Commonwealth v. Hamel (Lawyers Weekly No. 11-043-17)

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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 kiss the child;
thereafter, the child’s step-mother and mother took him to speak
to a woman at a child advocacy center, where the child reported
the kiss but did not mention that the defendant had touched the
child’s penis.1 At some later point, the child returned to the
child advocacy center and reported to the same woman that the
defendant had been touching his penis. When the woman asked the
child why he had not reported that touching before, the child
explained that he liked the defendant and didn’t want to get him
in trouble.
One day in September of 2011, after the defendant had been
staying with the child’s family for more than two weeks, the
child began to experience pain in his penis. The child’s mother
took him to the doctor, where an examination revealed that the
skin of his penis was red and irritated. The doctor prescribed
a cream, which resolved the condition. The child had never
experienced a similar condition on his penis before September of
2011.
Discussion. Medical records. On the first day of trial,
the prosecutor informed the judge that the Commonwealth intended
1 In response to a direct question from his step-mother, the
child denied that the defendant had ever touched his penis.
4
to introduce medical records showing that the child sought
treatment on September 26, 2011, for “irritation in the penis
area,” explaining that the records were relevant because the
acts of abuse were alleged to have occurred during the month
preceding the child’s treatment for dermatitis. The defendant
objected to admission of the records, on the ground that there
was nothing in the records suggesting a causal link between the
alleged abuse and the dermatitis diagnosis.2 The judge advised
that he would reserve his ruling on the admissibility of the
records until after he heard the child’s testimony. On the
second day of trial, the defendant returned to the topic of the
medical records, advising the judge that he noticed that the
diagnosis expressed in the records was for “irritant
dermatitis,” a condition that (according to trial counsel’s
review of the Internet encyclopedia Wikipedia) is caused by
chemical irritants rather than touching of the type the child
alleged the defendant to have done. Following the child’s
testimony, the Commonwealth moved to admit the medical records
and, over the defendant’s objection, the judge admitted the
2 The defendant further observed that privileged records
from the child advocacy center social worker (which were not
admissible) included notes recounting the child’s mother’s
report that, according to the medical staff who treated the
child, the skin irritation evident on the child’s penis was “due
to not washing soap entirely off.”
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records in evidence.3 Because the defendant objected, we “review
any error in the admission of the medical records under the
prejudicial error standard.” Commonwealth v. Cole, 473 Mass.
317, 321 (2015).
“Expert testimony is necessary where proof of medical
causation lies outside the ken of lay jurors.” Pitts v. Wingate
at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012). “However,
where a determination of causation lies within ‘general human
knowledge and experience,’ expert testimony is not required.”
Ibid., quoting from Bailey v. Cataldo Ambulance Serv., Inc., 64
Mass. App. Ct. 228, 236 n.6 (2005). The question, then, is
whether the causes of dermatitis generally, or “irritant
dermatitis” more particularly, is sufficiently within the
general knowledge and experience of lay jurors to permit them to
draw a causal connection between the alleged abuse by the
defendant and the condition experienced by the child without
engaging in “speculation or conjecture.” Commonwealth v. Scott,
464 Mass. 355, 362 (2013). We conclude they are not.
The alleged abuse involved the vigorous rubbing of the
child’s penis with the defendant’s hand. While it is certainly
possible that such contact could produce some irritation of the
3 In response to trial counsel’s observation that “irritant
dermatitis” is caused by chemical irritants, the judge suggested
that the defendant would be free to introduce evidence of other
possible causes for the child’s skin condition.
6
skin surface of more than temporary duration, it seems far from
general knowledge and experience that it would, or that it would
produce a condition called “dermatitis” requiring treatment.
More to the point, without evidence of other potential causes of
such a condition, or the likelihood that the condition in the
particular form experienced by the child would result from
rubbing, a conclusion that the child’s dermatitis was caused by
the alleged touching in the present case rests on little more
than speculation or conjecture. See Commonwealth v.
Kirkpatrick, 423 Mass. 436, 447-448, cert. denied, 519 U.S. 1015
(1996), overruled on other grounds, Commonwealth v. King, 445
Mass. 217 (2005).
