Com. v. Elder

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; ABRAMS
• Citation: 452 N.E.2d 1104,389 Mass. 743
• Decision Date: 22 July 1983
• Parties: COMMONWEALTH v. Sylvester ELDER.

Page 1104

452 N.E.2d 1104 389 Mass. 743 COMMONWEALTH
v.
Sylvester ELDER. Supreme Judicial Court of Massachusetts,
Hampden. Argued Feb. 9, 1983.
Decided July 22, 1983.

Page 1106

Terry Scott Nagel, Springfield, for defendant.

[389 Mass. 744] William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

Before [389 Mass. 743] HENNESSEY, C.J., and WILKINS, ABRAMS and LYNCH, JJ.

[389 Mass. 744] ABRAMS, Justice.

After our decision in Elder v. Commonwealth, 385 Mass. 128, 431 N.E.2d 571 (1982), the judge found the defendant guilty on two indictments charging rape and abuse of a minor child (without force). See G.L. c. 265, § 23. ¹ On appeal, the defendant asserts that the entry of judgment against him after the judge first declared a mistrial violates his constitutional rights to due process and equal protection, and the prohibition against double jeopardy. The defendant also argues that the judge improperly applied the rape shield law to exclude probative evidence. See G.L. c. 233, § 21B, inserted by St.1977, c. 110. We transferred the case to this court on our own motion. We affirm.

We summarize the facts. ² The complainant was fourteen years old in early 1980, when the rapes occurred. At that time, and for the previous three or four years, the complainant lived with her divorced mother in the defendant's home. The complainant's mother and the defendant lived as husband and wife, although they were not married. The complainant's older sister stayed in the house only on her vacations from a boarding school for slow learners.

At trial, the complainant stated that her sexual relations with the defendant began when she was eleven. The defendant frequently required her to submit to him before giving her permission to engage in various social activities. She stated, "[E]very time I turned around, I had to do it." The complainant identified four specific dates on which she claimed to have had intercourse with the defendant, and for which he was indicted: February 19, February 20, February 22, and March 20, 1980. Her situation came to the [389 Mass. 745] attention of the authorities when she wrote a letter to a teacher after attending a class on rape. Immediately thereafter, the complainant was placed in a foster home.

1. Entry of judgment after declaration of mistrial. At the end of the defendant's bench trial, but prior to the entry of judgment and imposition of a sentence, the judge sentenced another defendant in an unrelated case. The district attorney responded to the sentence, which he felt was unduly mild, by publicly criticizing the judge for his leniency toward defendants. In a subsequent lobby conference, the judge invited the defendant, Elder, to move for a mistrial. After the defendant made that motion, the judge held a hearing. He ordered a mistrial and allowed a new trial, stating: "Given the present posture of the circumstances, circumstances created solely by the District Attorney, any decision of the Court will be perceived by some, perhaps many, as being suspect. While the Court knows that in so far as is humanly possible the decision reached would be a true judgment on the law and the evidence, it recognizes that two unnecessary results may obtain. They are the opening of an avenue of

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appeal should the judgment be in favor of the Commonwealth, and second, perhaps more important, it will appear that even-handed justice has not been done. For the reasons stated, a declaration of mistrial is a manifest necessity."

In response to the defendant's motion to dismiss, another judge of the Superior Court made a number of findings, including one on the reason for the mistrial: "The public utterances [of the district attorney] were capable of causing a reasonable apprehension on the part of the trial judge that whatever his decision in the Elder case it could and perhaps would be seen by a significant number of people as having been influenced by the District Attorney's statements." The judge then denied the motion to dismiss, and the defendant sought relief in this court, claiming that a new trial was barred on double jeopardy grounds. We directed the trial judge to decide the case and to enter appropriate judgments. [389 Mass. 746] Elder v. Commonwealth, 385 Mass. 128, 133-135, 431 N.E.2d 571 (1982). ³

The defendant now asserts that our decision to order entry of judgment in the case, rather than decide the double jeopardy question, as well as the judge's compliance with our decision to enter a judgment, violates his due process and equal protection rights and the prohibition against double jeopardy, secured under the United States Constitution and arts. 1, 11, 12, and 29 of the Massachusetts Declaration of Rights. ⁴ Obviously, we do not agree.

