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SJC-11554

                      COMMONWEALTH   vs. KEVIN QUINN.



            Essex.       May 6, 2014. - September 11, 2014.

  Present:    Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.


Rape.  Practice, Criminal, Cross-examination by prosecutor.
     Evidence, Cross-examination, Expert opinion, Communication
     with social worker, Relevancy and materiality. Rape-Shield
     Statute. Witness, Expert.



     Indictments found and returned in the Superior Court
Department on August 29, 2007.

     The cases were tried before Leila R. Kern, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Eric S. Brandt, Committee for Public Counsel Services, for
the defendant.
     Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.


     GANTS, J.       This case requires us to examine the line that

separates permissible expert testimony regarding the behavioral

characteristics of sexually abused children from impermissible
                                                                     2


expert testimony that implicitly vouches for the credibility of

the victim witness.   Because we conclude that the prosecutor in

this case, over objection, elicited expert testimony during

cross-examination of the victim's therapist that crossed that

line, and because we conclude that the error was prejudicial, we

vacate the defendant's convictions and remand for a new trial.

     Background.   A Superior Court jury convicted the defendant

on one indictment alleging forcible rape of a child under

sixteen years of age and two indictments alleging indecent

assault and battery of a child under the age of fourteen.1,2    The

Appeals Court affirmed the convictions.     Commonwealth v. Quinn,

83 Mass. App. Ct. 759 (2013).   We granted the defendant's

application for further appellate review.

     We summarize the evidence presented at trial.    The

defendant, the boy friend of the victim's mother, lived with the

victim and her mother for approximately ten years from July,


     1
       This was the second trial of the defendant on these
indictments. The defendant's first trial ended in a mistrial
when the jury remained deadlocked after three days of
deliberations.
     2
       The defendant was sentenced to from fifteen years to
fifteen years and one day for the forcible rape conviction. He
was sentenced on one indecent assault and battery conviction to
from eight years to eight years and one day, to commence on and
after the completion of the rape sentence. This sentence was
reduced by the Appellate Division of the Superior Court to a
consecutive term of from three years to five years. The
defendant was sentenced to a five-year term of probation on the
other indecent assault and battery conviction.
                                                                     3


1997, to June, 2006.   The victim testified that, in a short

period of time after her seventh birthday in September, 1997,

the defendant sexually abused her on three occasions.    The

incidents occurred in largely the same way:    when her mother was

not home in the evening, the defendant entered the victim's

playroom, grabbed her and reached under her nightgown and

underwear, touched her chest, put his hands "all over [her]

body," and inserted his finger into her vagina.    In the last of

these incidents, the defendant forced her hand onto his penis

and moved it up and down.   She told the defendant that she was

"going to tell [her] mom," and the defendant told her that, if

she did, he would kill her and her mother.    The defendant did

not attempt to sexually abuse her again.

     On July 22, 2004, the victim's mother saw that the victim,

who was thirteen at the time, had been cutting her wrists.3    The

victim's pediatrician advised the victim's mother to take her to

the hospital, and, on their way there, the victim and her mother

stopped at the defendant's workplace at his request.    The

defendant came out to the automobile and began yelling at the

victim.   According to the victim's testimony, the defendant told

her she was "stupid for doing what [she] was doing" and that if

she "really wanted to die [she] could do it right" and "cut the

     3
       The victim testified that she engaged in "cutting" because
she "hated [herself] . . . because of everything that went on
with [the defendant]."
                                                                   4


other way."   The defendant also warned the victim not "to tell

anybody anything bad" at the hospital and that, if she did, she

would be "taken away from [her] mom."4

     The victim did well in school through eighth grade; she

received good grades, participated in school activities, and

played the flute and guitar.   In the middle of ninth grade,

however, she "had problems with other students," especially one

girl who threatened her with violence, and she did not like

going to school.   The problems grew worse when she began tenth

grade in September, 2006, with more classmates threatening and

bullying her.   She was anxious, depressed, and overwhelmed by

her problems at school, and on October 30, on the referral of

her guidance counsellor, she began seeing Grace Ireland, a

licensed clinical social worker, approximately once each week.

Ireland testified that the victim was grieving the death of a

friend, suffered from agoraphobia, and was afraid to go to

school and walk in the hallways.

     The victim was absent from school for fifty days in her

tenth-grade school year; when she was at school, she received

assignments from her teachers and a lesson plan, but spent her

time shuttling between the principal's office and two guidance

counsellors' offices rather than attending classes.   The victim

     4
       The prosecutor said she was first informed by the victim's
mother of this threat on January 25, 2010, the day after the
defendant's first trial ended in a mistrial.
                                                                     5


agreed to the characterization that she was "pretty much self-

taught."

