Com. v. Bohannon

• Decision Date: 09 April 1982
• Citation: 434 N.E.2d 163,385 Mass. 733
• Parties: COMMONWEALTH v. Willard E. BOHANNON, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 163

434 N.E.2d 163

385 Mass. 733

COMMONWEALTH v. Willard E. BOHANNON, Jr.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Dec. 9, 1981.

Decided April 9, 1982.

Brownlow M. Speer, Boston, for defendant.

John P. Corbett, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

LIACOS, Justice.

The defendant, Willard E. Bohannon, Jr., was convicted on March 27, 1980, after a second jury trial, of rape, kidnapping, commission of an unnatural act, and assault and battery by means of a dangerous weapon. The defendant was sentenced on the rape conviction to fifteen to twenty years at the Massachusetts Correctional Institution, Walpole, and received concurrent sentences of nine to ten years, four to five years, and four to six years, respectively, on the other convictions. The defendant was originally convicted by a jury on the same indictments in February, 1976. We reversed those convictions and remanded the case for a new trial. Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987 (1978). The defendant now appeals his second convictions. He also appeals the denial of his motion for a new trial. We transferred the appeals here on our own motion.

The defendant raises essentially three issues on this appeal: First, that the trial judge erred in admitting in evidence a tape recording of the alleged victim's testimony given at a 1974 probable cause hearing, thus violating the defendant's constitutional right to confront the witness against him; second, the trial judge improperly excluded as hearsay certain hospital records and also an extrajudicial statement made by the complainant's mother; and third, that the trial judge violated the defendant's right to a public trial in ordering, sua sponte, the closing of the courtroom during a voir dire examination of a proposed witness.

We agree that there was error of a constitutional magnitude in the admission of the complaining witness's reported testimony and, accordingly, we reverse the convictions. We discuss also the evidentiary issues concerning the particular evidence excluded at trial. We need not reach the defendant's third claim of error.

The defendant was put to trial before a jury in March, 1980. The prosecution's case consisted entirely of the testimony of the arresting officers, a physician, and a chemist, and a tape recording of the alleged victim's testimony given at a probable cause hearing in late October, 1974. ¹ At the defendant's first trial, the prosecutor presented a similar case, except that the complainant testified in person. See Bohannon, supra at 91, 378 N.E.2d 987. The defendant testified at both trials in his own defense, and his testimony did not significantly vary.

There was evidence in the instant case of these facts. On May 22, 1974, the defendant and two male companions picked up the complainant who was hitchhiking to Brockton. The four proceeded to a sandpit in Brockton, a local "lovers' lane," where various sexual acts took place. The complainant's and the defendant's testimony was similar as to what sexual acts occurred, but varied significantly as to whether the complainant had consented to participate.

The complainant, in the 1974 probable cause hearing, testified that she was "thumbing" a ride home and accepted a ride from the defendant and his companions, thinking that she knew one of them. She asked to be left off in Brockton. The automobile, however, proceeded to a sandpit and the defendant stated, "Let's drop down here for one minute, and then we'll go to Brockton."

The complainant further testified at the probable cause hearing that, on arrival at the sandpit, the defendant "tore (her) clothes off," ² while either inside the automobile or outside the automobile, and at some point Bohannon and she left the automobile. To paraphrase her testimony, she maintained that the defendant forced her to commit fellatio and also inserted a bottle and a stick into her vagina. The complainant testified that one of the defendant's companions raped her, but Bohannon did not have intercourse with her because she told him that she "(couldn't) have sex." ³

Bohannon testified that he recognized the complainant because he had picked her up hitchhiking before. After she got into the car, the group set out and bought two quarts of beer. Bohannon asked the complainant if she wanted to go drinking with them, and she agreed. The group proceeded to the sandpit where the complainant consented to the sexual activities that occurred. The defendant testified that he asked her to get out of the car with him, and she did. They went to the rear of the car and kissed for some time. She then took off her clothes and performed fellatio on him. They lay down together on top of her clothes about fifteen feet away from the car, but Bohannon was unable to engage in intercourse. Bohannon testified that the complainant became annoyed with him and asked him to "use something else." She handed him a stick which he briefly inserted in her, and a beer bottle which he also inserted.