“In the Kirkpatrick case, a defendant charged with sexual
abuse of a child sought to introduce medical records showing
that, during the relevant period, he was treated for two
sexually transmitted infections, while the victim tested
negative for the same infections. [Kirkpatrick, supra at 448.] [The Supreme Judicial Court] determined that the records were
excluded properly because no medical testimony was introduced
and, in the absence of such expert testimony, the records would
have required speculation both as to the likelihood that the
infections would have been transmitted and as to the reliability
of the tests on a child. Id. at 447-448. Cf. Buck’s Case, 342
Mass. 766, 769 (1961) (where causal connection between
7
inhalation of formaldehyde and death was beyond ‘common
knowledge and experience of the ordinary layman,’ medical
testimony was required).” Commonwealth v. Scott, supra at 362-
363. On the topic of causation, compare cases such as Pitts v.
Wingate at Brighton, Inc., supra at 289-290 (plaintiff suffered
broken bones after fall to floor), and Bennett v. Winthrop
Community Hosp., 21 Mass App. Ct. 979, 980-982 (1986) (with
regard to the lost tooth and cut chin plaintiff sustained in
fall from gurney, the court observed that “[t]he fact of injury
consequent upon a fall is incontestable”), with Weinberg v.
Massachusetts Bay Transp. Authy., 348 Mass. 669, 671
(1965)(“Whether a fracture of the ankle could give rise to such
consequences . . . as varicose veins and shortness of breath
cannot be said to be a matter of common knowledge”).
The admission of the child’s medical records, without
evidence supporting a causal link between the diagnosed
condition and the defendant’s alleged abuse, was error. “An
error is nonprejudicial only ‘[i]f . . . the conviction is sure
that the error did not influence the jury, or had but very
slight effect. . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude
that substantial rights were not affected.’ Commonwealth v.
8
Peruzzi, 15 Mass. App. Ct. 437, 445 (1983), quoting Kotteakos v.
United States, 328 U.S. 750, 764-765 (1946).” Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). We can have no such
assurance in the present case. As is typical in such matters,
the present case relied principally on the credibility of the
child. The suggestion that the physical condition experienced
by the child was the result of the abuse he described could
serve as powerful forensic corroboration of the child’s
testimony. Indeed, the prosecutor pressed that point forcefully
during his closing argument. We agree with the defendant that
the erroneously admitted medical records caused him prejudice.
Improper closing. Our conclusion that the defendant is
entitled to a new trial is buttressed by the defendant’s second
claim of error, that the prosecutor engaged in improper closing
argument. As the Commonwealth concedes, it was improper for the
prosecutor to suggest in his closing that the child was credible
by virtue of his willingness to come into court and testify.4
See Commonwealth v. Beaudry, 445 Mass. at 586; Commonwealth v.
4 The defense theory was that the child fabricated the
allegations of abuse to avoid punishment after his step-mother
caught him smoking a cigarette. In response, the Commonwealth
argued: “Why would he put himself through what he did
yesterday, for smoking a cigarette?” and “I think the most
important thing that I want to leave you with is about the
motivation of a young, 12-year-old boy and what his motivation
is or would have been to make this up, to drag this on for two
years, to come here and testify before you. It’s a difficult
thing for anybody, but most certainly a 14-year-old.”
9
Ramos, 73 Mass. App. Ct. at 825-826; Mass. G. Evid.
§ 1113(b)(3)(A) (2017). As we have observed, the Commonwealth’s
case rested principally on the credibility of the child, except
to the extent that the child’s allegations of abuse were
corroborated by the suggestion that his dermatitis served as
tangible proof of the alleged abuse. Though the defendant did
not object at trial to the prosecutor’s closing, when the
improper argument is weighed together with the prejudicial
effect of the erroneously admitted medical records we are left
with no doubt that the judgments cannot stand.
Conclusion. The judgments are reversed, and the verdicts
set aside. The matter is remanded to the District Court for
further proceedings consistent with this opinion.
So ordered.

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