Com. v. Hudson

• Decision Date: 14 April 1994
• Citation: 417 Mass. 536,631 N.E.2d 50
• Parties: COMMONWEALTH v. Kenneth Joseph HUDSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 50

631 N.E.2d 50

417 Mass. 536

COMMONWEALTH v. Kenneth Joseph HUDSON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 2, 1993.

Decided April 14, 1994.

Benjamin H. Keehn, Committee for Public Counsel Services, for defendant.

Marina Medvedev, Asst. Dist. Atty., for the Com.

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

LYNCH, Justice.

The defendant, Kenneth Joseph Hudson, appeals from his convictions of four counts of a seven-count indictment charging rape of a child under the age of sixteen years. ¹ We granted the defendant's application for direct appellate review.

We summarize the evidence before the jury. At the time of trial the victim was sixteen years old and in the eleventh grade. The victim's mother married the defendant when the victim was approximately five years old, and from the age of five until nine, she was repeatedly raped by the defendant. She claimed that over twenty incidents of sexual abuse occurred during that four and one-half year period. On occasion the defendant threatened to kill the victim and her mother if the victim told of his actions.

The victim did not tell her mother about any of the incidents until just before the defendant and the victim's mother separated. During the time of the incidents, the victim went to the hospital "a lot" because of stomach pain. In addition, she suffered from recurring nightmares where she imagined that the defendant would kill her mother then force the victim to have sexual intercourse with him and kill her. The stomach pain and nightmares persisted until 1989.

On cross-examination, the defendant attacked the victim's credibility. The tenor of the questioning suggested that the victim's alleged abdominal pain was not evident until she began menstruating and intimated that the victim's abdominal pain was caused by irregularities in her menstrual cycle or other medical reasons. The defendant suggested further that the victim's difficulties with her mother's current boy friend caused her to run away from home.

The mother stated that the authorities at the schools the victim attended constantly informed her that the victim complained of stomachaches. According to her mother, doctors believed that the victim's stomachaches were "in her head." She said that, during the years that these incidents occurred, she noticed changes in the victim's behavior. At some point the victim ran away from home for five or six hours. The victim left a note stating that "she was tired of her nightmares and she was leaving."

Dr. Mark N. Webber, the victim's physician, stated that the victim's internal examination was similar to that of a sexually active adolescent. He observed no evidence of trauma, which would be as expected if the sexual activity occurred five or six years earlier. During a May, 1989, visit, Dr. Webber noted that the victim looked "very sad," was quiet, and would not make significant eye contact. Because it was the victim's fourth visit and he was unable to find any physical problem with the victim, Dr. Webber suggested she consult with a psychiatrist.

Dr. Karen Schwartz, a psychologist who qualified as an expert on sexually abused children, described posttraumatic stress disorder (PTSD). Dr. Schwartz stated that PTSD, as described in the Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987), is a disorder primarily developed to describe situations where veterans would experience symptoms years after a traumatic episode. According to Dr. Schwartz the diagnosis of PTSD rests on four symptom categories. At the outset, there must be a traumatic event. Dr. Schwartz testified that sexual abuse could be a traumatic event. She stated that the degree of trauma has some correlation to how closely related the offending person is to the victim. Dr. Schwartz then described the other types of PTSD symptoms. First, there is a reexperiencing phenomena where individuals may have memories which intrude into their daily lives. Reexperiencing phenomena could take the form of nightmares. The second category is a form of psychic numbing or avoidance of stimuli associated with the trauma. An example of psychic numbing includes a sexually abused adolescent who, years later, reveals the abuse but shows no emotion. The third category involves hypervigilance or hyperarousal. In children and adolescents this could take the form of headaches or stomachaches. Dr. Schwartz noted that symptoms of the disorder are dependent on the developmental level of the person traumatized. At different ages, one could expect to see a different constellation of symptoms. In response to a hypothetical question, Dr. Schwartz explained that abdominal pain is "not syndrome specific," because "it does [not] point to one specific syndrome more than another." She testified that more information on a patient's history and level of functioning would be needed. Dr. Schwartz did note that it would be a "red flag" of a number of different things including trauma. In taking a patient's history, Dr. Schwartz said that she would ask the patient whether she had been sexually abused. She further stated that the symptoms manifest themselves in different ways within the preschool population, school-age population, and the adolescent population. According to Dr. Schwartz people with PTSD sometimes will not exhibit symptoms until months or years after they experience the trauma. Dr. Schwartz noted that it is fairly typical that children delay reporting that they were sexually abused. On cross-examination, Dr. Schwartz admitted that, if a patient reports sexual abuse and exhibits various symptoms, her goal is to treat the patient and not to determine whether the patient was telling the truth. In her view, whether the victim was truthful was an appropriate inquiry to the legal arena but not for her purposes. She further testified that all symptoms are subjective. Dr. Schwartz also admitted that, because an individual exhibits certain symptoms such as stomachaches, does not automatically prove that she was the victim of sexual abuse. She testified that the symptoms could be caused by a variety of things and that, often times, the symptoms occur as part of a child's normal development. Dr. Schwartz did not connect her testimony to the victim or the defendant. ²

