ANNAPOLIS – The Court of Special Appeals threw out a Montgomery man’s convictions on child abuse and sexual offenses against his nephew, saying a doctor was improperly allowed to comment on the child’s credibility.
The court ordered a new trial for Jose Gonzalo Rivera, who was convicted in Montgomery Circuit Court in 1997 on two counts of child abuse and four counts of sexual assault.
The case first came to police attention on April 5, 1996, when the boy’s mother found him lying on his bed in soiled underwear.
When questioned, the boy reluctantly told his parents that Rivera, who was living with the family at the time, had sexually assaulted him. He said the abuse occurred more than once, most recently that day, according to court documents.
His parents took the boy to Montgomery County Police, where he told a detective that Rivera had sexually assaulted him, and then took him to Shady Grove Adventist Hospital.
At the hospital, the child first told Dr. Rebecca Salness that Rivera had placed his finger inside his anus. But when she examined him, she found injuries consistent with “the kind of pattern you see when there’s been an anal intercourse,” according to her testimony.
Salness testified that when the child turned over during the examination, he seemed upset and started squirming, crying and saying “Gonzalo did it,” even though he was not being asked any questions.
She described the actions as an “excited utterance,” which she said is a medical term used to explain a sudden uncontrollable slur of words in abuse cases. She testified that said such exclamations are “considered to be very credible.”
Rivera was convicted after a trial that included testimony from the doctor as well as the nephew, the boy’s parents and police.
But Rivera appealed based on Salness’ comments and a three- judge panel of the Court of Special Appeals agreed with him.
It ruled that Salness was, in effect, telling the jury she believed the nephew when she characterized his statements as excited utterances and described them as credible. The court said it is improper for a witness to comment on the credibility of other witnesses.
The court also ruled that letting Salness characterize the statements as excited utterances was irrelevant and should not be admitted into any retrial of the defendant.
Rivera’s attorneys could not be reached for comment on the ruling. Gary Bair, chief of the Criminal Appeals Division of the Attorney General’s Office, said the office does not comment on appellate decisions and has 30 days to decide whether to appeal.