    The victim did not disclose the defendant's sexual abuse to

anyone until June 21, 2007, when she was the age of sixteen and

had just completed her tenth-grade school year.    Her disclosure

occurred when she was at the beach with her boy friend.

According to the boy friend's first complaint testimony, he

revealed to her that he had been physically abused by his

father.    When he noticed that she looked upset, he asked her if

"anything happened in her life."    She said "no" but continued to

look upset, so he "asked her a few more times."    Eventually she

confided to him that she had been raped as a child by the

defendant.   She began to cry so "hysterical[ly]" that an elderly

couple sitting nearby asked if she had been kidnapped.    When he

asked her what had happened, she explained that the defendant

used to pick her up from school and bring her home because her

mother was working, and he would rape her then.    The victim told

him not to tell anybody, but he told her mother of the reported

abuse.    The mother promptly informed Ireland of the abuse, and

made an appointment for the victim to see her the following day.

During that session, the victim told Ireland of the abuse for

the first time; the victim had specifically denied that she had

been sexually or physically abused when asked by Ireland at the
                                                                   6


initial intake session on October 30, 2006, and had not spoken

of sexual or physical abuse in any subsequent therapy session.

    Discussion.   The defendant presents two claims of error on

appeal.   First, he argues that the judge erred in allowing the

prosecutor on cross-examination to elicit expert testimony from

Ireland that both explicitly and implicitly vouched for the

victim's credibility regarding her allegations of sexual abuse.

Second, he contends that the judge erred in barring him from

offering evidence that the victim was pregnant at the time she

made her first complaint.

    1.    Expert testimony.   Ireland's direct examination was

limited to her treatment of the victim:    the nature of the

problems she was addressing with the victim in therapy, what the

victim said to her during therapy, and what the victim did not

speak of until June 22, 2007, that is, sexual abuse.    She did

not offer any testimony regarding the behavioral characteristics

of child sexual abuse victims.    On cross-examination, the

prosecutor transformed her into an expert witness after

eliciting evidence that she had seventeen years of experience as

a licensed clinical social worker treating patients who were

traumatized by physical and sexual abuse, and who struggled with

anxiety and depression.   The prosecutor also elicited from her

that, as part of her training, she learned to recognize

"malingering," which she characterized as feigning "some kind of
                                                                      7


illness," whether physical or mental, to obtain some benefit,

such as a day off from work where one calls in sick.      The

prosecutor then asked Ireland whether she found that the victim

was "faking it or malingering any of her symptoms," and Ireland

answered, "No."5    Defense counsel did not object to this line of

questioning.

     The prosecutor next asked Ireland to describe the victim's

"demeanor" when Ireland began treating her.      Ireland stated

"[The victim] was very shut down . . . [and] very quiet. . . .

It was very hard to get her to say more than yes or no.     She was

very upset.    She cried frequently. . . .   She had difficulty

eating. . . .   She was afraid to be anywhere.     She's very, very

depressed.    She couldn't sleep."




     5
       The exchange between Grace Ireland and the prosecutor on
the subject of malingering was as follows:

     The prosecutor: "When you had an opportunity to meet with
     [the victim] on October 30, 2006, part of what you would
     do, based on the fact that she had missed a week of school
     and you were going to write a note, is you'd make an
     evaluation of whether or not she was faking; is that
     right?"

     The witness:    "Yes."

     The prosecutor: "And did you at any point find that she
     was faking it or malingering any of her symptoms?"

     The witness:    "No."
                                                                    8


    The prosecutor later asked Ireland to "describe generally

some of the symptoms that [she had seen] in . . . teenagers who

have been sexually abused as children."   Ireland testified:

    "[T]his applies to adults and to teenagers. . . . [T]here
    are people [who] are very, very anxious. They have a lot
    of . . . significant anxieties, significant depression,
    sleep impairment. A lot of times they're very shut down.
    Most of the time they're very shut down. Anxiety is so
    significant that it impairs their ability to function at
    school or other places. And sometimes they will actually
    disassociate . . . . That would be the worst continuum."

