State v. Paquin

230 A.3d 17

STATE of Maine

v.Ronald PAQUIN

Docket: Yor-19-234

Supreme Judicial Court of Maine.

Argued: February 12, 2020

Decided: April 23, 2020

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Ronald Paquin

Kathryn L. Slattery, District Attorney, and Justina McGettigan, Dep. Dist. Atty. (orally), Prosecutorial District #1, Alfred, for appellee State of Maine

Panel: MEAD, GORMAN,^* JABAR, and HUMPHREY, JJ.^**

MEAD, J.

[¶1] Ronald Paquin appeals from a judgment of conviction for eleven counts of gross sexual misconduct (Class A), 17-A M.R.S.A. § 253(1)(B) (Supp. 1985),¹ entered by the trial court (York County, Douglas, J. ) following a jury trial. Paquin contends that the court erred in (1) declining his request to compel the State to obtain the victim's criminal history on the second day of the trial; (2) admitting expert testimony concerning the phenomenon of delayed reporting by male victims of sexual abuse; (3) failing to rule sua sponte that the Double Jeopardy Clause barred convictions on both Counts 5 and 30; (4) giving a deficient "on or about" jury instruction on Count 31; (5) declining to allow a police detective to testify about whether he perceived any inconsistencies between two alleged victims’ respective versions of events; and (6) allowing the State to dismiss Counts 27, 28, and 29 during the trial without his consent rather than entering a judgment of acquittal on those counts.

[¶2] We agree with Paquin that the convictions on both Counts 5 and 30 violated his double jeopardy protections and we remand for dismissal of Count 30. We also agree that the court erred in allowing the State to dismiss Counts 27, 28, and 29 during the trial and therefore remand for entry of a judgment of acquittal on those counts. In all other respects, we affirm the judgment.

I. BACKGROUND

[¶3] Viewing the evidence in the light most favorable to the jury's verdict, see State v. Marble , 2019 ME 157, ¶ 7, 218 A.3d 1157, the jury rationally could have found the following facts. In the early 1980s the victim was an altar boy at the Roman Catholic Church in Haverhill, Massachusetts, where Paquin was a priest. When the victim was nine or ten years old, Paquin, while discussing with the victim a human sexuality class that Paquin was taking, told the victim that "it was perfectly normal for men to touch each other." At some point Paquin committed a sexual act against the victim in Haverhill.

[¶4] Beginning in the winter of 1985, and continuing until just before he turned fourteen, the victim made numerous trips to Kennebunkport with Paquin, staying at a campground in Paquin's camper or in the motel associated with the campground. On those trips Paquin routinely provided the victim with alcohol and committed sexual acts against him.

[¶5] In February 2017 the grand jury returned an indictment against Paquin; as later amended, the indictment charged Paquin with fifteen counts (Counts 1-13, 30-31) of gross sexual misconduct (Class A), 17-A M.R.S.A. § 253(1)(B), against the victim; and sixteen counts (Counts 14-29) of gross sexual misconduct (Class B), 17-A M.R.S.A. § 253(2)(A) (Supp. 1985), against a second alleged victim.² The case was tried to a jury on November 26-29, 2018. During the trial, the court granted Paquin's motion for a judgment of acquittal on Counts 10-13, and the State dismissed Counts 27-29. The jury returned verdicts of guilty on the remaining counts concerning the victim (Counts 1-9, 30-31) and not guilty on the remaining counts concerning the second alleged victim (Counts 14-26). The court denied Paquin's motion for a new trial.

[¶6] At the sentencing hearing, the court entered judgment in accordance with the verdict and sentenced Paquin on each count to concurrent terms of twenty years’ imprisonment, with all but sixteen years suspended, and three years of probation. Paquin timely appealed and filed an application to appeal from the sentence. On August 7, 2019, the Sentence Review Panel denied Paquin leave to appeal from his sentence.

II. DISCUSSION

[¶7] We discuss Paquin's six assertions of error in turn.

A. Victim's Criminal History

[¶8] In a chambers conference on the second day of the trial, Paquin's counsel raised the issue of his wish to cross-examine the victim using nonspecific criminal history that the victim had disclosed in an arbitration statement as part of his civil lawsuit against the Catholic Church. Counsel acknowledged that all Paquin knew about the criminal history was based on the arbitration statement. When the State objected, the court advised defense counsel that "[y]ou can't go on a fishing expedition before the jury. ... I have to base my ruling on [M.R. Evid.] 609,³ so do you know what [the victim's] conviction history is, what he was convicted of and for what?" Counsel answered, "No."

