Commonwealth v. Morris, No. 10–P–2175.

• Court: Appeals Court of Massachusetts
• Writing for the Court: MILLS
• Citation: 974 N.E.2d 1152,82 Mass.App.Ct. 427
• Parties: COMMONWEALTH v. Frederick MORRIS.
• Decision Date: 14 September 2012
• Docket Number: No. 10–P–2175.

82 Mass.App.Ct. 427
974 N.E.2d 1152

COMMONWEALTH
v.
Frederick MORRIS.

No. 10–P–2175.

Appeals Court of Massachusetts,
Essex.

Argued Feb. 10, 2012.
Decided Sept. 14, 2012.

[974 N.E.2d 1155]

Scott A. Katz for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: MILLS, MEADE, & RUBIN, JJ.

MILLS, J.

[82 Mass.App.Ct. 428]The events underlying this case arose in the context of a teenage dating relationship between the complainant, whom we shall refer to as Alice, and the defendant. The defendant was charged with one count of aggravated rape, G.L. c. 265, § 22( a ), and two counts of assault by means of a dangerous weapon, G.L. c. 265, § 15B( b ). A jury convicted him of rape as a lesser-included offense of aggravated rape, and one count of assault by means of a dangerous

[974 N.E.2d 1156]

weapon. On appeal, he challenges the admission of three types of evidence: (1) expert testimony on domestic violence, (2) multiple first complaint testimony, and (3) evidence of bad character and prior bad acts. We affirm.

Background. We summarize the evidence admitted at trial relevant to the issues before us. Alice met the defendant in April, 2006, during her freshman year of high school, when she was fifteen and he was seventeen. They began dating in July, 2006, and the relationship became sexual. Although dating stopped around May, 2007, they continued to engage in a sexual relationship over the next few months.¹ Alice testified in detail about their relationship and the defendant's behavior, including the two incidents that underlie the charges in this case.

1. The first incident. In June, 2007, the parties were no longer dating but regularly engaged in sexual relations when Alice's parents were out of the house. Alice testified that one morning the defendant called and asked to come over and was angry when she refused to see him. While she was brushing her teeth, she heard the garage door open. She stepped out of the bathroom and saw the defendant standing in the hallway pointing a gun at her. She fled to her parents' bedroom, with the defendant following, and begged him not to kill her, to which he replied, “Why shouldn't I? Why shouldn't I kill you now?” When Alice's dog entered the room, the defendant pointed the gun at the dog, and she asked him not to hurt the dog. Thereafter, the defendant calmed down and they had consensual sex.² This incident gave rise to the charge of assault by means of a dangerous weapon on which the defendant was convicted.

[82 Mass.App.Ct. 429]2. The second incident. Between late June and mid-July, 2007, the defendant again came over to Alice's house without her permission. She testified that after spending the night on the living room couch, she awoke to find the defendant standing nearby. She asked how he had gotten into the house, and he stated, “I have my ways.” At some point, they moved to her bedroom. The defendant had a gun with him, which he placed on the bedside table. He then suggested that they have anal sex. She testified that she refused, but he forced her. Specifically, the defendant picked up the gun from the bedside table. He did not point it at her, but picked it up “so that [she] would recognize the fact that it was there.” He “kind of held [her] down a little bit ... us[ing] his weight to kind of keep [her] in place so [she] wouldn't move.” When the defendant stopped to get lubrication, she told him, “You know this is rape, right? What did your father teach you? I have rights, you know,” to which he replied, “Bitch, you don't have any rights. Get back down there,” and continued the act. This event gave rise to the charge of aggravated rape and the conviction of the lesser-included offense of rape. After the incident, Alice continued to see the defendant because she thought she “could be a good force in his life,” “did love him still,” and was “a little bit intimidated by him.”

3. Ensuing events. Alice also testified to subsequent bad acts by the defendant, but she continued to see him until at least August, 2007. Then, in October, 2007, she started dating a new person. The next month, the defendant visited her at the

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supermarket where she worked, asked if she was dating anyone, and called her early the next morning, at 1:00 a.m. She replied by text message, and he responded, also via text message, that he wanted to “[j]ust talk cuz I miss you.” Then, on November 14, 2007, the defendant sent her a text message reading, “U f— him yet?”

Alice contacted the police around the date of the final text message. As part of the investigation, Deputy Chief Jeffrey Gillen of the Groveland police department spoke with both Alice and Salem Lahlali, an acquaintance to whom she had complained of the defendant's actions. All three testified as prosecution witnesses. The Commonwealth also called Amesbury [82 Mass.App.Ct. 430]police Detective Robert Wile as an expert on the general characteristics of domestic violence and the behavioral characteristics of victims.