She added that, if a person who is sexually abused as a child

does not receive treatment, the person's symptoms "would

probably exacerbate over time" and would start to get worse when

the person reached puberty. Where depression arises from

childhood sexual abuse, "[t]here's usually a report that people

will tell you that they can't sleep, that they can't eat, that

they can't function, that they . . . feel terrible all the

time."   When the prosecutor asked whether she had experience

with "sexually abused teenagers" who have physically harmed

themselves, Ireland said that teenagers will sometimes "cut,"

engage in "risky behaviors," and "abuse substances."   This line

of questioning occurred over defense counsel's repeated

objections.

    a.   Explicit vouching.   The defendant contends that Ireland

explicitly vouched for the victim's credibility when she

testified that the victim was not malingering, and that such
                                                                    9


testimony should have been excluded.     Because the defense did

not object to this testimony at trial, our review is limited to

whether its admission in evidence created a substantial risk of

a miscarriage of justice.   Commonwealth v. Shea, 467 Mass. 788,

790-791 (2014).

    No witness, neither a lay witness nor an expert, may offer

an opinion regarding the credibility of another witness.      See

Commonwealth v. Montanino, 409 Mass. 500, 504 (1991), citing

Commonwealth v. Ianello, 401 Mass. 197, 202 (1987).     "Such

testimony impermissibly intrudes on the jury's province to

assess the credibility of the witness."     Commonwealth v.

Richardson, 423 Mass. 180, 186 (1996), quoting Commonwealth v.

Trowbridge, 419 Mass. 750, 759 (1995).    The defendant contends

that, by eliciting Ireland's finding that the victim was neither

malingering nor faking, the prosecutor essentially had elicited

Ireland's opinion that the victim was telling the truth

regarding the sexual abuse allegations.

    Even if we were to assume that Ireland's opinion was

improper, its admission did not create a substantial risk of a

miscarriage of justice.   Although the prosecutor asked whether

Ireland found the victim to be malingering "at any point," a

reasonable jury would have understood from the preceding

question that the prosecutor meant to ask whether Ireland

believed "at any point" during the intake interview that the
                                                                  10


victim had faked her symptoms of anxiety and depression in order

to avoid going to school during the preceding week.   Where the

victim had denied in her initial intake interview with Ireland

on October 30, 2006, that she had been sexually abused, we doubt

that a reasonable jury would have understood Ireland's opinion

regarding malingering to mean that Ireland believed the victim

was telling the truth regarding the sexual abuse she reported

eight months later.

    b.   Implicit vouching.   The defendant next contends that

the judge erred by admitting in evidence, over defense counsel's

objection, Ireland's testimony regarding the behavioral

characteristics of sexual abuse victims because it implicitly

vouched for the victim's credibility regarding her sexual abuse

allegations.

    "[T]estimony on the general behavioral characteristics of

sexually abused children may properly be the subject of expert

testimony because behavioral and emotional characteristics

common to these victims are 'beyond the jury's common knowledge

and may aid them in reaching a decision.'"   Commonwealth v.

Federico, 425 Mass. 844, 847-848 (1997), quoting Commonwealth v.

Colin C., 419 Mass. 54, 60 (1994).   An expert witness on

sexually abused children, however, may not "directly opine on

whether the victim was in fact subject to sexual abuse," or

directly refer or compare the behavior of the complainant to
                                                                   11


general behavioral characteristics of sexually abused children.

Federico, supra at 849.   See Trowbridge, 419 Mass. at 759.

Consequently, an expert may not opine that the child's behavior

or experience is consistent with the typical behavior or

experience of sexually abused children.    Richardson, 423 Mass.

at 186.   See Trowbridge, supra; Commonwealth v. Brouillard, 40

Mass. App. Ct. 448, 451 (1996).

    Even where an expert does not directly compare the behavior

of the complainant to that typical of sexually abused children,

the expert's testimony may be inadmissible where a reasonable

jury would think the expert was implicitly vouching for the

credibility of the complainant.   See Montanino, 409 Mass. at 504

("little doubt" that expert's comments regarding credibility of

"most" sexual assault victims would be taken by jury as expert's

endorsement of complainant's credibility); Ianello, 401 Mass. at

202 ("While the proposed testimony fell short of rendering an

opinion on the credibility of the specific child before the

court, we see little difference in the final result"; expert's

opinion "ultimately would have been applied [by the jury] to the

child alleging sexual abuse").    See also Commonwealth v.

