After a mistrial, the defendant, Kevin Quinn, was retried before a jury and the same Superior Court judge and was
Factual background. We summarize the facts the jury could reasonably have found, reserving certain details for discussion with the specific issues raised. The victim was about seven years old at the time of the incidents. The defendant was her mother’s boyfriend, and the three lived together for a total of about ten years. The abuse occurred when they were living on Spruce Street in Lawrence from about July, 1997, until December, 1998.
The victim testified that during this period, three incidents occurred, all in the evening before bedtime, and all in largely the same way. The defendant would join the victim in her playroom, which was a long, large closet off the kitchen where the victim could play with and store her toys. The defendant would grab her under her nightclothes, touch her chest, and put his hands in her underwear and “all over [hеr] body.” She testified that on each of the three occasions, the defendant put his finger into her vagina. She said it hurt and that she cried and tried to push him away. During the last incident, the victim testified that the defendant forced her hand onto his penis and moved it up and down as she tried to pull away.
When the victim was able to pull away, she tоld the defendant she was “going to tell [her] mom.” She testified the defendant threatened to kill her and her mother if she said anything. She was very frightened because she believed him.
These incidents did not appear to affect her academically, as she continued to do very well throughout elementary school. While she was in elеmentary school, her mother and the defendant had a son together in December, 2000.
By 2004, however, the victim began to encounter some personal difficulties. Specifically, on or about July 22, 2004, when the victim was thirteen years old, her mother discovered
About a year later, midway through ninth grade (2005 to 2006), the victim encountered additional problems. An older female student began to bully her, and as a result, the victim no longer wanted to go to school. The difficulty with her fellow students only worsened in the tenth grade when, as other students threatened to beat her up, shе became even more reluctant to go to school, and her grades fell. In October of tenth grade (2006), the victim began therapy with Grace Ireland, a licensed clinical social worker, and eventually was removed from her classes. Arrangements were made so that she could spend the school day in three different sessions, solely with a supervising adult. At the end of the year, the victim transferred to a private school where she did well and graduated in 2009, without further difficulties.
The circumstances leading up to the disclosure of the abuse in 2007 were as follows. The victim’s mother and the defendant broke up in July, 2006, and the defendant moved out of the home. For the next eleven months, the victim seldom saw or had any contact with the defendant. In June, 2007, however, contact increased. On Father’s Day, the victim, her family, and her boyfriend at the time spent the day with the defendant in New Hampshire. That night, the defendant stayed at the victim’s home so he could attend his son’s kindergarten graduation cerеmony the following morning, June 18, 2007.
The victim testified that she did not want the defendant to return and she was concerned that his increased contact with the family signaled that her mother was going to take him back. She readily acknowledged that she never liked him and that she
On June 21, 2007, the victim went to the beach with her boyfriend. The boyfriend initiated a conversation in which he confided to her that he had been beaten by his father, following which the victim became very upset. The boyfriend asked several times about her own childhood. He persisted until finally she tоld him she had been raped as a child by the defendant. Although the victim asked him not to tell anyone about the assault, later that day the boyfriend told the victim’s mother.
Through witnesses, cross-examination, and argument, the thrust of the defense was that the victim had fabricated the complaint to prevent the defendant from returning to live with the viсtim’s family. In support of this theory, the defense emphasized that despite having been in counselling during the year preceding the disclosure, as well as during the time period that the disclosure was made, and having had regular opportunities to speak confidentially with adults because of her individualized education plan, the victim sаid nothing about the abuse until school was over. The defense also pointed to the victim’s failure to report any threats to her therapist or to police, doing so only during the first trial in 2010, arguing that this belated attempt to gild the lily was further proof that she ought not be believed.
1. The scope of the prosecutor’s cross-examination. Among the witnesses called by the defendant was Ireland, a licensed clinical social worker, who had counselled the victim on an approximately weekly basis from October, 2006, to June, 2007. The strategic purpose of calling Ireland was as follows: first, she was to provide testimony that she had specifically asked the victim whether she had ever been sexually abused and that the viсtim had said, “No.”
