Com. v. Shanley

• Decision Date: 15 January 2010
• Docket Number: SJC-10382.
• Citation: 455 Mass. 752,919 N.E.2d 1254
• Parties: COMMONWEALTH v. Paul SHANLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

919 N.E.2d 1254

455 Mass. 752

COMMONWEALTH v. Paul SHANLEY.

SJC-10382.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued September 10, 2009.

Decided January 15, 2010.

Robert F. Shaw, Jr., Brighton, for the defendant.

Loretta M. Lillios & Bethany Stevens, Assistant District Attorneys, for the Commonwealth.

The following submitted briefs for amici curiae:

R. Christopher Barden & Eric Tennen, Boston, for International Committee of Social, Psychiatric, Psychological, Cognitive Science, Neuroscience, and Neurological Scientists.

Paul R. Rudof, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Wendy J. Murphy for Leadership Council for Child Abuse and Interpersonal Violence.

Thomas A. Pavlinic, Annapolis, MD, for False Memory Syndrome Foundation.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

On February 7, 2005, Paul Shanley was convicted of sexual abuse of a child: two indictments charging rape, in violation of G.L. c. 265, § 23; and two indictments charging indecent assault and battery on a person under the age of fourteen years, in violation of G.L. c. 265, § 13B. The abuse occurred between 1983 and 1989 when the victim was attending Confraternity of Christian Doctrine (CCD) classes at the church where the defendant served as a Catholic priest. The victim testified that he did not remember being abused by the defendant until nearly twenty years later, when he learned that other individuals had publicly made allegations that the defendant had sexually abused them when they were children. The victim's testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial.

The defendant appealed from his convictions, and subsequently filed a motion for a new trial. The appeal proceedings were stayed pending resolution of the new trial motion, which was denied by the trial judge on November 26, 2008. The defendant appealed from the denial of this motion and that appeal was consolidated with the appeal from his convictions. We granted the defendant's application for direct appellate review.

On appeal, the defendant contends that he is entitled to a new trial because (1) the judge erred in admitting expert testimony related to "repressed memory"¹; (2) his trial counsel was ineffective for failing to prevent the admission of such expert testimony and for failing to challenge it adequately at trial; (3) the prosecutor made improper arguments during her closing; and (4) the judge erred in his instruction to the jury regarding the statute of limitations on the indecent assault and battery indictments. We affirm.

1. Trial. a. The Commonwealth's case. The Commonwealth's case included the testimony of the victim as to his memory of the abuse he suffered at the hands of the defendant; the testimony of witnesses who observed the victim during the period of time when he claims he recovered that memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended CCD classes during the time period he alleges he was abused, and occasionally left those classes for behavioral reasons. The Commonwealth also presented evidence regarding the defendant's role and presence at the church where the abuse occurred, as well as his whereabouts outside of Massachusetts after he left that church in 1990.²

Setting aside the victim's testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth's expert, the jury could have found the following facts. The defendant was a priest at St. Jean's Church in Newton during the years when the victim was enrolled in CCD classes there. He would often check on the children while they were in their CCD classes on Sundays. Children ranging from the ages of six to fourteen, including the victim, attended these classes.

The victim was born on September 9, 1977, and grew up in Newton with two siblings. His parents separated when he was four years of age and, after a short stay with his mother, he lived primarily with his father in his paternal grandmother's house. The victim attended CCD classes with the same group of children at St. Jean's Church from first grade (in 1983) until he reached eighth grade. During the years the victim attended CCD classes, some of the children became quite boisterous and periodically were required to leave the classroom. The victim and two of his friends in particular were disciplined often, both in the lower grades and when they were in fourth or fifth grade. On occasion, the defendant admonished those who were required to leave the classroom for misbehavior, and the victim was observed leaving the classroom with the defendant on several occasions.

