Opinion
13-P-1852
07-02-2015
COMMONWEALTH v. DAVID ALBERT RIVERA-BELCARRIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a jury of rape and incest. He argues that testimony from an examining nurse regarding possible causes of a mark on the back of the victim's neck was erroneously admitted and that the judge should not have restricted the testimony of his expert. We affirm.
1. The testimony of the examining nurse. The defendant argues that the nurse who examined the victim should not have been permitted to testify because her testimony constituted vouching for the victim. The nurse's testimony was properly admitted. She testified about the possible cause of broken blood vessels in the skin (bruise marks). Her testimony did not track any statement of the victim and she did not offer any comment on the victim's credibility. Commonwealth v. Colon, 64 Mass. App. Ct. 303, 309-313 (2005). Commonwealth v. Velasquez, 78 Mass. App. Ct. 660 (2011), relied on by the defendant, does not apply to the facts of this case. In Velasquez, supra at 665-668, the examining doctor's testimony violated the first complaint doctrine and impermissibly linked the general characteristics of abused children to the victim. Nothing of the sort occurred here.
There was also no error in the admission of the testimony regarding the swabbing of the victim's neck for deoxyribonucleic acid (DNA) evidence. Such testimony is permissible because it is necessary to lay a foundation for the admission of physical evidence. Commonwealth v. McCoy, 456 Mass. 838, 847 (2010). Furthermore, the judge's repeated and forceful instructions to the jury concerning the limits of the nurse's testimony and the jury's role as the finders of fact rendered any potential error harmless. See the Commonwealth's brief at pages 16 through 17 and the arguments and citations therein.
The defendant also argues that the nurse did not have sufficient training and experience to testify about the cause of the mark on the victim's neck. Bruising is a matter about which jurors may be presumed to have some common knowledge. Commonwealth v. Junta, 62 Mass. App. Ct. 120, 127-128 (2004). Nevertheless, the Commonwealth was permitted to offer expert testimony on this point. Whether such testimony is helpful to the jury and whether the expert is qualified and should be permitted to testify is a question committed to the discretion of the trial judge. See Commonwealth v. Trainor, 374 Mass. 796, 801-802 (1978); Commonwealth v. Miranda, 441 Mass. 783, 793 (2004). See also the authorities cited in the Commonwealth's brief at page 19. Here, we cannot conclude that the judge made a "clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation marks and citation omitted).
2. The defendant's expert. The defendant argues that his expert, a physician, was improperly prevented from testifying about hymens and virginity. There had been no pretrial indication from the defendant that this would be a topic covered by the expert; he was proffered as an expert on vaginitis. See Commonwealth v. Chappee, 397 Mass. 508, 517-519 (1986). At trial, the defendant made no offer of proof regarding the questioning he wished to pursue and how the answers would aid the jury. See Commonwealth v. Dyer, 460 Mass. 728, 743-744 (2011). Nor can a coherent argument be discerned on appeal. In fact, had such testimony been admitted, it very likely could have confused and misled the jury. See, e.g., Commonwealth v. Federico, 425 Mass. 844, 851 n.13 (1997); Commonwealth v. Quincy Q., 434 Mass. 859, 873 (2011); Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 592 (2006). There was no error.
Judgments affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 2, 2015.