Com. v. Colin C.

• Decision Date: 28 November 1994
• Citation: 419 Mass. 54,643 N.E.2d 19
• Parties: COMMONWEALTH v. COLIN C., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 19

643 N.E.2d 19

419 Mass. 54

COMMONWEALTH v. COLIN C., a juvenile.

Supreme Judicial Court of Massachusetts Worcester.

Argued Sept. 13, 1994.

Decided Nov. 28, 1994.

Joseph A. Nicastro, Northampton, for juvenile.

Lynn Morrill Turcotte, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The juvenile was charged in Worcester Juvenile Court with delinquency by reason of three counts of indecent assault and battery on a child under the age of fourteen, six counts of rape of a child with force, three counts of kidnapping, and intimidation of a witness. He admitted in the bench session to sufficient facts for a finding of delinquency on all counts except the intimidation of a witness complaint, ¹ and was committed to the Department of Youth Services.

The juvenile appealed to the jury session. Pursuant to the juvenile's motion in limine, the judge conducted hearings to determine the competency of the three child witnesses, to whom we assign fictitious names. The judge determined that nine year old Donald and eight year old Peter were competent to testify. The judge declared the juvenile's youngest complainant, six year old Ned, incompetent to testify because he concluded that Ned did not fully comprehend the consequences of telling a lie. Pursuant to G.L. c. 233, § 81, ² the judge allowed Ned's mother to testify about her son's extrajudicial statements because he found that Ned had made those statements "under circumstances inherently demonstrating a special guarantee of reliability." See G.L. c. 233, § 81(c)(2).

At the close of the Commonwealth's case, the judge allowed the juvenile's motion for a required finding of not delinquent with respect to two of the complaints charging the juvenile with one count of rape of Ned and one count of kidnapping Ned. The jury subsequently found the juvenile delinquent on all charges except one count of indecent assault and battery of Ned. On March 25, 1992, the juvenile was committed to the Department of Youth Services. ³ The juvenile filed a timely notice of appeal, and we transferred the case from the Appeals Court on our own motion.

The juvenile asserts five issues on appeal. First, he argues that G.L. c. 233, § 81, on its face violates his right to confront the witnesses against him as guaranteed under art. 12 of the Declaration of Rights of the Massachusetts Constitution. Second, the juvenile argues that G.L. c. 233, § 81, is unconstitutional as applied in this case, ⁴ and that the judge did not comply with the requirements of the statute. Third, the juvenile asserts that the judge erred in allowing an expert opinion on the ultimate issue in the case. Fourth, the juvenile asserts that the judge erred in allowing hearsay testimony under the guise of fresh complaint. Fifth, the juvenile asserts that the judge committed reversible error when he refused to give certain requested instructions to the jury on the credibility of child witnesses.

We reverse because the judge erred in allowing an expert to testify that, in her opinion, Donald and Ned were sexually abused. We need not, therefore, reach the juvenile's other assertions of error. However, because the issue may arise on retrial, we discuss some of the juvenile's arguments in regard to G.L. c. 233, § 81.

Facts. We summarize the evidence before the jury. In the summer of 1990, the juvenile constructed a tree house near his home. Several neighborhood children assisted in building the tree house, including Donald, Peter, and Ned, the complainants. One could climb up to the tree house using either a ladder or a rope. After the tree house was built, the three younger children played in and around it with the older boys, the juvenile and his cousin.

Donald and Peter testified that in this location, the juvenile and his cousin touched the three younger boys, performed acts on the younger boys amounting to oral and anal rape, and forced them to perform similar acts on the older boys as well as on each other. The juvenile and his cousin also allegedly forced the three younger boys to take off their clothes and to watch as the older boys pulled down their pants and performed sexual acts on each other. Donald testified that the juvenile had, on several occasions, pulled up the ladder and rope to the tree house and blocked the door to prevent the younger boys from leaving. Neither Donald nor Peter came forward immediately, nor could either boy state when precisely the abuse had occurred. Both children, however, did relate the timing of the acts of sexual abuse to the construction of the tree house.

Following the alleged abuse, Dr. Deborah Madansky, a child psychiatrist and an expert in child abuse, conducted physical examinations and clinical interviews of Donald and Ned. She also conducted separate interviews with their parents. At trial, she testified generally about the effect of sexual abuse on children, and she explained the psychological dimensions of disclosure. Dr. Madansky testified, over objection, that in her opinion Donald and Ned had been sexually abused. She also relayed to the jury, over objection, what Ned had told her about the abuse.

