Commonwealth v. Lawrence Lamphier.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-25

COMMONWEALTH

vs.

LAWRENCE LAMPHIER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of sexually

assaulting two of his granddaughters when they were between the

ages of four and nine.1 On appeal, the defendant claims that

several trial errors require reversal, alone or cumulatively.

We affirm.

Discussion. 1. Multiple complaints. The defendant faults

the judge for permitting his daughter, the first complaint

witness and the mother of the victims (daughter), and a police

officer to testify about additional reports of the abuse after

the first complaint. Specifically, the daughter testified that

1 The defendant was convicted of six counts of aggravated rape,
two counts of rape of a child by force, and four counts of
indecent assault and battery on a child under fourteen. He was
acquitted of an additional indecent assault and battery charge
and of posing a child in the nude.
she took the victims to a "forensic interview" and instructed

them that "they needed to be very honest, and they needed to

tell these people what happened to them"; to a meeting at the

district attorney's office; and to a "forensic exam[ination]."

In addition, Officer Jared Ulak testified that there was a one-

week delay between the initial report of the crimes and the

execution of a warrant to search the defendant's home because

"there was a SAIN interview[2] that needed to be performed." The

defendant argues that the daughter's and Ulak's testimony was

inadmissible because it "serve[d] no purpose other than to

repeat the fact of a complaint and thereby corroborate the

complainant's accusations," and that the judge failed to conduct

the "careful balancing" required to determine whether the

testimony was "relevant and admissible for reasons that are

independent of the first complaint doctrine" and not unfairly

prejudicial. Commonwealth v. Arana, 453 Mass. 214, 229 (2009).

Because the defendant did not raise this claim at trial, our

review is limited to determine whether there was any error and,

if so, whether it created a substantial risk of a miscarriage of

2 Ulak's testimony was the first reference at trial to a "SAIN
interview," a term that was then repeated but never explained to
the jury. The interview was first referenced in defense
counsel's questioning of the older victim on cross-examination,
where it was described as a recorded interview, about four years
prior to trial, with a woman named Jessica. See Commonwealth v.
Monteiro, 75 Mass. App. Ct. 489, 492 n.2 (2009) (explaining
purpose of Sexual Abuse Intervention Network).

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justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846

(2010).3

The prosecutor had a legitimate reason to question the

daughter briefly about the interviews the victims attended. The

defendant's theory of the case was that the daughter manipulated

the victims into accusing him of abuse because she was angry

with his decision to stop providing financial support. To

suggest that the victims had practiced and fabricated their

trial testimony, the defendant cross-examined them at length

about prior statements they had made (and, in the case of the

older victim, pictures she had drawn) during the initial

forensic interview and in meetings with "the two lawyers."4

3 The defendant did not object to the daughter's testimony that
she took the victims to a forensic interview. When the
prosecutor began to ask the daughter about something that
occurred on June 16, 2014, defense counsel interrupted with an
objection. The judge asked to "just hear the question," the
prosecutor finished asking whether the victims "had a forensic
interview at the Children's Advocacy Center in Fall River," and
the daughter answered, "Yes." Defense counsel did not renew the
objection. Nor did the defendant object to the daughter's
testimony that she took the victims to interviews at the
district attorney's office and to a forensic examination. The
defendant did object when Ulak was asked the reason for the
delay in executing the search warrant but did not state a basis
for the objection. See Commonwealth v. Bonds, 445 Mass. 821,
828 (2006) (issue not preserved where objection at trial is on
different grounds from those asserted on appeal). In any event,
whether the defendant preserved his objection to Ulak's
testimony is immaterial, as we conclude that the testimony did
not violate the first complaint rule.
4 Defense counsel had also previously referred to the forensic

examination, which was favorable to the defense, in his opening
statement, telling the jurors they would "hear that physical

3
Thus, before the daughter testified, the jury already knew that

the victims had reported and described the defendant's conduct

at these interviews -- which also explains why defense counsel

did not object when the prosecutor asked the daughter about them

and why the judge did not engage in any "balancing."

The brief references to the subsequent interviews did not

violate the first complaint doctrine. "[T]he admission of

multiple reports of a victim's allegations of [sexual assault]

is permissible where the evidence serves an independent purpose

and is necessary to present a fair and accurate picture of the

Commonwealth's case." Commonwealth v. Saunders, 75 Mass. App.

