A Suffolk County grand jury returned three indictments charging the defendant with rape of a child under the age of sixteen years with force. After a second trial,
1. Facts. The jury could have found the following facts. When the victim was about eleven years old, she was raped by the defendant in August and September, 1990. The rapes occurred at the victim’s aunt’s house, where she was staying while her mother was in the hospital and, later, while her mother was recuperating at home. The first rape occurred on the first floor on the living room sofa; the second occurred in the aunt’s bedroom; and the third occurred in her cousin’s bedroom. The victim’s younger brother testified that, when he came down to the kitchen for a drink of water late one night, he saw the defendant “humping” his sister and heard her saying, “Stop.” The defendant then got up and hit him, and the victim’s brother ran to his mother’s house. The victim’s mother confirmed that, during the summer of 1990, her son had come into the house very late one night, which was out of the ordinary.
The defendant called Sgt. Marie Donahue of the Boston police department’s sexual assault unit, who testified on direct examination that the victim had told her of the three incidents in a different sequence.
On cross-examination, the Commonwealth sought to elicit testimony from Sgt. Donahue that “it’s not unusual for children to not be consistent in terms of times, places.” Over the
2. Expert testimony. The defendant raises several issues regarding the admission of the testimony of Sgt. Donahue. First, he argues that her opinion testimony on cross-examination was inadmissible because she was not properly qualified as an expert. Second, he argues that her opinions, even if admissible as expert testimony, impermissibly vouched for the credibility of the victim witness.
“The admission of expert testimony lies ‘largely in the discretion of the trial judge.’ ” Commonwealth v. Hudson,
The judge also did not abuse his discretion in qualifying Sgt. Donahue as an expert. “ ‘The crucial issue,’ in determining whether a witness is qualified to give an expert opinion, ‘is whether the witness has sufficient “education, training, experience and familiarity” with the subject matter of the testimony.’ ” McLaughlin v. Selectmen of Amherst, supra at 361-362, quoting Letch v. Daniels,
The defendant did not request an instruction on expert testimony. Therefore, our review is confined to whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Freeman,
Here, the witness testified on direct examination as a fresh complaint witness and an investigating police officer. Moreover, Sgt. Donahue, while a qualified expert for purposes of her testimony, did not belong to one of the professions easily identified by jurors as those from whom expert opinions are typically drawn. For those reasons, there was little danger that the jury would ascribe additional significance to her testimony in the absence of an official designation by the judge as an “expert witness.” Cf. Commonwealth v. Brouillard,
3. Vouching. The defendant contends that, even if Sgt. Donahue was properly qualified as an expert witness, her testimony should not have been admitted because it impermissibly vouched for the victim’s credibility. “Evaluations of credibility are, of course, within the exclusive province of the trier of fact.” Commonwealth v. Montanino,
The line between permissible and impermissible opinion testimony in child sexual abuse cases is not easily drawn. Where the witness explicitly links the opinion to the experience of the witness child, the opinion is clearly impermissible vouching. See Commonwealth v. Trowbridge, supra; Commonwealth v. Colin C.,
The testimony in this case comes close to the third category. Sgt. Donahue testified on direct examination as a fresh complaint witness for the defense. She said that she had interviewed the victim and had been told about the three incidents in a different sequence than that described by the victim in her own testimony. The expert testimony elicited on cross-examination regarding the capacity of child sexual abuse victims to determine the sequence of events thus implicitly related to the victim’s credibility as perceived by the expert witness herself. While the testimony fell short of rendering an opinion on the credibility of the victim, it was very close to the line of admissibility. Commonwealth v. Ianello, supra at 201-203.
Even if this testimony should not have been admitted, we conclude that any error was not prejudicial, however, given the unique circumstances of the jury verdicts. It would not
4. Prior bad acts. On cross-examination of the victim, the defendant brought out that she had had opportunities to report the rape but did not. In an attempt to rehabilitate the witness, the prosecutor, on redirect examination, asked questions regarding two incidents when the victim had told someone else about the rape. One of the incidents involved a group discussion with several friends, one of whom allegedly told the group that she had been raped by the defendant. This revelation led the victim to tell the group that the defendant had raped her.
The testimony regarding another rape was not admissible for its truth; it violated the. hearsay rule and was not permitted for the purpose of showing the defendant’s criminal disposition. See Commonwealth v. Errington,
The defendant argues that the prejudicial effect of the testimony outweighs its probative value. We disagree. The Commonwealth had a serious need to rehabilitate its primary witness, a need which was created by the cross-examination. Id. In addition, there was a prompt jury instruction limiting
5. Closing statement. The defendant contends that certain comments by the prosecutor in the closing argument improperly appealed to the jury’s sympathies.
6. Conclusion. In summary: (1) the expert witness was properly qualified; (2) the admission of expert testimony vouching for the victim’s credibility was harmless error; (3) the evidence of prior bad acts was properly admitted for a limited purpose; and (4) the closing argument was proper. Accordingly, we affirm the conviction.
So ordered.
