Com. v. Howard

• Decision Date: 03 April 1969
• Parties: COMMONWEALTH v. Carroll Wesley HOWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 419

246 N.E.2d 419

355 Mass. 526

COMMONWEALTH v. Carroll Wesley HOWARD.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 4, 1969.

Decided April 3, 1969.

Robert A. Novick, Boston (Reuben Goodman, Boston, with him) for defendant.

Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

CUTTER, Justice.

The defendant was found guilty by a jury on charges of (a) unlawful carnal knowledge and abuse of a female child (the child) under the age of sixteen and (b) incest. His appeal is before us under G.L. c. 278, §§ 33A--33G. The assignments of error argued relate to the admission of testimony.

The evidence would have permitted the following findings. Molestation of the child by her father took place on the night of November 19, 1967, after the child's mother had left about 10:30 P.M. for night work at a nursing home. The child saw her mother on the next morning, the 20th, before going to school but made no complaint. She returned from school and went out to play. That evening she told her mother about what had occurred. The mother on the next day got in touch with the police, her clergyman, and a social worker. The police took he child to be examined by a doctor at a hospital.

The doctor was permitted to give as his opinion that, upon the examination made by him including the history given by the child, the 'probable cause of the widening * * * in the private area of this little girl' was 'a male organ penetration.' He stated that the opening was 'slightly above normal in size, but not abnormal in the sense that--there was no hymen, which can occur very normally.' He was also allowed to testify, as part of the medical history and 'on the medical aspect of the case and that alone,' to the child's description to him of various acts of molestation by the defendant on a date or dates not specified. On cross-examination, he admitted that he was not able to determine whether there had been any recent physical abuse of the child and that, based upon his examination alone, he could not 'say medically that intercourse took place at any time.' ¹

The judge in his charge instructed the jury that the child's complaints to her mother, the police, or the doctor were 'not to be considered * * * as evidence of * * * guilt' but only for the purpose of corroborating the child's own testimony about the defendant's acts. He also charged that, if the complaints were not made 'within a reasonable time of the alleged miconduct,' failure to make them in a reasonable time could be considered 'as evidence tending to discredit her.'

The admission of the doctor's testimony raises two principal questions: (a) whether the history given to him by the child was admissible, and (b) whether his opinion concerning the physical widening could be based in part upon that history.

1. Our cases have not been wholly uniform in discussing the use of statements of medical history. A physician may testify 'to the condition of * * * (a patient) and to the complaints and symptoms of pain and suffering stated by her' and may give his opinion, in answer to a hypothetical question or other proper inquiry, that the symptoms 'were such as might have been expected to follow' certain specified events or as were consistent with such events. It however, is 'not competent for the physician to testify to' statements by the patient concerning the cause of the symptoms or injury (see Roosa v. Boston Loan, Co., 132 Mass. 439, 440--411; Commonwealth v. Dawn, 302 Mass. 255, 260, 19 N.E.2d 315) unless the statements are admissible upon some other ground (e.g. as a dying declaration; cf. Commonwealth v. Sinclair, 195 Mass. 100, 108, 80 N.E. 799; cf. also Commonwealth v. Smith, 213 Mass. 563, 565--566, 100 N.E. 1010).

There is, however, one decision somewhat similar to the present case in which this court approved the admission of statements made to a doctor by a victim concerning past indecencies inflicted upon her and said, 'The statements were admissible as a basis for the physician's opinion upon the condition of her body.' See Commonwealth v. Colangelo, 256 Mass. 165, 166--167, 152 N.E. 241, 242; See also Commonwealth v. Belenski, 276 Mass. 35, 47, 176 N.E. 501. In Wigmore, Evidence, (3d ed.) § 1722, fn. 5, it is noted that the Colangelo case ignores the Roosa decision, 132 Mass. 439. The Roosa decision has been expressly followed in Commonwealth v. Sinclair, 195 Mass. 100, 108--109, 80 N.E. 799 which rejected the reasoning later applied in the Colangelo case. Cf. however, MaCormick, Evidence, §§ 266, 267. The Sinclair case, in effect, was approved in Commonwealth v. Smith, 213 Mass. 563, 564--565, 100 N.E. 1010, and has been generally followed in this Commonwealth. It, unaffected by the Colangelo case (which is hereby overruled), represents the present Massachusetts law, except where there have been statutory modifications. See Commonwealth v. McGruder, 348 Mass. 712, 715, 205 N.E.2d 726, cert. den. 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312.

The doctor's testimony concerning the child's statements to him (about her father's conduct) was admissible for the limited purpose of corroboration, but not to establish guilt, on the so called principle of 'fresh complaint' by the child, 'as in a sense corroborating * * * (her later explicit direct) testimony * * * by showing that her conduct immediately after the episode was consistent with her charge of' molestation. See Commonwealth v. Spare, 353 Mass. 263, 265--266, 230 N.E.2d 798, 800, and cases cited. Although the judge made no preliminary inquiry whether the statements to the doctor were sufficiently prompt to constitute fresh complaint (see Commonwealth v. Cleary, 172 Mass. 175, 177, 51 N.E. 746), it rapidly developed from the testimony of the child and her mother that they were made as soon as reasonably could be expected in the case of a child of this age. The visit to the doctor was part of a continuous series of complaints by the child (to her mother, to the police, and to the doctor) which all were sufficiently soon after the alleged episode to constitute fresh complaint. The judge properly charged that the testimony had corroborative effect only.

Although the judge originally erroneously admitted the child's statements to the doctor on essentially the ground of the Colangelo case, 256 Mass. 165, 166--167, 152 N.E. 241, for limited use as medical history and not as proof of the defendant's guilt, we give weight to the fact that they were admissible as 'fresh complaint.' In view of the judge's careful charge as to the limited evidential effect of the statements, we think they were not prejudicial, particularly as t...