Commonwealth v. Viveiros

175 N.E.3d 1241 (Table)

COMMONWEALTH

v.Daniel VIVEIROS.

20-P-870

Appeals Court of Massachusetts.

Entered: October 7, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of rape and abuse of a child under the age of sixteen, aggravated by more than a five-year age difference, G. L. c. 265, § 23A (a ) ; indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B ; indecent exposure, G. L. c. 272, § 53 ; and dissemination of matter harmful to a minor, G. L. c. 272, § 28.² On appeal, the defendant argues that (1) the trial judge erred in allowing the prosecutor to elicit testimony from the victim's mother (as opposed to an expert) making a temporal connection between the victim's physical ailments and the defendant's presence in the home, and (2) the trial prosecutor impermissibly mischaracterized the evidence in her closing argument and improperly vouched for a witness's credibility. We affirm.

Evidence of physical ailments without expert opinion. On direct examination of the victim's mother, the prosecutor elicited testimony that the victim suffered from frequent stomachaches and "bladder issues" from April 2014 to August 2016, which was the period during which the defendant lived with the victim and the victim's mother. The mother testified that the victim frequently experienced stomach pain and a burning sensation and discomfort with her bladder that would "accompany the stomachaches." The mother also testified that, despite numerous visits to the victim's pediatrician, no one was able to diagnose the cause of the victim's discomfort. The victim was eventually referred to a hospital to see a stomach doctor, who prescribed a stool softener. Nevertheless, the victim's symptoms continued. At this point, the prosecutor asked whether the victim's symptoms eventually subsided, and defense counsel objected on the ground that, without expert testimony, the Commonwealth should not be permitted to introduce testimony suggesting that the victim's stomachaches and bladder issues were physical manifestations of anxiety, or to suggest that those symptoms subsided once the defendant left the home. The judge permitted the prosecutor to ask the victim's mother when, in her memory, the victim's physical ailments subsided. The mother then testified that the victim's stomachaches stopped in August of 2016, which was when the defendant left the home. The mother said nothing about the bladder issues.

On appeal, the defendant argues it was reversible error to allow this testimony about the victim's stomachaches and bladder pain to be offered without any expert opinion testimony as to the possible causes of these symptoms. Because the defendant timely objected, we review any error under the prejudicial error standard.³ See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). This standard involves "a two-part analysis: (1) was there error; and (2) if so, was that error prejudicial." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). An error is not prejudicial if it "did not influence the jury, or had but very slight effect." Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 869 (2010), quoting Cruz, supra at 591.

"Expert testimony is necessary where proof of medical causation lies outside the ken of lay jurors." Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 351 (2017), quoting Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012). Where, however, the determination of causation lies within "general human knowledge and experience," no expert testimony is required. Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 236 n.6 (2005), quoting Lovely's Case, 336 Mass. 512, 516 (1957).

We accept the proposition that it is within the common knowledge and experience of lay jurors that children may exhibit stomachaches as a result of anxiety or distress. See Commonwealth v. Hudson, 417 Mass. 536, 537-538 (1994) (reciting lay testimony from mother of minor sexual assault victim about victim's frequent stomachaches and nightmares). But the victim's "bladder issues," which included burning and discomfort, stand on different footing because the jury would not have been able to "draw a causal connection between the alleged abuse by the defendant and the [victim's bladder issues] without engaging in ‘speculation or conjecture.’ " Hamel, supra at 351, quoting Commonwealth v. Scott, 464 Mass. 355, 362 (2013). Thus, the mother's testimony regarding bladder issues should not have been admitted.

We thus ask whether the defendant was prejudiced by the error. Cruz, 445 Mass. at 591. In making this determination, we examine factors such as "the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; ... and the weight or quantum of evidence of guilt." Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 560 (2015), quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). Here, apart from the single reference during the mother's direct examination, the victim's bladder problems were not again mentioned, either in questioning, testimony, or closing arguments. The Commonwealth's evidence was strong, and the victim's testimony was corroborated in various aspects, including by the first complaint witness, by the mother, and by text messages from the defendant. In the circumstances, we are confident that this erroneously admitted evidence "did not influence the jury, or had but very slight effect." Sullivan, 76 Mass. App. Ct. at 869, quoting Cruz, supra at 591.

Closing argument. The defendant next argues that the prosecutor erred in her closing argument by (1) violating the first complaint doctrine by mentioning multiple conversations between the defendant and the first complaint witness, (2) misstating the evidence, and (3) improperly bolstering the victim's credibility.

The first complaint doctrine allows the prosecution to put on testimony about the victim's first complaint of sexual assault in its case-in-chief, but the doctrine is meant to prevent the "piling on" of cumulative evidence by limiting the prosecution to one first complaint witness. Commonwealth v. King, 445 Mass. 217, 242-245 (2005). Where a complainant makes successive complaints to the first complaint witness, ordinarily only the details of the initial complaint are admissible. Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009). However, the defendant can "open the door" to evidence about successive complaints. See Commonwealth v. Mendez, 77 Mass. App. Ct. 905, 906 (2010). That is what happened here when defense counsel cross-examined the victim about her complaints to the first complaint witness, and then referred to successive complaints in his closing argument to suggest that the victim and the first complaint witness had colluded to fabricate a story about the defendant's conduct. It was not error, therefore, for the prosecutor to also refer to the fact of successive complaints in order to counter the suggestion of collusion.

The defendant's remaining two claims of error are based on the...