MILLS, J.
The events underlying this case arose in the context of a teenage dating relationship between the complainant, whom we shall refer to as Alice, and the defendant. The defendant was charged with one count of aggravated rape, G. L. c. 265, § 22(a), and two counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b). A jury convicted him of rape as a lesser-included offense of aggravated rape, and one count of assault by means of a dangerous weapon. On appeal, he challenges the admission of three types of evidence: (1) expert testimony on domestic violence, (2) multiple first complaint testimony, and (3) evidence of bad character and prior bad acts. We affirm.
Background. We summarize the evidence admitted at trial relevant to the issues before us. Alice met the defendant in April, 2006, during her freshman year of high school, when she was fifteen and he was seventeen. They began dating in July, 2006, and the relationship became sexual. Although dating stopped around May, 2007, they continued to engage in a sexual relationship over the next few months.
1. The first incident. In June, 2007, the parties were no longer dating but regularly engaged in sexual relations when Alice's parents were out of the house. Alice testified that one morning the defendant called and asked to come over and was angry when she refused to see him. While she was brushing her teeth, she heard the garage door open. She stepped out of the bathroom and saw the defendant standing in the hallway pointing a gun at her. She fled to her parents' bedroom, with the defendant following, and begged him not to kill her, to which he replied, "Why shouldn't I? Why shouldn't I kill you now?" When Alice's dog entered the room, the defendant pointed the gun at the dog, and she asked him not to hurt the dog. Thereafter, the defendant calmed down and they had consensual sex.
3. Ensuing events. Alice also testified to subsequent bad acts by the defendant, but she continued to see him until at least August, 2007. Then, in October, 2007, she started dating a new person. The next month, the defendant visited her at the supermarket where she worked, asked if she was dating anyone, and called her early the next morning, at 1:00 A.M. She replied by text message, and he responded, also via text message, that he wanted to "[j]ust talk cuz I miss you." Then, on November 14, 2007, the defendant sent her a text message reading, "U f___ him yet?"
Alice contacted the police around the date of the final text message. As part of the investigation, Deputy Chief Jeffrey Gillen of the Groveland police department spoke with both Alice and Salem Lahlali, an acquaintance to whom she had complained of the defendant's actions. All three testified as prosecution witnesses. The Commonwealth also called Amesbury
Discussion. 1. Expert testimony. The defendant first challenges the admission of Detective Wile's testimony on domestic violence. In Commonwealth v. Goetzendanner, 42 Mass.App.Ct. 637, 640 (1997) (Goetzendanner), this court explained that, "[t]o the average juror, untutored in the psychological dynamics of domestic violence, the victim's vacillating behavior toward the defendant — in particular, her back and forth attempts to end the relationship — might have seemed counterintuitive and might even have suggested that her version of events was inherently unreliable and unworthy of belief." As in Goetzendanner, the Commonwealth here offered expert testimony by Detective Wile on the behavioral characteristics of victims in order to help the jury evaluate Alice's credibility.
Detective Wile heads the domestic violence unit for the Amesbury police department. At the time of his testimony, he had been a police officer for over twenty-one years and had worked solely on domestic violence cases since 1999. Based on his experience and training, he testified about the different types of domestic violence, including verbal, emotional, psychological, and physical abuse. He described the three-phase "cycle of violence," which includes a period of "tension building," a "battering incident," and, finally, a "honeymoon phase." He also testified about "minimization" of abuse, recantation, and the reasons why victims may remain in abusive relationships.
