Com. v. Richardson

• Decision Date: 15 July 1996
• Citation: 667 N.E.2d 257,423 Mass. 180
• Parties: COMMONWEALTH v. Shannon RICHARDSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 257

667 N.E.2d 257

423 Mass. 180

COMMONWEALTH v. Shannon RICHARDSON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 7, 1996.

Decided July 15, 1996.

Linda Marie Poulos, Assistant District Attorney, for the Commonwealth.

Paul J. Machado, Fall River, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

A Suffolk County grand jury returned three indictments charging the defendant with rape of a child under sixteen years with force. After a second trial, ¹ the jury convicted the defendant of the offense alleged in the first indictment and acquitted him on the two remaining indictments. The Appeals Court reversed, Commonwealth v. Richardson, 38 Mass.App.Ct. 384, 648 N.E.2d 445 (1995), ² concluding that the admission of certain expert testimony was prejudicial error. We granted the Commonwealth's application for further appellate review and now affirm the judgment of the Superior Court.

1. Facts. The jury could have found the following facts. When the victim was about eleven years old, she was raped by the defendant in August and September, 1990. The rapes occurred at the victim's aunt's house, where she was staying while her mother was in the hospital and, later, while her mother was recuperating at home. The first rape occurred on the first floor on the living room sofa; the second occurred in the aunt's bedroom; and the third occurred in her cousin's bedroom. The victim's younger brother testified that, when he came down to the kitchen for a drink of water late one night, he saw the defendant "humping" his sister and heard her saying, "Stop." The defendant then got up and hit him, and the victim's brother ran to his mother's house. The victim's mother confirmed that, during the summer of 1990, her son had come into the house very late one night, which was out of the ordinary.

The defendant called Sgt. Marie Donahue of the Boston police department's sexual assault unit, who testified on direct examination that the victim had told her of the three incidents in a different sequence.

On cross-examination, the Commonwealth sought to elicit testimony from Sgt. Donahue that "it's not unusual for children to not be consistent in terms of times, places." Over the defendant's objection, the judge allowed the witness to testify that "it's highly unusual that [child victims] remember dates and times and sequences." The objected-to testimony is set out in the margin. ³

2. Expert testimony. The defendant raises several issues regarding the admission of the testimony of Sgt. Donahue. First, he argues that her opinion testimony on cross-examination was inadmissible because she was not properly qualified as an expert. Second, he argues that her opinions, even if admissible as expert testimony, impermissibly vouched for the credibility of the victim witness.

"The admission of expert testimony lies 'largely in the discretion of the trial judge.' " Commonwealth v. Hudson, 417 Mass. 536, 540, 631 N.E.2d 50 (1994), quoting Commonwealth v. Maltais, 387 Mass. 79, 93, 438 N.E.2d 847 (1982). "The judge's 'ruling will be reversed on appeal only if it constituted an abuse of discretion or was otherwise tainted with error of law.' " McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 362, 664 N.E.2d 786 (1996), quoting Commonwealth v. Devlin, 365 Mass. 149, 152, 310 N.E.2d 353 (1974). As a preliminary matter, the judge did not abuse his discretion in determining that the subject matter was appropriate for expert testimony. "[C]ourts 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. Hudson, supra.

The judge also did not abuse his discretion in qualifying Sgt. Donahue as an expert. " 'The crucial issue,' in determining whether a witness is qualified to give an expert opinion, 'is whether the witness has sufficient "education, training, experience and familiarity" with the subject matter of the testimony.' " McLaughlin v. Selectmen of Amherst, supra at 361-362, 664 N.E.2d 786, quoting Letch v. Daniels, 401 Mass. 65, 68, 514 N.E.2d 675 (1987). See Leibovich v. Antonellis, 410 Mass. 568, 571-573, 574 N.E.2d 978 (1991). Here, Sgt. Donahue testified to her extensive training, education, and experience in investigating allegations of sexual assault on children, and, in particular, in interviewing children who may have been victims of such assault. The judge had an adequate basis which we set out in detail in the margin for qualifying Sgt. Donahue as an expert. ⁴

The defendant argues that the qualification of Sgt. Donahue was improper because it was done outside the hearing of the jury and because there was no instruction to the jury on how to evaluate expert testimony. We disagree. First, the judge need not qualify a witness as an expert before the jury. "Although it is for the court to determine whether a witness is qualified to testify as an expert, there is no requirement that the court specifically make that finding in open court upon proffer of the offering party. Such an offer and finding by the Court might influence the jury in its evaluation of the expert and the better procedure is to avoid an acknowledgement of the witnesses' expertise by the Court." United States v. Bartley, 855 F.2d 547, 552 (8th Cir.1988). See Commonwealth v. Boyd, 367 Mass. 169, 183, 326 N.E.2d 320 (1975) (judge need not make preliminary finding of expert's qualifications within hearing of jury).

