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Commonwealth v. Privette

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 27, 2012
11-P-1417 (Mass. App. Ct. Jun. 27, 2012)

Opinion

11-P-1417

06-27-2012

COMMONWEALTH v. DAVID J. PRIVETTE.


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

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.

By the Court (Cypher, Hanlon & Carhart, JJ.),


Summaries of

Commonwealth v. Privette

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 27, 2012
11-P-1417 (Mass. App. Ct. Jun. 27, 2012)
Case details for

Commonwealth v. Privette

Case Details

Full title:COMMONWEALTH v. DAVID J. PRIVETTE.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 27, 2012

Citations

11-P-1417 (Mass. App. Ct. Jun. 27, 2012)