a. Expert qualifications. As a threshold matter, we reject the defendant's contention that the judge erred in qualifying Detective Wile to offer expert testimony. "The decision to qualify a witness as an expert on a particular matter that is within that
b. Subject matter. The defendant next argues that domestic violence is not a proper subject of expert testimony because the testimony is neither helpful to the jury nor reliable. "A trial judge has broad discretion with respect to the admissibility of expert testimony." Commonwealth v. Mamay, 407 Mass. 412, 421 (1990). In his role as gatekeeper, a judge must determine that expert testimony is both "beyond the common knowledge of jurors" and "reliable." Commonwealth v. Polk, 462 Mass. 23,
We agree that Goetzendanner controls. Goetzendanner held that testimony "about domestic violence generally and about BWS [battered woman's syndrome] specifically" was admissible to help jurors understand the potentially counterintuitive behavior of victims when assessing a victim's credibility. 42 Mass. App. Ct. at 640-641. See Commonwealth v. Dockham, 405 Mass. 618, 627-630 (1989) (expert testimony on "general behavioral characteristics of sexually abused children" admissible); Commonwealth v. Mamay, 407 Mass. at 421-422 (rape trauma syndrome); Commonwealth v. Day, 409 Mass. 719, 724 (1991) (battered child syndrome). Other courts have concluded, in line with Goetzendanner, that expert testimony on domestic violence that does not specifically address battered woman's syndrome is admissible. See People v. Brown, 33 Cal.4th 892, 895, 906-908 (2004) (expert testimony on "the behavior of victims of domestic violence" covered the "cycle of violence" and counterintuitive characteristics of victim reporting); Odom v. State, 711 N.E.2d 71 (Ind. Ct. App. 1999) (upholding admission of expert testimony on domestic violence that did not specifically address battered woman's syndrome). As the judge discussed, there is significant literature on the effect of domestic violence on victims' behavior. See People v. Brown, 33 Cal. 4th at 898-900, and authorities cited. There is also behavioral science support for the value of expert testimony on domestic violence that does not fall neatly into the category of battered woman's syndrome as it is currently defined. See id. at 900, 903, citing People v. Humphrey, 13 Cal.4th 1073, 1083 n.3
c. Impermissible vouching and abuser profiling. We also reject the defendant's contention that Detective Wile impermissibly vouched for Alice's credibility. While an expert may describe the general behavioral characteristics shared by victims of abuse, "[d]eference must be preserved for the role of the jury as the final judge of credibility." Commonwealth v. Federico, 425 Mass. 844, 848 (1997). Expert testimony must be "confined to a description of the general or expected characteristics shared by typical victims," Goetzendanner, 42 Mass. App. Ct. at 644, and "may not relate directly to the symptoms exhibited by an individual victim ..., nor may it include an opinion or diagnosis that that person suffers from the described condition." Ibid. "If that link is avoided, and the testimony does not focus on the specific [victim], the testimony is usually allowed." Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 55 (2003). The defendant does not allege that Wile explicitly linked his opinion to the actual victim but, rather, that he implicitly invited the jury to make that comparison.
As the court in Commonwealth v. Deloney explained, "even absent explicit linking of the [expert] opinion to the [victim], the jury may impermissibly be invited to find an identity between the hypothetical subjects of the expert testimony and the specific [victim]...." Ibid. In this case, the defendant challenges three aspects of Wile's testimony as implicit vouching: (1) a description of the "cycle of violence,"
This court has acknowledged the "apparent oddity that ... the more numerous the similarities between the individual ... victim and a `standard' ... victim created by an expert witness, the more likely it is that the expert testimony will be excluded." Commonwealth v. Deloney, 59 Mass. App. Ct. at 56. However, the mere fact that an expert's testimony is consistent with that of the victim does not, alone, render it impermissible vouching. To the contrary, it demonstrates the relevance of the expert opinion as an aid to the jury in understanding a victim's counterintuitive actions. See ibid. ("expert testimony that explains to the jury that child abuse victims may behave in ways that to lay persons may seem illogical" is permissible so long as it does not "suggest[] that child victims in a particular case have acted typically when compared to a `norm' of child victims"). See also Commonwealth v. Colon, 49 Mass.App.Ct. 289, 291 (2000) ("expert testimony on the ... general behavioral characteristics of sexually abused children is admissible and does not, of itself, constitute an opinion on the credibility of the complaining witness").
Detective Wile's testimony was appropriately generalized. Goetzendanner specifically upheld the allowance of expert testimony about the "cycle" of domestic violence and the underlying emotional state of victims. See 42 Mass. App. Ct. at 641 (expert "explained the cyclical nature of abusive relationships" and that "women victims of battering often experience a strong desire to understand why the abuse occurred"). See also Commonwealth v. Dockham, 405 Mass. at 628 (expert testified
Nor did the expert opinion impermissibly profile perpetrators
By contrast, the defendant challenges Wile's statements that (1) psychological abuse includes "throwing things, not directly at [the victim], but in the general area where they are," and "threaten[ing] to hurt themselves," and (2) verbal abuse includes "belittling" and "name-calling."