Several years after graduating from high school, the victim joined the Air Force. After being trained as an Air Force police officer, he was stationed at Peterson Air Force Base in Colorado Springs, Colorado. He returned home to Massachusetts for a visit in spring of 2001 and began a romantic relationship with Tammy.³ Their relationship continued when the victim returned to Colorado, with Tammy visiting the victim and the two often speaking on the telephone.

Tammy telephoned the victim on January 31, 2002, and mentioned an article published in a Boston newspaper concerning the defendant and allegations of child sexual abuse. The victim expressed surprise at the contents of the article, commenting to Tammy, "That's weird, everybody liked him." After this conversation, the victim began remembering being taken out of CCD class by the defendant, but he did not remember anything else. He also began reading newspaper articles on the Internet about the allegations and looking at photographs of the defendant.

On February 11, 2002, Tammy again telephoned the victim and told him that one of his childhood friends and former CCD classmates had made an allegation of abuse against the defendant. The victim had a strong emotional and physical reaction to this news. Shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work.

Later on that same day, the victim spoke with the childhood friend who had made the allegation of abuse. Early the next morning, the victim contacted a personal injury attorney, with whom he later entered into a fee agreement. The victim also went to see Captain John F. Drozd, a psychologist on the Air Force base to talk with him about his mental state.⁴ He stayed at Drozd's office for ten to twelve hours and felt awful, confused and sick. Drozd recommended that the victim keep a journal, which he did, backdating his entries to the first conversation with Tammy on January 31.⁵

The victim returned to Massachusetts on February 15, 2002.⁶ He briefly returned to Colorado,⁷ where he ultimately received an honorable discharge from the military in April, 2002. He then returned to live with Tammy in Massachusetts. After joining a civil suit brought against the Archdiocese of Boston (based on the abuse he alleged against the defendant) he received a settlement in the amount of $500,000.

With respect to the sexual abuse, the victim testified at the defendant's trial to the following based on the memories that came back to him after learning of the allegations made by others. The defendant began sexually abusing him when he was approximately six years of age and first began attending CCD classes. The defendant would take the victim out of his CCD class, bring him to the bathroom in the basement, unzip the victim's pants, watch him urinate, and then touch the victim's penis with his hand and mouth.

The defendant also sexually assaulted the victim in the pews of the church after the victim put pamphlets in the pews for the upcoming Mass. He would do so by sitting next to the victim, putting his right arm around the victim, touching the victim's penis through his clothes, and grabbing the victim's hand and putting it on his own penis over his clothing. The defendant would also bring the victim into the confessional room, which was located "off the side of the pews," where the defendant would undress them both and place his finger in the victim's anus.

Finally, the victim testified that the defendant would bring him to the rectory, get him soda and a snack from the kitchen, and then play the card game, "War." When the victim would lose a hand, the defendant would instruct him to remove a piece of his clothing. When the victim would go on a "winning streak," the defendant would remove his clothing.

The abuse of the victim continued until the defendant left the Newton church in 1990 when the victim was approximately thirteen years of age. The defendant told the victim that no one would ever believe him if he disclosed the abuse.

The Commonwealth called Dr. James A. Chu as an expert in the field of dissociative amnesia. He was not called to give a diagnosis of the victim, but rather to assist the jury in determining the credibility of the victim's testimony that he had recovered memories nearly twenty years after the abuse, and their consequent reliability. His qualifications as an expert were not contested by the defendant at trial.⁸

Dr. Chu testified that dissociative amnesia is a diagnosis included and defined in the Diagnostic and Statistical Manual (DSM). That manual is published by the American Psychiatric Association, and is a classification manual widely used by mental health professionals in making diagnoses of mental health problems. The DSM lists criteria for a clinician to consider when making a particular diagnosis. Dr. Chu was a member of the task force in the 1990's charged with reviewing dissociative disorder diagnoses for the purpose of preparing the most recent version of the DSM, DSM-IV, which was published in 1994.⁹ He explained that in the DSM-IV, dissociative amnesia is a "descriptive term [fo...