Commw. v. Colon

• Decision Date: 11 February 2000
• Docket Number: No. 98-P-2075,98-P-2075
• Citation: 49 Mass. App. Ct. 289,729 N.E.2d 315
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. ROBERTO COLON. No.: Argued:
• Court: Appeals Court of Massachusetts

Page 315

729 N.E.2d 315 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. ROBERTO COLON.

No.: No. 98-P-2075

Massachusetts Court of Appeals, Essex

Argued: February 11, 2000.

Decided: June 1, 2000.

Brownlow M. Speer, Committee for Public Counsel Services (D. Christopher Dearborn, Committee for Public Counsel Services, with him) for the defendant.

Gregory I. Massing, Assistant District Attorney, for the Commonwealth.

Kass, Greenberg, & Lenk, JJ.

GREENBERG, J.

Following a trial by jury in the Superior Court, the defendant was convicted of nine counts of rape of a child under sixteen (G. L. c. 265, § 23)¹ and of two counts of intimidation of a witness (G. L. c. 268, § 13B).² The female complainant, who was eight years old when the incidents began, testified that the defendant forced her to engage in multiple acts of vaginal and anal intercourse which continued intermittently for nearly two years. The defendant's appeal raises two closely related evidentiary issues.

1. Dr. Serena Dee, a pediatrician at the Greater Lawrence Family Health Center, was the final defense witness. At the time of her examination of the complainant, at least nine months after the last claimed act of intercourse, there were no physical signs of any sexual abuse. On cross-examination Dee explained that, in most cases of confirmed sexual abuse, examination of the children's external genitalia and vagina produced no physical findings. She gave her reasons for that phenomenon. In her opinion, injured tissue heals very rapidly in children and adolescents. She also testified that the complainant in the instant case had begun to menstruate at the age of nine and that this produced organic changes in vaginal tissue which made it impossible to tell whether a sexual battery had occurred. The defense rested its case on that somewhat equivocal note.

Thereafter, the prosecutor called Dr. Robert N. Reece, a pediatrician with expertise in the field of sexual abuse, as a rebuttal witness. That drew an objection from defense counsel, who complained that Reece's testimony would be "somewhat redundant," given Dee's testimony on cross-examination "about the fact that [the physicians] don't always find things." Defense counsel also objected on the ground that he had insufficient notice of any studies or research materials upon which Reece might rely. The prosecution responded that she offered Reece's testimony because the defense had raised the issue whether penetration had occurred and that she harbored some doubt about Dee's qualifications "to provide a full picture to the jury . . . of what is found or is not found" during pelvic exams. The judge overruled the defendant's objection, noting that the defendant had opened up the subject and that the prosecution had given adequate notice to the defendant by listing Reece as a potential witness. Thejudge further remarked that defense counsel had declined, in spite of the judge's earlier suggestion, to interview Reece before the trial commenced. She did, however, rule out the inclusion of references to learned treatises or other articles in the field of sexual abuse of children in Reece's testimony.

Because Reece's testimony was different only in form, not in substance, from that of Dee, the concern about Reece's testimony turned out to have been unwarranted. Although Reece had more years of experience in the field and possessed impressive credentials, he had not interviewed or examined the child. He testified that, of the thousands of physical examinations he had performed among children with confirmed sexual-abuse histories, only between fifteen and twenty per cent of the girls showed physical signs of vaginal penetration. As for rectal intercourse, the percentage was even lower. In short, the majority of his patients did not show any signs of physical trauma on examination. On cross-examination by defense counsel, he agreed with Dee that "no findings are consistent with no sexual abuse, as well."

The defense's claim of error as to the admission of Reece's testimony rests on "the aura of reliability that the jury may find in expert testimony bearing directly on their own fact- finding role." Commonwealth v. Francis, 390 Mass. 89, 96 (1983).

The defendant argues that the expert testimony constituted an opinion on the complainant's credibility. That was not the ground of objection asserted by trial counsel. As a consequence, our task is to determine whether the admission of the testimony created a substantial risk of a miscarriage of justice. Commonwealth v. Caracino, 33 Mass. App. Ct. 787, 791 (1993).³

It is settled that expert testimony on the typical symptoms or signs and general behavioral characteristics of sexually abused children is admissible and does not, of itself, constitute an opinion on the credibility of the complaining witness. See Commonwealth v. Richardson, 423 Mass. 180, 185-186 (1996); Commonwealth v. Federico, 425 Mass. 844, 847-849 (1997). Reece's testimony falls into this category, and the defendant concedes that point. He argues, however, that Reece's testimony had the inescapable effect of improperly bolstering the complainant's credibility because it gave his "over-all impression of the truthfulness of members of a class . . . of which the specific complainant was a member," Commonwealth v. Ianello, 401 Mass. 197, 201-202 (1987), namely children who report multiple penile penetrations, but who show no physical signs thereof. See Commonwealth v. Montanino, 409 Mass. 500, 504 (1991).

The case of Commonwealth v. Ianello, supra, does not help the defendant. The defendant in that case claimed that "the trial judge abused his discretion in refusing to allow a psychologist to give expert testimony as to the possibility of a [child's] false allegation of sexual abuse arising from a custody and visitation dispute." Id. at 199-200. The court determined that, "[w]hile the proposed testimony fell short of rendering an opinion on the credibility of the specific child before the court, [there was] little difference in the final result," and held that the trial judge properly excluded the proffered opinion because "an expert may not offer an opinion on a witness'[s] credibility." Id. at 201-202. Such "[e]valuations of credibility are, of course, within the exclusive province of the trier of fact." Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978). To hold otherwise would constitute an intrusion upon the jury's "vital function." Commonwealth v. Ianello, supra at 202.

The case of Commonwealth v. Montanino, supra, is also distinguishable. In Montanino the child complainant had made statements to a police officer that were inconsistent with his trial testimony. At trial the police officer so testified. The Supreme Judicial Court reversed and held that it was impermissible for the police officer to testify, whether as an expert witness or as a lay witness, that it is normal for victims of sexual assault to reveal more details in subsequent interviews than they initially disclose. Commonwealth v. Montanino, 409 Mass. at 502-504. See Commonwealth v. Rather, 37 Mass. App. Ct. 140, 148-150 (1994) (improper for witness who evaluated victims to testify first about their specific behaviors, then about general truthfulness of hypothetical victims similar to actual victims, but error harmless).

The reasoning in both of these cases does not support the defendant's position here, because Reece's testimony dealt with physical signs of sexual abuse and not with patterns of disclosure. Testimony pertaining to patterns of disclosure -- that victims of child sexual abuse often fail to disclose their abuse until long after the fact, omit certain details, change their stories over time, and give inconsistent statements, or that certain children are apt to lie about sexual abuse -- goes directly to the truthfulness of the child complainant's testimony and...