Commonwealth v. Padraic P.

92 Mass.App.Ct. 1127

102 N.E.3d 1031 (Table)

COMMONWEALTH

v.PADRAIC P., a juvenile.

16–P–1318

Appeals Court of Massachusetts.

Entered: February 13, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Juvenile Court, the juvenile was convicted of two counts of rape and one count of indecent assault and battery on a person with an intellectual disability, all as a youthful offender, and was adjudicated delinquent on one count of assault and battery on a person with an intellectual disability.² The juvenile appeals, claiming the judge erred by: (1) finding the victim competent; (2) excluding portions of the victim's treatment records; (3) precluding testimony as to the victim's general reputation for truthfulness; (4) excluding evidence of the victim's prior sexual knowledge; (5) failing to properly instruct the jury on serious bodily harm; and (6) failing to enter a required finding of not guilty on the youthful offender portions of the indictments. The juvenile also contends that the prosecutor presented misleading evidence that impaired the integrity of the grand jury proceedings. We affirm.

Background. The jury could have found the following facts. The victim, whom we shall call Andrew, is a cognitively impaired man with an IQ score of forty-four. As a result of his intellectual disability, Andrew is like "a young child ... stuck in a young man's body." In 2004, he became a client of the Department of Developmental Services (DDS). In July, 2011, he was placed in adult foster care. Nearly two years later, in September, 2013, Andrew disclosed to his mother that the juvenile, the grandson of Andrew's foster parents, was sexually abusing him.

When Andrew first moved to the foster home, he was twenty-four years of age and the juvenile was fifteen years of age. While his foster parents were at work, Andrew was entrusted to the care of the juvenile. The abuse started soon thereafter. Andrew, who described the conduct as "exercise," told his mother that he and the juvenile "exercised" in the basement, the juvenile's bedroom, the laundry room bathroom, and the back porch. The juvenile would take off Andrew's clothing, without his permission, and would make him perform oral sex. The juvenile also penetrated Andrew anally on multiple occasions. During one such incident, the juvenile grabbed Andrew's legs and dragged him off the bed to the floor. Andrew did not report what was happening because he was afraid that he would get in trouble.

Discussion. 1. Andrew's competency. The juvenile challenges the trial judge's determination, following a voir dire hearing, that Andrew was competent to testify. He also claims that the judge erred in denying his motion for an independent evaluation of Andrew pursuant to G. L. c. 123, § 19.

The determination of competency is a factual one and is "peculiarly within the trial judge's discretion." Commonwealth v. Jiminez, 10 Mass. App. Ct. 441, 443 (1980). In determining the competency of a witness, the judge conducts a two-prong test: "(1) whether the witness has the general ability or capacity to observe, remember, and give expression to that which [he] ha[s] seen, heard, or experienced; and (2) whether [the witness] has understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment." Commonwealth v. Trowbridge, 419 Mass. 750, 754–755 (1995) (quotation omitted). See G. L. c. 233, § 20. "A judge's determination of competency is discretionary and will seldom be faulted on appellate review," except where "the judge applies an incorrect legal standard." Trowbridge, supra at 755.

Here the judge did not abuse her discretion in finding that Andrew was competent to testify. She not only heard Andrew and observed his demeanor during the competency hearing and the trial, but also gave the juvenile wide latitude to present additional witnesses during the voir dire hearing. Based on Andrew's testimony, the judge determined that he understood the difference between the truth and a lie, and was generally able to perceive events.³ Because the trial judge has considerable discretion and was in the best position to assess Andrew's competency, we will not disturb her finding.⁴ See Commonwealth v. Tang, 66 Mass. App. Ct. 53, 63 (2006).

