Com. v. Colon, 04-P-632.

• Decision Date: 19 August 2005
• Docket Number: No. 04-P-632.,04-P-632.
• Citation: 832 N.E.2d 1154,64 Mass. App. Ct. 303
• Parties: COMMONWEALTH v. Felix COLON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

832 N.E.2d 1154

64 Mass. App. Ct. 303

COMMONWEALTH v. Felix COLON.

No. 04-P-632.

Appeals Court of Massachusetts, Worcester.

Argued January 4, 2005.

Decided August 19, 2005.

David M. Skeels, Committee for Public Counsel Services, Cambridge, for the defendant.

Joseph Visone, Special Assistant District Attorney, Worcester, for the Commonwealth.

Present: PERRETTA, COHEN, & KATZMANN, JJ.

KATZMANN, J.

Following a jury trial in Superior Court, the defendant appeals from his convictions on seven counts of statutory rape of a child, two counts of disseminating matter harmful to a minor, and one count of indecent assault and battery. He urges two grounds for overturning the convictions. First, pointing to his pretrial police statement, in which he provided an explanation as to why the victim had accused him, he contends that his remarks constituted comment on the credibility of a witness, and that it was reversible error to permit the introduction at trial of that unredacted commentary during the police officer's testimony. He argues that this error was compounded when he was cross-examined by the prosecutor. Second, he claims error in an expert opinion's reference on cross-examination to a scientific study. We conclude that the contentions are not meritorious, and we affirm the convictions.

1. Background. The victim testified that over a fourteen-month period, beginning when she was seven years old, the defendant initiated about ten offensive sexual encounters with her. During that time, the victim lived with her mother, her mother's boyfriend, her brother and sister, her aunt, and her aunt's daughter. The defendant, who had an intermittent relationship with the victim's aunt, also lived in the same house as the victim.

The victim's mother and her boyfriend ordered the defendant to leave the residence when the victim informed them that she was being abused. The victim later repeated her allegations to a police officer, who testified at trial as a fresh complaint witness. The victim stated that on about ten occasions, the defendant had taken her into his room at night, locked the door, undressed her, and penetrated her, either with his finger or his penis. She also alleged that the defendant had shown her pornographic magazines and a videotape. A search of the defendant's room by police officers produced pornographic magazines and videotapes, as well as a vibrator. Two days after the search, the defendant provided a statement to the police.

At trial, the victim repeated the substance of her earlier allegations. In addition, she stated that she had been abused in both her room and the defendant's, that he had also used a vibrator that he kept in his room, and that oral and anal intercourse had taken place. On cross-examination, she testified that she wanted to make her parents and the police proud of her, that she had practiced her testimony with the prosecution, and that she sometimes forgot things, which the prosecutor helped her remember.

The balance of the prosecution's case consisted of the physical evidence collected from the defendant's room, and the testimony of several witnesses. Besides the police officer who testified as a fresh complaint witness, another police officer, William Lawrence, testified regarding the statement the defendant had given him. A forensic pediatrician, Dr. Christine Barron, testified about the physical examination she performed on the victim. She described the injury she found, and opined that it was consistent with a penetrating injury to the vagina, and that it was exceedingly rare for such an injury to be accidental. The victim's mother also testified. She stated that the victim began having nightmares in December, 2001 (which would have been shortly after the victim stated that the defendant had begun abusing her). She also described an incident where she found the defendant in the victim's bedroom, and heard the defendant telling her daughter that "[y]ou are going to do it now or go downstairs or go in my room." She testified that, later that night, she opened her bedroom door to find the defendant lying on the floor in front of the door, and the victim standing in her doorway crying.

The defense was based primarily on the defendant's testimony. He denied any form of sexual contact with the victim. He admitted to owning some of the videotapes in his room, but stated that the magazines belonged to the mother's boyfriend and that he had seen the other videotapes in the attic. The defendant testified that the vibrator belonged to the victim's aunt. He also explained that he was simply saying goodbye to the victim when the mother found him in the victim's room, because he had decided to leave that night. He did not remember being found lying on the floor later that night. The defense also sought to show through cross-examination of the Commonwealth's witnesses that the victim's testimony might have been suggested by others, and that the victim's mother, who had been abused herself, was concerned that her daughter might have been abused.

