Supreme Judicial Court of Massachusetts, Worcester
Heard: January 8, 2018.
Indictments found and returned in the Superior Court
Department on August 22, 2014.
cases were tried before Daniel M. Wrenn, J. The Supreme
Judicial Court granted an application for direct appellate
Rassoul Rangaviz, Committee for Public Counsel Services, for
Nathaniel R. Beaudoin, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Superior Court jury found the defendant, Angel Alvarez,
guilty on indictments charging three counts of rape of a
child and one count of indecent assault and battery upon a
child. The defendant presents three claims of error on
appeal: first, that the prosecutor misstated important
evidence in closing argument; second, that the judge erred by
admitting expert testimony from the treating physician of the
victim; and third, that the judge's instructions unfairly
limited the jury's consideration of a defense based on
the inadequacy of the police investigation, known as a
Bowden defense. See Commonwealth
v. Bowden, 379 Mass. 472, 485-486 (1980).
We conclude that the prosecutor's closing argument was
prejudicial error, where she told the jury of critical
corroborative evidence that was not presented at trial. We
therefore vacate the defendant's convictions and remand
the case to the Superior Court for a new trial. We address
the defendant's other two claims of error because they
are likely to recur at a new trial. We conclude that the
judge did not abuse his discretion in admitting the expert
opinion of the treating physician where it could not
reasonably be understood by the jury as implicitly vouching
for the complainant's credibility. We also conclude that
the judge did not unfairly limit the jury's consideration
of the Bowden defense by instructing the jury to
decide the case based solely on the evidence.
strength of the Commonwealth's evidence in this case
rested on the credibility of Camila,  a twelve year old girl who
recounted acts of sexual abuse by the defendant that had
allegedly occurred on various occasions when she was between
the ages of six and nine. The defendant is Camila's
godfather, and is married to Camila's aunt; Camila thinks
of the defendant as her uncle and refers to him as
Camila was six years old, the defendant and several relatives
were at her house for a party. The defendant asked her to
come with him to pick up her cousin to bring back to the
party. Camila refused because she was having fun. The
defendant "begg[ed]" Camila's mother for Camila
to accompany him and her mother agreed. The defendant drove
to his house and told Camila he needed something from inside.
Camila wanted to stay in the vehicle, but the defendant
insisted that she come inside the house. As the defendant
looked for something, Camila sat on an air mattress in one of
the bedrooms. The defendant walked in and took off his pants
and underwear. He pulled down Camila's skirt and
underwear. He laid down on the bed and "put [Camila] on
top of him" and "his penis touched [her]
vagina." The sexual assault lasted approximately one
minute; the defendant then went to the bathroom. Camila
testified that her vagina felt "sticky," "wet,
defendant and Camila left the house and drove to pick up her
cousin. On the way, Camila told the defendant that her vagina
was hurting. The defendant was "surprised" and
asked "why it was hurting." She said that she did
not know why she was in pain. The defendant told her to not
tell her mother. After picking up Camila's cousin the
defendant drove back to Camila's house.
testified that, once she was home, she felt "wet and
sticky and gross," and asked her mother if she could
shower. She ultimately did not shower again because she had
showered approximately one hour before leaving the house;
instead, she played with her cousins.
defendant worked as a taxicab driver and would sometimes pick
up Camila from school in a taxicab. On four to six occasions,
when Camila was six or seven years old, the defendant drove
her to a fast food restaurant and parked the taxicab behind
the restaurant. There, he would place his hand under
Camila's pants and underwear and into her vagina.
Camila was six or seven years old, she was in a hallway in
the defendant's apartment, waiting for him to drive her
home for a family event. Camila's aunt was in another
room getting ready. The defendant walked into the hallway,
pulled down his pants and underwear, and put his penis in
Camila's mouth. The defendant told her to "suck it
and do it." After approximately one minute, Camila
pushed the defendant away.