Ct. 505, 510 (2009), citing Commonwealth v. Monteiro, 75 Mass.

App. Ct. 489, 495 (2009). Here, the testimony was necessary and

appropriate to establish the timeline and circumstances of the

victims' various statements that had been previously introduced

as impeachment evidence during their cross-examinations. See

Commonwealth v. Torres, 86 Mass. App. Ct. 272, 277-278 (2014).

"The evidence was received for the independent purpose of

rebutting the inferences raised by the defendant's inquiries --

inquiries designed to show recent fabrication on the part of the

victim -- and was necessary for a fair understanding of the

examinations were done of the children and nothing physically
was found to support [their] allegations." The victims' medical
records would later be admitted in evidence without objection.

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Commonwealth's case." Saunders, supra.

2. Testimony linking the forensic interviews with the

search warrant. The defendant argues that Ulak's testimony

about waiting to obtain the search warrant until the victims'

forensic interviews had been conducted was improper for the

additional reason that it was introduced to suggest that the

police believed the victims. See Commonwealth v. Stuckich, 450

Mass. 449, 457 (2008); Monteiro, 75 Mass. App. Ct. at 494. We

disagree. Ulak was among the officers who executed the search

warrant at the defendant's home. Establishing the timing of the

search in relation to when the allegations surfaced was

important for the Commonwealth's case.5 Ulak's testimony was not

offered in a manner to stamp "the imprimatur of official belief"

on the victims' testimony. Stuckich, supra. He did not discuss

the details of the investigations as in Stuckich, supra at 456,

nor did he describe the nature and purpose of the SAIN interview

process as in Monteiro, supra at 492, 494.

Moreover, by the time Ulak testified, the jury had already

heard the victims' testimony, including the older victim's

testimony that the defendant kept condoms, lubricant, and a cup

5 During the search, the police did not find the incriminating
evidence that the older victim said the defendant hid above the
basement ceiling tiles -- a fact that was favorable to the
defendant. The timeline for obtaining the warrant, however,
supported an inference that the defendant had the opportunity to
remove any incriminating evidence before the search occurred.

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into which he ejaculated hidden in the ceiling tiles in his

basement. They had also heard the first complaint evidence and

many of the statements the victims had made during their

forensic interviews. The jury would not have been surprised to

learn that the police sought a search warrant after the victims'

interviews were completed.

The defendant's argument that "[t]he Commonwealth elicited

further testimony on this issue" through Sergeant Joey Faria is

meritless. Faria, the lead investigator on the case, was called

as a defense witness, and he testified on direct examination

about the content of the victims' statements during their SAIN

interviews and at subsequent meetings at the district attorney's

office. He also testified, on direct examination by defense

counsel, about the execution of the search warrant. The

Commonwealth was free to question Faria about the same subjects

during cross-examination.

3. Vouching. The defendant claims that Faria, the

daughter, and the Commonwealth's expert pediatrician all

improperly vouched for the victims' testimony.

a. Faria. As noted, the defense called Faria as a witness

and elicited testimony about inconsistencies between the

victims' testimony at trial, their statements in their forensic

interviews, and what they said during trial preparation meetings

at the district attorney's office. On cross-examination, the

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Commonwealth was permitted to ask Faria, over objection, whether

"the vast majority of what [the older victim] said during [the

trial preparation] meeting was consistent with" her prior

disclosures, to which Faria answered, "Yes, it was." The

defendant contends that this amounted to improper vouching for

the older victim's credibility.

Earlier during the Commonwealth's cross-examination of

Faria, the judge indicated that because the defense questioning

had suggested that the victims' testimony was "recent

contrivance," the Commonwealth would be permitted to elicit some

prior consistent statements. See Commonwealth v. Caruso, 476

Mass. 275, 284-285 (2017); Mass. G. Evid. § 613(b)(2) (2022).

However, the judge was not inclined to permit the Commonwealth

to take Faria through the victims' consistent statements "line

by line." The judge did not abuse his "broad discretion,"

Caruso, supra at 285, by permitting the Commonwealth to rebut

the defendant's claim of recent contrivance in this abbreviated

way.

b. The daughter. When asked, over objection, how she

explained to the victims "that they would not or could not see

their grandfather" after their disclosures, the daughter

answered, "Oh, I had just told them that it wasn't safe, and I

had to protect them, and they could not go over there anymore."