Similarly, the judge's denial of the juvenile's request for an independent evaluation of Andrew pursuant to G. L. c. 123, § 19, was not an abuse of discretion. See Trowbridge, supra at 755. An independent examination is necessary only where there is a "compelling need" and the examination "will produce substantial evidence bearing on the witness's testimonial capacity." See Commonwealth v. Gibbons, 378 Mass. 766, 773 (1979). The judge's decision was not "a clear error of judgment ... such that the decision fell outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

2. Exclusion of Andrew's treatment records. Prior to trial, the juvenile filed a motion in limine to admit Andrew's treatment records from various programs he attended, which was allowed in part. After a review of the records, the judge ordered that records related to specific instances of hallucination or storytelling were admissible. The juvenile contends that such a limitation was arbitrary and violated his confrontation right where the case rested entirely on the credibility of Andrew. We disagree.

We review the judge's decision to determine whether she abused her discretion. Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009). The judge examined each record individually to determine whether it should be admitted or excluded. She distinguished between statements in the record that were about treatment and generalized statements or notations without context.⁵ Contrast Commonwealth v. Polk, 462 Mass. 23, 28–29 (2012) (defendant purported to offer expert testimony to give context to treatment records). After careful examination, she excluded those records that were vague, lacked context, and contained "conclusory statements without further information about the basis for the statements," as their "probative value ... was substantially outweighed by the danger of unfair prejudice." See Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006).

The judge acted within her discretion in her careful and deliberate ruling, which ensured that the juvenile could present substantial evidence regarding Andrew's credibility while excluding vague evidence that would have confused the jury. Moreover, the juvenile suffered no prejudice. Indeed, a significant portion of Andrew's otherwise privileged mental health records were admitted, and the juvenile was allowed to cross-examine Andrew and others based on the records.

3. Evidence of Andrew's reputation for truthfulness. The juvenile contends that it was error for the judge to preclude testimony of Andrew's case manager regarding his knowledge of Andrew's general reputation for truthfulness. We review to determine whether the judge abused her discretion. Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980). Following a voir dire hearing, the judge properly precluded this evidence as the witness lacked a sufficient basis to characterize Andrew's reputation for honesty, and the testimony did not establish a sufficiently numerous group from which to draw a conclusion about Andrew's reputation. "A judge has discretion to exclude evidence of reputation if [she] determines that it is based on the opinions of too limited a group." Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933 (1981). Moreover, judges must be particularly cautious in admitting character evidence when, as is the case here, they are faced with a mentally impaired victim. See Commonwealth v. Despres, 70 Mass. App. Ct. 645, 650–651 (2007). The judge did not abuse her discretion.

4. Evidence of Andrew's prior sexual knowledge. The juvenile next claims that the judge erred in excluding evidence of Andrew's prior sexual knowledge, specifically his knowledge and practice of masturbation. He contends that if Andrew understood and enjoyed sexual gratification, evidence of his prior sexual knowledge would allow the jury to infer that Andrew consented to the rapes. General Laws c. 233, § 21B, seeks to avoid putting a victim's sexual practices on trial in an effort to discredit his claims of abuse. See Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992). Where specific instances of sexual conduct are proffered for a permissible purpose, a judge must still determine whether the evidence's weight and relevance outweigh its prejudicial effect. See Commonwealth v. Parent, 465 Mass. 395, 405 (2013).

Here, the judge allowed the juvenile to ask Andrew and his mother about a conversation the two of them had several months prior to the first complaint. The judge did, however, exclude evidence of Andrew's masturbation practices. Andrew's knowledge of masturbation does not equate with his understanding of anal or oral intercourse. This is particularly true where consent was not an issue on appeal.⁶ Contrast Commonwealth v. Reid, 400 Mass. 534, 541–542 (1987) (evidence of masturbation meant to explain physical feature of child victim). The judge did not abuse her discretion where evidence of masturbation would have resulted in the "harassment and ... humiliation" of Andrew. Commonwealth v. Joyce, 382 Mass. 222, 228 (1981) (quotation omitted).

5. Jury instructions. The juvenile argues that the judge erred in instructing the jury on the third element of the youthful offender indictments—the threat or infliction of serious bodily harm. The juvenile requested that the judge instruct the jury that serious bodily harm is permanent disfigurement, loss or impairment of a bodily function, or a substantial risk of death.⁷ Instead the judge instructed the jury as follows:

"The term

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