Com. v. Domaingue

• Decision Date: 10 June 1986
• Citation: 397 Mass. 693,493 N.E.2d 841
• Parties: COMMONWEALTH v. James Edward DOMAINGUE, Sr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 841

493 N.E.2d 841

397 Mass. 693

COMMONWEALTH v. James Edward DOMAINGUE, Sr.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued March 3, 1986.

Decided June 10, 1986.

John M. Thompson, Springfield, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for Com.

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

HENNESSEY, Chief Justice.

The defendant, James Edward Domaingue, Sr., was tried before a jury in Superior Court on eleven indictments for incest, G.L. c. 272, § 17 (1984 ed.); one indictment for forcible rape, G.L. c. 265, § 22 (1984 ed.); three indictments for statutory rape with force, G.L. c. 265, § 22A (1984 ed.); and one indictment for indecent assault and battery, G.L. c. 265, § 13H (1984 ed.). All sixteen of these indictments involved conduct between the defendant and his natural daughter, who was aged fifteen and sixteen at the time of the alleged incidents. In essence, the indictments charged the defendant with maintaining an incestuous relationship with his daughter from approximately May 28, 1982, through January 11, 1983.

The indictment charging indecent assault and battery was dismissed at the close of the Commonwealth's case upon the defendant's motion for a required finding of not guilty. After presentation of all the evidence, the jury returned verdicts of guilty on three indictments charging incest, and verdicts of not guilty on the eight remaining incest charges, and the indictments charging rape and statutory rape.

The defendant appealed the incest convictions, arguing that: (1) the judge erroneously applied the rape-shield law, G.L. c. 233, § 21B (1984 ed.), to the charges of incest against the defendant, and by excluding relevant evidence of specific instances of past sexual conduct of the complainant deprived him of his common law and constitutional right to a fair trial; (2) the judge erred in allowing the prosecution to cross-examine the defendant as to whether the complainant had discussed with him the possibility that he had impregnated her; and (3) there was insufficient evidence before the jury to support the convictions. We transferred the case here on our own motion, and now affirm.

We summarize the evidence presented by the Commonwealth. The complainant's parents were divorced in 1968 when the complainant was two years old. Between 1968 and 1982, the complainant lived with her mother and did not have substantial contact with her father. In the spring of 1982, however, the complainant began experiencing substantial personal problems both at home and in school. In reaction to these conflicts, the complainant began spending time with her father, both at his home and at his place of business.

The complainant testified that during the second or third week of May, 1982, the defendant took her to the Susse Chalet Motor Lodge in Chicopee and forced her to engage in sexual intercourse with him. The complainant testified that she acceded to her father's demands because she "was afraid of him, he had a knife." According to the complainant, her sexual relationship with her father continued from May, 1982, until January, 1983. These incidents occurred at various places, including the defendant's office, and several area motels. The complainant testified to the dates and locations of their sexual encounters with the aid of her diary, which she stated was a record of her activities.

The complainant's mother testified as to the complainant's birthdate, and stated that the defendant is the complainant's natural father. The mother also testified that on January 13, 1983, the complainant admitted to her mother her allegations about the defendant's conduct. As a result of this conversation the two sought counselling, and ultimately contacted the Department of Social Services and Springfield police.

The Commonwealth presented the testimony of the manager of the Susse Chalet Motor Lodge and the business records of that motel, indicating the dates on which a customer had checked into the motel under the defendant's name. Finally, the Commonwealth called Lieutenant William Fitchet of the Springfield police department, and introduced through him a knife which was confiscated from the defendant on the night he was arrested.

The defense presented evidence in two veins. First, the defendant testified on his own behalf and denied having had sexual contact with his daughter. The defense also presented evidence relevant to the complainant's possible motive to fabricate the charges against the defendant. Adelina DiSantis, the assistant principal of the Commerce High School in Springfield, testified that the complainant had a substantial record of absences from school. Seth Dunn, a licensed social worker and the complainant's counsellor, testified that the complainant's erratic and rebellious behavior was symptomatic of traumatic neurosis. Susan Belanger, a former employee at the defendant's automobile body shop, testified that the complainant had a disagreement with her father in the early winter of 1982, as a result of which the defendant told his daughter that "he didn't want her there, it was causing too much trouble." Based on this evidence, the defense argued to the jury that the complainant was a troubled and alienated teenager who was having "serious personal problems" both at home and at school, and that she fabricated the charges against her father both as a means of getting back at him, and as a means of explaining to her mother the reason for her rebellious behavior.

