Commonwealth v. Frangipane

• Decision Date: 05 February 2001
• Parties: COMMONWEALTH v. WILLIAM FRANGIPANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 527

744 NE 2d 25

COMMONWEALTH v. WILLIAM FRANGIPANE.

Supreme Judicial Court of Massachusetts, Middlesex.

February 5, 2001.

March 20, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, COWIN, SOSMAN, & CORDY, JJ.

Brownlow M. Speer, Committee for Public Counsel Services, for the defendant.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

A jury in the Superior Court convicted the defendant of forcible rape of a child under the age of sixteen years, G. L. c. 265, § 22A, and indecent assault and battery on a person fourteen years or over, G. L. c. 265, § 13H. Represented by new counsel on appeal, the defendant contends that the trial judge erred in (1) admitting expert opinion testimony given by a social worker about the loss and recovery of a traumatic memory through dissociation¹ because the opinion testimony, in significant respects, concerned scientific and medical matters beyond the scope of the witness's competence; and (2) failing to conduct a preliminary hearing under Commonwealth v. Lanigan, 419 Mass. 15 (1994), to determine the reliability of the Commonwealth's proffered expert opinion testimony on the subject of dissociative memory loss. We granted the defendant's application for direct appellate review. We agree with the defendant's first point and conclude that the admission of portions of the objectionable expert testimony caused prejudice that necessitates reversal of both convictions. We refer the second issue (the need to conduct a Lanigan hearing) to be addressed at retrial.

The Commonwealth presented evidence of the following. On the evening of November 29, 1991, the complainant, then fourteen years old and a freshman in high school,² went on a church youth group outing with approximately twenty other youths, as well as a few adult chaperones, including a priest. The group boarded a school bus in front of a church located on the Melrose-Wakefield line, and departed for a hayride at a farm in Tewksbury. The defendant, an employee of the bus company transporting the group, was the bus driver.

At the farm, the complainant, other youths, adult chaperones, and the defendant boarded a horse-drawn wagon covered with hay, which took them through some farmland and woods to a bonfire in a clearing surrounded by trees and rocks. A path through the woods led from the clearing to some portable toilet facilities. It was dark outside, and the bonfire lit up only the immediately surrounding area. After fifteen or twenty minutes beside the bonfire, the complainant set out to use the toilet facilities. As he approached the facilities, he heard a voice from further down the path call out, "Hey, kid. Come here." He walked in the direction of the voice, and a man, whom he later identified as the defendant, grabbed his left hand, pulled it behind his back, and shoved him to the ground. The complainant could not see who it was who raped him, but noticed that his assailant was "plump" and had dark hair. The complainant returned to the bonfire, and, on his arrival, did not remember the rape and thought he had simply gone to the bathroom.

About fifteen minutes later, the group returned to the wagon. During the ride back to the bus, the defendant started a "hay fight" in which everyone participated. As the complainant was throwing hay, the defendant grasped the complainant's penis, over his clothing, seven or eight times.

The group rode back in the bus to Melrose. The complainant's father picked him up and drove him home. The following day, the complainant told his mother that the defendant had touched his "private area" on the hayride. The complainant did not tell his mother, nor anyone else, about the rape because he had no memory of it. His parents decided against pressing charges on the indecent touchings.

Almost two and one-half years later, toward the end of his junior year of high school, the complainant began to recall "bits and pieces" of the rape. By the beginning of his senior year, he remembered the rape in full, and had no doubt that it was the defendant who raped him. After his first year of college, the complainant reported the incident to law enforcement personnel. A Tewksbury police officer met with the defendant, who acknowledged having driven a group of young teenagers to a hayride in Tewksbury and acknowledged going on the hayride, but denied having participated in the "hay fight" and denied having touched any of the youths on that trip.

