Opinion
14-P-184
06-09-2015
COMMONWEALTH v. JOSEPH SMITH.
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, the defendant was convicted of three counts of aggravated statutory rape, one count of statutory rape, four counts of incest, and one count of indecent assault and battery on a child under fourteen. On appeal, he argues that certain expert witness testimony was admitted improperly; the prosecutor made improper statements during closing argument; and late disclosure of certain information about the expert witness was prejudicial. We affirm.
The defendant's motion for required findings of not guilty was allowed as to two counts of statutory rape, and he was found not guilty on one count of distribution of obscene matter to a minor.
Background. The jury heard the following evidence. The victim is the defendant's daughter. Over the course of approximately five years, the defendant sexually abused and raped her, including vaginal and anal penetration, on many occasions. The abuse began when she was approximately five years old. It usually took place in the afternoon, after the victim came home from school, when her mother was at work and her other family members were not at home, although, on one occasion, the mother was at home, in the kitchen. The victim did not report the abuse to anyone when it began, because she was afraid that the defendant would hit her, as he had hit other members of the family, including her mother, and because "he's scary."
Although the victim previously had been toilet trained, around the time that the abuse began, she started wetting the bed at night. She also developed a bad rash and experienced pain when urinating; after she saw the rash, her mother asked the victim if anyone, including the victim's brothers and the defendant, had touched her or hurt her. The victim answered no to each, except, when asked about the defendant hurting her, she first answered "yes" then "no," and put her head down. When the mother asked the defendant about the victim's rash, he told her it was a diaper rash from the pull-up diapers; the mother did not speak again with the victim about the rash. At some point, the victim told her mother about the defendant's sexual abuse; the victim and her mother and brothers moved out of the home when the victim was nine.
The victim's mother testified, "When she slept and then woke up, she would be soaking wet." Thereafter, she wore "pull up" diapers. She still was having problems with bedwetting when she was twelve, at the time of trial.
At trial, Dr. Kimberly Schwartz testified that she examined the victim on March 25, 2010, when she was nine years old, and found both her vagina and anus to be normal., After her testimony about examining the victim, the prosecutor instructed Dr. Schwartz that, thereafter, the direct examination questions would relate to sexual abuse victims in general, and were "not to do with" the doctor's examination of the victim. Dr. Schwartz then testified that, even when it is known that sexual abuse has occurred, "over 95 percent of the time the exam [of a victim's vagina and anus] is normal" and that "it doesn't matter how many times it's happened." She explained that, "it's an area that heals quickly and well."
Dr. Schwartz is a board certified general pediatrician with a specialization in child abuse pediatrics.
During a voir dire hearing, the judge determined, over the defendant's objection, that Dr. Schwartz was "qualified to testify as to a connection between secondary enuresis, or bedwetting, secondary bedwetting, and trauma."
Dr. Schwartz also testified that secondary nocturnal enuresis, or bedwetting after having been previously toilet trained, is most commonly caused by constipation or emotional trauma, with other possible causes being urinary tract infections or neurological issues. She opined that, if the physical causes of enuresis are ruled out, then psychological (or emotional) trauma is the most common cause of the condition. At the conclusion of her direct examination, the judge gave a limiting instruction about the two capacities in which Dr. Schwartz had testified, emphasizing that her expert testimony relating generally to child abuse was "not -- and I underscore not -- not commenting upon the credibility or testimony" of the victim. After closing arguments, the judge again gave a limiting instruction regarding Dr. Schwartz's testimony in her two separate capacities. The defendant did not object to either instruction.
Discussion. Expert testimony. The defendant begins by misstating the evidence, arguing that Dr. Schwartz was permitted "to testify over objection that the [victim's] normal physical examination was consistent with sexual penetration." In fact, Dr. Schwartz testified only that "a normal finding, no damage to the hymen, no damage or no sign of injury to the labia [was] consistent . . . with a man's penis going into the vaginal opening of a child." She testified similarly that any injury to a child's anus from such penetration would likely be gone "a few hours later." While the doctor also testified that the victim's examination showed no injury, she did not opine about whether the victim's appearance was consistent with penetration. Compare Commonwealth v. Velasquez, 78 Mass. App. Ct. 660, 667 (2011).
The defendant also argues that Dr. Schwartz's expert opinion regarding the common causes of secondary nocturnal enuresis was improper. At the time of trial, the defendant filed an oral motion in limine to exclude Dr. Schwartz's opinion testimony on several grounds, and, after a hearing, the judge denied the motion. During the doctor's testimony, the defendant first objected after she described her examination of the victim, and the judge noted his continuing objection to the doctor's testimony thereafter. The defendant did not object to either limiting instruction.
