Lead Opinion
A jury convicted the defendant on four indictments charging indecent assault and battery and one indictment charging rape.
On December 4, 1984, a Middlesex County grand jury returned nine indictments against the defendant. After pleading not guilty to all the offenses charged, the defendant filed a motion for relief from prejudicial joinder. The Commonwealth moved for joinder of six of the indictments which it claimed were related. Each alleged an indecent assault and battery or rape by the defendant doctor upon a female patient in his office. The trial judge allowed the Commonwealth’s motion and denied the defendant’s motion.
At trial, the victims all testified.
Victim B testified to a gynecological examination the defendant performed on February 16, 1984. While Victim B was lying on the examining table with her legs raised in the “stirrups,” the defendant asked her whether she gave her boy friend “head,” whether she enjoyed sex, what kind of sex she enjoyed, whether she enjoyed “sixty-nine,” and whether she had orgasms when she had sex. Without gloves, the defendant then began an examination by inserting a speculum into Victim B’s vagina. After removing the speculum, the defendant inserted two fingers in Victim B’s vagina; the defendant was still gloveless. Placing his other hand on the victim’s stomach, the defendant began to move his fingers slowly in and out of Victim B’s vagina for a period of three or four minutes. After removing his fingers from Victim B’s vagina, the defendant examined her breasts by placing himself between her legs and reaching up to her chest. The defendant rubbed his pelvic area against Victim B’s pelvic area throughout the breast examination, which lasted three or four minutes. The defendant then attempted to stick his finger (still gloveless) in Victim B’s rectum, but stopped when she screamed. On March 8, 1984, Victim B returned to the defendant for an examination that took place without incident. This was the only examination during which a nurse was present. On March 15, 1984, she returned for another visit. On that date, the defendant placed a gloveless finger in Victim B’s vagina, he again rubbed his pelvic area against her during a breast examination, and again tried to place his finger in her rectum. March 15 was the date of Victim B’s last visit with the defendant. At some time, Victim B told her boy friend of her experiences with the defendant, and he testified as to Victim B’s complaint.
Victim D testified about an examination on January 30, 1984, during which the defendant put his fingers in her vagina for “at least two minutes.” When he removed his fingers he “flicked” her clitoris “three or four times.” Victim D noticed that the defendant did not wear gloves. The defendant then began to pinch Victim D’s nipples, but he stopped when she told him that it was painful. The defendant then asked Victim D whether she engaged in oral sex, what positions she had sex in, how often she had sex, whether she enjoyed “giving head,” and if she would do it to him. Victim D responded, “No way.” At a subsequent visit on February 9, 1984, the defendant again asked Victim D a series of questions about her sex life. Suddenly, as Victim D was sitting partially disrobed on the examining table, the defendant pulled her from the table and onto his lap, as he sat on a chair. The defendant put his hand in between Victim D’s legs and began rubbing her pelvic area. Victim D got up, dressed, and left. Victim D’s boy friend testified as a fresh complaint witness.
The Commonwealth presented two experts. First, Dr. Susan Robinson testified as an expert on obstetrics and gynecology. Dr. Robinson testified that in a normal pelvic examination, a gynecologist would wear gloves, would avoid touching the clitoris, and would have his finger inside the patient’s vagina for no more than thirty seconds to one minute. In a normal breast examination if the patient is lying down, Dr.
The jury convicted the defendant of indecent assault and battery on Victim A, Victim B, Victim C, and Victim D. The jury also convicted the defendant of rape of Victim C. The defendant raises a number of issues on appeal.
1. Joinder. The defendant argues that joinder of the six indictments for trial was improper. Joinder is governed by Mass. R. Crim. P. 9,
Each of the six indictments joined for trial in this case involved allegations of criminal sexual conduct. Each victim was a patient of. the defendant. Each incident took place in the defendant’s office during the course of medical treatment. These offenses were a series of criminal episodes which were part of a scheme whereby the defendant used his position of authority and trust to commit sexual crimes upon the female patients visiting his office. See Commonwealth v. Pope, 392
In addition to applying the “technical requirements” of rule 9, however, the judge must “decide the question in the context of the guarantee of a fair trial for every defendant.” Commonwealth v. Sylvester,
2. Duplicative convictions. The defendant was convicted of ■both rape and indecent assault and battery of Victim C. On appeal, the defendant contends, for the first time, that the two convictions are duplicative. In the circumstances, we review the claim only to determine if a substantial risk of a miscarriage of justice occurred. Commonwealth v. Thomas,
As Thomas makes clear, there is a distinction between cases where the indecent assault and battery and the rape are “ ‘so closely related in fact as to constitute in substance but a single crime,’ [and situations where] the indecent assault and battery constituted a separate and incidental act.” Id. at 120, quoting Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979). Victim C testified that the defendant “tore” down her pants and put his penis into her rectum. When Victim C cried out in pain, the defendant took his penis out of her rectum and put it into her vagina. Victim C also testified that the defendant inserted his tongue into her mouth. There is evidence of two distinct acts of rape and one act of indecent assault and battery in this scenario. Thus, the indecent assault and battery could have been held to constitute a wholly separate act and not a lesser included offense. In Commonwealth v. Sanchez,
3. Denial of continuances. In late February, 1985, the defendant obtained the services of a new attorney. The trial date was changed from March 4, 1985, to July 8, 1985. On July 1, 2, and 3, defense counsel filed a series of motions seeking a continuance. Defense counsel wanted time for a psychiatric evaluation of the defendant and argued that information he received from the assistant district attorney on June 27, 1985, suggested for the first time the possibility of an insanity defense. The judge denied the defendant’s motions. However, the judge did order an evaluation of the defendant by a court psychiatrist, who reported that the defendant was competent to stand trial.
