eye on the ball, please; it's not easy to follow in this area."

  The prosecutor in her closing argument referred to the New Hampshire incident, over the defendant's objection. She told the jury that the Boy Scout officials had talked to the defendant but "they never talked to the kid. Never talked to the kid who said that the defendant did something to him . . . ."

  In his charge to the jury the judge stated in regard to the cross-examination of the character witnesses that "[t]he cross-examination of those [character] witnesses, [in] particular [ ] as to whether they had heard of other things, was for a very limited purpose. Not to prove the truth of other things, that, in fact, other things happened, but merely to probe the strength and breadth of the foundation on which the witness testified as to the reputation. And you can use that sort of evidence only for that purpose."

  On appeal, the defendant claims that Massachusetts does not permit the cross-examination of character witnesses on their awareness of prior allegations of misconduct by the defendant that are inconsistent with the character trait on which the witness has testified. He also argues that, even if such practice is allowed, the judge abused his discretion in this instance.

  The rule in Massachusetts in regard to the admission of character testimony is that "the defendant in a criminal case may put in evidence his general good reputation in regard to the elements of character involved in the commission of the crime charged against him, for the purpose of establishing the improbability of his having done the wrong imputed to him."

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  Commonwealth v. Belton, 352 Mass. 263 , 268 (1967), quoting from Commonwealth v. Nagle, 157 Mass. 554 (1893). Here, the defendant introduced in evidence his good reputation for morality, a character trait inconsistent with the commission of a sexual crime. Further, in regard to that character trait, the defendant was allowed to place in evidence his good reputation for not being the type of person who would be sexually involved with boys.

  A defendant's character can be proved only by reputation and evidence of specific good or bad acts is not permitted. Liacos, Massachusetts Evidence 417-418 (5th ed. 1981). However, once a defendant calls a character witness to testify as to his good reputation for a particular character trait, most jurisdictions hold that trial judges may allow a prosecutor to cross-examine that witness as to his awareness of rumors or reports of prior acts of misconduct by the defendant, including prior arrests or convictions, that are inconsistent or conflict with the character trait to which the witness has testified. Michelson v. United States, 335 U.S. 469 (1948). See 3A Wigmore, Evidence Section 988 (Chadbourn ed. 1970), for a list of jurisdictions which permit such cross-examination. Contrary to the defendant's claim, Massachusetts permits such cross-examination. Commonwealth v. O'Brien, 119 Mass. 342 , 346 (1876). Commonwealth v. Piedra, 20 Mass. App. Ct. 155 , 160-161 (1985). [Note 2] Therefore, once the defendant put in evidence his good reputation for morality and for not being the type of person who would be sexually involved with boys, the Commonwealth had the right to cross-examine the witnesses about whether they had heard reports of prior misconduct concerning that character trait.

  The purpose of the cross-examination is to "test the credibility of the witness, and to ascertain what weight or value is to be given to [the witness's] testimony." Commonwealth v.

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  O'Brien, supra. The credibility of the witness is tested in the following manner -- if the witness states that he has not heard of the report of prior misconduct, his professed knowledge of the defendant's reputation in the community may be doubted by the jury or, if he states that he has heard of the report but still testifies that the defendant's reputation is good in the community, the jury may consider whether the witness is fabricating or whether the community standards in regard to character are too low. See McCormick, Evidence Section 191 n.28 (3d ed. 1984). In any event, the cross-examination is permitted solely for that purpose and it cannot be used to establish the truth of the prior misconduct or the bad character of the defendant. Commonwealth v. O'Brien, 119 Mass. at 346.

  There is no question that the practice involves a considerable risk of prejudice to the defendant. Once the jury hear of the reports of prior misconduct, the same type of misconduct for which the defendant is standing trial, even with limiting instructions, they may be influenced in their determination of the defendant's guilt. See 3A Wigmore, supra Section 988 at 920-921. Therefore, cross-examination of character witnesses requires close supervision; "[w]ide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse." Michelson v. United States, 335 U.S. at 480. A trial judge should be free to exercise discretion in refusing to allow reference to prior acts during the course of cross-examination in situations in which the prejudicial effect would likely outweigh any usefulness for testing the credibility of witnesses.

  While the issue is close, we cannot say that the judge abused his discretion in this case. [Note 3] His actions both before and during the trial reduced the risk of prejudice that might have been

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  caused by the cross-examination. Before permitting the cross-examination, he conducted an inquiry outside the presence of the jury. The allegations, he found, had been made and concerned sexual misconduct of the defendant with a boy, the specific trait that the character witnesses would be inquired of on direct examination. During the course of the trial, he made sure that the questions concerning the reports of prior misconduct did not contain more than a minimum of detail. He also advised the jury during the course of the cross-examination, and again in his charge, of the purpose of the cross-examination, and he instructed them not to be concerned with the truth of the "other matters." [Note 4]

  It was proper for the judge to permit the prosecutor to cross-examine the Boy Scout official about the allegations concerning the incident in New Hampshire. The questioning went too far, perhaps, when the witness was asked about the Boy Scout organization's investigation of the incident. [Note 5] Whether the allegations concerning prior misconduct of the defendant were true or false was not an issue for the jury to decide. The purpose of the cross-examination, we repeat, is to "test the credibility of the witness, and to ascertain what weight or value is to be given [the witness's] testimony." Commonwealth v. O'Brien, 119 Mass. at 346. The witness, however, was the only one of the fourteen character witnesses who was asked about the New Hampshire incident. It was at the defendant's insistence that the judge allowed the testimony about the investigation in evidence. The jury learned from the witness that the Boy Scouts

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  had determined from their investigation that the defendant was "not guilty" and, further, that no criminal charges had been brought against the defendant. Finally, after the particular witness testified, the judge informed the jury that they were not to be concerned "about the truth in this case of those other matters . . . ." We have no reason to believe that the jury ignored the judge's instructions, especially in view of the acquittal of the defendant on one of the indictments that charged him with indecent assault and battery on a child under fourteen.