The defendant asserts that in Elder v. Commonwealth, supra, we should not have decided the propriety of the declaration of mistrial because it was not contested or briefed by either party. ⁵ However, we are not confined by the issues or theories advanced by the parties. We may decide cases on issues not raised by the parties. ⁶ In this case, our ruling on the decision to declare a mistrial was essential before we could reach the question whether a second trial was permitted.

The defendant also argues that we incorrectly decided his prior appeal. ⁷ See Elder v. Commonwealth, 385 Mass. [389 Mass. 747] 128, 133-135, 431 N.E.2d 571 (1982). We decline to reconsider that opinion. ⁸

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The defendant appears to argue that the judge violated the prohibition against double jeopardy when he entered judgment. ⁹ The defendant contends that the judge's original declaration of a mistrial ended his trial in such a manner that renewal of the proceedings in any way subjected him to double jeopardy. However, the defendant fails to support his view that entry of judgment after declaration of a mistrial has been revoked subjects the defendant to double jeopardy. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), is distinguishable. There the court held that two trials constituted double jeopardy, although the first trial ended by transferring[389 Mass. 748] a juvenile defendant to the Superior Court for a second trial. The case says nothing about entry of judgment after a mistrial is declared.

We believe that, in this case, entry of judgment after a mistrial had been declared in the interim did not violate double jeopardy principles. Since the declaration of a mistrial did not terminate the prosecution in the defendant's favor, and since the defendant had moved for a mistrial, the judge contemplated that principles of double jeopardy were not applicable. See United States v. Scott, 437 U.S. 82, 95, 98 S.Ct. 2187, 2196, 57 L.Ed.2d 65 (1978); Costarelli v. Commonwealth, 374 Mass. 677, 682, 373 N.E.2d 1183 (1978). We believed that principles of double jeopardy did not bar a new trial, and therefore we remanded the case for entry of judgment.

The defendant also argues that our remand to the judge for entry of judgment was unconstitutional because a similar remand would have been impossible had he exercised his constitutional right to a trial by jury. According to the defendant, our decision burdens his choice of a bench trial over a jury trial and violates the equal protection principles of the Fourteenth Amendment to the United States Constitution and the parallel provision in the State Constitution.

In support for this proposition, the defendant cites United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1010, 43 L.Ed.2d 250 (1975) (overruled on other grounds, United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 [1978] ), which states, "Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge." Jenkins, supra. However, in our decision we did not distinguish between the application of double jeopardy principles to bench and jury trials. Rather, we recognized the inherent physical differences between the two types of trials, which permit double jeopardy principles to be triggered at different times. For example, "jeopardy attaches when a jury is empaneled and sworn, ... [and attaches] in a bench trial, when the judge begins to receive evidence." United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977).

[389 Mass. 749] If a jury had been the trier of fact, the judge could have requested a verdict before declaring a mistrial. Judgment could later have been entered on the verdict if his

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determination of a mistrial proved incorrect. Cf. United States v. Jenkins, supra, overruled on other grounds, United States v. Scott, supra (judgment entered on a verdict of guilty, after appellate court reversed judgment of acquittal notwithstanding the verdict, does not constitute double jeopardy). We therefore reject the defendant's challenges to our decision in Elder v. Commonwealth, supra.

2. Evidence of bias. Relying on Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181 (1981), the defendant claims that the judge erred in excluding evidence of the complainant's prior sexual acts as relevant on the issue of bias, thus denying him his right to confront witnesses against him. U.S. Const. amend VI. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The defendant claims that the judge should have permitted him to present evidence of the complainant's escalating hostility towards the defendant. He asserts that the complainant was willing to fabricate rape charges against him to prevent him from interfering with her intimate relations with her boyfriend. To make these points, the defendant offered to prove that the complainant had sexual relations with her boyfriend; that the defendant had discovered her in a "diaphanous" nightgown with...