On July 5, 1985, the judge ordered that the defendant be committed to Bridgewater State Hospital pursuant to G. L. c. 123, § 15 (b) (1988 ed.). A psychiatrist there reported that the defendant was, in his opinion, competent to stand trial. In addition, the physician reported that there was insufficient evidence to lead him to conclude that the defendant lacked criminal responsibility. The reports indicated, however, that the defendant showed signs of long-term psychological difficulties. Based on these new reports, the defendant again sought a continuance to allow the defense to conduct its own psychiatric evaluations. The judge denied the defendant’s motion, and trial began on August 5, 1985.
“Ordinarily, the granting of a continuance rests in the sound discretion of the trial judge, and a denial of a continuance will not constitute error absent an abuse of that discretion.” Commonwealth v. Cavanaugh,
A defendant has a right to place before a jury any evidence which is probative of his mental condition. Commonwealth v. Louraine,
The judge was faced with a motion seeking to delay a trial which had already been significantly delayed, when the defendant obtained new counsel. Two court-ordered evaluations indicated that the defendant was competent to stand trial. One physician indicated that there was insufficient evidence to lead him to conclude that the defendant lacked criminal responsibility. Considering these countervailing factors, the circumstances the defendant presented did not require a de
4. Expert testimony. The defendant argues that it was improper to admit the testimony of Ann W. Burgess, who was qualified as an expert in the field of rape and sexual assault syndrome. A trial judge has broad discretion with respect to the admissibility of expert testimony. Commonwealth v. Dockham,
Burgess testified that not all victims of rape and sexual assault will report the event immediately. Often the first person they will tell is someone close to them. Burgess also said that, in the context of a trust relationship, such as a doctor-patient relationship, some victims may return to the trusted relationship for further contact with the perpetrator of the assault. Burgess’s testimony did not relate to the victims in this case. It was simply testimony relating to rape and sexual assault syndrome generally. See Commonwealth v. Dockham, supra at 627-630. See also Terrio v. McDonough,
The defendant contends that there is a lack of scientific evidence (1) that rape trauma syndrome, so called, occurs in cases of mere indecent assault and battery, or (2) that the syndrome occurs in trust relationships'. Burgess testified, based on her extensive studies in the area of rape trauma syndrome, that medical science recognizes the syndrome and that it extends to victims of “nonconsensual sexual assault.” A number of other courts and commentators, see Commonwealth v. Mendes,
As noted earlier, there was some indication that an investigation of an insanity defense might have been fruitful. Rather than following up on this theory, defense counsel proceeded with a different defense theory: that no crimes occurred. Thus, the defendant testified that, although he indeed examined all the victims, he did nothing except what was medically required. He attempted to explain each event by offering explanations that the acts which occurred were harmless. Counsel called other witnesses to support the defendant’s stories and attempted to discredit the testimony of the victims. Since a concurrent argument that the defendant lacked criminal responsibility due to insanity might have severely weakened the tactics actually utilized by the defense, counsel most likely decided not to pursue the insanity defense. See Commonwealth v. Genius,
The defendant contends that counsel’s performance at trial was incompetent. He cites a number of instances which, he argues, compel this conclusion. The defendant points to trial counsel’s untimely motion to strike Burgess’s testimony. The error was harmless since we have held that the testimony was properly admitted. Next, the defendant charges that counsel seriously erred in causing one of the victim-witnesses to cry during cross-examination. Not only is such an occurrence unforeseeable, but vigorous cross-examination was a necessary element of the defendant’s trial strategy which amounted to discrediting the victims and explaining away their testimony. The defendant argues that his attorney’s failure to call a van driver (who chauffeured Victim C), a medic, certain experts, and the patients who saw Dr. Mamay before and after the victims, was incompetence. The defendant offers no evidence to show that these persons would have aided his defense. Indeed, the fact that counsel did not call them as witnesses, when he was aware of who they were (several of the names appeared on his pretrial witness list) suggests that he determined that their testimony might not be helpful. See Commonwealth v. Thomas,
The defendant also claims his attorney should have objected a number of times when he did not, particularly during the prosecutor’s closing argument. In our view, the prosecutor’s closing argument was' largely unobjectionable. The prosecutor properly argued in support of the credibility of the Commonwealth’s witnesses, see Commonwealth v. Sanchez,
The defendant cites numerous other instances where his attorney should have objected or moved to strike testimony. His contentions are largely without merit. We have reviewed the record and are convinced that counsel’s trial performance was not “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, supra.
