Opinion
11-P-1271
03-19-2015
COMMONWEALTH v. ZENON RODRIGUEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Upon review of the briefs and record appendix, and after oral argument, nothing has been made to appear that would cause us to reverse the judgments or the order denying the defendant's motion for new trial.
The judge did not abuse his discretion or otherwise commit an error of law in admitting the examining doctor's testimony. See Commonwealth v. Federico, 425 Mass. 844, 847-848 (1997). Compare Commonwealth v. Colon, 64 Mass. App. Ct. 303, 310-312 (2005).
We note in passing that the judge did not treat the doctor as an expert witness. The defendant did not request an instruction on expert testimony, nor object to its absence, and does not claim error in this regard on appeal. It cannot be gainsaid that witnesses, whether lay or expert, "may not offer their opinions regarding the credibility of another witness." Commonwealth v. Federico, 425 Mass. 844, 848-849 (1997) (citation omitted).
The doctor neither explicitly nor implicitly vouched for the credibility of the victim, nor did she directly refer to or compare the behavior of the specific child victim to general behavioral characteristics of sexually abused children, or suggest that the victim's behavioral characteristics were consistent with those of child sexual abuse victims. Federico, supra at 849. Contrast Commonwealth v. Quinn, 469 Mass. 641, 646-650 (2014). Nor did she "express an opinion whether [sexual] abuse in fact occurred." Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 592 (2006). See Federico, supra. See also Commonwealth v. Colin C., 419 Mass. 54, 60 (1994). Likewise, she did not "comment on the credibility of the victim." Calderon, supra. The doctor merely "educated the jury," id. at 593, about a range of possibilities that could have caused the "notching" and "thinning." Cf. Commonwealth v. LeFave, 407 Mass. 927, 930-931 (1990). In an effort not to improperly vouch for the victim, she even avoided the language contained in the medical records wherein the doctor opined that her findings were "consistent with" sexual abuse. See and compare Commonwealth v. Richardson, 423 Mass. 180, 186 (1996) (expert may not link opinion to experience of witness); Calderon, supra (an expert may not "connect general testimony about a syndrome with an opinion about the victim"). See also Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 451 (1996). In short, the doctor did not testify in a manner from which the jury reasonably could infer that she credited the victim's allegations. See Federico, supra. Contrast Commonwealth v. Rather, 37 Mass. App. Ct. 140, 148 n.4 (1994); Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 283-284 (2014). And, parenthetically, nor did she testify in such a manner as to enhance her own credibility.
The defendant's claim that the Commonwealth failed to give advance notice of the doctor's proposed testimony is of no avail. See Commonwealth v. Manning, 44 Mass. App. Ct. 695, 703-704 (1998). "[T]he 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." Calderon, 65 Mass. App. Ct. at 593.
The defendant's request to withdraw his claim without prejudice challenging the closure of the courtroom will be endorsed as follows: allowed.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Rubin, Brown & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 19, 2015.