Commonwealth v. Quinn

989 N.E.2d 901, 83 Mass. App. Ct. 759, 2013 WL 2996209, 2013 Mass. App. LEXIS 103
CourtMassachusetts Appeals Court
DecidedJune 19, 2013
DocketNo. 11-P-1910
StatusPublished
Cited by1 cases

This text of 989 N.E.2d 901 (Commonwealth v. Quinn) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Quinn, 989 N.E.2d 901, 83 Mass. App. Ct. 759, 2013 WL 2996209, 2013 Mass. App. LEXIS 103 (Mass. Ct. App. 2013).

Opinion

Cypher, J.

After a mistrial, the defendant, Kevin Quinn, was retried before a jury and the same Superior Court judge and was [760]*760convicted of forcible rape of a child and two counts of indecent assault and battery on a child. On appeal, the defendant argues, first, that the prosecutor’s cross-examination of the victim’s therapist exceeded the permissible bounds of expert testimony; and second, that it was error to exclude evidence that the victim was pregnant when she made her first complaint of sexual assault by the defendant. We affirm.

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 [her] 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 told 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 elementary 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 [761]*761that she had been cutting herself on her wrists.1 On the advice of their pediatrician, the victim’s mother brought the victim to the hospital emergency room. En route, they stopped at the defendant’s workplace and spoke to him. He came out to the car and began yelling at the victim, telling her she was stupid and that “[i]f [she] really wanted to die [she] could do it right . . . [and] cut the other way.” He also told her “not to tell anybody anything bad” and that if she did, she “would be taken away from [her] mom.”

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, she 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 ceremony 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 [762]*762had never gotten along with him. He frequently yelled at her and imposed discipline that even her mother considered unfairly strict.

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 told 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 victim’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 said 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 victim had said, “No.”2 Second, Ireland’s testimony was to counter the evidence that the abuse resulted in a trip to the hospital in 2004, by showing that the victim had significant and persistent problems in school that were related entirely to bully[763]*763ing and interactions with her peers, rather than the purported sexual abuse. After offering this explanation in a bench conference that preceded Ireland’s testimony, the defendant sought advance assurance that the Commonwealth would not be permitted “to use the witness as a full expert and get into symptoms and posttraumatic stress and things of that nature.”

The judge informed defense counsel that “[rjight now [without Ireland] there is no 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 type of testimony. See Commonwealth v.

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Related

Commonwealth v. Quinn
15 N.E.3d 726 (Massachusetts Supreme Judicial Court, 2014)

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Bluebook (online)
989 N.E.2d 901, 83 Mass. App. Ct. 759, 2013 WL 2996209, 2013 Mass. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-quinn-massappct-2013.