The defendant did not request an instruction on expert testimony. Therefore, our review is confined to whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). The purpose of standard instructions on expert testimony is primarily to remind the jury that they are the sole judges of credibility, and to counteract the possibility that designation of a witness as an expert might create the impression among the jury that they may not disbelieve the witness's testimony. See generally C.R. Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert" under the Federal Rules Evidence in Civil and Criminal Jury Trials, 154 F.R.D. 537 (1994).

Here, the witness testified on direct examination as a fresh complaint witness and an investigating police officer. Moreover, Sgt. Donahue, while a qualified expert for purposes of her testimony, did not belong to one of the professions easily identified by jurors as those from whom expert opinions are typically drawn. For those reasons, there was little danger that the jury would ascribe additional significance to her testimony in the absence of an official designation by the judge as an "expert witness." Cf. Commonwealth v. Brouillard, 40 Mass.App.Ct. 448, 453, 665 N.E.2d 113 (1996); Commonwealth v. Powers, 36 Mass.App.Ct. 65, 70, 627 N.E.2d 953 (1994). Finally, the judge adequately instructed the jury on their role as judges of the credibility of all witnesses, with a special reference to fresh complaint witnesses and the credibility of minor children. We conclude that the judge properly qualified the witness as an expert and did not create a substantial risk of a miscarriage of justice in failing to instruct the jury on their role in evaluating expert testimony. Cf. Commonwealth v. Allen, 40 Mass.App.Ct. 458, 468, 665 N.E.2d 105 (1996); Commonwealth v. Wolcott, 28 Mass.App.Ct. 200, 207-208, 548 N.E.2d 1271 (1990). See generally P.J. Liacos, Massachusetts Evidence § 7.10.1, at 413 (6th ed.1994).

3. Vouching. The defendant contends that, even if Sgt. Donahue was properly qualified as an expert witness, her testimony should not have been admitted because it impermissibly vouched for the victim's credibility. "Evaluations of credibility are, of course, within the exclusive province of the trier of fact." Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991), quoting Commonwealth v. Ianello, 401 Mass. 197, 202, 515 N.E.2d 1181 (1987). "[W]itnesses may not offer their opinions regarding the credibility of another witness." Commonwealth v. Montanino, supra. "Although expert testimony on the general behavioral characteristics of sexually abused children is permissible, an expert may not refer or compare the child to those general characteristics." Commonwealth v. Trowbridge, 419 Mass. 750, 759, 647 N.E.2d 413 (1995). "Such testimony impermissibly intrudes on the jury's province to assess the credibility of the witness." Id.

The line between permissible and impermissible opinion testimony in child sexual abuse cases is not easily drawn. Where the witness explicitly links the opinion to the experience of the witness child, the opinion is clearly impermissible vouching. See Commonwealth v. Trowbridge, supra; Commonwealth v. Colin C., 419 Mass. 54, 60, 643 N.E.2d 19 (1994); Commonwealth v. Brouillard, supra; Commonwealth v. Powers, supra. Where there is no link between the expert testimony and the victim, the opinion is usually allowed. See Commonwealth v. Hudson, supra at 541-543, 631 N.E.2d 50; Commonwealth v. Mamay, 407 Mass. 412, 421, 553 N.E.2d 945 (1990); Commonwealth v. Dockham, 405 Mass. 618, 629, 542 N.E.2d 591 (1989); Commonwealth v. Allen, supra. In some cases, however, opinion testimony that does not explicitly link the opinion to the child witness nevertheless constitutes impermissible vouching. See Commonwealth v. Montanino, supra at 504-505, 567 N.E.2d 1212; Commonwealth v. Ianello, supra at 201-203, 515 N.E.2d 1181; Commonwealth v. Rather, 37 Mass.App.Ct. 140, 148-149, 638 N.E.2d 915 (1994). The danger of such implicit vouching is greater where the witness is testifying as both a direct witness and an expert, particularly where the witness offers fresh complaint testimony. See Commonwealth v. Rather, supra at 148, 638 N.E.2d...