To the extent that this testimony could be understood as

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vouching for the victims' testimony, we are confident that it

had no influence on the jury. Contrast Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994). The daughter testified, as

the first complaint witness, that the victims disclosed the

defendant's abuse to her. She testified that she then called

the defendant and asked him to turn himself in to the police,

and that she herself went to the police to report the crimes.

Furthermore, both victims testified that they did not disclose

the abuse at first because the defendant told them not to, as he

would go to jail. The younger victim added that she decided to

tell anyway because she "recognized" the defendant "was an

unsafe person." The daughter's challenged testimony "did not

prejudice the defendant because it was merely cumulative of

properly admitted evidence." Commonwealth v. Wilson, 427 Mass.

336, 348 (1998).

c. The pediatrician. The prosecutor asked the

Commonwealth's expert pediatrician, who was called as a witness

primarily to explain why the victims' physical examinations

showed no evidence of sexual abuse, about the difference between

a circumcised penis and an uncircumcised penis.6 The defendant

6 The parties stipulated that the defendant was not circumcised.
During cross-examination of the older victim, the defense
introduced a picture of the defendant's erect penis that she had
drawn during her forensic interview. It arguably did not depict
any foreskin. The older victim testified that "the skin would

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objected on grounds of relevance and reliability, because the

expert worked with children rather than adults. The judge

allowed the questioning based on the witness's medical training.

We discern no abuse of discretion. See Commonwealth v.

Richardson, 423 Mass. 180, 182 (1996). The defendant did not

object, on vouching grounds or otherwise, when the pediatrician

testified that circumcised and uncircumcised penises look

similar. The testimony was relevant because the defendant

maintained that the appearance of his penis exonerated him, and

it was admissible to help the jury to understand the evidence.

See Mass. G. Evid. § 702(a) (2022).

4. Hearsay admission. During direct examination by the

prosecutor, the daughter testified about the defendant's

statements to her during a telephone conversation the night she

reported the crimes to the police.7 On redirect examination, the

prosecutor asked whether she also heard the defendant tell her

mother (the defendant's wife) "that he didn't want her to find

out this way." The daughter answered, "Yes," but then added,

"Well, I didn't hear him. I'm sorry. She had said to me in a

be over it until he got erect." The defense contended that she
was coached to give this answer.
7 When the daughter asked the defendant over the telephone to

turn himself in, he responded, "[N]o, that if he did that, it
would kill him. And did he want [the daughter] to kill [her]
mother, as well, because no one would be there to take care of
her." Significantly, during this conversation the defendant did
not deny the victims' allegations.

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conversation --." The defendant objected and moved to strike.

The judge immediately said, "Sustained. The jury's to disregard

that last statement." The judge then called the parties to

sidebar, where it became clear that the prosecutor believed that

the daughter had heard the defendant's statement first-hand.

The judge released the jury for the morning break and held a

voir dire of the daughter, after which he determined that her

testimony about the defendant's statement was inadmissible

hearsay. When the jury returned, the judge reiterated that the

daughter's "partial answer" had been struck, and that the jury

were to "disregard anything that was said in regards to that."

The defendant did not object, and the statement was not

mentioned again.8

For the first time on appeal, the defendant argues that the

judge's instructions were confusing and misleading and, in

effect, permitted the defendant's statement "that he didn't want

[his wife] to find out this way" to stand. We agree that the

instructions were not precise as to which portion of the

daughter's testimony the jury were required to disregard. But

defense counsel did not object to the curative instruction or

ask the judge to clarify, an indication that he believed the

8 In the final charge, the judge reminded the jury, "You may not
consider any answer which I struck from the record and told you
to disregard."

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instruction was adequate at the time. Because the judge "had no

opportunity to clarify further . . . we must determine whether

any error created a substantial risk of a miscarriage of

justice." Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).

The absence of any objection, further attempt to clarify, or

motion for a mistrial persuades us that, to whatever extent the

curative instruction might not have adequately addressed the

hearsay testimony, there was no substantial risk of a

miscarriage of justice.

Judgments affirmed.

By the Court (Rubin,
Massing & D'Angelo, JJ.9),

Clerk

Entered: February 8, 2023.

9 The panelists are listed in order of seniority.

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