Finally, the defendant argues that his attorney’s presentation at the sentencing hearing was inadequate. At sentencing, counsel’s argument was brief and singular in theme. Immediately prior to sentencing, however, counsel argued in support of motions he had filed under G. L. c. 123, § 15 (e) (1988 ed.) (evaluation in aid of sentencing), and G. L. c. 123A, § 4 (1988 ed.) (sexually dangerous persons). During the lengthy arguments on those motions, counsel presented a number of considerations which would have been redundant if presented again in the sentencing hearing immediately following. Thus, the judge was exposed to a number of potential mitigating factors. In this context, counsel’s performance at the sentencing was not ineffective. Commonwealth v. Lykus,
Judgments affirmed.
Notes
The defendant was acquitted on one indictment charging indecent assault and battery.
We shall refer to the victims as Victim A, Victim B, etc.
In his brief, the defendant asserts that the joinder of the six indictments denied him due process of law under the State and Federal Constitutions. Since neither constitutional issue was argued below, we deem the argument to be waived. Commonwealth v. Owens,
ln fact, this psychologist testified on July 3, in connection with one of the defendant’s motions seeking a continuance.
The argument that introduction of Burgess’s curriculum vitae and Burgess’s testimony itself denied the defendant his confrontation rights is meritless in the circumstances. Not only did the defendant not object on these grounds below, but the judge gave the jury proper limiting instructions on the use of expert testimony and the use of the curriculum vitae in determining the expert’s qualifications. Moreover, the defendant had a full opportunity to cross-examine Burgess.
Concurrence Opinion
(concurring). I write separately to express my concern regarding two aspects of the majority opinion’s treatment of the expert testimony on the characteristics of rape trauma syndrome. These concerns are reflected in the defendant’s contentions on appeal that there is a lack of scientific evidence that rape trauma syndrome occurs either in cases of indecent assault and battery or in situations involving a “trust relationship.” In response to these arguments, the majority relies primarily on the citation of several scholarly articles and numerous decisions of other courts in which the scientific basis of rape trauma syndrome has been recognized. Ante at 422. In my view, this citation of articles and cases is not responsive to the specific issues raised by the defendant’s arguments.
While it is true that the cases cited by the majority affirm the scientific basis of rape trauma syndrome, most of these cases involve the admissibility of such testimony in the context of a trial of an indictment for rape. See People v. Hampton,
I find myself somewhat more troubled by the issue of the scientific basis for the expert testimony regarding the behavior of sexual assault victims involved in a “trust relationship.” Ante at 421. This testimony represented a crucial component of the prosecution’s case, in that it provided an explanation as to why a sexual assault victim might return voluntarily to visit her attacker. However, because the defendant failed to focus his objection on the expert’s competence to testify on the effect of a “trust relationship” on the victims, I am unwilling to declare that the judge below erred in allowing this testimony to go to the jury. For the purposes of future cases, I express my views regarding the adequacy of the evidence referred to by the court in its conclusion that a scientific basis exists for such testimony. Ante at 421.
The expert witness, Ann Burgess, testified that the present case was the first in which she had been qualified as an expert in the field of rape trauma syndrome within a trust relationship. None of the cases cited by the court involves the issue of the scientific basis of trust relationship testimony. Furthermore, of all the scholarly articles mentioned in the court’s opinion, only one discusses the behavioral characteristics of victims who have been sexually assaulted in a trust relationship. That article, Physician Sexual Misconduct and Patients’ Responses, 138 Am. J. Psychiatry 1335 (1981), was written by the expert witness in the present case and draws its conclusions from a study of sixteen patients who had been sexually assaulted by the same physician. I consider the empirical basis of this study to be insufficient to support the conclusion that “the medical community has generally recognized the existence of rape trauma syndrome” within a trust relationship. I hope that, in future cases, trial judges and prosecutors will take particular care to ensure that expert testimony is based on a solid, scientific foundation.