1. Evidence of Prior Sexual Conduct of Complainant.

The defense sought to introduce evidence of prior sexual conduct of the complainant. Specifically, the defendant desired to cross-examine both the complainant and her mother regarding the complainant's prior sexual activity with other men; regarding the complainant's alleged pregnancy and abortion in March of 1982; and regarding the fact that the complainant had contracted a vaginal infection during the summer of 1982, and had requested money from her father in order to pay for medication for herself and two others. The defendant also sought to testify on direct examination regarding his own knowledge of these events. After conducting a voir dire of the witnesses and hearing arguments of counsel, the judge excluded this evidence on the basis of the rape-shield law, G.L. c. 233, § 21B (1984 ed.). ¹ The defendant argues that the rape-shield law does not apply to charges of incest. ²

General Laws c. 233, § 21B, operates to exclude evidence of a victim's reputation for chastity, and evidence of any prior sexual conduct with persons other than the defendant. The language of the statute is unequivocal in limiting its applicability to any "investigation or proceeding" alleging violations of certain enumerated statutes, including rape, G.L. c. 265, § 22, statutory rape, G.L. c. 265, § 23, and indecent assault and battery, G.L. c. 265, § 13H. The statute makes no provision for criminal proceedings on indictments for incest, G.L. c. 272, § 17. As a matter of statutory construction, the Legislature must be presumed to have intended to limit the application of the statute to the offenses specifically enumerated. ³ See Simon v. State Examiners of Electricians, 395 Mass. 238, 244 n. 7, 479 N.E.2d 649 (1985) (general principle that "statutory expression of one thing is an implied exclusion of other things omitted from the statute"); County of Middlesex v. Newton, 13 Mass.App.Ct. 538, 542, 434 N.E.2d 1297 (1982). The defendant is therefore correct in his assertion that the rape-shield statute should not have been applied to exclude evidence relevant to his defense of the incest charges. ⁴ However, we conclude that there was no error in the circumstances of this case, because the proffered evidence was excludable under common law principles of evidence, even though not properly excluded under G.L. c. 233, § 21B. See Weidman v. Weidman, 274 Mass. 118, 125, 174 N.E. 206 (1931) ("[a] correct decision will be sustained even though the ground stated for it may be unsound"); Doeblin v. Tinkham Dev. Corp., 7 Mass.App.Ct. 720, 722, 389 N.E.2d 1044 (1979) (same). See also Sabatinelli v. Butler, 363 Mass. 565, 571, 296 N.E.2d 190 (1973) (harmless error in exclusion of evidence on improper ground).

A. Evidence of prior sexual activity and pregnancy.

The section of the rape-shield statute, G.L. c. 233, § 21B, which bars the admission of evidence of specific instances of sexual conduct of the victim, is essentially a reflection of the preexisting common law rule. Commonwealth v. Grieco, 386 Mass. 484, 487, 436 N.E.2d 167 (1982). Commonwealth v. Buckley, 6 Mass.App.Ct. 922, 380 N.E.2d 720 (1978). At common law, evidence of the prior sexual conduct of the victim with persons other than the defendant is inadmissible for the purpose of impeaching the victim's credibility. Commonwealth v. Manning, 367 Mass. 605, 610, 327 N.E.2d 715 (1975). Commonwealth v. Gardner, 350 Mass. 664, 668, 216 N.E.2d 558 (1966). Prior unrelated instances of sexual conduct also are inadmissible for the purpose of proving consent to intercourse with the defendant. Commonwealth v. Gouveia, 371 Mass. 566, 570, 358 N.E.2d 1001 (1976). See Grieco, supra, 386 Mass. at 487, 436 N.E.2d 167. These evidentiary principles have been applied not only to charges of rape, but also to charges of assault and battery, sodomy, and unnatural and lascivious acts. See Manning, supra, 367 Mass. at 605, 327 N.E.2d 715; Gardner, supra, 350 Mass. at 664, 216 N.E.2d 558. They reflect a judicial determination that prior sexual acts are simply not relevant to the victim's trustworthiness, or to her consent to sexual activity on a particular occasion.

Nonetheless, evidence of specific instances of prior sexual conduct, while inadmissible to prove lack of credibility or consent, may be admissible to show the bias of the complainant. The defendant is entitled to reasonable cross-examination for the purpose of...