Opinion
17-P-1312
06-03-2019
COMMONWEALTH v. MIGUEL RODRIGUEZ.
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
After a jury trial in the Superior Court in October 2016, the defendant, Miguel Rodriguez, was convicted of one count of rape of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child, G. L. c. 265, § 13B. The crimes occurred in December 1997, when the victim was twelve years old. The defendant was arraigned in the Superior Court in February 1998, but the trial was delayed because the defendant disappeared from July 1998 until he was apprehended in September 2015. On appeal, the defendant contends that the judge erred by permitting two experts to testify and that the prosecutor's closing argument was improper. We affirm.
1. Expert testimony on memory. Stephanie Block, who has a doctorate in psychology and is an assistant professor at the University of Massachusetts, Lowell, and who did not examine the victim or know anything about the facts of the case, testified about the process of memory. She described the three stages of memory, i.e., encoding, storage, and retrieval, and explained the difference between central and peripheral details. She testified that during traumatic events, central details are encoded while peripheral details are not. She also testified, without reference to trauma, that people tend to forget peripheral information before they forget central information.
The defendant does not argue that Block's testimony failed to meet any of "the five foundational requirements for admissibility." Commonwealth v. Polk, 462 Mass. 23, 31 (2012). See Mass. G. Evid. § 702, at 244-250 (2019). Rather, he challenges the relevance of Block's testimony. See Polk, supra at 32, citing Commonwealth v. Bonds, 445 Mass. 821, 831 (2006), and Mass. G. Evid. § 403 (2012) (where expert testimony is reliable, judge must still determine "whether the opinion evidence is relevant to an issue in the case" and whether its probative value is outweighed by its potential prejudice).
The proponent of expert testimony regarding a memory disorder may establish relevance "by presenting evidence regarding the alleged victim and her personal history that is consistent with the diagnosis, and that is sufficient to permit a reasonable inference that the alleged victim may have the disorder." Polk, 462 Mass. at 34. Testimony that the alleged victim has a diagnosed case of the disorder is unnecessary. Id. at 33-34. Although the judge was initially skeptical, he ultimately concluded that it was "perfectly plain" that the victim was traumatized and that there was a basis for Block's testimony. We agree.
If being sexually molested itself is not per se traumatizing, the victim testified that she was "really scared" after the incident, and her mother testified that the victim was "very disturbed," "distraught," and "petrified." The victim, testifying nearly nineteen years after the incident, remembered the central fact of the defendant indecently touching her and digitally penetrating her vagina, but had no memory of the defendant's son, Michael, being present, and no memory of telling the detective who interviewed her about Michael. The detective's contemporaneous notes of his interview of the victim did refer to Michael. Thus, the victim's testimony was consistent with the phenomena that Block described, and the jury could have reasonably applied Block's testimony in evaluating the victim's credibility.
"Properly limited, such expert testimony does not intrude on the jury's function of determining the credibility of witnesses." Polk, 462 Mass. at 36. Block's testimony was properly limited. She was not a percipient witness, did not treat or interview the victim, and did not offer any opinion on the victim's veracity. This case is a far cry from Commonwealth v. Lopez, 91 Mass. App. Ct. 572, 577 (2017), where the victim's own therapeutic mentor testified that the victim was unable to engage in imaginative play. That testimony, while not a direct statement on the victim's credibility, strongly suggested that the victim was incapable of lying.
In addition, here the judge carefully instructed the jury that they alone would determine the credibility of the witnesses, including the credibility of expert witnesses; that expert witnesses are not entitled to deference just because of their training and experience; and finally, "If you conclude that an expert's opinion is not based on the facts as you find the facts to be, then you may reject the testimony and opinion of the expert either in whole or in part." We discern no abuse of discretion in admitting Block's testimony.
2. Expert testimony on absence of injury. Celeste Wilson, a pediatrician employed as medical director of the child protection program at Boston Children's Hospital, testified about the popular misconception that the hymen is a piece of tissue that completely covers the vaginal opening and "bursts" the first time it is penetrated. In reality, she explained, in most cases the hymen does not completely cover the vaginal opening, and a prepubescent or adolescent female reporting penetration would not necessarily show signs of injury. On cross-examination, Wilson agreed that an alleged sexual assault might show physical trauma to the vagina. The defendant argues that Wilson's testimony was not relevant because the Commonwealth did not introduce any evidence of the victim's physical condition.
"[A] medical expert may be able to assist the jury by informing them that the absence of evidence of physical injury 'does not necessarily lead to the medical conclusion that the child was not abused,' because '[t]he jury may be under the mistaken understanding that certain types of sexual abuse always or nearly always causes physical injury or scarring in the victim.'" Commonwealth v. Alvarez, 480 Mass. 299, 314 (2018), quoting Commonwealth v. Federico, 425 Mass. 844, 851 & n.13 (1997). Wilson's testimony stayed within proper bounds: she was not the victim's treating physician and did not examine the victim, she did not comment on the victim's credibility, and she did not compare the victim's characteristics to the general characteristics of sexual abuse victims. Federico, supra at 849-850.
The defendant exploited the fact that the victim did not seek medical treatment or an examination at the time of the offense to suggest that she fabricated her claim of penetration. Defense counsel established through cross-examination of the victim's mother, who was in the medical field, through the victim's stepfather, who removed the victim from the defendant's house after she reported the incident, and through the detective, that none of them sought to have a medical examination of the victim. Defense counsel argued in summation that the only evidence against the defendant was the victim's word, repeatedly emphasizing that the victim's mother, the victim's stepfather, and the detective did not have the victim examined. Wilson's testimony helped explain why the police might not have pursued a physical examination of the victim, and that the result of an examination would not necessarily have shown any evidence of penetration, which the jurors may have mistakenly expected. The judge did not abuse his discretion in determining that her testimony was relevant.
The detective testified that rape kits are usually used in cases of "penile penetrations" and that he did not think that a medical evaluation was necessary with respect to an allegation of digital penetration.
3. Closing argument. The defendant argues that the prosecutor improperly vouched for the victim by repeating the phrase, "You know this happened because [the victim] told you that it happened," and at one point arguing that the "central detail" of the victim's testimony had remained constant since 1997 "because it is true."
"Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Improper vouching "occurs when a prosecutor expresses his or her own belief in the credibility of witnesses or implies that he or she has knowledge independent of the evidence presented at trial," Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009), or "suggests that the government has special knowledge by which it can verify the witness's testimony," Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).
The prosecutor did not express any personal opinion or special knowledge. Reviewing the argument as a whole, it is clear that the prosecutor was using the phrase "[y]ou know this happened because [the victim] told you that it happened" as a rhetorical device. Her argument was structured to prove the defendant's guilt from the victim's testimony, corroborating testimony, and the defendant's own statements. The prosecutor explained that she was "going to address the first two ways [to prove the defendant's guilt] together," and then discussed the evidence by pairing the victim's testimony with corroborating evidence from other witnesses, concluding, "Everything [the victim] told you, ladies and gentlemen, is corroborated by the evidence and the testimony from other witnesses."
In brief, the prosecutor properly marshaled the evidence to convince the jury that the victim's account was "true," that is, credible. See Commonwealth v. Rakes, 478 Mass. 22, 45 (2017) ("A prosecutor may marshal the evidence in closing argument to urge the jury to believe the government witnesses" [citations and quotations omitted]).
Judgments affirmed.
By the Court (Meade, Massing & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 3, 2019.