Com. v. Poitras, 00-P-526.

• Decision Date: 05 September 2002
• Docket Number: No. 00-P-526.,00-P-526.
• Citation: 774 N.E.2d 647,55 Mass. App. Ct. 691
• Parties: COMMONWEALTH v. Paul C. POITRAS.
• Court: Appeals Court of Massachusetts

774 N.E.2d 647

55 Mass. App. Ct. 691

COMMONWEALTH v. Paul C. POITRAS.

No. 00-P-526.

Appeals Court of Massachusetts, Norfolk.

Argued December 7, 2001.

Decided September 5, 2002.

Chauncey B. Wood for the defendant.

James A. Reidy, Assistant District Attorney, for the Commonwealth.

Present: LAURENCE, MASON, & DOERFER, JJ.

LAURENCE, J.

The defendant, Paul Poitras, appeals his convictions on one count of rape of his stepdaughter, a child under the age of sixteen (G.L. c. 265, § 22A); one count of assault on the same child with intent to commit rape (G.L. c. 265, § 24B); and one count of indecent assault and battery on the same child (G.L. c. 265, § 13J).¹ Poitras's chief arguments on appeal concern the admission of certain testimony by a Commonwealth expert on child sexual abuse and the application of stage two of the Bishop/Fuller procedure for privileged records. See Commonwealth v. Bishop, 416 Mass. 169, 181, 617 N.E.2d 990 (1993); Commonwealth v. Fuller, 423 Mass. 216, 225-226, 667 N.E.2d 847 (1996). Poitras has also appealed the denial without hearing of his post-conviction motion for new trial, alternatively based on alleged newly discovered evidence or ineffective assistance of counsel. We are constrained to reverse Poitras's convictions because of the clear error of law committed by the trial judge in allowing the expert to testify, over objection, to the characteristics of a child abuser, error that injuriously affected Poitras's substantial rights.

We need not rehearse the sordid facts on which Poitras's convictions were based. It is sufficient to note that they reflected many instances of sexual abuse against his step-daughter, beginning when the complainant was seven and continuing until she was thirteen. The complainant did not reveal the abuse until three years after the last alleged act, there were no eyewitnesses to any abuse, there was no physical evidence of abuse, and the Commonwealth's case turned entirely on the complainant's credibility.

Against this background of a far from overwhelming Commonwealth case, the prosecution introduced the testimony of a licensed psychologist as an expert witness on the sexual abuse of children, including the general characteristics of sexually abused children.² The bulk of the expert's testimony dealt with the typical symptoms and behavioral characteristics of sexually abused children. Contrary to Poitras's contentions that such portions of the testimony amounted to improper "vouching" for the credibility of the complainant and impermissible "mirroring" of the underlying facts about the complainant's behavior, that portion of the expert's testimony (including information about typical patterns of disclosure of abuse by such children) was properly admissible, see Commonwealth v. Dockham, 405 Mass. 618, 628-630, 542 N.E.2d 591 (1989); Commonwealth v. Colon, 49 Mass.App.Ct. 289, 291-293, 729 N.E.2d 315 (2000); it neither explicitly or implicitly linked the expert's opinions to the complainant in this case, nor directly or indirectly compared the behaviors testified to with those of the complainant.³ Compare and contrast Commonwealth v. Ianello, 401 Mass. 197, 201-202, 515 N.E.2d 1181 (1987); Commonwealth v. Montanino, 409 Mass. 500, 504-505, 567 N.E.2d 1212 (1991); Commonwealth v. Federico, 425 Mass. 844, 848-851, 683 N.E.2d 1035 (1997); Commonwealth v. Trowbridge, 36 Mass.App.Ct. 734, 743, 636 N.E.2d 291 (1994), S.C., 419 Mass. 750, 759-760, 647 N.E.2d 413 (1995); Commonwealth v. Rather, 37 Mass.App. Ct. 140, 148-149, 638 N.E.2d 915 (1994).

The expert fatally crossed the line, however, between proper "abused child" profile opinion and impermissible profile opinion when she testified at length, over twice-registered defense objection,⁴ about the typical attributes and characteristics of those most likely to abuse children. (That portion of the expert's testimony is set out in the appendix following this opinion, with emphasis added.) That testimony amounted to a description of a child abuser profile and virtually "mirrored" prior prosecution evidence about Poitras that the jury had heard from the complainant and several other witnesses.⁵ Cf. Commonwealth v. Tanner, 45 Mass. App.Ct. 576, 581, 700 N.E.2d 282 (1998) (criticizing expert testimony "presented in conclusory form ... [that] amounts to little more than vouching for the Commonwealth's position").