As noted above, during the course of the trial, the judge determined that Ned was not competent to testify. ⁵ He found that Ned could relate the events and be cross-examined. The judge further found that Ned could articulate the difference between the truth and a lie. However, the trial judge was not convinced that Ned understood the consequences of lying. Subsequently, the judge conducted a voir dire hearing to determine whether the hearsay statements Ned made to his mother should be admitted under G.L. c. 233, § 81.

During the voir dire hearing, Ned's mother testified that Ned first disclosed the alleged abuse to her in May, 1991. She took ten pages of notes while Ned made the disclosures, and recorded his statements in a journal. She also told about certain disclosures made to her by Ned and Peter. Following her voir dire testimony, the judge concluded that Ned's hearsay statements could be admitted pursuant to G.L. c. 233, § 81. ⁶ He concluded that Ned's mother had made "more or less" contemporaneous notes of the statements. He considered the clarity of the statements and noted that Ned's statements to his mother were consistent with those he made to Dr. Madansky. The judge also found that the statements were made at the locus of the alleged abuse while Ned was not under undue stress. Consequently, the judge ruled that Ned's statements were made in circumstances inherently demonstrating a special guarantee of reliability. Ned's mother then testified before the jury about what Ned had told her about the alleged sexual abuse of the three children.

1. Expert testimony. The juvenile asserts that the judge committed reversible error in allowing Dr. Madansky, over defense counsel's objection, to give an opinion as to whether Ned and Donald had been the victims of sexual abuse. We agree.

A trial judge has broad discretion with respect to the admission of expert testimony. Commonwealth v. Dockham, 405 Mass. 618, 628, 542 N.E.2d 591 (1989). Expert testimony on matters within the witness's field of expertise is admissible when it will aid the jury in reaching a decision. Id. Commonwealth v. Pikul, 400 Mass. 550, 553, 511 N.E.2d 336 (1987). Simon v. Solomon, 385 Mass. 91, 105, 431 N.E.2d 556 (1982).

We have held that a question calling for an opinion which is in the domain of the expert's professional knowledge is not necessarily to be excluded merely because the expert's conclusion reaches or approaches the ultimate issue before the jury. Commonwealth v. LaCorte, 373 Mass. 700, 705, 369 N.E.2d 1006 (1977). Simon v. Solomon, supra at 105, 431 N.E.2d 556. Commonwealth v. Montmeny, 360 Mass. 526, 527-528, 276 N.E.2d 688 (1971). "An expert may not, however, offer his opinion on issues that the jury are equally competent to assess, such as credibility of witnesses." Simon v. Solomon, supra. Such an opinion impermissibly would intrude upon the jury's vital factfinding function. Commonwealth v. Ianello, 401 Mass. 197, 201-202, 515 N.E.2d 1181 (1987). Cf. Commonwealth v. Hudson, 417 Mass. 536, 541, 631 N.E.2d 50 (1994) (stating the same principle, but concluding that behavioral characteristics were a proper subject for expert opinion). An expert may not render an opinion about a witness's credibility because the jury are capable of making that assessment without an expert's aid. Ianello, supra at 202, 515 N.E.2d 1181. See Commonwealth v. Brusgulis, 398 Mass. 325, 331 n. 12, 496 N.E.2d 652 (1986) ("Whether a witness testifies truthfully or according to some fictional script is for the jury to decide" ). "On such questions, the influence of an expert's opinion may threaten the independence of the jury's decision." Simon v. Solomon, supra at 105, 431 N.E.2d 556.

We have allowed expert testimony relating generally to behavioral characteristics of sexual assault and sexual abuse victims. Commonwealth v. Mamay, 407 Mass. 412, 421, 553 N.E.2d 945 (1990) (expert's testimony relating to rape and sexual assault syndrome generally, and not relating to the victims, was properly admitted). Commonwealth v. Dockham, supra at 630, 542 N.E.2d 591 (expert testimony about the general behavioral characteristics of sexually abused children was admissible, where expert made no references of comparison to the child witness). Such information is beyond the jury's common knowledge and may aid them in reaching a decision. However, we have never extended this holding to allow an expert to testify that an alleged victim was in fact sexually assaulted. ⁷ We refuse to do so in this case.

Dr. Madansky's opinion testimony that Donald and Ned were sexually abused was tantamount to an expert opinion that the children's claims of sexual abuse were likely true. See Commonwealth v. Rather, 37 Mass.App.Ct. 140, 147-148, ...