Notes
The first trial was declared a mistrial after the jury were unable to reach a verdict.
One member of the panel dissented on the ground that any error was not prejudicial. Commonwealth v. Richardson,
The prosecutor: “And, when you speak with children, is it unusual for them to remember the exact date when an incident takes place that they’re referring to?”
Defense counsel: “Objection.”
The judge: “Overruled. You may have it.”
The witness: “Based on my experience, unless the incident happened that particular day that they are telling me, it’s highly unusual that they remember dates and times and sequences.”
The prosecutor: “Why is that?”
The witness: “Based on their tender years, the trauma that they’ve gone through, the emotional state that they’re in and based on their tender years, it’s very unusual that a child would remember dates and times.”
The prosecutor: “As well as sequence, you’ve testified.”
The witness: “Sequence. Yes, sir.”
The prosecutor: “When you say, ‘sequence,’ could you describe what you mean by it?”
The witness: “When an incident took place. For example, if incidents took place over a number of time[s], which time would be the first, sequence meaning which would take place in a specific pattern. It would be difficult for a child to remember the specific incidents and the specific times, specific places where it happened and things like that.”
The defendant argues that the qualification of Sgt. Donahue as an expert was flawed because the judge referred to another proceeding in which the same witness had testified. Before qualifying the witness as an expert at sidebar, the judge commented: “If you want counsel to develop her experience in dealing with sexual abuse, I bet you he’ll be able to do it, because I heard it in the last case she testified in here before. This woman is unbelievably experienced in this area, unbelievably.” While the judge’s reference to another proceeding in a separate case was unhelpful and could not properly form the basis for his preliminary finding, the record contains adequate testimony to support such a finding, as the excerpts below demonstrate:
The prosecutor: “Also with respect to your training, can you tell us something about your training as a sexual assault officer?”
The witness: “Yes, sir. In 1984, I began investigating sexual assaults until 1988, at which time I was promoted. Then I resumed sexual assault investigations in 1991.”
The prosecutor: “Do you have any specialized training, or is it all on-the-job training?”
The witness: “I’ve taken numerous seminars and courses on sexual assault, child sexual assault, and my own experience.”
The prosecutor: “As I understand it, you’ve taken courses specifically on child sexual assault?”
The witness: “Yes, sir.”
The prosecutor: “Have you had an opportunity to investigate other allegations of child sexual assault?”
The witness: “Many.”
“[Sidebar conference.]”
The prosecutor: “Sergeant, how many years have you been with the Sexual Assault Unit?”
The witness: “Again, from 1984 to 1988 and then from ’91 until the present.”
The prosecutor: “When did you become a sergeant detective?”
The witness: “In ’91.”
The prosecutor: “Can you tell us, what are the functions and responsibilities of a sergeant detective?”
The witness: “My responsibilities are I am the night commander. I supervise the detectives who investigate sexual assaults.”
The prosecutor: “And how many detectives do you supervise?”
The witness: “Six.”
The prosecutor: “Do you also still conduct investigations, yourself?”
The witness: “Yes, I do.”
The prosecutor: “How many investigations have you conducted of alleged sexual assaults on children?”
The witness: “Hundreds.”
The prosecutor: “During conducting those investigations, have you had an opportunity to speak with the complainants, themselves?”
The witness: “Always.”
We disagree with the Appeals Court that the contradictory testimony on the sequence of the rape incidents makes the jury verdict “inscrutable.” Commonwealth v. Richardson,
The judge’s instruction reads in pertinent part:
“You’ve heard conversations here, this lady relating conversations with this other lady . . . and the only reason these conversations are being admitted, they’re not being admitted for the truth of what anybody did, it’s only, the Commonwealth is entitled to place any kind of — in the context of introducing evidence of what prompted certain statements and prompted certain actions on behalf of the defendant.
“So it’s not being admitted for the truth of what was done but only for the fact that that’s what was said in terms of completeness so you’ll understand the context in which this discussion came up.”
The prosecutor’s closing statement included the following remarks:
“[Tjhe Commonwealth is not asking you to base your decision on emotion, not on emotion for the terrible and emotional trauma that [the victim] went through. . . .
“And I suggest here that when you look at the motivations, when you ask yourselves why in the world would [the victim] put herself through this humiliating, painful, emotional trial, why would she come up in a courtroom full of strangers and tell the most embarrassing, humiliating thing that happened to her young life and scarred her life, why would she do that? . . .
“I suggest to you that when [the victim’s mother] came back in January and saw her daughter, she told you that her daughter was crying. . . . Those tears, ladies and gentlemen, were tears from remembering what had happened. . . .
“And you saw [the victim’s brother] sit on that stand and he was asked questions. And I suggest to you if you were watching him carefully, you could see that he was reliving a horrendous experience, a traumatic experience for a nine-year-old child to witness. . . .
“I suggest to you that when I asked [the victim’s brother] what did you see him doing on top of your sister, he sat there and he couldn’t answer that question because of the emotion that was inside him; and you could see that.”