The admission of such testimony that effectively provides a profile of typical abusers or abuse situations has been condemned by the appellate courts of this Commonwealth as error, especially when the particular characteristics the expert testified to could be taken by the jury to identify the defendant as fitting the profile and therefore more likely than not to have committed the crime. See Commonwealth v. Day, 409 Mass. 719, 723-725, 569 N.E.2d 397 (1991); Commonwealth v. LaCaprucia, 41 Mass.App.Ct. 496, 497-500, 671 N.E.2d 984 (1996); Commonwealth v. Roche, 44 Mass.App.Ct. 372, 380, 691 N.E.2d 946 (1998). Compare Commonwealth v. Goetzendanner, 42 Mass.App.Ct. 637, 644, 679 N.E.2d 240 (1997) (judge's error in not striking expert's batterer profile testimony deemed nonprejudicial because it was confined to a "single, fleeting reference" of a few words). Its admission "is inherently prejudicial to the defendant," Commonwealth v. Day, supra at 723, 569 N.E.2d 397, and cannot be deemed harmless error when the Commonwealth's case against the defendant is not strong, because of the reasonable possibility that it contributed to the jury's conclusion that the defendant was guilty. See id. at 725-726, 569 N.E.2d 397; Commonwealth v. Federico, 425 Mass. at 852-853, 683 N.E.2d 1035.

The harm is particularly pronounced when, as here, the issue of guilt ultimately turned on the complainant's credibility, see id. at 852-853, 683 N.E.2d 1035; Commonwealth v. LaCaprucia, supra at 502, 671 N.E.2d 984, and the prosecutor, in closing argument, reminded the jury of the very testimony by the expert that provided profile characteristics matching those of the defendant. See id. at 501-502, 671 N.E.2d 984 ("[t]he prosecutor's remarks suggested to the jury that the defendant sexually abused his children simply because he fit the mold" described in the impermissible expert testimony). In the end, we cannot say with fair assurance that the jury would have convicted Poitras of even the minority of the charges against him (see note 1, supra) in the absence of the error in admitting the profile testimony, see Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983), and those convictions must, accordingly, be reversed.

Poitras's remaining arguments, insofar as they may implicate evidentiary issues arising at a new trial, need only be briefly addressed:

1. Poitras's challenge to a motion judge's discretionary refusal to make an in camera examination of the complainant's privileged counseling records, because (the judge concluded) Poitras had failed to make the requisite "relevance" showing at stage two of the applicable protocol to pierce the privilege, is without merit.⁶ The theories put forth by defense counsel to warrant such an examination were entirely speculative,⁷ lacking in any concrete or specific factual support, and far from the showing required by Commonwealth v. Fuller, 423 Mass. at 225-226, 667 N.E.2d 847. Moreover, information relevant to the articulated theories appears to have been otherwise available in nonprivileged documents, such as the complainant's school records made available in discovery. See Commonwealth v. Neumyer, 432 Mass. 23, 32, 731 N.E.2d 1053 (2000). Poitras has failed to demonstrate abuse of discretion on the part of the motion judge with respect to the complainant's counseling records. See Commonwealth v. Pare, 43 Mass.App.Ct. 566, 572, 686 N.E.2d 1025 (1997), S.C., 427 Mass. 427, 693 N.E.2d 1002 (1998). See generally Commonwealth v. Pelosi, 55 Mass.App.Ct. 390, 771 N.E.2d 795 (2002).

2. We agree with the Commonwealth that the trial judge did not abuse his broad discretion in denying Poitras's motions for a mistrial based upon a witness's reference to allegations of abuse by Poitras against one of the complainant's sisters. The judge's explicit striking of the challenged testimony and twice-repeated curative instructions to the jury regarding it were sufficient to remove any prejudicial taint. A second testimonial reference claimed to constitute prejudicial uncharged misconduct by Poitras (the complainant's statement on redirect examination that the reason for her disclosure of Poitras's abuse was her "concern" and fear for her younger sister because "she spent a lot of time [alone at Poitras's home]") was, as the Commonwealth argues, permissible rehabilitation in light of the rigorous cross-examination of the complainant regarding her delay in disclosure. See Commonwealth v. Errington, 390 Mass. 875, 880-882, 460 N.E.2d 598 (1984).⁸

3. We also agree with the Commonwealth that Poitras's motion for a new trial was properly denied (by the trial judge) without hearing. The several miscellaneous pieces of evidence offered in support of the motion cannot be characterized as newly discovered, as they were all known to (or reasonably knowable by) Poitras or his counsel at the time of trial, and, indeed, to some extent were introduced at trial. Nor does Poitras establish that failure by his counsel to have utilized that evidence constituted ineffective assistance of counsel; counsel's conduct sufficiently reflected strategic decisions on her part, and her use of such essentially collateral or merely impeaching material could not have provided Poitras with a substantial ground of defense.

In conclusion, the judgments are reversed and the verdicts thereon set aside.

So ordered.

APPENDIX

PROSECUTOR: "Doctor, do you have an opinion on whether there are common dynamics for children to come to be abused?"

WITNESS: "I do."

PROSECUTOR: "And what is that opinion?"

WITNESS: "My...