Commonwealth v. Ramos5/3/2005
Suffolk.
February 14, 2005.
Evidence, Prior misconduct, Pattern of conduct. Practice, Criminal, Sentence.
Indictments found and returned in the Superior Court Department, two on February 12, 1999, and eleven on October 29, 1999, respectively.
The cases were tried before Barbara J. Rouse, J.
Dr. Marcos Ramos was charged with nineteen counts of indecent assault and battery, G. L. c. 265, ยง 13(h), on eight different female patients. He was convicted of thirteen.
On appeal, he argues that (1) prior bad act testimony of five noncomplainant witnesses was improperly admitted; (2) his prison sentence improperly took into account crimes for which he was not charged; and (3) the judge erroneously instructed the jury concerning consent to a physical examination by a physician. Although we are concerned with the admission of the evidence, we affirm.
Facts
Ramos practiced as a doctor specializing in rehabilitation medicine and musculo-skeletal injuries. Part of his practice involved independent medical examinations (IMEs) of those who had suffered work or accident related physical injuries, and were seeking recovery through workers compensation , insurance, or personal injury claims. Those he examined were typically ordered to see him by an employer or insurer to justify compensation already paid, compensation to be paid, or were referred by their attorneys as part of potential or ongoing litigation. Through the 1990s, Ramos examined a number of female patients in relation to these claims, and his conduct during those examinations formed the basis for which he was ultimately charged.
At trial, the Commonwealth offered all eight victims as witnesses, and all testified to similar experiences in his office. Each victim testified that she was told to undress prior to the examination and cover herself with a paper johnnie. Although they reported various injuries to their wrists, arms, shoulders, necks, backs, and legs, Ramos focused much of his attention on unaffected areas. All of the victims stated that Ramos fondled and groped their breasts, without gloves, in a manner unlike any other prior breast examination. Some described other inappropriate touching of other parts of their bodies, including their vaginas, buttocks, and inner thighs. Every victim, except for one, testified that they were alone in the room during the examinations.
Prior Bad Acts
The Commonwealth, over objection, presented the testimony of five noncomplainant witnesses, who described similar experiences with Ramos, for the purpose of showing that Ramos molested his patients in accordance with a common scheme or plan, and to show, through the sheer number of victims, that the indecent touching was not an accident or mistake. Two of the noncomplainants testified that Ramos refused to let their husbands accompany them during the examination.
"It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose. . . . Such evidence can be highly prejudicial to the defendant, and therefore must be excluded unless it comes within one of the permitted uses, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). (Citations omitted.) See Commonwealth v. Walker, 442 Mass. 185, 202 (2004); Commonwealth v. Butler, 62 Mass. App. Ct. 836, 843 (2005); Proposed Mass. R. Evid. 404.
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