Com. v. Elliot

• Decision Date: 04 February 1985
• Citation: 473 N.E.2d 1121,393 Mass. 824
• Parties: COMMONWEALTH v. Robert G. ELLIOT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1121

473 N.E.2d 1121

393 Mass. 824

COMMONWEALTH v. Robert G. ELLIOT.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Nov. 7, 1984.

Decided Feb. 4, 1985.

Brownlow M. Speer, Boston (Thomas J. Herbert, Boston, with him), for defendant.

Bradford S. Mauro, Asst. Dist. Atty., for the Com.

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

HENNESSEY, Chief Justice.

The defendant was convicted by a jury in the Superior Court of rape and of breaking and entering a dwelling house in the nighttime with intent to commit a felony. He was sentenced to terms of eight to twelve years at the Massachusetts Correctional Institution at Walpole, to be served concurrently with each other and with any sentence then being served. We granted the defendant's application for direct appellate review of his convictions and of the denial of his motion for a new trial. The defendant alleges that he is entitled to a new trial on four grounds: (1) error by the trial judge in excluding questions on cross-examination designed to impeach the credibility of the rape complainant; (2) newly discovered evidence consisting of the complainant's subsequent civil claim against the defendant's employer based upon the assault; (3) conflict of interest on the part of the defendant's originally retained attorney due to his representation of the complainant in her subsequent civil action; and (4) abuse of discretion by the trial judge in allowing the prosecutor to introduce evidence of the defendant's prior rape conviction for impeachment purposes. We agree that the judge erred in excluding questions intended to show the complainant's bias and conclude that the defendant is entitled to a new trial.

In August, 1980, the defendant was on parole from a rape conviction and was employed as a maintenance man by the Washington Heights apartment complex. In the afternoon of August 25, 1980, he did some painting and repair work in the complainant's apartment, which was located on the ground floor of the complex. She testified that nothing unusual happened on this occasion; he claimed that she seduced him and that they had sexual intercourse. The complainant stated that in the early morning hours of August 28, 1980, she was awakened by the sound of a door opening and that the defendant then entered her apartment and raped her. ¹ The defendant testified that the complainant had invited him to her apartment and that the two had consensual sexual intercourse. After the defendant left her apartment, the complainant drove to the home of her male friend, Grindal Gardner, who called the police. The defendant was arrested in his apartment later that morning.

The defendant's wife originally retained Attorney Conrad Fisher to represent her husband. Mr. Fisher met once with the defendant at the Worcester County House of Correction to discuss the case. However, he withdrew his representation prior to the defendant's probable cause hearing upon discovering that Gardner would be testifying as a witness under the fresh complaint doctrine. Mr. Fisher knew Gardner, a real estate broker, quite well and had previously represented him and other members of his family in various legal matters.

The defendant's trial ended with the return of the jury's verdicts on Thursday, April 2, 1981. On Monday, April 6, the complainant (accompanied by Gardner) met with Mr. Fisher and discussed the feasibility of filing suit against Washington Heights for negligence in hiring the defendant. On October 14, 1981, Washington Heights received a claim letter from Mr. Fisher demanding compensation for the complainant. The defendant filed a motion for a new trial on October 20, 1982, citing the first three grounds discussed above. An evidentiary hearing was held solely on the issue of Mr. Fisher's alleged conflict of interest and on March 21, 1983, the defendant's motion was denied on all grounds.

1. At trial the defendant sought to impeach the complainant's credibility by probing into possible financial motives for securing his conviction. Specifically, he inquired into the complainant's financial difficulties with Washington Heights and asked whether she had instituted a court suit against the apartment complex. ² The judge excluded this line of questioning as impermissibly "discrediting [the complainant] by showing bad character" and refused the defendant's offer of proof as to the purpose of the cross-examination and the testimony he sought to elicit. In an affidavit submitted with the defendant's motion for a new trial, the defendant's trial attorney stated what he had intended to present as his offer of proof: "I wished to elicit from the witness whether she had a personal financial interest or stake in the outcome of this case, specifically whether she had commenced suit or made a financial claim against The Washington Heights Apartment Complex, the employer of the defendant, on the basis of the alleged incident involved in this case; or whether she had taken any steps to prepare for the commencement of such a suit or to make such a claim; or whether she had at the time of trial any intention to commence such a suit or to make such a claim in the future."