Finally, the judge gave an appropriate, timely jury instruction
2. First complaint testimony. The defendant next argues that the judge erroneously allowed "piling on" of first complaint testimony. He challenges testimony by Alice, by Salem Lahlali, and by Deputy Chief Gillen as violating the first complaint doctrine. The doctrine limits testimony about a victim's complaints of sexual assault to a single witness, generally the first person told. See Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006) (first complaint is most pertinent to jury's assessment of victim's motivation for coming forward and credibility); Commonwealth v. McCoy, 456 Mass. 838, 844-845 (2010).
a. Standard of review. The defendant did not object to any of the complaint testimony at trial, and we therefore review for a substantial risk of a miscarriage of justice. Id. at 846. "A
b. Complaint witnesses. At trial, Alice testified about two separate instances of abuse underlying the charges on which the defendant was convicted — an initial incident when the defendant threatened her and her dog with a gun (for which the defendant was convicted of assault by means of a dangerous weapon), and a second incident when he anally raped her (for which the defendant was charged with aggravated rape, and was convicted of the lesser-included offense of rape). The Commonwealth called Salem Lahlali, an acquaintance of Alice's, as the designated first complaint witness. Lahlali testified about a single telephone conversation with Alice in late July. He recounted that she called him crying and told him that the defendant "had a gun up to her and raped her," and "gun ... slapped her dog." The defendant argues that Lahlali's testimony echoed Alice's description of the first incident and thus does not implicate a sexual assault at all, taking it out of the first complaint rubric and rendering the testimony inadmissible.
A full reading of Lahlali's testimony shows, however, that he was not explicit about whether his understanding was that the acts he described, as recounted to him by Alice in their July conversation, were all part of a single incident.
Turning to Alice's testimony, the defendant contends that she impermissibly testified about multiple complaints to Lahlali, as well as complaints to the police. First complaint testimony is limited to the initial complaint. See Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009) ("where a complainant makes successive complaints to the first complaint witness, the initial complaint is the only evidence admissible as first complaint"). During her direct examination, Alice testified, "I did definitely tell him about the first incident, and then I do believe I told him — I don't know if it was the same exact time that I saw him, but I do remember I ended up telling him about the times that [the defendant] forced me to have anal sex with him." It was only on cross-examination that she clearly said she discussed with Lahlali the defendant's actions "[a]t least twice," and "definitely more than once." To the extent that repetition of the complaint to Lahlali bolstered her credibility, any error was compounded by the defendant. More importantly, "we must consider whether defense counsel's failure to object to the testimony could have been a tactical decision." Commonwealth v. McCoy, 456 Mass. at 852. Defense counsel emphasized Alice's multiple complaints when cross-examining her and relied on inconsistencies between her and Lahlali's complaint testimony in his closing argument.
The defendant also argues error in the admission of Alice's statement that she complained to the police. However, the prosecutor elicited this testimony at the request of the defense. Earlier in the trial, the Commonwealth had addressed a desire to show when the police investigation began. See Commonwealth v. Arana, 453 Mass. at 226-227 (even where a police officer is not the first complaint witness, testimony concerning the circumstances giving rise to the police involvement in a sexual assault case may be admissible as part of the prosecution's case-in-chief). In order to avoid an inference by the jury that the police independently began investigating the defendant for other conduct, defense counsel requested that the police involvement be introduced through evidence that Alice complained to them. Counsel expressed his preference that Alice testify that she went to the police in November, and indicated that he had no objection to that testimony. Again, the defense made a reasonable strategic choice. See Commonwealth v. McCoy, 456 Mass. at 852-853. Consequently, Deputy Chief Gillen's statement that he interviewed Alice during his investigation was cumulative and nonprejudicial. The multiple first complaint testimony did not create a substantial risk of a miscarriage of justice.
3. Bad character and prior bad act evidence. The defendant argues that the Commonwealth introduced a litany of bad character and bad act evidence with the sole purpose of portraying the defendant negatively. For example, the defendant points to testimony that he called Alice vulgar names and threatened her. "The prosecution, of course, may not introduce evidence of a defendant's prior misconduct to demonstrate bad character or propensity to commit the crime charged." Commonwealth v. DeMarco, 444 Mass. 678, 681-682 (2005). See Mass. G. Evid. § 404 (2012). However, "[e]vidence of relevant prior misconduct
As the acts complained of consist almost entirely of acts showing the defendant's poor treatment of Alice, we need make only a few remarks.
The defendant argues that the prosecutor improperly encouraged the jury to convict the defendant based on these bad acts. As he failed to object to both the bad act evidence
Judgments affirmed.