Com. v. Montmeny

• Decision Date: 06 December 1971
• Citation: 276 N.E.2d 688,360 Mass. 526
• Parties: COMMONWEALTH v. Francis G. MONTMENY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 688

276 N.E.2d 688

360 Mass. 526

COMMONWEALTH v. Francis G. MONTMENY.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 5, 1971.

Decided Dec. 6, 1971.

Reuben Goodman and Alexander Whiteside, II, Boston, for defendant.

Matthew J. Ryan, Jr., Dist. Atty., and Leonard E. Gibbons, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

HENNESSEY, Justice.

The defendant was tried before a jury on indictments charging him with kidnapping, armed robbery and rape concerning one girl (the first girl), and with the kidnapping, armed robbery and rape of another girl (the second girl). He was found guilty on all indictments except those for armed robbery, and as to those indictments he was found guilty of unarmed robbery. His appeals are here under G.L. c. 278, §§ 33A--33G.

Two assignments of error are argued: (1) the admission in evidence of an opinion of one Dr. Thomas O'Neil, which the defendant argues was the expression of an opinion as to the ultimate issue for the jury on the rape indictment concerning the first girl, and (2) the denial of the defendant's motion for a directed verdict as to the indictment charging armed robbery of the first girl.

There was testimony from the two girls that Montmeny had forced them into an automobile driven by another man and that Montmeny forced the second girl to have sexual relations with him during the ensuing automobile ride. The car was driven to a dirt road in a wooded area, and there both girls were forced by Montmeny to have sexual relations with him. The other man also forced both girls to have sexual relations with him.

1. Assignment 1 asserts that it was error for the trial judge, over the objection and exception of the defendant, to permit Dr. O'Neil to answer a certain question on direct examination by the district attorney: whether what the doctor had seen in his examination of the first girl was consistent with the history that he had obtained from the girl. ¹

The defence argues that this question should have been excluded as calling for an opinion which was directed toward the ultimate issue before the jury. However, this court has held that a question which calls for an opinion which is in the domain of the expert's professional knowledge is not necessarily to be excluded merely because the conclusion of the witness reaches or approaches the ultimate issue before the jury. Commonwealth v. Dawn, 302 Mass. 255, 259, 19 N.E.2d 315; Commonwealth v. Chapin, 333 Mass. 610, 625, 132 N.E.2d 404; Commonwealth v. van Kooiman, 353 Mass. 759, 233 N.E.2d 206. The further argument is that, since the doctor had already testified that the first girl had given the doctor a history of having been forced into an automobile and driven out into the country and forced to have sexual relations, the question called for an opinion as to the truthfulness of her version of the matter. This court held, in Commonwealth v. Gardner, 350 Mass. 664, 665--667, 216 N.E.2d 558, where the defendant and alleged victim had both testified, that it was error for the district attorney to elicit from a medical witness in a rape case that there had been 'forcible entry' of the alleged victim. In that case (at p. 667, 216 N.E.2d at p. 560) we said: 'We are not persuaded that a gynecologist, or other expert, possesses skills or special experience which might enable him to determine, from factors such as these (his examination of the victim, her emotional state, and her statement to him of what had happened), that acts of intercourse amounted to rape. * * * Where the jury are equally capable of drawing the conclusion sought from an expert witness, the expert's testimony is inadmissible.'

In the circumstances of the case before us, the question at issue was an appropriate one. The question immediately followed a series of other questions addressed by the district attorney to the doctor as to his findings upon physical examination of the young lady, viz. abrasions of the vaginal area, dirt on her legs and thighs, and sensitivity to touch in this area of her body. The question as to whether what the doctor had 'seen' was 'consistent with' the history was not, as it was in the Gardner case, an attempt to elicit from the expert witness a direct opinion that a rape had occurred. Such a direct opinion would have been, in this case, beyond the witness's appropriate province as an expert witness. The question here is rather in the category of another group of cases. In Commonwealth v. Donoghue, 266 Mass. 391, 396, 165 N.E. 413, 414, it was ruled proper for the prosecutor, in the trial of an indictment for illegal abortion, to ask a medical witness, 'Was the condition that you found disclosed...