Com. v. Jimenez

• Decision Date: 30 September 1980
• Parties: COMMONWEALTH v. Filiberto JIMENEZ.
• Court: Appeals Court of Massachusetts

Page 204

409 N.E.2d 204

10 Mass.App.Ct. 441

COMMONWEALTH v. Filiberto JIMENEZ.

Appeals Court of Massachusetts, Essex.

Argued June 10, 1980.

Decided Aug. 26, 1980.

Further Appellate Review Denied Sept. 30, 1980.

Patricia A. O'Neill, Boston, for defendant.

Lila Heideman, Asst. Dist. Atty., for the Com.

Before GOODMAN, BROWN and NOLAN, JJ.

NOLAN, Justice.

The defendant claims to be aggrieved by the judgment of conviction following a jury trial of an indictment charging him with having sexual intercourse with a female under the age of sixteen years in violation of G.L. c. 265, § 23, as appearing in St. 1974, c. 474, § 3. There was no error.

The jury could have found that on September 9, 1978, the victim, then fifteen years of age and emotionally disturbed, came to the defendant's house, which was located across the street from her home, to play with his daughters. The defendant was living there with his wife, four step children and one child of their marriage. Three of the children were home with the defendant when the victim arrived at or about 3:30 P.M. The defendant's wife was visiting her mother at a local hospital. For a short spell the victim watched a baseball game on the television with the defendant and his children until the defendant whispered to her to come into the bedroom with him. After they went into the bedroom and the door was closed, the defendant told her to sit on the bed. He took off her undergarments and her trousers before he undressed himself by taking off his pants and underwear. In succession, he kissed her, fondled her breasts and had sexual intercourse with her. He then gave her a tissue with which to clean herself and some money in the form of change. He admonished her to tell nobody about the bedroom scene.

The defendant then cooked and served dinner to his children and to the victim who eventually went home at or about 8:30 P.M. As soon as she reached her home, she described the encounter with the defendant. Her parents called their physician and drove to the Lawrence General Hospital, where a nurse, Linda LeBlond, who spoke to the victim, called the police. A doctor's examination revealed the presence of seminal fluid but no sperm. The victim exhibited no lacerations or bruises around the vagina. Her hymen was not intact. The hospital's examining physician opined that she had experienced sexual intercourse within eighteen hours of his examination.

The defendant argues error on the part of the trial judge (1) in permitting the victim to testify without the defendant having the benefit of a psychiatric examination of her, (2) in denying a motion for mistrial and motion to strike because of the conduct of the victim on the witness stand and, (3) in sustaining the Commonwealth's objection to that part of defense counsel's final argument to the jury in which he pointed out the fact that the prosecution failed to take sample pubic hairs from the defendant for a comparison test.

1. Qualification of the victim as a witness. The victim was a student at an ungraded school for children with learning disabilities and emotional problems. The trial judge conducted an adroit voir dire examination of the victim. He also heard from Cynthia Mott, a teacher at her school. He elicited from the victim her acknowledgment of what a lie is and her obligation to tell the truth. He satisfied himself that she was able to remember events, though the record is replete with her failures to respond to questions. These lacunae are as consistent with her extreme care to tell the truth as they are with her inability to understand the questions. Her testimony on the witness stand as to the activities of the defendant and herself on the critical afternoon and evening was consistent, in the main, with the fresh complaint made by her to her parents and to the physician at the hospital soon after the events.

The teacher's opinion was that she was competent to testify and that a psychiatrist who saw her before the trial considered her competent. No objection was interposed to this evidence. In any event, the record generously supports the trial judge's finding and ruling of competency.

A person of sufficient understanding is competent to testify as a witness. G.L. c 233, § 20. Sufficient understanding in this context is the "capacity to observe, remember, and give expression to that which she has seen, heard or evidenced." Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495, 497 (1921), quoted with approval in Commonwealth v. Whitehead, --- Mass. ---, --- ^a, 400 N.E.2d 821 (1980). Competency of a prospective witness is peculiarly within the trial judge's discretion and "his determination will be rarely faulted on appellate review." Commonwealth v. Whitehead, supra at --- ^b, 400 N.E.2d at 833, Commonwealth v. Marshall, 211 Mass. 86, 90, 97 N.E. 632 (1912), and cases cited. Commonwealth v. Lynes, 142 Mass. 577, 580-581, 8 N.E. 408 (1886).

The trial judge's decision not to order a psychiatric examination of the victim is also discretionary. Commonwealth v. Fillippini, 1 Mass.App. 606, 609, 304 N.E.2d 581 (1973). Even an insane person is not necessarily an incompetent witness. Commonwealth v. Zelenski, 287 Mass. 125, 129, 191 N.E. 355 (1934). The defendant is fully protected by his inviolate right to cross-examination of the witness. The trier of fact is then left with the duty to evaluate the credibility of the witness. We shall not permit open season on young persons who have learning disabilities or emotional problems and who are sexually abused by declaring them presumptively incompetent witnesses.

2. Motion for mistrial and motion to strike testimony of the victim. At the commencement of her cross-examination, the victim became silent and sat mute for seven minutes. Her mother tried to help her by moving to her side. The judge spoke sympathetically to her and tried to quiet her fears. At last, Cynthia Mott, her teacher, sat by her side and held her hand. With the...