Commonwealth v. Velazquez
Massachusetts Appeals Court
January 26, 2011
Docket No. 08-P-1042
Rape, Evidence, First complaint, Expert opinion, Witness, Expert
The defendant was convicted of four counts of forcible rape of a child. On appeal, the defendant challenged whether the errors at trial, including errors concerning the first complaint doctrine to which the Commonwealth conceded, required a new trial. The Appeals Court reversed the defendant’s convictions and ordered a new trial.
Facts
The defendant’s daughter alleged that he had raped her over the course of several months while she was eight years old. The daughter claimed that the defendant raped her during weekend visits with the defendant at her aunt’s (the defendant’s sister) home and that the rapes occurred at night or while others were not at home. During this time, the daughter lived primarily with her mother, her mother’s boyfriend, and her two sisters.
The daughter initially disclosed the alleged incidents while in a minivan with her mother and sister, who both testified at trial. The sister testified that the daughter because upset after the mother told her she would be spending the next weekend with the defendant. After pressing her, the daughter told her sister that the defendant had raped her. The sister told her mother about the allegation. Over the defendant’s objection that the mother was testifying as a second first complaint witness, the mother testified about the conversation in the minivan, confirming what the sister had testified. The mother also testified that she had told her great-grandmother about the daughter’s allegations.
The doctor that examined the daughter also testified at trial. Over the defendant’s objection, the doctor testified about what the daughter had told her and shown her using dolls. On direct examination, the doctor testified that she did not see any signs of trauma to the relevant anatomical areas when she examined the daughter, but was not surprised by this. When the prosecutor asked the doctor why she was not surprised, the defendant objected arguing that the doctor would need to testify as an expert to answer that question. Over the defendant’s objection, the trial judge qualified the doctor to testify as an expert witness. The doctor then testified based on unspecified scientific studies that eighty-five percent or more of children who were sexually abused had normal examinations.
The Commonwealth’s final witness at trial was a social worker from the Department of Social Services (DSS). On direct examination, the social worker testified about the investigatory practices that DSS used in this case and in general.
Errors at Trial
The Appeals Court concluded that some of the errors that had occurred at trial were not significant when considered individually, including the errors to allow the mother to testify about the daughter’s first report of the alleged incidents in the minivan and the mother’s testimony about relaying the daughter’s allegations to her great-grandmother.
However, the Court found that other errors were more serious and could have influenced the jury. Because of the importance of the jury deciding the daughter’s credibility, the Court found that allowing multiple witnesses to testify about the daughter’s allegations could be prejudicial to the defendant. The Court also concluded that allowing the doctor to testify about why she was not surprised that her examination of the daughter did not find any signs of trauma conveyed to the jury that the doctor believed the daughter’s allegations were true. Because the doctor was also allowed to testify as an expert, the error of allowing the doctor to bolster the daughter’s credibility was amplified.
The Appeals Court also found that other errors, not preserved by the defendant at trial, were also serious. One of those errors was allowing the social worker to testify about the investigatory processes DSS engaged in after the daughter made the allegations. The Appeals Court noted that the testimony gave the impression to the jury that DSS believed the daughter because DSS used its resources to investigate the daughter’s allegations.
Lastly, the Appeals Court addressed whether there was error committed by the Commonwealth in not giving the defendant notice that it intended to call the doctor as an expert witness. The Court stated that the defendant should have tried to develop the relevant facts for this argument in his motion for a new trial. However, the Court found that the defense counsel was not prepared to cross-examine the witness as an expert witness, which contributed to the Appeal Court’s finding that the defendant did not have a fair trial.
The Appeals Court reversed the judgment, set aside the verdicts, and ordered a new trial.
- Prepared by JM
