Commonwealth v. Hamel (Lawyers Weekly No. 11-043-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us 16-P-145 Appeals Court COMMONWEALTH vs. JUSTIN HAMEL. No. 16-P-145. Bristol. March 13, 2017. – April 13, 2017. Present: Green, Wolohojian, & Sullivan, JJ. Indecent Assault and Battery. Minor. Evidence, Medical record, Credibility of witness. Witness, Child, Credibility. Practice, Criminal, Argument by prosecutor. Child Abuse. Complaints received and sworn to in the jury session of the Fall River Division of the District Court Department on November 21, 2011, and May 31, 2012. After consolidation, the cases were tried before Gilbert J. Nadeau, Jr., J. Laura Mannion Banwarth for the defendant. Tara L. Johnston, Assistant District Attorney, for the Commonwealth. GREEN, J. On appeal from his convictions on two counts of indecent assault and battery on a child under the age of fourteen, the defendant assigns error to the admission, over objection, of medical records describing diagnosis and treatment 2 of the child for dermatitis on his penis, without expert testimony establishing a causal connection between the alleged assault and the described skin condition. The defendant also observes that the trial prosecutor’s closing improperly suggested that the jury should consider the child to be credible, by reason of his willingness to testify in court to the alleged assault. See Commonwealth v. Beaudry, 445 Mass. 577, 586 (2005); Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 825-826 (2009). We agree that a new trial is warranted, and reverse the judgments. Background. In September, 2011, the child (then twelve years old) moved into a new house with his family. The defendant (then thirty-one years old) often stayed in the family home, and the child and defendant spent a lot of time together. The child and the defendant went to the beach, played video games, and watched television together. The child testified that he had a good relationship with the defendant, and liked him. One day, while the child and the defendant were sitting or lying on his bed watching television, the defendant grabbed the child’s penis with his hand and moved his hand up and down until “wet stuff came out.” The child testified that something similar happened with the defendant on ten to twenty other occasions during the time the defendant stayed with his family. 3 The child also testified that the defendant kissed him on the lips between five and ten times. On one of those occasions, the child’s step-mother saw the defendant […]