Discussion. 1. Expert testimony. The defendant first challenges the admission of Detective Wile's testimony on domestic violence. In Commonwealth v. Goetzendanner, 42 Mass.App.Ct. 637, 640, 679 N.E.2d 240 (1997) ( Goetzendanner ), this court explained that, “[t]o the average juror, untutored in the psychological dynamics of domestic violence, the victim's vacillating behavior toward the defendant—in particular, her back and forth attempts to end the relationship—might have seemed counterintuitive and might even have suggested that her version of events was inherently unreliable and unworthy of belief.” As in Goetzendanner, the Commonwealth here offered expert testimony by Detective Wile on the behavioral characteristics of victims in order to help the jury evaluate Alice's credibility.

Detective Wile heads the domestic violence unit for the Amesbury police department. At the time of his testimony, he had been a police officer for over twenty-one years and had worked solely on domestic violence cases since 1999. Based on his experience and training, he testified about the different types of domestic violence, including verbal, emotional, psychological, and physical abuse. He described the three-phase “cycle of violence,” which includes a period of “tension building,” a “battering incident,” and, finally, a “honeymoon phase.” He also testified about “minimization” of abuse, recantation, and the reasons why victims may remain in abusive relationships. ³ Last, he testified about the unique aspects of teenage victims. For the reasons that follow, we conclude that the judge did not abuse his discretion in admitting this testimony.

a. Expert qualifications. As a threshold matter, we reject the defendant's contention that the judge erred in qualifying Detective Wile to offer expert testimony. “The decision to qualify a witness as an expert on a particular matter that is within that [82 Mass.App.Ct. 431]witness's field of expertise will not be disturbed absent an abuse of discretion or error of law.” Goetzendanner, supra at 642, 679 N.E.2d 240. See Mass. G. Evid. § 702 (2012). “The crucial issue is whether the witness has sufficient education, training, experience, and familiarity with the subject matter of [his] testimony.” Goetzendanner, supra, quoting from Letch v. Daniels, 401 Mass. 65, 68, 514 N.E.2d 675 (1987). The judge reviewed Detective Wile's qualifications

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during a voir dire examination. Wile was experienced in working with at least 480 victims in the prior year alone, had attended several trainings on domestic violence,⁴ and had conducted extensive training of other officers.⁵ There was ample evidence to support his qualifications based on his “extensive training, education, and experience in investigating allegations of sexual assault, ... in particular, in interviewing ... victims of such assault.” Commonwealth v. Richardson, 423 Mass. 180, 183, 667 N.E.2d 257 (1996). See id. at n. 4 (police sergeant in sexual assault unit qualified to testify about child sexual assault); Goetzendanner, 42 Mass.App.Ct. at 642, 679 N.E.2d 240 (expert qualified based on “extensive experience in training and educating other professionals on BWS [battered woman's syndrome]”).

b. Subject matter. The defendant next argues that domestic violence is not a proper subject of expert testimony because the testimony is neither helpful to the jury nor reliable. “A trial judge has broad discretion with respect to the admissibility of expert testimony.” Commonwealth v. Mamay, 407 Mass. 412, 421, 553 N.E.2d 945 (1990). In his role as gatekeeper, a judge must determine that expert testimony is both “beyond the common knowledge of jurors” and “reliable.” [82 Mass.App.Ct. 432]Commonwealth v. Polk, 462 Mass. 23, 31, 965 N.E.2d 815 (2012), citing Commonwealth v. Barbosa, 457 Mass. 773, 783, 933 N.E.2d 93 (2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2441, 179 L.Ed.2d 1214 (2011). See Commonwealth v. Mamay, 407 Mass. at 421–422, 553 N.E.2d 945. Here, after careful consideration, the judge found that Wile's testimony would be “beyond [the ken] of at least some average juror.” He explained that although significant information about domestic violence has become available to the public in recent years, “not everybody” pursues such knowledge on their own. See Goetzendanner, 42 Mass.App.Ct. at 640, 679 N.E.2d 240 (average juror may not understand vacillating behavior of domestic violence victims). The judge further concluded that Goetzendanner governed the testimony's admissibility.

We agree that Goetzendanner controls. Goetzendanner held that testimony “about domestic violence generally and about BWS [battered woman's syndrome] specifically” was admissible to help jurors understand the potentially counterintuitive behavior of victims when assessing a victim's credibility. 42 Mass.App.Ct. at 640–641, 679 N.E.2d 240. See Commonwealth v. Dockham, 405 Mass. 618, 627–630, 542 N.E.2d 591 (1989)...