2. The defendant's statement. The defendant urges reversible error flowing from the admission of the unredacted statement he voluntarily made after surrendering himself into police custody.¹ He argues that the admission of offending language in the statement, combined with the subsequent cross-examination on the statement, amounted to improper comment on the credibility of the victim's testimony.

The contested question and response of the defendant in the statement, admitted during the testimony of Detective Lawrence, were:

Q: "Why would [the victim] accuse you of sexually abusing her?"

A: "I came up with two conclusions. Maybe she's mad at me. She's kind of evil and she lies a lot. The other is maybe somebody else did it."

During his defense, on direct examination, the defendant stated that he had "cooperated" with the police, that they had asked him questions, and that he had answered them. On cross-examination, the prosecutor asked the defendant to explain what he meant when he told Detective Lawrence that the complainant was "kind of evil." The defendant testified that, as he had told the police officer, he meant that the complainant "lied a lot."²

It is well-established, and we have repeatedly stated, that it is improper to ask a witness at trial to assess the credibility of other witnesses' testimony. See, e.g., Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262 (1986) (Triplett); Commonwealth v. Long, 17 Mass.App.Ct. 707, 708, 462 N.E.2d 330 (1984) (Long). The purpose of the bar on credibility testimony is that "[t]he factfinder, not the witness, must determine the weight and credibility of testimony." Triplett, 398 Mass. at 567, 500 N.E.2d 262. Questions, and the testimony they elicit, run afoul of this prohibition when they suggest to the jury that "differences in the testimony of the witness and any other witness `could only be the result of lying and not because of misrecollection, failure of recollection or other innocent reason.'" Commonwealth v. Ward, 15 Mass.App.Ct. 400, 402, 446 N.E.2d 89 (1983), quoting from United States v. Narciso, 446 F.Supp. 252, 321 (E.D.Mich.1977). Commonwealth v. Morris, 20 Mass.App.Ct. 114, 119-120, 478 N.E.2d 750 (1985). Such inquiry is irrelevant, and "transforms the interrogation stage of the trial into the phase traditionally reserved for argument and summation." Long, 17 Mass.App.Ct. at 709-710 & n. 6, 462 N.E.2d 330. Moreover, such inquiry inappropriately diverts the jury from the matter at hand — the consideration of the evidence — by pitting witness against witness for the purpose of casting the proponent in a derogatory or unsympathetic light. See, e.g., Triplett, 398 Mass. at 567, 500 N.E.2d 262 ("[t]he relationship between the two witnesses, that of mother and son, magnifies the prejudice caused by the improper questioning"). See also Commonwealth v. DeMars, 42 Mass.App.Ct. 788, 794, 682 N.E.2d 885 (1997) (conduct "sought to cause the jury to loathe the defendant").

In this case, the Triplett-Long line of cases is not implicated. Here, the police query and the resulting comment on the victim's credibility were made before trial during police interrogation, and only ultimately came before the jury during the interrogating officer's testimony. When the defendant gave his statement to the police, he was not testifying as a witness at trial, and he was not commenting on the testimony of another witness. This was not the equivalent of commenting on the credibility of live testimony given by another witness under oath during the trial. The defendant's explanation to the police, as to why the victim had accused him, was properly considered by the jury as an admission, another bit of information to be used in its assessment of the charges and its ultimate determination of guilt or innocence. As such, it was properly the subject of cross-examination. Commonwealth v. Bibby, 35 Mass.App.Ct. 938, 940-941, 624 N.E.2d 624 (1993).

In any event, even if there were error, it was harmless. The record here is distinguishable from the harmful error in Long, where the improper cross-examination spanned over one hundred pages of transcript, see Long, 17 Mass.App.Ct. at 708, 462 N.E.2d 330, and closer in tenor to cases where the isolated nature of the questioning and testimony was considered to be harmless error. Compare Ward, 15 Mass.App.Ct. at 402, 446 N.E.2d 89; Commonwealth v. Flanagan, 20 Mass.App.Ct. 472, 478, 481 N.E.2d 205 (1985). See also Commonwealth v. Kirkpatrick, 26 Mass.App.Ct. 595, 603, 530 N.E.2d 362 (1988) (no miscarriage of justice in two improper questions to defendant). Nor was the testimony mentioned in closing argument. Commonwealth v. Krepon, 32 Mass.App.Ct. 945, 948, 590 N.E.2d 1165 (1992).

Moreover, the substantial and corroborative evidence in the instant case distinguishes it from Triplett, where reversible error was found because the critical issue before the...