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SJC Reverses Defendants Conviction for Sex Offenses Due to Prosecutorial Error

balance-1172800-1-300x204A divided SJC reversed the defendant’s convictions for various sex offenses – rape of a child and indecent assault and battery upon a child – in Commonwealth v. Alvarez because the prosecutor, in her closing argument, erroneously “told the jury of critical corroborative evidence that was not presented at trial.”

The background was as follows. “The 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.” Camila testified that during an episode of abuse in the defendant’s house, his “penis touched [her] vagina,” after which “her vagina felt ‘sticky,’ ‘wet, and disgusting.’” Camila stated that after the defendant drove her home, she still “felt ‘wet and sticky and gross,’ [so she] asked her mother if she could shower.” “This was the only [alleged] 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.” During the prosecutor’s opening statement, she told the jury “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 [stated] only that she had asked her mother whether she could take a shower…. 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.” “However, during closing argument, the prosecutor, in answer to defense counsel’s argument that the case rested solely on the words of Camila, said: ‘the Commonwealth submits that’s not true. You have some corroboration … of [Camila’s] word in other forms. You have her mom saying … she told you how that first time [Camila] came home and asked to take a bath, because she felt disgusting? Mom told you, “She did come home one day and ask to take a bath, and I thought it was weird, because she had taken a bath that morning.” That’s corroboration.’ Defense counsel objected at the end of the prosecutor’s closing argument, informing the judge that there was no evidence that the mother provided any corroboration of Camila’s testimony that she told her mother she needed to bathe…. The judge refused to give any curative instruction.”

In its decision, the SJC ruled that the prosecutor’s reference to “imagined testimony of the mother” — “that Camila said she wanted to bathe or shower and that the mother thought this ‘weird’ because Camila had recently bathed” — constituted prejudicial error because it provided strong corroboration of Camila’s testimony that “she felt ‘wet’ and ‘sticky’ after the defendant ejaculated on her.”

Also in this decision, the SJC ruled that the judge did not abuse his discretion in declining to strike certain opinion testimony by the pediatrician who had treated Camila soon after she disclosed the alleged abuse by the defendant. After testifying that there were “no signs of genital injury” to Camila, the pediatrician, in response to questions by the prosecutor, “offered the expert opinion that it is ‘very uncommon’ to find physical injury on the genitals of victims of sexual abuse and that ‘[t]he absence of physical trauma is not inconsistent with abuse.’” The defendant claimed that those statements constituted impermissible, implicit vouching for Camila’s credibility. The SJC disagreed, stating that “where the prosecutor made clear in eliciting [the pediatrician’s] opinions that her questions were not focused on the complainant,” but rather on patients in general, “we conclude that the risk of implicit vouching [was] so small that the judge did not abuse his discretion by not striking these opinions.”

It is extremely important in any criminal case to make sure that the prosecutor properly abides by the rules of criminal procedure and evidentiary law.  If you or a loved one is charged in a criminal case, it is of the utmost importance that you have an attorney who knows how to keep the Commonwealth in check.  Attorney Daniel Cappetta is an experienced attorney who makes sure that all of his clients are protected from any attempted improprieties by the prosecutor.  Put his dedication and skill to work for you – call for a free consultation.

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