Com. v. Yelle

• Decision Date: 04 January 1984
• Citation: 390 Mass. 678,459 N.E.2d 461
• Parties: COMMONWEALTH v. Craig YELLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 461

459 N.E.2d 461

390 Mass. 678

COMMONWEALTH v. Craig YELLE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 3, 1983.

Decided Jan. 4, 1984.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

David P. Hoose, Easthampton, for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS and LYNCH, JJ.

LIACOS, Justice.

On August 11, 1982, a Hampden County grand jury indicted the defendant, Craig Yelle, for assault and battery, indecent assault and battery, and forcible rape. These indictments arose out of an incident which allegedly took place on June 30, 1982. Before trial, the defendant moved for the admission of evidence that the alleged victim had sexual intercourse with her boyfriend shortly after the alleged rape and before being examined at the Baystate Medical Center later the same day. G.L. c. 233, § 21B. ¹ The defendant contended at a hearing before a judge in the Superior Court that this evidence was admissible (1) as a possible explanation for the physical condition of the alleged victim as found by the Baystate Medical Center, and (2) to impeach the credibility of the victim as to whether the alleged sexual assault was in fact consensual. The Commonwealth represented to the judge that it would not offer in evidence the hospital record indicating the presence of sperm in the victim's vagina and cervix on the evening of June 30, 1982. The Commonwealth did not, however, agree that it would not bring in evidence the fact that the victim sought medical treatment on the day of the alleged rape. The Superior Court judge allowed the defendant's motion on the ground that, in the view of the judge, notwithstanding G.L. c. 233, § 21B (the rape-shield statute), the defendant was entitled, as matter of constitutional right, to produce this evidence, since it was extremely relevant on the issue of consent with limited prejudicial effect on the victim.

The Commonwealth thereupon petitioned a single justice of this court pursuant to Mass.R.Crim.P. 15(b)(1), 378 Mass. 882 (1979), and G.L. c. 278, § 28E, for relief from the Superior Court judge's ruling. On March 21, 1983, the single justice denied the petition on the ground that the defendant's motion was not one whose allowance the Commonwealth could appeal under Mass.R.Crim.P. 15(b)(1) or G.L. c. 278, § 28E. The Commonwealth then moved the single justice to reconsider his order or, in the alternative, to treat the Commonwealth's original petition as one invoking jurisdiction under G.L. c. 211, § 3. On April 5, 1983, the single justice, on reconsideration, denied the petition for the reasons set forth in his March 21 order. The Commonwealth has now filed a notice of appeal from the single justice's April order ² and petitions the full court under G.L. c. 211, § 3, to review the ruling of the Superior Court.

We conclude that the single justice was correct in his ruling that the order of the Superior Court judge was not one which the Commonwealth could appeal. We conclude, also, that he was not in error in refusing to exercise the extraordinary superintendence powers given by G.L. c. 211, § 3. Consequently, we do not address the Commonwealth's contentions that the Superior Court judge erred in allowing the defendant's motion to admit evidence of the victim's sexual conduct after the alleged rape.

1. The single justice's denial of the Commonwealth's petition for relief under Mass.R.Crim.P. 15(b)(1) and G.L. c. 278, § 28E. We consider first the Commonwealth's rights under rule 15(b)(1). Massachusetts Rule of Criminal Procedure 15(b)(1) is entitled, "Right of Appeal Where Pretrial Motion to Dismiss or for Appropriate Relief Granted," and provides: "The Commonwealth shall have the right to appeal to the appropriate appellate court a decision by a judge granting a motion to dismiss a complaint or indictment or a motion for appropriate relief made pursuant to the provisions of subdivision (c) of rule 13." If the defendant's motion to admit evidence is properly classified as a "motion for appropriate relief" under the rule, the Commonwealth has a right to appellate review of the Superior Court judge's ruling allowing that motion. We conclude, however, that the defendant's motion was not a "motion for appropriate relief" within Mass.R.Crim.P. 15(b)(1).

Rule 15(b)(1) refers to motions for appropriate relief made pursuant to the provisions of Mass.R.Crim.P. 13(c), 378 Mass. 871 (1979). Rule 13(c) is entitled, "Motion to Dismiss or to Grant Appropriate Relief," and provides: "(1) All defenses available to a defendant by plea, other than not guilty, shall only be raised by a motion to dismiss or by a motion to grant appropriate relief. (2) A defense or objection which is capable of determination without trial of the general issue shall be raised before trial by motion." The defendant's motion clearly is not a motion relating to a defense under rule 13(c)(1).