"The purpose of expert testimony is to assist the trier of fact in understanding evidence or determining facts in areas where scientific, technical, or other specialized knowledge would be helpful." Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011). "A judge has wide discretion in qualifying a witness to offer an expert opinion on a particular question, . . . and [the judge's] determination will not be upset on appeal if any reasonable basis appears for it." Id. at 845. "[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.'" Commonwealth v. Quinn, 469 Mass. 641, 646-647 (2014), quoting from Commonwealth v. Federico, 425 Mass. 844, 847-848 (1997). "However, '[w]here the witness explicitly links the opinion to the experience of the witness child, the opinion is clearly impermissible vouching.' The danger of vouching 'is greater where the witness is testifying as both a direct witness and an expert.'" Commonwealth v. Quincy Q., 434 Mass. 859, 872 (2001), quoting from Commonwealth v. Richardson, 423 Mass. 180, 186 (1996) (citations omitted).
In this case, there was little danger of vouching. Unlike in Quinn, where the testifying expert had been the victim's therapist for the eight months preceding the trial, here, Dr. Schwartz did not know the victim before she examined her. During direct examination, she testified first about genital and anal examinations in general; she then testified about her examination and observations of the victim. Afterwards, the prosecutor explicitly stated that the remaining questions would relate only to the doctor's opinion about normal findings in a genital examination, and the link between child sexual abuse and bedwetting. Cf. Commonwealth v. Quinn, supra at 647-648. "Given a concern that a jury may associate sexual abuse with some evidence of physical injury, it is well within the province of a medical expert witness to explain that an absence of physical findings does not necessarily indicate an absence of abuse." Commonwealth v. Quincy Q., supra at 873.
Because the doctor's two roles were clearly delineated, it is unlikely that the jury would have understood Dr. Schwartz to be commenting on the victim's credibility. In addition, the judge's timely and forceful limiting instruction further "safeguarded the jury's proper use of [the] expert testimony." Commonwealth v. Morris, 82 Mass. App. Ct. 427, 437 (2012), quoting from Commonwealth v. Dockham, 405 Mass. 618, 629 (1989). We see no error.
Closing argument. At the conclusion of the prosecutor's closing argument, the defendant moved for a mistrial, arguing that, among other things, the prosecutor had violated the judge's ruling on the motion in limine when he "wound the expert opinion about the bedwetting and looped it back to the physical examination [Dr. Schwartz] did . . . which was exactly what it was he was not supposed to do." On appeal, the defendant also argues that in discussing the doctor's testimony, the prosecutor misstated the evidence. We disagree.
The prosecutor's remarks were based on Dr. Schwartz's expert opinion as to the causes of secondary enuresis. He argued that, because, based on Dr. Schwartz's physical examination, the victim exhibited no signs of a urinary tract infection, abdominal mass, or constipation, and no indications of neurological problems, it was not an unreasonable inference that the cause of secondary enuresis in the victim was due to longstanding sexual abuse by the defendant. While Dr. Schwartz was not permitted explicitly to connect the victim to the general experience of sexually abused children, the prosecutor was permitted to "marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013) (quotation omitted). "Those inferences need only be reasonable and possible." Ibid. Considering "the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury," we see no error. Commonwealth v. Shanley, 455 Mass. 752, 773 (2010) (quotation omitted).
Late disclosure. Finally, the defendant argues that his counsel did not learn until the day of trial that Dr. Schwartz would offer expert testimony on psychological trauma. He claims he was prejudiced because this expert opinion was of critical importance to the defendant's case, and the late disclosure prevented him from consulting with his own expert. The record shows that the Commonwealth furnished the defendant with discovery materials, including Dr. Schwartz's examination report and her expected testimony, approximately two years prior to trial. Three days before Dr. Schwartz testified, the defendant also was given two articles she had written, along with a list of prior trials and at least one transcript of her testimony in other, earlier, cases. The defendant sought to exclude Dr. Schwartz's testimony and a voir dire hearing was held. After the judge denied the motion in limine, the defendant did not request a continuance.
The subjects of the articles were unrelated to the issues in this case.
"Where the Commonwealth has delayed in disclosing evidence prior to trial, our principal concern is whether the defendant has been prejudiced by the delay. . . . Absent a showing of bad faith [and no claim of bad faith is made in this case], we consider the primary issue of prejudice. In measuring prejudice, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecutor's disclosure was sufficiently timely to allow the defendant to make effective use of the evidence in preparing and presenting his case." Commonwealth v. Stote, 433 Mass 19, 22-23 (2000) (quotations omitted). See Commonwealth v. Almeida, 452 Mass. 601, 609-610 (2008).
Dr. Schwartz's education, experience, and qualifications to render the expected opinion were vetted during voir dire at the request of the defendant; after hearing, the judge found her qualified to opine as to the link between secondary enuresis and trauma. At trial, the defendant was afforded an opportunity to cross-examine her thoroughly about her physical examination of the victim, as well as about her general expert opinion regarding the characteristics of sexually abused children. He offers no contrary affidavit of an expert to challenge Dr. Schwartz's opinion; nor does he say what other use he would have made of the material had he been given more time. See Commonwealth v. Almeida, supra at 611. Despite having access to all of the information at the time he cross-examined the doctor, "the defendant did not utilize it in a manner consistent with the way he claims he would have." Commonwealth v. Stote, supra at 24. Finally, as noted, the defendant did not ask the judge for more time. We are satisfied that there was no error in allowing Dr. Schwartz's testimony.
Judgments affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 9, 2015.