The defendant argues that the judge erred in admitting expert testimony concerning the typical characteristics of sexually abused children. On appeal, the defendant raises three issues, concerning the expert testimony that: (1) the syndrome evidence describing the typical sexually abused child should not be admissible as affirmative evidence of the defendant's guilt; (2) the expert testimony was improper because it constituted opinion evidence which bolstered the victim's credibility; and (3) the admission of the syndrome evidence was prejudicial. We conclude that the judge did not abuse his discretion by admitting the expert testimony and affirm the convictions.

Prior to trial, a voir dire was conducted to determine whether an expert could testify on PTSD in a child rape case. Dr. Schwartz and Dr. Douglas Gallaway testified. At the conclusion of the voir dire, the judge noted that, although he had not made a final decision, he was leaning to admitting the expert testimony. Another judge was assigned to the trial. The defendant filed a motion in limine concerning the expert testimony. Before ruling on the motion, the trial judge informed the parties he wished a voir dire of the expert. He instructed the prosecutor not to discuss the expert during his opening statement. After a voir dire of Dr. Schwartz on the third day of trial, she was permitted to testify as an expert.

1. The admission of expert testimony lies "largely in the discretion of the trial judge." Commonwealth v. Maltais, 387 Mass. 79, 93, 438 N.E.2d 847 (1982). We have held that expert testimony "is admissible if, in the judge's discretion, the subject is not within the common knowledge or common experience of the jury." Commonwealth v. Francis, 390 Mass. 89, 98, 453 N.E.2d 1204 (1983).

This court has recently opined that courts have uniformly allowed expert testimony on the typical symptoms of sexually abused children because the information is beyond the common knowledge of jurors and of assistance in assessing a victim witness's testimony and credibility. Commonwealth v. Dockham, 405 Mass. 618, 629, 542 N.E.2d 591 (1989). In Dockham, the expert explained that sexually abused children "often delay disclosure of sexual abuse or make gradual disclosures, retract their statements, and repress the abuse." Id. at 628, 542 N.E.2d 591. The expert described behavioral signs and symptoms, such as, "sexualized play, knowledge of adult sexual functions, fears and anxieties related to body parts, people, and places involved in the sexual abuse." In addition, the expert stated that "sexually abused children exhibit impaired trust, withdrawal, depression, guilt, shame, anxiety, and hypervigilance." Id. In Commonwealth v. Mamay, 407 Mass. 412, 421, 553 N.E.2d 945 (1990), we held that it was within the trial judge's discretion to admit expert testimony concerning rape trauma syndrome to explain the conduct of victims who returned to the office of the defendant physician after having been sexually assaulted by him.

There is a similar solidarity of judicial precedent in excluding the evidence to prove that the victim was in fact sexually abused. State v. J.Q., 130 N.J. 554, 563-564, 617 A.2d 1196 (1993), and cases cited. ³ "Courts rarely permit the testimony for the purpose of establishing substantive evidence of abuse, but allow it to rehabilitate the victim's testimony." Id. at 566, 617 A.2d 1196. The critical factor, therefore, in determining admissibility of such evidence is its relevance to the issues in the case.

We do not accept the defendant's contention that Dr. Schwartz's testimony was used affirmatively to prove...