Perkins, 39 Mass. App. Ct. 577, 583-584 (1995) (expert's

testimony based on hypothetical questions that mirrored

underlying facts of case was "tantamount to an endorsement of

the credibility of the complaining child witness").
                                                                    12


    "The risk of improper comparisons between any general

behavioral characteristics of sexually abused children and a

particular complaining child witness is most acute when the

expert witness has examined or treated the child."   Federico,

425 Mass. at 849.   See Commonwealth v. Quincy Q., 434 Mass. 859,

872 (2001), quoting Richardson, 423 Mass. at 186 ("danger of

vouching 'is greater where the witness is testifying as both a

direct witness and an expert, particularly where the witness

offers fresh complaint testimony'").   The risk of implicit

vouching, therefore, was especially acute here, where Ireland

had been the victim's therapist for nearly eight months and had

seen her in therapy between twenty and twenty-five times.     See

Commonwealth v. Rather, 37 Mass. App. Ct. 140, 148 n.4 (1994)

("where the expert has seen the victim[], refers to [her], and

also gives an opinion, the jury may believe that the witness is

commenting on the credibility of a particular complainant that

he or she has examined"); Commonwealth v. McCaffrey, 36 Mass.

App. Ct. 583, 593-594 (1994) (recommending that sexual abuse

experts "have no connection with and make no references to the

child victim or her family").

    "The line between permissible and impermissible opinion

testimony in child sexual abuse cases is not easily drawn."

Richardson, 423 Mass. at 186.   But we conclude that the

testimony elicited on cross-examination from Ireland fell well
                                                                   13


over the impermissible line, and that it was an abuse of

discretion to allow this testimony in evidence.   It would

plainly have crossed the line for Ireland to have offered an

opinion that the victim's behavior was consistent with that of a

teenager who had been sexually abused as a child because, as is

common with child sexual abuse victims, she was "very shut

down," suffered from significant anxieties and depression, had

difficulty eating, sleeping, and functioning at school, and cut

herself, and her symptoms grew worse when she reached puberty.

But that is precisely what a reasonable jury would have taken

Ireland's testimony to mean.   See Brouillard, 40 Mass. App. Ct.

at 451 (implicit vouching where testimony "juxtaposed discussion

of general syndromes with specific descriptions of and opinions

about the complainants"); Rather, 37 Mass. App. Ct. at 148 n.4.

    The Commonwealth contends that the cross-examination was

permissible because the defense attorney in her direct

examination of Ireland elicited evidence that the victim was a

troubled girl with emotional problems arising from her peer

relationships and her experience in high school, and that it was

appropriate to establish "that many of those symptoms that the

defense attributed to peer issues were also observed in persons

who had been sexually abused."   We recognize that evidence that

otherwise may be inadmissible may become admissible where the

defendant opens the door to its admission.   See, e.g.,
                                                                    14


Commonwealth v. Magraw, 426 Mass. 589, 594 (1998) (murder

victim's mental state may become "material issue if the

defendant opens the door by claiming," for example, "that the

death was a suicide or a result of self-defense").   But a

defendant does not open the door so wide as to permit a treating

therapist to implicitly vouch for the credibility of a victim's

claim of sexual abuse simply by calling that therapist to

testify about the victim's symptoms and the victim's description

of her problems.6   The gist of the evidence elicited here by

defense counsel was twofold:   first, the victim was a troubled

girl whose testimony may not be reliable, and, second, the

sexual abuse allegations were not credible where she did not

mention them to her therapist for nearly eight months.    Defense

counsel did not elicit evidence from Ireland that the victim's

behavior was inconsistent with that of a childhood sexual abuse

victim or that implicitly vouched for the victim's lack of

credibility regarding her allegations of child sexual abuse.

     In Richardson, 423 Mass. at 183, 186, a police officer with

extensive experience investigating allegations of sexual abuse

was called by the defendant to testify to show that the sequence

     6
       The prosecutor could have elicited testimony from Ireland
on cross-examination that the victim's anxiety and depression
were not solely caused by her problems at school. The
prosecutor also could have called an expert who had not treated
the victim to testify regarding the general behavioral
characteristics of teenagers who were victims of sexual abuse as
children.
                                                                    15


of incidents of sexual abuse described by the victim in speaking

with the officer contradicted the victim's earlier testimony.

On cross-examination, the prosecutor qualified the officer as an

expert and elicited the officer's testimony that "it's highly

unusual that [child victims] remember dates and times and

sequences."   Id. at 182.   Although we held that "any error was

not prejudicial," we noted that the testimony was "very close to

the line of admissibility."     Id. at 186.   In Rather, 37 Mass.

