Com. v. Dockham

• Decision Date: 21 August 1989
• Citation: 542 N.E.2d 591,405 Mass. 618
• Parties: COMMONWEALTH v. Joseph DOCKHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 591

542 N.E.2d 591

405 Mass. 618

COMMONWEALTH v. Joseph DOCKHAM.

Supreme Judicial Court of Massachusetts Norfolk.

Argued May 3, 1989.

Decided Aug. 21, 1989.

Stephen T. Cunningham, Rockland, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

The defendant, Joseph Dockham, was convicted of several indictments charging rape, assault with intent to rape, child pornography, and indecent assault and battery of two minor children. The defendant appeals from his convictions, as well as the denial of his motion for a new trial. We transferred the case to this court on our own motion.

The defendant was tried together with the codefendant, Laura Tufts, for the sexual abuse of a four year old boy and an eighteen month old girl. The defendant is the father of the eighteen month old girl; the codefendant is the mother of both children. We have already addressed the codefendant's appeal from the denial of her motion for a new trial. Commonwealth v. Tufts, 405 Mass. 610, 542 N.E.2d 586 (1989).

We summarize the evidence before the jury. The four year old boy gave videotaped testimony about the alleged sexual abuse. ¹ He testified that the defendant tried to put his penis into the boy's rectum and that there was some penetration. According to the child witness, the defendant touched the boy's buttocks and penis with his hand. He also sodomized the boy. The boy testified that "stuff came out." The boy testified to further acts of sexual abuse by the defendant. Additionally, the boy testified that the defendant also touched the girl's vagina with his mouth, and that the codefendant touched his penis with her mouth and fingers and touched the girl's vagina with her mouth and fingers. Both defendants told the boy that he had to touch the codefendant's vagina with his mouth and made the boy touch his sister's vagina. The boy testified that the defendant bit him on the buttocks, that he was hit by the defendant with belts, and that the defendants took pictures while the sexual abuse occurred.

A social worker from the Department of Social Services (department) testified at trial that she had removed the two children from the defendants' home on June 16, 1986, after the four year old boy made allegations of physical and sexual abuse by the defendant and the codefendant. On June 27, 1986, the department placed the two children with a foster family with which the children remained until the time of trial.

The boy's foster mother testified at trial that, on the day the children arrived at her home, the boy told her that his dad had put his finger in the boy's "bum." The foster mother further testified that when it was time for the children to take a bath, the boy started screaming, crying, grabbing at his genital area, and appeared fearful. The child slept in his clothes that night because he would not take off his clothes.

The next day, the boy told his foster mother that "daddy Joe" had touched his penis, and that he was afraid to tell because he would have to go home and would be hit. That night at bath time, the boy began trembling; his eyes popped open, his body and face were rigid, and he was grabbing his genital area. Later, when he calmed down a bit and undressed himself, his foster mother noticed that he was wearing several layers of underpants. The foster mother testified that the boy made further extensive and detailed disclosures to her over the next few days. Her recount of his disclosures was admitted at trial as fresh complaint testimony.

On the fourth day the children were with their foster mother, she took them to the emergency room at Children's Hospital. The boy met with child psychiatrist Dr. Luis Rodriguez. Dr. Rodriguez testified, under the fresh complaint doctrine, that the boy reported that "Joe" had played with his genital area, and put his penis in the boy's rectal area, and that "mommy" (Tufts) played with him and took pictures.

Dr. Kimberly Davies testified that she examined the children at the hospital and made no unusual findings at that time. The girl had a normal gynecological examination showing no tears, bruises, or trauma. The boy would not take off his pants. When the nurse and the physician tried to take his pants off, he started screaming, kicking, fighting, and trying to get off the table. The child's foster mother described him as having veins bulging out of his face, as being "beet red," screaming, "Stop, stop, stop. Leave me alone." Dr. Davies did not complete the examination.

A social worker with the department subsequently interviewed the boy as part of an investigation. Her conversation with him was admitted at trial as fresh complaint testimony. The boy told her that his "daddy" had hurt him and that he had put his penis in the child's mouth. Later that day, the boy told the social worker that he wanted to tell her about his "mommy," saying that his mother had touched his penis with her hands and mouth, that she made the child touch his sister, and that the codefendants took pictures with a camera.

