Commonwealth v. Richardson

648 N.E.2d 445, 38 Mass. App. Ct. 384, 1995 Mass. App. LEXIS 250
CourtMassachusetts Appeals Court
DecidedApril 7, 1995
DocketNo. 94-P-334
StatusPublished
Cited by1 cases

This text of 648 N.E.2d 445 (Commonwealth v. Richardson) 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. Richardson, 648 N.E.2d 445, 38 Mass. App. Ct. 384, 1995 Mass. App. LEXIS 250 (Mass. Ct. App. 1995).

Opinions

Gillerman, J.

According to the testimony of the thirteen year old complainant (whom we shall call Mary), the defendant, two years earlier, had raped her on three separate occasions. A Suffolk County jury found the defendant guilty [385]*385on the first of three indictments,1 each charging the defendant with rape of a child under sixteen years of age with force (G. L. c. 265, § 22A). The defendant appeals, claiming, among other things, reversible error in the admission of certain expert testimony of a police officer, Sergeant Marie Donahue.

From the evidence admitted at the trial, the jury could have found the following facts. The three separate acts of rape by the defendant occurred in the home of Mary’s Aunt Marilyn during August (twice) and September (once), 1990, when Mary was eleven years old. Mary was staying with her aunt while her mother was in the hospital and, afterwards while her mother was recuperating at home. In each instance, Mary was awakened by the defendant, who was on top of her; her pants were pulled down to her ankles, and the defendant was penetrating her. Mary’s younger brother witnessed one of the incidents, but he was unable to identify the date of the incident. There were no witnesses to the other two events.

Mary did not tell anyone about the incidents until January, 1991. Her disclosure was precipitated by a friend’s unsolicited statement that she had been raped by the defendant. Mary then told her mother that she had been raped by the defendant, but she did not provide any details.

On cross-examination Mary admitted that each time she was raped, she told the defendant to stop, and cried; yet her cousin, who was her close friend and who was asleep a few feet away, never woke up. Nor did Mary wake her cousin up after the event to tell her what had happened. Mary also acknowledged that each time she awoke from sleep only when the defendant was raping her, and not when the defendant was pulling down bottom clothes. The defendant also brought out minor inconsistencies between the events she described at [386]*386the first trial of this case2 and her description of events at the trial of this case. Further, after the first incident, Mary continued to return to her aunt’s house, even though she knew the defendant would be there, and even though she could have stayed with other relatives who lived close by.

The defendant called Sergeant Marie Donahue of the Boston police department, sexual assault unit, to whom Mary had spoken in March, 1991. Donahue testified that Mary had identified each of the three rooms in her aunt’s house where she was raped in August and September. Donahue’s description of what Mary had told her differed from what Mary had testified to on direct examination. Mary told Donahue that the place of the first rape was her cousin’s bedroom on the third floor, that the second rape occurred on the sofa in the living room on the ground floor, and that the third rape occurred in her aunt’s bedroom on the second floor. On direct examination, however, Mary had testified that the first rape occurred on the couch in the downstairs living room; the second rape occurred on the floor in the hallway outside of her aunt’s second-floor bedroom, and the third rape occurred in her cousin’s third-floor room. Thus, Mary had told Donahue one sequence of places where the rapes had occurred, while on direct examination Mary testified to a different sequence.

It was in this context that the prosecutor began his cross-examination of Donahue. He started with two questions about the sergeant’s “training as a sexual assault officer” and then asked whether she had investigated other allegations of sexual abuse. The defendant objected because “[t]his is not relevant to anything.” At sidebar, the prosecutor explained that he wished to elicit testimony that “it’s not unusual for children not to be consistent in terms of times, places.” The defendant objected that the sergeant was not an expert, to which the judge responded, “If you want counsel to develop her experience in dealing with sexual abuse, I bet you he’ll [387]*387be able to do it, because I heard it in the last case she testified in here before. This woman is unbelievably experienced in this area, unbelievably.” The colloquy at sidebar then continued as set forth in the margin.3 The thrust of the defend[388]*388ant’s objection was that Donahue would be commenting on the credibility of Mary.

Over the defendant’s objection, the Commonwealth proceeded to establish that the sergeant supervised six detectives who investigate sexual assault, that she had conducted “hundreds” of investigations herself, and that she always spoke with the child complainants. The Commonwealth’s cross-examination then proceeded as follows:

Q. “And, when you speak with children, is it unusual for them to remember the exact date when an incident takes place that they’re referring to?”
Defense Counsel: “Objection.”
The Court: “Overruled. You may have it.”
A. “Based on my experience, unless the incident happened that particular day that they are telling me, it’s highly unusual that they remember dates and times and sequences” (emphasis supplied).
Q. “Why is that?”
A. “Based on their tender years, the trauma that they’ve gone through, the emotional state that they’re in, and based on their tender years, it’s very unusual that a child would remember dates and times.”
Q. “As well as sequences, you’ve testified.”
A. “Sequence. Yes, sir.”
Q. “When you say ‘sequence,’ could you describe what you mean by it?”
A. “When an incident took place. For example, if incidents took place over a number of time[s], which time would be the first, sequence meaning which would take place in a specific pattern. It would be difficult for a child to remember the specific incidents and the specific times, specific places where it happened and things like that" (Emphasis supplied.)

[389]*389Although the judge ruled (based on his experience in another case involving the testimony of Donahue) that Donahue’s proffered testimony regarding sex abuse victims was admissible because Donahue was an expert in such matters, Donahue “was not presented to the jury as an expert, and the judge’s instructions to the jury were barren of any reference to experts or expert testimony . . . .” Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 207 (1990).4 Donahue appeared to the jury as a lay witness, and, as in Wolcott at 207, we must assess her testimony against “the basic requirement that lay witnesses confine their testimony to what they have themselves gleaned by the use of their senses . . . .”5

Putting to one side the difficulty that the judge’s ruling placed an assessment of Donahue’s qualifications beyond the reach of the jury and of an appellate court, see id., there is the fundamental difficulty that the purpose and thrust of Donahue’s testimony — like the testimony of the investigating sergeant in Commonwealth v. Montanino, 409 Mass.

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Related

Commonwealth v. Richardson
667 N.E.2d 257 (Massachusetts Supreme Judicial Court, 1996)

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Bluebook (online)
648 N.E.2d 445, 38 Mass. App. Ct. 384, 1995 Mass. App. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-richardson-massappct-1995.