Camila was approximately eight years old, the defendant on
two separate occasions stood behind her in the same hallway
and rubbed his penis on her buttocks. On another occasion,
when she and the defendant's niece were both sleeping at
his house on different couches in the same room, the
defendant put his hand under Camila's blanket and inside
her vagina. Camila woke up, said "[o]w," and pushed
time Camila slept at the defendant's house, he tried to
assault her. She would respond by pushing and kicking him,
and the defendant would remain quiet and walk out of the
Camila was nine years old, soon after the assault on the
couch, she was home, celebrating New Year's Eve with the
defendant's niece. The defendant's niece wanted
Camila to sleep at the defendant's house, but Camila did
not want to. The defendant "kept begging"
Camila's mother to allow Camila to sleep over until she
acquiesced. Once at the defendant's house, Camila said
she was hungry and asked the defendant for food. After the
defendant told her he had no food and no money for food,
Camila said, "I just want to go home, I want to go
home." The defendant "screamed" at her,
"Just go home, then, go home." The defendant's
niece drove Camila to a fast food restaurant and then drove
two weeks later, Camila was talking with her mother and one
of her sisters. Someone mentioned the defendant, and Camila
started crying. After her mother and sister asked why she was
crying, Camila disclosed that the defendant had assaulted her
after disclosing that the defendant had been assaulting her,
Camila was examined by Dr. Heather C. Forkey, a pediatrician
who specialized in caring for children who have been victims
of abuse. Dr. Forkey testified at trial that Camila did not
exhibit or report any of the common behavioral symptoms of
abuse -- including nightmares, bed-wetting, difficulty in
school, and running away from home. She also testified that
Camila's genital examination was "normal" for a
nine year old girl, and that there were no signs of genital
injury. When the prosecutor asked Dr. Forkey to offer an
expert opinion as to whether "it is or is not common to
find physical injuries during the genital exam of someone
that has been sexually abused," the defendant objected.
Dr. Forkey answered, "It's very uncommon,"
before the judge sustained the objection on the grounds that
the question "stray[ed] too close to the credibility
component of the case." Mistakenly believing that Dr.
Forkey had not answered the question, the judge denied the
defendant's motion to strike any response to the
question. At the conclusion of her direct testimony, without
objection, Dr. Forkey testified that "[t]he absence of
physical trauma is not inconsistent with abuse."
the defendant was interviewed by the police about these
allegations, he admitted that he had spent time with Camila
"almost every day," that she would "always
hang out" with him and "always call" him, but
he insisted that he had never touched her in a sexual manner.
When asked by the police if Camila had ever "come
on" to him, he stated that she never had, and he denied
having "any feelings like that towards her." He
declared, "I [have] always been good to this family; I
[have] never hurt [them]." When asked why Camila would
say that he abused her if it were not true, he answered,
"I don't know." When the interrogating police
officer falsely told the defendant that she knew that he had
kept photographs of young girls on his cellular telephone,
thinking that this "bluff" would cause the
defendant to confess, he adamantly denied ever having taken
such photographs or keeping any on his cellular telephone.
There was no evidence at trial that the defendant possessed
any child pornography or photographs of children, and no
evidence of bad acts towards any other child.
defendant appealed his convictions, and we granted his
application for direct appellate review.
Prosecutor's closing argument.
noted, Camila testified that, when she was six years old,
after the first alleged sexual abuse incident with the
defendant, she "felt wet and disgusting" because of
a "sticky" substance around her vagina. She also
testified that, when she was nine years old and told her
mother and sister about her sexual abuse, she spoke of this
aspect of the incident and said: "I told them how I felt
gross and wet; that's why I wanted to take the
shower." This was the only sexual incident in which
there was any indication that the defendant had ejaculated,
so corroboration from a source other than Camila that she
felt "wet and sticky" would strongly corroborate
her testimony regarding that incident. The prosecutor
recognized the importance of this corroborative evidence by
telling the jury during her opening statement that Camila
would testify that, after she returned home and told her
mother that she needed to "take a tub or a shower,"
"[h]er mom said, 'Why? You just took one before you
left, a few hours ago.'" However, when Camila
testified, she testified only that she had asked her mother
whether she could take a shower, but that she did not shower
because she had taken one an hour before she had left home.
She was not asked what her mother said in response to her
desire to take a shower, and did not testify as to any
statement made by her mother regarding that incident.
Camila's mother testified, the prosecutor did not ask
about this incident; the mother said nothing about Camila
asking to "take a tub or a shower," or her saying
she felt "wet," "disgusting," or
"sticky" when she came home. On cross-examination,
defense counsel asked Camila's mother to read the police
report reflecting what she had told the detective after
Camila's first complaint regarding this particular
incident, and the following dialogue ensued:
Q.: "And . . . you told the detective about the first
incident that [Camila] told you about?"
Q.: "And that's when [the defendant] was at your
house, and was supposed to go pick up some other
Q.: "And you told the detective that he asked if he
could take [Camila]?"
Q.: "And she asked you, 'Mommy, can I go with tio to
pick up the kids'?"
Q.: "And you said 'Yes; go ahead'?"