Opinion
15-P-1562
02-16-2017
COMMONWEALTH v. Epiphane LAZARRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Epiphane Lazarre, appeals from his convictions by a Superior Court jury of two counts of aggravated rape of a child and one count of indecent assault and battery on a child under the age of fourteen. He raises three arguments: (1) that the judge abused his discretion by permitting the victim's uncle to testify as the substitute first complaint witness; (2) that the sexual assault nurse examiner's (SANE's) testimony unduly prejudiced the defendant; and (3) that the judge abused his discretion by permitting two expert witnesses to testify about the victim's delayed disclosure of the rape and the absence of findings of physical injury. We affirm.
1. First complaint . The defendant argues that the judge abused his discretion when he allowed the victim's uncle to substitute as the first complaint witness when the victim first told her friend that she had been inappropriately touched by the defendant. Since the defendant objected to the admission of first complaint testimony, we must determine whether the error in admitting it, if any, was prejudicial. Commonwealth v. Rivera , 83 Mass. App. Ct. 581, 584 (2013).
There are circumstances where a judge is permitted to substitute the first complaint witness, one being when the first complaint witness is unavailable. Commonwealth v. Murungu , 450 Mass. 441, 445 (2008). Here, the Commonwealth moved in limine to allow the victim's uncle to testify as the substituted first complaint witness because, despite reasonable efforts of the Commonwealth and defense, the parties were unable to locate the victim's friend, a minor, who was the first person the victim told about the assault. In this circumstance the judge was correct in permitting the uncle to substitute as the first complaint witness. The victim made a vague statement to the prosecutor that her friend was the first person she told about the assault. Both parties attempted to interview the friend, but due to her age they had difficulty locating her. Furthermore, there is no indication to what the friend, if she had been available, would have testified. Therefore, because of the unavailability of the friend and the lack of opportunity to determine whether the victim's conversation with her friend even constituted a "complaint," see id . at 446, we conclude that there was no error in the judge's decision to permit the admission of the uncle's testimony as the first complaint witness.
Boston Public Schools would not release the friend's information without a date of birth. The defendant acquired the friend's cellular telephone number, but it was not associated with an address.
The judge gave a thorough first complaint instruction prior to the uncle's testimony and before jury deliberations explaining how the jury could consider the first complaint testimony. See Commonwealth v. King , 445 Mass. 217, 233 (2005), holding modified by Commonwealth v. Aviles , 461 Mass. 60 (2011).
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2. SANE testimony . The defendant argues that the SANE's testimony was impermissible piling on of first complaint evidence and that its prejudicial effect substantially outweighed its probative value. We disagree.
The SANE's testimony was necessary for the purposes of explaining the victim's treatment and medical history, and laying the foundation for the admission of the medical record from the SANE's examination. See Commonwealth v. Dargon , 457 Mass. 387 (2010). The testimony did not violate the first complaint rule because it was not offered to corroborate the victim's complaint. Rather, it merely described the steps the SANE took in performing the sexual assault examination and her findings. The testimony did not prejudice the defendant. See Commonwealth v. Niels N ., 73 Mass. App. Ct. 689, 702 (2009).
3. Expert testimony . The defendant argues that the trial judge erred by permitting two expert witnesses to testify about the victim's delayed disclosure of the rape and the absence of findings of physical injury. Expert testimony "is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide." Commonwealth v. Federico , 425 Mass. 844, 847 (1997), quoting from Simon v. Solomon , 385 Mass. 91, 105 (1982). "[A] trial judge has broad discretion to determine whether to admit expert testimony." Federico , supra .
a. Delayed disclosure . "[T]estimony on the general behavioral characteristics of sexually abused children may properly be the subject of expert testimony because behavioral and emotional characteristics common to these victims ‘are beyond the jury's common knowledge and may aid them in reaching a decision.’ " Id . at 847-848, quoting from Commonwealth v. Colin C ., 419 Mass. 54, 60 (1994). Here, the victim's credibility was the cornerstone of the defendant's case. The defendant argued that the victim had numerous opportunities to disclose the abuse, including to police officers, and that her failure to do so was an indication that the abuse did not occur. He questioned her delayed disclosure as it related to her veracity in his opening statement, cross-examination, and his closing argument. It was entirely proper for the Commonwealth to present expert testimony explaining why victims of sexual abuse often are late in disclosing the crime. See Commonwealth v. Dockham , 405 Mass. 618, 628 (1989). In addition, the judge instructed the jury on permissible use of the expert testimony. See id . at 629. There was no error.
b. Absence of injury . "In the absence of evidence of physical injury, a medical expert may be able to assist the jury by informing them that the lack of such evidence does not necessarily lead to the medical conclusion that the child was not abused." Federico , 425 Mass. at 851. Here, the witness was qualified as an expert, and her testimony was within the scope of her expertise. She did not testify definitively that a sexual assault had taken place, only that the absence of injury does not prove that a sexual assault did not occur. There was no error.
Judgments affirmed .