During oral argument before this court the Commonwealth conceded that the judge erred in excluding the defendant's questions. We agree. However, we disagree with the Commonwealth's contention that, in light of the complainant's likely response and the information the defendant was otherwise able to present to the jury, such error was harmless.

We are aware of the ordeal rape complainants must undergo in assisting the prosecution of their attackers. The Legislature has shown sensitivity to a complainant's plight. G.L. c. 233, § 21B. At the same time we cannot lose sight of the defendant's right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by art. 12 of the Commonwealth's Declaration of Rights, to confront adverse witnesses "by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Commonwealth v. Joyce, 382 Mass. 222, 225, 415 N.E.2d 181 (1981). We have stated in the past that "[t]he right to cross-examine a complainant in a rape case to show a false accusation may be the last refuge of an innocent defendant." Joyce, supra at 229, 415 N.E.2d 181. See Commonwealth v. Bohannon, 376 Mass. 90, 94, 378 N.E.2d 987 (1978) (where evidence concerning credibility of rape complainant was excluded, the "right to present a full defense" was denied); Commonwealth v. Carty, 8 Mass.App.Ct. 793, 795, 397 N.E.2d 1138 (1979) (exclusion of inquiry into rape complainant's probationary status denied defendant his constitutional right of confrontation).

The institution of a civil suit based upon a criminal offense, while entirely legitimate, can create financial motive for the victim to falsify testimony in order to secure a criminal conviction. Therefore, we have recognized the defendant's right to probe into such matters to reveal a witness's bias and personal interest. See Commonwealth v. Marcellino, 271 Mass. 325, 327, 171 N.E. 451 (1930) (exclusion of question regarding assault victim's civil suit against defendant constituted reversible error); Commonwealth v. Dutra, 15 Mass.App.Ct. 542, 549, 446 N.E.2d 1091 (1983) ("[E]vidence of the civil suit was unquestionably relevant to the issue of the [rape] victim's credibility, inasmuch as it indicated that a guilty verdict in the criminal case might aid her recovery in the civil matter").

The Commonwealth claims that in this case the judge's error was harmless because, had the complainant answered the excluded questions, her testimony would not have had a material effect on the jury. Based upon testimony given at the hearing on the defendant's motion for a new trial, the judge found that "she [the complainant] never considered the possibility of a civil action until Gardner mentioned it to her after the trial was over." Therefore, he concluded, "evidence of the claim or the intention to pursue a claim could not have been uncovered at trial." There are several problems with such reasoning. According to the transcript of the new trial hearing, the complainant did not testify in the manner attributed to her. ³ She did state that she did not meet with Mr. Fisher to discuss bringing a civil claim until after the defendant's conviction. However, she also testified that she had discussed the idea of recovering compensation for the assault with her family and friends without indicating when such discussion took place, ⁴ whether before or after the defendant's trial. Based upon this record neither we nor the trial judge can know with certainty how the complainant would have answered the defendant's questions. This is particularly evident in light of the trial attorney's affidavit, which suggests that had he been permitted to proceed, he would have inquired into the complainant's intent to pursue a civil claim. See Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975) (defendant is not required to pursue a line of questioning "in the face of the judge's unequivocal adverse ruling").

This case is distinguishable from Commonwealth v. Haywood, 377 Mass. 755, 388 N.E.2d 648 (1979). There we upheld the exclusion of a witness's arrest record where the arrests occurred after his initial statements to the police incriminating the defendant. On voir dire the trial judge found no inconsistencies between the witness's pre- and post-arrest statements that would suggest he had falsified testimony to seek government favor. The Commonwealth contends that here too the complainant's testimony at trial predated any incentive that she might later have had to accuse the defendant falsely. However, as we have already...