Com. v. Edgerly

Decision Date21 May 1982
CourtAppeals Court of Massachusetts

John P. Courtney, Newton, for defendant.

Kevin J. Ross, Legal Asst. to the Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GOODMAN and GRANT, JJ.

GOODMAN, Justice.

The defendant was indicted for rape in two counts. The bill of particulars on one count alleged rape involving natural sexual intercourse and the bill of particulars on the second count alleged rape involving unnatural sexual intercourse. G.L. c. 265, § 22 (as appearing in St.1974, c. 474, § 1). His jury trial resulted in a verdict of guilty of so much of the first count as charged him with assault with intent to rape and a verdict of guilty on the second count. He was sentenced to concurrent terms of eighteen to thirty years at M.C.I., Walpole.

We summarize the facts as the jury could have found them. The victim met the defendant at the Cosmopolitan Cafe in Lowell on the evening of January 1, 1975. She had previously been introduced to the defendant and had seen him at the cafe about five times; she had never seen him at any other place. At his invitation she joined him for a drink. The two then proceeded to another local bar where they met two men, Thomas Purtell and Thomas Flynn. She had three drinks there and the defendant and Purtell ate some pills. Flynn "was already loaded." At some point (the victim testified that it was about one half hour later) the victim told the defendant that she wanted to return to the Cosmopolitan Cafe; he offered to drive her. Joined by Purtell and Flynn, they went to the defendant's car, whereupon Purtell took the driver's seat, Flynn sat in the front seat, the defendant sat in the back seat with the victim. When the car started to move, the defendant began to make sexual advances to the victim and attempted to have sexual intercourse with her which she struggled to prevent. From the jury's verdict it appears that they did not find penetration in spite of the victim's testimony that he "got it in part way" though he didn't achieve an erection. Thereafter, he proceeded to perform cunnilingus on the victim and then "grabbed (her) head and made (her) put (her) mouth on his penis." The car stopped and Purtell then went into the back seat and also, by threat, forced the victim to perform fellatio. Thereupon, Flynn, upon the defendant's insistence, got into the back seat but agreed to let the victim "fake" the act with him.

The group then returned to the Cosmopolitan Cafe, and the victim ran inside crying. The bartender, who knew her, called a cab to take her home. When she arrived home she was (as her roommate Terry St. Pierre testified) "crying and hysterical." The victim told St. Pierre that she had been raped, and St. Pierre called the police. Officer Paquette testified that when he arrived, the victim was "crying and shaking." The police took the two women to the station where the victim gave a statement; they were then taken to a hospital in the early hours of January 2, where the victim was examined. The doctor testified that the victim's emotional condition was consistent with real, not feigned, anxiety and that she had to be given a sedative. 1

Later the same day the police took the victim and St. Pierre to the Lowell District Court to get complaints for rape involving natural sexual intercourse and rape involving unnatural sexual intercourse. The testimony of Officer Paquette and the testimony of the clerk are contradictory as to what took place, but ultimately the clerk refused to issue a complaint for rape involving natural sexual intercourse but issued a complaint for rape involving unnatural sexual intercourse and a complaint for assault with intent to rape.

On January 6, 1975, the victim went to the police and told them that the defendant had offered her $2,000 to drop the case and signed a statement to that effect. This statement, she testified at trial, was entirely false. 2 Subsequently, on April 15, 1975, the indictment described above was issued; we assume the complaints were dismissed. The details of other testimony and proceedings will be set out as they bear on the various contentions of the defendant. We discuss these contentions in the order argued by present appellate counsel, addressing first the two arguments he incorporated from the former appellate counsel's brief.

1. The defendant contends that the application of the rape-shield law, G.L. c. 233, § 21B, enacted by St.1977, c. 110, was an ex post facto law in violation of the United States Constitution, art. I, § 9, cl. 3, if applied (as it was) to his trial in September, 1977, for a rape committed on January 1, 1975. The short answer is that at trial the ex post facto provision contained in the United States Constitution was not argued or even mentioned to the trial judge. We are not inclined to decide this issue without a clear factual record which is absent in this case.