The arresting officers testified that when they arrived at the sandpit, an area that they patrolled on a regular basis, they observed three men around the complainant, one of them on top of her. As the three moved toward their automobile, Bohannon and another male were seen pulling up their pants. The complainant ran toward the officers calling for help. The defendant was arrested and, on route to the police station, admitted engaging in various sexual acts, including intercourse.

Medical evidence as to the complainant's injuries indicated that she had a bruise over her left eye and a small cut of the cervix, which slowly oozed blood for several hours. No evidence of sperm was found. The chemist stated that traces of an undetermined blood type were found on the stick and bottle.

We briefly discuss the nature of the defendant's prior appeal. After his first trial, the defendant appealed asserting one trial error, the trial judge's refusal to permit defense counsel, on cross-examination, to ask the complainant "(w)hether or not she has prior to this made accusations that other men have raped her, and how many times ... she (had) made (such) accusations." Bohannon, supra at 92, 378 N.E.2d 987. We noted that defense counsel had made an offer of proof, by way of hospital records, that the complainant had made prior unsubstantiated and false accusations. Id. at 92-93, 378 N.E.2d 987. Recognizing that the complainant's credibility was "(t)he central focus of the trial," id. at 92, 378 N.E.2d 987, we held that the limitation on cross-examination violated the defendant's right to present a full defense, id. at 94 and 95, 378 N.E.2d 987. His case was remanded for a new trial, id. at 96, 378 N.E.2d 987.

The Commonwealth sought, thirteen months prior to this trial, by means of the uniform act to secure the attendance of out-of-state witnesses (Uniform Act), to secure the presence of the complainant, who had moved to Florida. G.L. c. 233, § 13B. On February 9, 1979, a Florida judge refused to compel her attendance, ruling that it would be an "undue hardship" on the witness to return to Massachusetts. After the Florida judge's ruling, the Commonwealth moved that she be declared an unavailable witness and that the Commonwealth be allowed to use the stenographic transcript of her testimony from the first trial. The motion judge in late February, 1979, ruled the complainant was an unavailable witness but denied the Commonwealth's motion to use the transcript from the first trial. ⁴

Almost eight months later, after the Commonwealth had secured a tape cassette of the complainant's probable cause testimony, ⁵ it moved by way of a motion in limine to have the tape cassette admitted in evidence at the defendant's second trial. The Commonwealth stated that the complainant was still unavailable and, at the probable cause hearing, the defendant was represented by counsel who cross-examined the victim. The defendant moved to suppress the cassette, alleging inter alia that the complainant was not an unavailable witness, that the tape was unclear, inaudible, and confusing, and that its admission would violate the defendant's right of confrontation. The second motion judge allowed the Commonwealth's motion and denied the defendant's motion.

The second motion judge "adopt(ed)" the prior motion judge's ruling on unavailability, which had been made some eight months earlier. The only additional evidence heard on the issue of unavailability at this time was testimony from an assistant district attorney who stated that he could not reach the complainant by telephone during the preceding week. ⁶ The judge, apparently relying again on the prior motion judge's memorandum, further found that the defendant had an adequate opportunity to cross-examine the complainant. He concluded that "having heard a sufficient playing of the tapes ... (they) are sufficiently reliable and comprehensible ... (so) that the jury could decide the issue of credibility." The judge, in fact, listened to a limited portion of the probable cause tape and, in agreement with counsel, decided that he had heard enough to make a ruling on its admissibility.

The defendant contends that the admission in evidence at his trial of the complainant's probable cause testimony violated his Federal and State constitutional rights to confront the witness against him. ⁷ He argues that the complainant was not "unavailable," according to State law, nor was the witness shown to be, in fact, unavailable at the time of trial. Further, the defendant contends that the prior reported testimony lacked the necessary reliability to sanction its admission in evidence.

1. Prior reported testimony. Among issues raised by the claim of the erroneous admission of prior reported testimony, is one of first impression in this Commonwealth: Whether, in a criminal trial, a witness is "unavailable"...