[¶9] Defense counsel then requested that the State produce the victim's criminal history as "something that should be discoverable in this case, something that they should provide us." The State objected on the ground that it had already provided in discovery all of the information it had, and argued that a request for discovery on the second day of trial concerning information previously known to Paquin was "not appropriate." The court sustained the State's objection and ruled that Paquin would not be allowed to inquire on cross-examination about the victim's self-reported convictions "unless [counsel has] some specific information about his ... criminal history."

[¶10] Paquin acknowledges that "Maine's discovery rules contain no provision specifically requiring the production of the criminal history record of a complaining witness who testifies at trial," and he does not assert that the State failed to produce any discovery explicitly required by M.R.U. Crim. P. 16 or by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),⁴ and its progeny. Rather, Paquin urges us to hold that Rule 16 implicitly requires the State to produce the criminal history of a complaining witness who testifies at trial because, he argues, the State is always in constructive possession of that information and it "is potentially impactful on the outcome of [the] trial."⁵

[¶11] "We afford the trial court substantial deference in overseeing the parties’ discovery ...." State v. Silva , 2012 ME 120, ¶ 8, 56 A.3d 1230. "Only when the defendant can establish that the effect [of an alleged discovery violation] is so significant as to deprive him of a fair trial will we vacate on that basis." Id. Furthermore, in considering Paquin's discovery request made during trial concerning a matter of which he was aware, the court was entitled to consider the potential delay involved. See id. ¶¶ 5, 9. Without deciding if or when the State is ever required to do so, we conclude that on this record the trial court did not err in ruling that the State was not required to produce the victim's criminal history mid-trial.

[¶12] Maine Rule of Evidence 16(a)(2)(D), the automatic discovery rule invoked by Paquin, requires the State to produce "[a] statement describing any matter or information known to the attorney for the State that may not be known to the defendant and that tends to create a reasonable doubt of the defendant's guilt as to the crime charged." (Emphasis added.) Here, Paquin knew prior to trial that the victim had a self-reported criminal history. When the court inquired: "And this was information that you received in discovery earlier in the case?" counsel answered, "Sure."

[¶13] Furthermore, Paquin made no showing that he requested from the State or otherwise attempted to obtain the victim's criminal record prior to trial,⁶ and he proffered no specific dates of conviction or other information that would allow the court to determine the admissibility of the purported convictions pursuant to M.R. Evid. 609(a)-(b), such as whether they were punishable by imprisonment for more than one year or whether their elements established dishonesty, see M.R. Evid. 609(a).

[¶14] In sum, given this record the court did not abuse its discretion in declining to compel the State to obtain the victim's criminal history during the trial, nor in ruling that Paquin could not cross-examine the victim concerning his nonspecific, self-reported criminal history. See Silva , 2012 ME 120, ¶ 8, 56 A.3d 1230.

B. Expert Testimony

[¶15] The victim testified to sexual abuse that occurred between 1985 and 1988, more than thirty years before the charges resulting from that abuse went to trial. He reached a settlement with the Catholic Church in 2010, and in 2011 he reported to the Maine Attorney General's Office what had happened.

[¶16] At trial, the State sought to call an expert witness to testify that victims of sexual abuse, particularly male victims, often disclose the abuse long after it occurred, and to explain why that is so. Following a lengthy voir dire, Paquin's objection to the expert's testimony, primarily on the ground that it unfairly bolstered the victim's credibility, was overruled. The court satisfied itself that the State was not seeking to elicit the expert's opinion concerning why the alleged victims in this particular case delayed reporting, and it excluded, pursuant to M.R. Evid. 403, any reference by the expert, while discussing delayed disclosure, to the abuser being a member of the clergy. The expert then testified that "delayed disclosure is actually the norm .... It's almost expected given the statistics. ... [M]en actually wait a great deal longer to disclose abuse." Paquin's renewed objected was overruled.

[¶17] "Whether proffered evidence requires expert explanation is a question left to the discretion of the trial court." State v. Wyman , 2015 ME 1, ¶ 26, 107 A.3d 641. Maine Rule of Evidence 702 allows "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education [to] testify in the form of an opinion or otherwise if such testimony will help the trier of fact to understand...