So far as appears, the primary matter argued before the trial judge was the admissibility of evidence of a tattoo on the victim which the assistant district attorney represented (and defense counsel did not dispute) "reflected a prior sexual act with another woman." This evidence of a specific sexual act would not have been admissible even prior to the rape-shield law. Commonwealth v. Regan, 105 Mass. 593, 594 (1870). Commonwealth v. Gouveia, 371 Mass. 566, 569, 358 N.E.2d 1001 (1976). And thus the defendant cannot complain that under the old law he would have been allowed to introduce it. Indeed that evidence might have been admissible under the present law after a voir dire and a finding that "the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim ...." G.L. c. 233, § 21B. The trial judge offered to hold such a voir dire, but defense counsel refused. Before the rape-shield law, the only evidence admissible as to the victim's sexual conduct with others was evidence of reputation for lack of chastity. From the transcript it appears (though it is not clear) that defense counsel indicated a desire to introduce such evidence but made no offer of proof.

Thus, the issue before us is whether, as a matter of the intent of the Legislature, the statute was meant to be retrospective and therefore completely barred any reputation evidence. G.L. c. 233, § 21B (first sentence). Such an intent must be clearly expressed particularly because of the " 'influence-if not the command' of the ex post facto provisions ...." Commonwealth v. Davis, 380 Mass. 1, --- Mass.Adv.Sh. (1980) 555, 570, 401 N.E.2d 811, quoting from Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537, 78 S.Ct. 893, 900, 2 L.Ed.2d 953 (1958). Commonwealth v. A Juvenile, --- Mass. ---, --- - --- n.1, Mass.Adv.Sh. (1981) 1958, 1959-1960 n.1, 425 N.E.2d 294.

Here the intent seems to us clear that the statute be retrospective, and a contrary construction would be "inconsistent with the manifest intent of the lawmaking body or repugnant to the context of the same statute." G.L. c. 4, § 6, first par. The title of St.1977, c. 110, is: "An Act regulating the admissibility of certain evidence in rape cases." The act inserts G.L. c. 233, § 21B, which begins: "Evidence of the reputation of a victim's sexual conduct shall not be admissible in any investigation or proceeding before ... any court of the commonwealth for a violation of ... (G.L. c. 265, § 22)" (emphasis supplied). Rules of evidence are generally retrospective. Commonwealth v. Greenberg, 339 Mass. 557, 578-579, 160 N.E.2d 181 (1959). See Kerr v. Palmieri, 325 Mass. 554, 557, 91 N.E.2d 754 (1950); Goodwin Bros. Leasing, Inc. v. Nousis, 373 Mass. 169, 173, 366 N.E.2d 38 (1977), quoting from Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3, 107 N.E. 426 (1914). See also Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 924, 43 L.Ed. 204 (1898). And the Legislature is presumed to be aware of that rule. Forcier v. Hopkins, 329 Mass. 668, 671, 110 N.E.2d 126 (1953). Further, the statute applies to "any proceeding" and it is thus at such a point that the statute is made applicable rather than at the point of the offense. Goodwin Bros. Leasing, Inc. v. Nousis, 373 Mass. at 173, 366 N.E.2d 38. Zildjian v. Zildjian, 8 Mass.App. 1, 8-9, 391 N.E.2d 697 (1979). The statute makes no distinction between offenses committed before its passage and offenses committed thereafter.

Most convincing is the preamble to St.1977, c. 110, which declares that "(t) he deferred operation of this act would tend to defeat its purpose, which is to protect immediately victims of rape ..." (emphasis supplied). The purpose is manifest. It demonstrates "sensitivity for the rape victim's plight." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, --- n.9, Mass.Adv.Sh. (1980) 485, 497 n.9, 401 N.E.2d 360 (citing G.L. c. 233, § 21B), vacated on other grounds, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980), Id., --- Mass. --- Mass.Adv.Sh. (1981) 1493, 423 N.E.2d 773. The court in that case points out that "the Legislature wished (generally) to shield certain victims of sex crimes from the difficult experience of testifying in public .... The rape victim's ordeal in court has been well documented. It has been said that '(t) he court experience, for the rape victim, precipitates as much of a psychological crisis as the rape itself.' In fact, the victim may feel that she has been raped twice: once by the defendant and once by the criminal justice system." Globe Newspaper Co. v. Superior Court, Mass.Adv.Sh. (1980) 379 Mass. at --- - --- at 497-498, 401 N.E.2d 360 (footnotes and citations omitted). Commonwealth v. Manning, 367 Mass. 605, 613-614, 327 N.E.2d 715 (1975) (Braucher, J., dissenting) (pointing out that under then existing law "the complaining woman in a rape case is fair game for character assassination ..."). Commonwealth...

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