Com. v. Brouillard

• Decision Date: 22 May 1996
• Docket Number: No. 94-P-806,94-P-806
• Citation: 40 Mass.App.Ct. 448,665 N.E.2d 113
• Parties: COMMONWEALTH v. Robert BROUILLARD (and five companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 113

665 N.E.2d 113

40 Mass.App.Ct. 448

COMMONWEALTH v. Robert BROUILLARD (and five companion cases ¹).

No. 94-P-806.

Appeals Court of Massachusetts Bristol.

Argued Sept. 21, 1995.

Decided May 22, 1996.

Steven J. Brooks, Boston, for Margaret Brouillard.

Warren M. Yanoff, Worcester, for Robert Brouillard.

Mary O'Neil, Special Assistant District Attorney, for the Commonwealth.

Before DREBEN, GREENBERG and LENK, JJ.

LENK, Justice.

A Superior Court jury found each of the defendants guilty of two counts of aggravated rape, two counts of rape of a child through use of force, and two counts of indecent assault and battery on a child under the age of fourteen. The complainants, Nancy and Alan, ² are Margaret Brouillard's biological children. The children were eight and five years old, respectively, at the time of trial; and six and three years old at the time of the alleged abuse. Robert Brouillard is Margaret's husband, but is neither the biological nor adoptive father of Nancy and Alan. The defendants contend that they suffered a substantial risk of a miscarriage of justice because the complainants' treating therapist impermissibly vouched for their credibility; because contemporaneous limiting instructions were not given to the jury before the fresh complaint witnesses testified; and because the word "corroborate" in the fresh complaint instruction that was given was not defined. ³ We reverse for the reasons discussed below.

1. Vouching for the complainants' credibility by the treating therapist. Miles Tarter, treating therapist to Nancy and Alan, testified as an expert witness at trial on syndromes associated with sexual abuse, as well as in the capacity of treating therapist and as a fresh complaint witness. The defendants complain that the effect of Tarter's testimony in these multiple roles was to vouch impermissibly for the complainants' credibility. We agree.

Tarter had served as the children's therapist for more than two years before the trial commenced, and continued to see them professionally on a weekly basis at the time of trial. He gave extensive fresh complaint testimony at trial, recounting in detail what Nancy and Alan had told him about sexual acts allegedly perpetrated on them by the defendants. At various times during his testimony, Tarter linked his observations of the complainants and their behaviors to general behaviors or syndromes associated with sexual abuse. In one such exchange, Tarter interspersed his opinion that Nancy was at risk for developing multiple personality disorder with his expert opinion that the disorder is associated with "cases of long term chronic and severe sexual abuse." ⁴ At another point in his testimony, Tarter informed the jury that the literature regarding true versus false reports from children alleging sexual abuse indicated that children who could not give details of the alleged incidents had likely been coached in their testimony. He then testified that Nancy and Alan had "been giving detail for two years and four months. Great detail, yes." ⁵ In a third such instance, Tarter testified that he had diagnosed Alan with posttraumatic stress disorder. While he was prevented (due to defense objections sustained by the trial judge) from testifying about the general symptoms and causes of the disorder, Tarter did then testify (over vigorous objection) to a pattern of disclosure among children exposed to "traumatic incidences."

"Most of the children that I've worked with disclose traumatic events piece by piece because it's so difficult to remember and to go back and experience the events over again by telling them. It's most typical for disclosures to come out piece by piece. It's been a very rare experience where the first time a child discloses some traumatic incident like sexual abuse that the first time that they tell the story they've told you everything that they're going to tell you about it. I can't even remember when that's ever happened."

Lastly, on cross-examination, Tarter expressed his concern that Nancy was at risk for developing an eating disorder, then proceeded to offer his (unsolicited) opinion that:

"the link between childhood sexual abuse and the development of eating disorders is fairly well established.... Childhood sexual abuse is the most common factor in the histories of people who present with eating disorders." ⁶