  2. Admission of Robert's statement. The defendant argues that his conviction of indecent assault and battery on Michael should be reversed because the jury's consideration of that charge was tainted by the admission of an out-of-court statement by Robert, which the defendant alleges was used to bolster Michael's credibility.

  Robert testified, in regard to the indictment that accused the defendant of an indecent assault and battery on him, that he was a member of the Boy Scout troop of which the defendant was scoutmaster. He stated that on occasions between January and April, 1983, he had been subjected to a series of indecent assaults by the defendant. He did not inform his mother of the defendant's misconduct until one evening in October, 1983. His brother, Michael, had told his mother of the indecent assault on him by the defendant the night before. The mother questioned Robert as to whether the defendant had ever exhibited such misconduct to him. He denied any misconduct by the defendant. Later, during the same evening, he told his mother that "something had happened" to him, but he would not tell her what it was. He then said to her, referring to Michael's report to her of the defendant's misconduct, "Mother, it's true" and that "she should believe" Michael.

  The trial judge excluded Robert's statement. However, during his cross-examination of Robert, defense counsel repeatedly asked him whether he had reported the defendant's actions to his mother and whether he had first told her "nothing happened" then changed his story and said, "it did happen." On redirect examination of Robert, the judge ruled that the area had been "open[ed] by cross[examination]." He admitted Robert's testimony

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  about the conversation on the "limited basis" of fresh complaint. There was no error.

  There is no support in the record for the defendant's assertion that the jury considered Robert's statements as vouching for Michael's credibility. The jury was twice instructed that they might consider the statements only for the purpose of corroborating Robert's testimony and only if they found the statements to qualify as a fresh complaint. [Note 6] The statement of Robert was not presented in evidence as vouching for Michael's credibility, and the Commonwealth did not argue that theory to the jury. Further, the judge carefully instructed the jury that they must consider each indictment against the defendant separately. It is evident from their verdicts, guilty on one indictment, not guilty on the other, that they followed the judge's instructions.

  3. Denial of motion to dismiss the indictment. The defendant claims that it was error for the court to deny his motion to dismiss the indictment naming Michael as victim, for lack of specificity as to when the offense occurred.

  The date of the offense is not an element of the crime of indecent assault and battery. Commonwealth v. King, 387 Mass. 464 , 467-468 (1982). Commonwealth v. Atkinson, 15 Mass. App. Ct. 200 , 203 (1983). The date of the offense was narrowed by the bill of particulars to "October, 1983." Neither the victim nor his mother could recall the exact date with greater specificity. There was no error.

  Judgment affirmed.

  FOOTNOTES

  [Note 1] Two additional indictments against the defendant were returned at the same time. Those indictments alleged that the defendant had raped another child under the age of sixteen some two years before the incidents which are the subjects of these indictments took place. The complainant was the same in both indictments and also was a former member of the Boy Scout troop of which the defendant was scoutmaster. The rape indictments were severed from the trial of these indictments.

  [Note 2] The defendant bases his argument that Massachusetts does not permit such cross-examination on two cases, Commonwealth v. Marler, 11 Mass. App. Ct. 1014 , 1015 (1981), and Commonwealth v. Kamishlian, 21 Mass. App. Ct. 931 , 933-934 (1985). Neither case supports the defendant's argument.

  [Note 3] Because there were only a few Massachusetts decisions on the matter, the trial judge had little to guide him in supervising the cross-examination. The relevant case law at the time of the trial required that the prosecutor's inquiry be in good faith and relevant to the trait vouched for on direct examination (Commonwealth v. Piedra, supra at 160), the witness should not be asked his personal opinion (Commonwealth v. Marler, 11 Mass. App. Ct. 1014 , 1015 [1981], Commonwealth v. Kamishlian, 21 Mass. App. Ct. 931 , 933-934 [1985]), and limiting instructions should be given by the judge. Commonwealth v. Peidra, supra at 161.

  [Note 4] The prosecutor should not have framed the question in the form of "are you aware?" Because the testimony of the character witness is based on his familiarity with the defendant's reputation in the community, not that witness's personal knowledge of him, the proper and better form of inquiry is "have you heard?" See Michelson v. United States, 335 U.S. at 482; Commonwealth v. O'Brien, 119 Mass. at 346 (witness "may be asked if he ever heard" of specific acts of misconduct). That error was minor, however, and does not require reversal. See Commonwealth v. United Food Corp., 374 Mass. 765 , 770 (1978). In any event, the witness should not be asked, "Do you know?" See Michelson v. United States, supra.

  [Note 5] As noted, the prosecutor also referred to the investigation of the New Hampshire incident in her closing argument. Again, this was probably better left unmentioned.

  [Note 6] Citing Commonwealth v. Lagacy, 23 Mass. App. Ct. 622 , 627 (1987), the defendant argues that the judge should have exercised his discretion and excluded the testimony rather than leaving to the jury the question whether the complaint was prompt enough. As was the case in Lagacy, we conclude that the testimony cannot be ruled incompetent as matter of law.