Commonwealth v. Calderon

842 N.E.2d 986, 65 Mass. App. Ct. 590, 2006 Mass. App. LEXIS 209
CourtMassachusetts Appeals Court
DecidedMarch 1, 2006
DocketNo. 04-P-1221
StatusPublished
Cited by7 cases

This text of 842 N.E.2d 986 (Commonwealth v. Calderon) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Calderon, 842 N.E.2d 986, 65 Mass. App. Ct. 590, 2006 Mass. App. LEXIS 209 (Mass. Ct. App. 2006).

Opinion

Mills, J.

The defendant appeals from his convictions on four [591]*591counts of rape of a child with force, G. L. c. 265, § 22A, and six counts of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B. We affirm.

1. Background. The eight year old victim was treated in the hospital after a car accident. In response to questions from a social worker, she revealed sexual abuse by the defendant who, at the time, was her mother’s boyfriend. She later described the same events to a police detective. At trial, the victim, then eleven, testified that the abuse, which occurred in the home when the victim’s mother was sleeping or at work, began when she was five years old and continued until the time of the accident. The victim’s testimony indicated that the defendant raped her vaginally and engaged her in oral sex. She also testified that he told her he would “come and get [her]” if she told anyone about the abuse.

Dr. Otterman examined the victim nineteen days after the accident and her initial disclosures to social workers and police. At trial, the doctor testified on behalf of the Commonwealth that although the victim’s examination was normal, the absence of evidence of trauma was “consistent with her disclosures.”1 He also stated on cross-examination that he found no evidence of penetration.

The defendant argues on appeal that Dr. Otterman’s testimony was improperly admitted; he (the defendant) did not receive effective assistance of counsel at trial; testimony of the victim was improperly admitted without a voir dire to determine her competency; and fresh complaint testimony was improperly admitted.

2. Expert testimony. In general, expert testimony in a child sexual abuse case is appropriate to explain to the jury the presence or absence of physical injury. See Commonwealth v. Federico, 425 Mass. 844, 851 (1997) (“In the absence of evidence of physical injury, a medical expert may be able to assist the [592]*592jury by informing them that the lack of such evidence does not necessarily lead to the medical conclusion that the child was not abused” [footnotes omitted]); Commonwealth v. Allen, 40 Mass. App. Ct. 458, 465 (1996) (“An expert may testify about general syndromes associated with sexual abuse”). Such testimony may be especially useful to correct a jury’s “mistaken understanding that certain types of sexual abuse always or nearly always cause physical injury or scarring in the victim[,] [p]articularly where the defendant argues that the absence of any scarring or injury is evidence that the abuse did not occur.” Commonwealth v. Federico, 425 Mass. at 851 n. 13.

However, an expert must not express an opinion whether abuse in fact occurred or comment on the credibility of the victim. See Commonwealth v. Trowbridge, 419 Mass. 750, 759-760 (1995); Commonwealth v. Allen, supra at 466. Nor is it permissible for an expert to connect general testimony about a syndrome with an opinion about the victim. See Commonwealth v. Dockham, 405 Mass. 618, 628-630 (1989); Commonwealth v. Allen, supra at 466. Testimony that “the symptoms and physical condition of the child were consistent with the type of nonviolent sexual abuse that the child alleged in this case . . . [comes] impermissibly close to an endorsement of the child’s credibility.” Commonwealth v. Trowbridge, supra at 760. Likewise, an expert’s note that “today’s normal findings do not exclude the possibility of sexual abuse” also may cross over the line into vouching. Commonwealth v. Allen, supra at 466.

Here, Dr. Otterman did not opine directly on whether the victim in fact had been subjected to abuse; nor did he comment on the victim’s truthfulness. See Commonwealth v. Quincy Q., 434 Mass. 859, 872 (2001). Nonetheless, his statement that the victim’s normal examination was “consistent with her disclosures” improperly connected the victim to the general characteristics of sexually abused children and should not have been admitted. See Commonwealth v. Trowbridge, supra at 760; Commonwealth v. Allen, supra at 466.

As the defendant objected to the testimony directly after it was elicited and later moved to strike, we review for prejudicial error. We conclude that the error was harmless for the following reasons. First, the erroneously admitted language — “consistent [593]*593with her disclosures” — was but a small portion of the doctor’s entire testimony, the rest of which properly educated the jury about the significance of a lack of physical evidence in sexual abuse cases. Second, the language, though improper, was close to the line of what is permissible in sexual abuse cases, and was not so prejudicial as improper testimony on patterns of disclosure, which goes directly to the victim’s truthfulness. See Commonwealth v. Colon, 49 Mass. App. Ct. 289, 292-293 (2000). Third, the Commonwealth did not highlight the improper language in its closing argument. Fourth, the defendant used the remainder of the doctor’s testimony to his advantage, both on cross-examination and in his closing argument, by placing significant emphasis upon the doctor’s statement that the examination disclosed no evidence of penetration. Finally, the testimony of the child witness was detailed and compelling. In the circumstances, the jury could not have been “substantially swayed” by the few improvidently spoken words in the doctor’s otherwise appropriate testimony. See Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

The defendant also argues that the judge should have excluded the doctor’s testimony on the basis of surprise, materiality, prejudice, and bad faith. However, the defendant should have known the substance of the doctor’s testimony in advance because he had been provided a copy of the doctor’s examination report. Furthermore, the prosecutor made repeated references to the anticipated expert testimony during voir dire of the jury, and defense counsel, in his opening statement, told the jury, “You are also going to hear some medical testimony, I expect, that is going to raise some doubt as to whether or not these events actually occurred.” In the circumstances, the defendant has not shown that he was surprised by the doctor’s testimony.

The defendant’s argument that the judge did not qualify Dr. Otterman as an expert is similarly unavailing. The judge is not required to hold a voir dire before qualifying an expert, see Commonwealth v. Ruiz, 442 Mass. 826, 834 (2004), and the judge’s determination may be inferred from the record. Commonwealth v. Boyd, 367 Mass. 169, 183 (1975). Accordingly, we conclude that the judge’s implicit qualification of the doctor [594]*594as an expert was proper, based upon the doctor’s testimony as to his training and experience and the judge’s rulings on defense counsel’s objections.2 Furthermore, the failure of the judge to issue an unrequested instruction on expert testimony was not error.3 Failure to issue such an instruction is error “only when the judge expressly leaves the matter to the jury,” and such was not the case here. See Leibovich v. Antonellis, 410 Mass. 568, 572 (1991).

3. Ineffective assistance of counsel.

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Bluebook (online)
842 N.E.2d 986, 65 Mass. App. Ct. 590, 2006 Mass. App. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-calderon-massappct-2006.