Com. v. Trowbridge

Decision Date09 September 1994
Docket NumberNo. 92-P-1412,92-P-1412
Citation636 N.E.2d 291,36 Mass.App.Ct. 734
PartiesCOMMONWEALTH v. Jonathan V. TROWBRIDGE.
CourtAppeals Court of Massachusetts

Esther J. Horwich, Boston, for defendant.

David E. Edmonds, Asst. Dist. Atty., for the Com.

Before PERRETTA, DREBEN and LAURENCE, JJ.

DREBEN, Justice.

The defendant was tried on two indictments, one for rape of a child under sixteen and the second for indecent assault and battery on a child under the age of fourteen. He was acquitted on the rape charge, but convicted of indecent assault and battery. On appeal he claims numerous errors. 1 We reverse because of a substantial risk that the jury gave substantive effect to oft repeated fresh complaint and other hearsay evidence.

The incidents charged in the indictment occurred during the fifteen-month period beginning shortly after the child's fifth birthday. Her parents were divorced and, during the relevant period, the child lived in Connecticut with her mother and visited the defendant, her father, at his home in Massachusetts on alternate weekends. The indictments were brought as a result of disclosures made by the child to her first grade teacher in March, 1989.

The Commonwealth called five witnesses: the child, who at that time was in the third grade and almost eight, her mother, her teacher, a school social worker, and a pediatric gynecologist. In order to convey the force of the repetitive fresh complaint testimony, as well as the other evidence at trial which increased the risk of the jury giving substantive effect to hearsay testimony, we set forth in some detail the Commonwealth's case as presented at trial.

The child, the first witness, testified that on more than one occasion when she visited her father, he put her on the bed in her room, lifted up her clothes and touched her "private parts." Using an anatomically correct doll, she indicated that the area of the doll's vagina, her breasts and her buttocks were "private parts." Once, she felt her father's finger go inside her vagina and "it really, really hurt."

Her teacher during the period covered by the indictments, Janet Joyce, testified that during kindergarten the child cried on Friday afternoons. Over objection, she was permitted to state that the child, when asked why she was crying, answered that she did not want to go visit her father and that she did not like her father. Recognizing that the teacher would soon be discussing fresh complaint testimony, defense counsel requested a limiting instruction. The Commonwealth, however, insisted that its questioning went to the child's state of mind and no instruction was given.

The teacher later testified that, in March, 1989, she conducted a special class for the first grade on personal safety. Among other matters discussed in class were good and bad touching. She explained to the class that private body parts are the parts that are covered by bathing suits. After class, the child came up to her and said, "You know I go to my therapist, because I talk to him about my daddy touching me." Over objection, the teacher repeated the child's statement, "I go to my therapist to talk to him about when my daddy touches me in my private body parts." After the child's disclosure, the teacher informed the school's social worker and the principal.

The school's social worker was the next witness. After receiving the teacher's report, she interviewed the child and discussed good and bad touchings with her. The child said that her mother would give her a good touch. When asked who would give her a bad touch, she said, "My dad, he would touch my private bottom parts." The social worker reported in detail what the child had said as to where and when it happened, and explained that the child had pointed out the vagina, buttocks, and breasts on a diagram. The social worker testified that in a subsequent interview, she had asked the child if anyone ever had told her to say that her dad touched her, that is, gave her bad touches, and the child had said, "No one ever told [me] that."

The child's mother testified that the child's visits with her father began when the child was one and one-half years old, that the mother noticed that in the fall of 1984 (when the child was two) she had behavioral changes: she would use phrases like "mommy the enemy," she urinated like a boy in the bathroom although she was potty trained, and she masturbated. The mother brought her to a number of physicians, and brought her concerns to the attention of the Connecticut court during her divorce proceedings. She testified that the child said she did not want to go to daddy's house. While the matter was under consideration by the court, only supervised visits were permitted, but in October, 1987, the court permitted unsupervised visits to resume. The child's behavior became worse and she stated she did not want to visit. In March, 1989, after the disclosures at school and after speaking to the school social worker and the Department of Children and Youth Services, the mother contacted the Framingham police and also took the child for a gynecological examination with Dr. Arsenault-Gillotti. The mother testified that the police did not give her details of what the child had told them, but after her discussion with them about the charges, she understood the abuse to be that her daughter "had been fingered by her father." 2

The last Commonwealth witness was Dr. Arsenault-Gillotti, the pediatric gynecologist who had examined the child. She had extensive experience in the area of sexual abuse. After listing some of the behavioral manifestations of sexually abused children, she pointed out that where the perpetrator has a close relationship to the victim, the abuse is usually done in a gentle manner and there are rarely physical findings. She saw the child in May, 1989, with her mother and grandmother. The child clung to her mother and did not make eye contact with the witness, and over objection, the doctor testified that "that is a common reaction of a child who has been sexually abused."

The doctor questioned the child as to why she was there, and when she did not respond, she asked her if she would like her mother to tell. The child nodded, and the mother, in response to questioning, "stated that [the child] had disclosed that her father had fingered her vagina." Asked if that was correct, the child nodded. After conducting a gynecological examination, during which the child cried, the doctor left the room but was called back by the grandmother. Over defense counsel's objection, the doctor testified that the grandmother reported that the child had said "that's what it felt like when her father touched her." The judge told the jury that the statement is "not being offered for the truth of the matter asserted, but may be what leads the child to talk to the doctor and what she said. So, with that limitation, you may consider it." The doctor related that after the grandmother's statement, she, the doctor, asked the child if it hurt when her father touched her, and the child "said it made her cry, only he doesn't stop."

The doctor stated there were no physical signs of trauma. She was allowed to give her opinion that her findings were totally consistent with the hypothetical set of facts described in the margin. 3 Over objection, she was allowed to explain why they were consistent, namely, because there "are rarely any physical findings in children who are sexually abused."

The focus of the defense was that the father had a loving relationship with the child, and the mother prevented visitation whenever she could, and, in order to stop all visitation, influenced the child to relate that sexual contacts had occurred. There was extensive evidence from family members and neighbors that the child did not want to leave after her visits with the father and enjoyed her visits with him. The father also explained his vaginal touching, and on cross-examination, the child acknowledged that she had been chafed by her bathing suit and that the ointment applied by her father had made her feel better.

The defendant attempted to introduce evidence from a psychologist who had examined the child for the Connecticut court. He had evaluated both parents, had seen the child with each of them, and had in writing reported 4 that he could find no evidence of sexual abuse and that it was his impression that the child's behavior regression after visits with her father was "a function of [her] identification with her mother in her battle against her former husband." The judge held a voir dire, at which he, as well as defense counsel, questioned the proposed expert. The witness stated that the mother was a very angry and bitter woman, that she was conveying to the child her extreme hatred for the father, and that the child at the tender age of four and one-half was identifying with and becoming an ally to her mother in her ongoing struggle against the father. He stated that since he found no evidence to support allegations of sexual abuse, he had in his written report recommended reinstituting unsupervised but monitored visitation. 5 He also testified that the child was very relaxed and affectionate with the father and seemed to enjoy being in his presence. He looked for anxiety or discomfort, but found none.

Although the judge found the psychologist "eminently qualified," he refused to allow him to testify, ruling that "the most this gentleman had said, albeit a professional opinion, is an opinion indirectly of the credibility of the child, ... [that] in his opinion, the child is lying." The judge also refused to let the psychologist testify to his observations of the relationship between the father and the child, saying that that could be proved, but not through the help of an expert.

1. Defendant's expert testimony. A trial judge has broad discretion in the admission...

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