Even if the defendant's motion is considered an objection to the operation of the rape-shield statute, G.L. c. 233, § 21B, as a bar to the evidence, it is also true that the defendant's motion is not an objection within the meaning of rule 13(c)(2). Rule 13(c) is a restatement of former G.L. c. 277, § 47A (St.1965, c. 617, § 1). See Reporters' Notes to Mass.R.Crim.P. 13(c), Mass.Ann.Laws, Rules of Criminal Procedure at 262 (Law.Co-op.1979). Section 47A, prior to its amendment by St.1978, c. 478, § 298, and St.1979, c. 344, § 39, established as the pleadings in criminal proceedings the indictment or complaint and the pleas of not guilty, guilty, and nolo contendere. It abolished all other pleas, as well as demurrers, challenges to the array and to the manner of selection of grand or traverse jurors, and motions to quash. The statute provided that any defenses or objections which could have been raised before trial by one or more of these older forms of pleading, prior to the statute's effective date, should be raised only by a motion to dismiss or a motion to grant appropriate relief. Section 47A provided further that any defense or objection capable of determination without the trial of the general issue might be raised before trial by motion, but that defenses and objections based on defects in the institution of the prosecution or in the indictment or complaint, other than a failure to show jurisdiction in the court or to charge an offense, might be raised only by motion before trial. It is apparent from the language of the statute that all of the defenses and objections referred to in it are defenses and objections which could have been raised by the abolished pleas, demurrers, challenges, and motions to quash. Since rule 13(c) restates the statute, the reference to "[a] defense or objection" in its subdivision (2) is therefore to a defense or objection which could have been raised by the abolished forms. The defendant's motion in this case could not have been accomplished by any of the abolished forms and therefore was not made pursuant to rule 13(c). ³ It cannot, then, be appealed under rule 15(b)(1).

That the defendant's motion was not a motion made pursuant to rule 13(c)(2) is apparent not only from the history of the rule but also from its language, which makes it mandatory to raise a defense or objection within its scope before trial. The Commonwealth stated in oral argument before us that it considered it to have been good practice for the defendant to bring his motion before trial. It made no claim that the defendant had to do so. If, however, the defendant's motion were governed by rule 13(c)(2), he would have had to bring it before trial. The rape-shield statute, G.L. c. 233, § 21B, though it provides for written motions for admission of evidence of specific instances of a victim's sexual conduct, does not require that they be made before trial. That the Legislature contemplated that such motions could be made at trial is apparent from the statute's provision that in a jury trial the hearing on such a motion should be held in the absence of the jury. If the defendant had waited until trial to bring his motion, the Commonwealth clearly could not have appealed its allowance under rule 15(b)(1). The fact that he chose to bring it before trial should not change the Commonwealth's rights in the matter.

The Commonwealth also appealed under G.L. c. 278, § 28E. ⁴ That statute, as amended by St.1972, c. 740, § 16, provided in part that an appeal could be taken, in a felony case, from a decision, order, or judgment of the Superior Court "(1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion to grant appropriate relief under the provisions of section forty-seven A of chapter two hundred and seventy-seven." Massachusetts Rule of Criminal Procedure 15(b), adopted on October 19, 1978, substantially restated G.L. c. 278, § 28E, as it then stood. See Reporters' Notes to Mass.R.Crim.P. 15(b), Mass.Ann.Laws, Rules of Criminal Procedure at 336 (Law.Co-op.1979). Thus, rule 15(b)(1) mirrored the part of G.L. c. 278, § 28E, quoted above, by referring to rule 13(c), which in turn restated G.L. c. 277, § 47A. On June 30, 1979, the Legislature rewrote G.L. c. 278, § 28E, as part of an act conforming the General Laws to the Massachusetts Rules of Criminal Procedure, which were to take effect on July 1, 1979. See St.1979, c. 344, title, preamble, and § 45. In place of the former language providing for an appeal from a decision allowing a motion to grant appropriate relief under G.L. c. 277, § 47A, G.L. c. 278, § 28E, was amended to contain its present language providing for an appeal from a decision "allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." In the same act, the Legislature rewrote G.L. c. 277, § 47A, to refer to the Massachusetts Rules of Criminal Procedure. See St.1979, c. 344, § 39.

In Commonwealth v. Therrien, 383 Mass. 529, 420 N.E.2d 897 (1981) this court held that, since the amendment of the statute i...