Dr. Renee Brant, a child psychiatrist, testified as an expert witness. She described the language and communication skills of a child as he or she progresses from infancy to age six, as well as the commonly recognized clinical phenomena related to child sexual abuse--secrecy, delayed or gradual disclosure, retraction--and behavioral signs and symptoms sexually abused children frequently exhibit. Dr. Jan Paradise, a pediatric gynecologist, also testified as an expert witness. She testified, in response to a hypothetical question, that it was not inconsistent for a sixteen month old girl who had been touched in the genital area by an adult's mouth or fingers two weeks prior to a physical examination not to have physical signs of trauma to her genital area. She also testified that it was not inconsistent for a four year old boy to show no injury or physical trauma after having had an adult penis placed in his rectal opening, or an adult penis inserted into his mouth, or having had his penis touched by an adult's hands.

Both defendants testified in their own defense. The defendant Dockham testified that he once hit the boy on the buttocks with a belt because he thought the boy had broken a window, that he bit the boy's buttocks as a form of play, and that he once touched the boy's penis when he was drying him off after a bath. He denied inserting his penis into the boy's mouth or engaging in any sexual activity with the boy or girl.

The codefendant, Laura Tufts, testified that she hit the boy "on the butt" if he disobeyed her, but not with a belt. She denied putting her mouth on the boy's penis, or doing anything of that nature. She testified that she occasionally did "raspberries" on the boy's and girl's bellies, which made the children giggle. She also said she would bite the boy on the buttocks when playing with him. She admitted that she at one time owned a Polaroid camera but said that it had been lost in a fire. She testified that she had to touch the boy's penis to keep it clean and to apply ointment he needed because of a problem with the foreskin of his penis. Dr. John J. McHugh, the boy's pediatrician, also testified for the defense, that the boy had a problem with the foreskin of his penis which required the application of lubricants.

The defendant raises eight issues on appeal: (1) the violation of his confrontation right because of impaired eye contact between the defendant and child witness during videotaping; (2) the quality of the videotape; (3) the lack of expert testimony on the issue of emotional trauma to the child if he testified in open court; (4) the introduction of fresh complaint testimony; (5) the admission of expert testimony on the general characteristics of sexually abused children; (6) the exclusion of an opinion that the child witness in this case "lies a lot"; (7) the constitutionality of the child pornography statute, G.L. c. 272, § 29A (1988 ed.); and (8) the constitutionality of the videotaping statute, G.L. c. 278, § 16D (1988 ed.), as a denial of the right to a public trial.

We have addressed previously the issue of the codefendant's confrontation rights, as well as the quality of these videotapes. See Commonwealth v. Tufts, supra. The defendants' challenges are identical, and our decision in Tufts is equally applicable to the defendant in this case. We now address the defendant's remaining challenges.

1. Expert testimony regarding the psychological or emotional trauma to the child if he testified in open court. General Laws c. 278, § 16D, provides that a child can give videotaped testimony if "the court finds by a preponderance of the evidence at the time of the order that the child witness is likely to suffer psychological or emotional trauma as a result of testifying in open court, as a result of testifying in front of the defendant, or as a result of both." We held in Commonwealth v. Bergstrom, 402 Mass. 534, 550-551, 524 N.E.2d 366 (1988), that "the Commonwealth must show, by more than a mere preponderance of evidence, a compelling need for use of such a procedure. Such a compelling need could be shown where, by proof beyond a reasonable doubt, the recording of the testimony of a child witness outside the courtroom (but in the presence of the defendant) is shown to be necessary so as to avoid severe and long lasting emotional trauma to the child."

The judge in this case made a finding that the behavior exhibited by the boy in the courtroom, contrasted with his appearance and behavior in the lobby, satisfied him "beyond a reasonable doubt that it was necessary to record [the boy's] testimony outside the courtroom in order to prevent [the boy] from suffering psychological or emotional trauma." ² The defendant argued below and argues now on appeal that the judge could not make this finding without relying on expert...