It is well established that fresh complaint testimony is not admissible as evidence of the charge, but merely as corroborative of the complaining witness's in-court allegation. Commonwealth v. Powers, 36 Mass.App.Ct. 65, 70, 627 N.E.2d 953 (1994), citing Commonwealth v. Licata, 412 Mass. 654, 660, 591 N.E.2d 672 (1992). While it is theoretically possible for a fresh complaint witness also to testify about the general characteristics of abused children without thereby impermissibly vouching for the complainants' credibility, we have suggested that this practice be avoided where possible, given the risk that the jury will give substantive effect to such a witness's fresh complaint testimony. See Commonwealth v. Swain, 36 Mass.App.Ct. 433, 444-445, 632 N.E.2d 848 (1994); Commonwealth v. McCaffrey, 36 Mass.App.Ct. 583, 593-594, 633 N.E.2d 1062 (1994). In Commonwealth v. Rather, 37 Mass.App.Ct. 140, 148-149 & n. 4, 638 N.E.2d 915 (1994), we found error in admitting expert testimony regarding general characteristics of sexually abused children where the expert was not an independent expert, but had evaluated the children for sexual abuse, and, where the sequence of questions posed to the expert juxtaposed questions about the complainant with questions about patterns of disclosure among sexually abused children. ⁷ These Rather factors are present here. Tarter was not an independent expert, having treated the children for over two years, and the testimony cited above juxtaposed discussion of general syndromes with specific descriptions of and opinions about the complainants.

Tarter's testimony, intermingling his role as treating therapist, expert on behavioral characteristics of sexually abused children, and fresh complaint witness, had the effect of impermissibly vouching for the complainants' credibility. While an expert may testify regarding general syndromes associated with sexual abuse, Commonwealth v. Dockham, 405 Mass. 618, 628-630, 542 N.E.2d 591 (1989); Commonwealth v. Mamay, 407 Mass. 412, 421-422, 553 N.E.2d 945 (1990), an expert who has also treated a complainant may only so testify if he does not explicitly or impliedly connect the complainant to the syndrome. Commonwealth v. Hudson, 417 Mass. 536, 541, 543, 631 N.E.2d 50 (1994). Commonwealth v. O'Brien, 35 Mass.App.Ct. 827, 833, 626 N.E.2d 892 (1994). We have also cautioned that a treating therapist who testifies only to general syndromes might nonetheless be viewed as implicitly endorsing the complainants' testimony by virtue of the fact that she has accepted them into therapy. Commonwealth v. McCaffrey, 36 Mass.App.Ct. at 592, 633 N.E.2d 1062. However, even putting aside this concern about implied endorsement of complainants, Tarter far exceeded permissible testimonial boundaries. He explicitly connected the complainants to general syndromes associated with sexual abuse, thereby impermissibly vouching for the complainants and invading the jury's province of assessing witness credibility. Ibid. See Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991).

The defendants complain that the problem was compounded when Tarter further endorsed the children's credibility by indicating that he believed the complainants' allegations. We agree. In addition to connecting the complainants to general syndromes of sexual abuse, Tarter conveyed to the jury his belief in the complainants' credibility. He offered explanations as to why the children's allegations changed over time, and why Nancy, the older child, initially lied about her mother's participation in the alleged abuse. ⁸ In response to a question from the prosecutor regarding Nancy's "behaviors" associated with the alleged abuse, Tarter responded,

"... major sleep disturbance. Same thing for [Alan]. Basically both of these kids, I don't think, have ever had a restful night of sleep. They're always terrified at night. Probably because they remember that's when the abuse happened most frequently. So, there's very major serious sleep disturbance."

In response to another question from the prosecutor about why Nancy had purportedly lied at first, when she said her mother was not involved in the alleged abuse, Tarter said,

"... certainly there is a great deal of shame for both of the kids involved, feeling that it must have somehow been their fault; or you know, why did these things have to happen to them; they do [sic ] something wrong to make these things happen to them."

When asked by the prosecutor how long it had taken Nancy to "tell you what happened completely," Tarter responded, "To completely disclose? Personally I don't think she's done. I think that there is more." ⁹ The effect of all of these statements was to show that Tarter personally believed the complainants' allegations to be accurate reports of historical fact. He thereby vouched impermissibly for the children's credibility.

Tarter's vouching for the children was particularly egregious because, given his considerable experience ¹⁰ in dealing with sex abuse, the jury likely perceived him "as especially qualified to judge the credibility of children." Commonwealth v. Powers, 36 Mass.App.Ct. at 70, 627 N.E.2d 953. Moreover, his cited testimony conveyed to the jury that Tarter believed that the children had in fact been sexually assaulted. While expert opinion testimony will not necessarily be excluded because it reaches the ultimate issue in a case, Commonwealth v. Colin C., 419 Mass. 54, 59, 643 N.E.2d 19 (1994), the court has never "allow[ed] an expert to testify that an alleged victim was in fact sexually assaulted."...