The judge informed defense counsel that “[rjight now [without Ireland] there is nо expert who is testifying” to what the judge, in essence, explained were the general behavioral characteristics or syndromes of sexually abused children. The judge correctly warned the defendant that if Ireland were called as a witness, the door would be opened on cross-examination to “exactly” that tyрe of testimony. See Commonwealth v. Bibby,
Even with this admonition, the defendant elicited Ireland’s testimony as proffered. The tеstimony included that the victim had been referred to Ireland for anxiety, depression, and an inability to attend classes, and also included substantial detail regarding the victim’s difficulties with her peers at school. At the conclusion of Ireland’s direct examination, it was apparent that counselling had been obtained solely for the purpose of addressing the victim’s problems related to her social interactions at school and that, despite a fairly lengthy course of therapy, the victim never told Ireland that she had been sexually assaulted.
a. Explicit vouching. During cross-examination, the prosecutor established Ireland’s training and her seventeen years of еxperience with children, adolescents, and adults “who have been traumatized,” whether by sexual abuse, physical abuse, or otherwise, as well as those who suffer from, perhaps as a result of trauma, anxiety and depression. The prosecutor elicited specific confirmation from Ireland that she was trained аnd experienced in treating individuals who had been sexually abused. In response to further questioning by the prosecutor, Ireland explained that she had been trained to identify malingering or when someone fakes their symptoms. She testified that as part of her initial
For the first time on appeal, the defendant argues that this testimony constituted express vouching for the victim. According to the defendant, the statement that the victim was not malingering had the “effect” of conveying to the jury that she was “not faking her allegations.” Compare Commonwealth v. Trowbridge,
Ireland’s determination that the victim was not malingering was made during their initial meeting and related to whether the victim had faked her symptoms of anxiety and depression in order to avoid school during the preceding weеk. The victim’s referral to Ireland was divorced from any claim or even any suspicion of sexual abuse, and it was clear to the jury that the victim did not disclose that she had been sexually abused until almost nine months after this initial visit. In this context, the jury could not have interpreted Ireland’s conclusion that the victim was truly symptomatic in October, 2006, and not malingering, as somehow suggesting that Ireland credited the victim’s later allegations of abuse.
Moreover, even if we were to assume that Ireland’s opinion was improper, it was not unduly prejudicial, much less a substantial risk of a miscarriage of justice. Ireland’s conclusion that the victim was not malingering gave credence to the evidence that the victim suffered from anxiety and depression because of social difficulties at school.
b. Implicit vouching. The defendant argues that Ireland implicitly vouched for the victim’s credibility when, over objection, she provided a list of symptoms generally observed in sexually abused children and also a list of symptoms thаt she saw in the victim, which were similar but not identical to the generalized list. Since Ireland did not actually link the general experience of sexually abused children to the experience of the child victim here, her testimony falls short of what decisional law characterizes as impermissible vouching. See Commonwealth v. Quincy Q.,
We pause to note that we are not convinced of the defendant’s claim that Ireland’s testimony carried undue weight because she was the victim’s therapist. She was not trеating the victim for sexual abuse, and in any event, “we have not gone so far as to hold that it would never be permissible for a treating therapist to give expert testimony.” Id. at 467. Nor are we convinced, as the defendant contends, that Ireland’s testimony tipped the scales in favor of a guilty verdict at this trial, as evidenced by its omission from the first trial that ended in a deadlock. Not only was Ireland not called as a witness at the first trial, but also omitted from the first trial was the fairly devastating evidence that the victim had cut her wrists in 2004 because of feelings of worthlessness related to the abuse and that, on her way to the hospital for treatment, the defendant had warned her not to tell anyone about the abuse or she would never see her mother again.
More importantly, we cannot ignore that the challenged testimony was given during cross-examination of a defense witness. The defense used Ireland to bolster its theory that the victim was lying because she had not disclosed the sexual аbuse to her therapist, with whom she had a long-standing relationship. The defense also elicited a description of the victim’s symptoms and problems in a manner that suggested they were not caused solely by taunting at school. In these circumstances, the prosecutor properly sought information that showed why the victim
The right to present a defense “does not confer the right to present testimony free from the legitimate demands of the adversary system,” nor may that right be invoked “as a justification for presenting what might have been a half-truth.” Commonwealth v. Ranieri,
2. Exclusion of evidence of pregnancy. Before trial, the defendant filed a motion in limine seeking permission to ask the victim if she was pregnant at the time she disclosed the abuse, based on medical records the defense had obtained. The defendant argued that such evidence demonstrated а bias or motive on the victim’s part to lie about the abuse in order to keep the defendant out of the home because of the negative repercussions to her if he returned home and learned that she was pregnant. The judge ruled that the probative value did not outweigh the prejudicial impact, particulаrly in light of the legislative policy prohibiting such evidence embodied in the rape shield statute. The defendant argues that this ruling was error.
Judgments affirmed.
Notes
The victim testified she cut her wrists because she “hated [herself] . . . because of everything that went on with [the defendant].”
The victim’s last visit to Ireland was the day after she disclosed the abuse to her boyfriend, and during that session she told Ireland about the sexual assaults despite having denied sexual abuse prior to that visit.