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Commonwealth v. Privette

Appeals Court of Massachusetts.
Jun 27, 2012
969 N.E.2d 749 (Mass. App. Ct. 2012)

Opinion

2012-06-27

COMMONWEALTH v. David J. PRIVETTE.


By the Court (CYPHER, HANLON & CARHART, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, David J. Privette, was indicted by a grand jury for nine crimes involving beating and burning a child. After a jury-waived trial, the judge entered required findings of not guilty on four of the charges. Of the remaining five charges, the judge found the defendant not guilty of three of the charges and found him guilty of two counts of assault and battery by means of a dangerous weapon (08–00197–005, a belt, and 08–00197–006, a cigarette).

The defendant appeals, arguing that the judge erred by permitting the Commonwealth's expert witness to improperly vouch for the child because she examined the child. The Commonwealth's expert witness did no more than the defendant's expert witness. The Commonwealth's expert, like the defendant's expert, examined the child but neither expert served as the child's treating physician. This case is controlled in all material respects by Commonwealth v. Colon, 64 Mass.App.Ct. 303, 312 (2005) (expert may opine after a physical examination of the victim that a child's injuries are “consistent with” penetration). There was no error. The defendant also argues that the judge erred by permitting the Commonwealth's expert witness to testify regarding the child's spontaneous statement, “That's from Bad Dave.” The testimony was admissible not for its truth but to explain part of the basis for the expert's opinion. There was no error.

Review of the Commonwealth's expert testimony establishes that the expert's testimony did not at any time constitute vouching. In addition, in a bench trial we presume that the judge applies correct legal principles. Thus, even if the Commonwealth's expert's testimony could be construed as vouching for the child, we presume that the judge properly limited her consideration of such testimony.

Judgments affirmed.


Summaries of

Commonwealth v. Privette

Appeals Court of Massachusetts.
Jun 27, 2012
969 N.E.2d 749 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Privette

Case Details

Full title:COMMONWEALTH v. David J. PRIVETTE.

Court:Appeals Court of Massachusetts.

Date published: Jun 27, 2012

Citations

969 N.E.2d 749 (Mass. App. Ct. 2012)
82 Mass. App. Ct. 1104