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Commonwealth v. Alvarez

Supreme Judicial Court of Massachusetts, Worcester

August 22, 2018

COMMONWEALTH
v.
ANGEL LUIS ALVAREZ.

          Heard: January 8, 2018.

          Indictments found and returned in the Superior Court Department on August 22, 2014.

         The cases were tried before Daniel M. Wrenn, J. The Supreme Judicial Court granted an application for direct appellate review.

          David Rassoul Rangaviz, Committee for Public Counsel Services, for the defendant.

          Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         A 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.

         Background.

         The strength of the Commonwealth's evidence in this case rested on the credibility of Camila, [1] 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 "tio."

         When 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, and disgusting."

         The 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.

         Camila 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.

         The 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.

         When 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.

         When 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 him away.

         Every 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 room.

         When 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 her home.

         Approximately 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 multiple times.

         Soon 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."

         When 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.

         The defendant appealed his convictions, and we granted his application for direct appellate review.

         Discussion.

         1. Prosecutor's closing argument.

         As 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.

         When 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?"
A.: "Yes."
Q.: "And that's when [the defendant] was at your house, and was supposed to go pick up some other cousins?"
A.: "Yes."
Q.: "And you told the detective that he asked if he could take [Camila]?"
A.: "Yes."
Q.: "And she asked you, 'Mommy, can I go with tio to pick up the kids'?"
A.: "Yes."
Q.: "And you said 'Yes; go ahead'?" ...

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