App. Ct. at 143, where the defendant was charged with child

sexual abuse, defense counsel called one of the victim's

therapists to elicit testimony that the victim had denied being

anally assaulted and had not reported being burned by the

defendant.    On cross-examination, the prosecutor qualified the

therapist as an expert and elicited opinion testimony that

victims of sexual abuse who are under the age of ten and who

have been threatened generally do not disclose their sexual

abuse and, when they do, they disclose it in stages over a long

period of time.   Id. at 144.   The Appeals Court concluded that

"the jury could reasonably have concluded that the witness had

implicitly rendered an opinion as to the general truthfulness of

the victims," and that the cross-examination therefore crossed

the line into improper testimony.     Id. at 148-149.   If the

cross-examination in Richardson came "very close to the line of

admissibility," Richardson, supra at 186, and if the cross-
                                                                    16


examination in Rather crossed it, the cross-examination here was

certainly impermissible where it suggested that the behavioral

characteristics of the victim were consistent with those of

sexual abuse victims.

    Having concluded that the improper admission of the

expert's implicit vouching for the credibility of the victim was

error, we now consider whether the error was prejudicial.     An

error is not prejudicial where it "did not influence the jury,

or had but very slight effect."   Commonwealth v. Christian, 430

Mass. 552, 563 (2000), quoting Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994).   We cannot be confident in this case that

Ireland's implicit vouching did not influence the jury.     The

Commonwealth's case rested almost entirely on the credibility of

the emotionally troubled victim; apart from the boy friend's

first complaint testimony, there was no corroboration of her

allegations of sexual abuse.   Where a reasonable jury would have

understood the victim's therapist, who had seen the victim

regularly for nearly eight months and who had treated many child

sexual abuse victims, to have suggested that the victim's

behavioral characteristics were consistent with that of a child

sexual abuse victim, we cannot say this expert testimony did not

influence the jury's evaluation of the victim's credibility.       We

therefore vacate the defendant's convictions and remand for a

new trial.
                                                                    17


    2.    Exclusion of evidence of pregnancy.   Because we are

vacating the defendant's convictions, we need not dwell on the

defendant's second claim of error but address it only because it

may arise again on retrial.    After obtaining a medical record

that showed that the victim was pregnant in July, 2007, the

defendant sought the judge's permission to ask the victim if she

was pregnant when she disclosed her sexual abuse on June 21,

2007.    The judge denied the motion, concluding that the risk of

unfair prejudice outweighed its probative value, especially in

view of the legislative policy reflected in the rape shield

statute, G. L. c. 233, § 21B, that declares inadmissible, except

under certain circumstances not present here, "[e]vidence of

specific instances of a victim's sexual conduct."    See, e.g.,

Commonwealth v. Herrick, 39 Mass. App. Ct. 291, 295 (1995)

(evidence victim became pregnant six months after alleged

incident properly excluded as irrelevant where defendant sought

to argue victim invented rape allegations to hide fact she was

sexually active from mother); Commonwealth v. Cross, 33 Mass.

App. Ct. 761, 764 (1992) (evidence that male complainant in

statutory rape case had thought his girl friend was pregnant

properly excluded under rape shield statute).

    "We have recognized . . . that where the rape shield

statute is in conflict with a defendant's constitutional right

to present evidence that might lead the jury to find that a
                                                                  18


Commonwealth witness is lying or otherwise unreliable, the

statutory prohibition must give way to the constitutional

right."   Commonwealth v. Polk, 462 Mass. 23, 37-38 (2012).   The

defendant contends that, if the victim were pregnant at the time

of her disclosure, she had an additional motive to lie about the

defendant's sexual abuse in order to prevent the defendant from

returning to her home.7   Where there was already abundant

evidence that the victim did not want the defendant to return

home,8 the judge did not abuse her discretion in barring evidence

of the victim's pregnancy.

     Conclusion.   The defendant's convictions are vacated, the

verdicts are set aside, and the case is remanded to the Superior

Court for a new trial.

                                    So ordered.




     7
       In the days leading up to June 21, 2007, when the victim
first disclosed the abuse to her boy friend, the defendant had
spent an increasing amount of time with the victim's family, and
had spent the night at the house once during the week of June
10, and again on June 17.
     8
       The victim acknowledged she was "relieved" when the
defendant and her mother broke up, and "fearful" that they would
get back together. The defendant had not wanted the victim to
date when he lived with her. In June, 2007, the victim's boy
friend was living with her family while his father was serving
in the military, but the victim's boy friend testified that he
did not believe the defendant had stayed overnight at the
victim's house during that time period.