The defendant did not testify at trial, nor did he call any witnesses to testify on his behalf. His defense was based on cross-examination of the Commonwealth's witnesses to contend that he did not rape or molest the complainant, and that the complainant's version of events and claims were not credible. 1. Before trial, the Commonwealth notified the defendant's trial counsel that it intended to call an expert witness "to discuss the [complainant's] memory of the alleged assault, how a child's memory works, and why some areas of the incident were readily apparent [and] disclosed immediately and others were `blocked out' for several years." Counsel filed a motion to exclude the testimony. The motion specifically objected to the anticipated testimony of the witness on "blocked out" memory on the ground that the witness's opinion was "based upon extraneous facts not within the area of her professional competence as well as upon hearsay statements." The judge took no action on the matter before trial.

On the third day of trial, immediately before the Commonwealth called the witness,³ the defendant's trial counsel promptly renewed his objection to her testimony. The judge directed the Commonwealth to first establish, in the presence of the jury, the witness's qualifications as an expert, and then permitted cross-examination in that limited area.⁴

The witness testified during the voir dire that she has had approximately eighteen years' experience as a psychotherapist. She is a licensed independent certified social worker⁵ with a bachelor's degree in social services and a master's degree in social work. She testified that she had been trained as a specialist in sexual abuse and had worked as an outpatient clinician in the adolescent department of the Greater Manchester Mental Health Center in Manchester, New Hampshire; had worked at North Shore Children's Hospital in Salem, Massachusetts, in a variety of capacities, including conducting interviews and evaluations of, and providing treatment to, sexually abused children, as well as supervising the hospital's "sexual information and trauma team"; had been the director of an outpatient clinic in Lowell that provided evaluations of and treatment to sexually abused children; and had previously testified as an expert witness in the Superior Court. Since 1989, the witness has been in private practice, continuing her "specialty in sexual abuse and trauma to children as well as treating adult survivors." Over the years, the witness had studied in "the area of memory [of sexual abuse]" with a variety of researchers, including Dr. Bessel van der Kolk at the Human Resource Institute, Dr. Judy Herman at Cambridge Hospital, and others, and has attended seminars and workshops in this field.⁶ She also subscribes to a number of journals and magazines concerning sexual abuse of children. Based on the witness's voir dire testimony, the judge found her qualified "to express opinions in the field of child abuse."⁷

Thereafter, the witness, who had not met with the complainant, and had not reviewed the particulars of the case, testified that victims of various traumas, including sexual abuse, experience many of the same symptoms, such as dissociative memory loss,⁸ derealization,⁹ nightmares, and "poor sleep." She explained that dissociative memory loss may lead to the delayed disclosure of a traumatic event. She stated that children who have been abused typically do not disclose such abuse immediately, but rather disclose the abuse "months to years after the actual experience happened."

The witness also explained that the eventual disclosure of a memory may vary from the disclosure of a partially recovered memory to the disclosure of a complete recall of an experience. Alternatively, an individual may completely repress a memory and only learn of a traumatic event from someone else. The witness stated that various factors influence when events, subject to dissociative memory loss, are remembered or recovered, including how one stores memory of trauma, how threatened an individual is in making a disclosure,¹⁰ the response to the individual as a result of that disclosure, an individual's psychological makeup, and the type of treatment used to retrieve the memory.

As to traumatic memory, the witness testified how individuals remember traumatic events. She stated that traumatic memory is "stored in different parts of the brain [compared to everyday memories] which we're able to understand now through what we call PET scans. It's also retrieved differently than our everyday memory is retrieved. So that different cues, such as a nightmare or a smell or something that we hear, may trigger a memory that would ... remind us of something to do with that traumatic memory and so little bits of information begin to come out." A PET scan, she explained, is "a scan of the brain [whereby dye is injected] into various parts of the brain [and one] can actually see by the color [that comes] up how different memories are being stored in the brain, the different parts of our brain that we are actually storing memory in." She further explained that, "[w]hen one is experiencing trauma ... we might feel [dissociation] more in a physical sense where we're literally taking ourselves out of ourselves. And the brain is working in such a way that it's separating the memory so that we're not experiencing it as happening to ourselves." The witness testified that there are "various theories" concerning trauma...