Com. v. Gouveia
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before HENNESSEY; BRAUCHER |
| Citation | 371 Mass. 566,358 N.E.2d 1001 |
| Parties | COMMONWEALTH v. Antonio D. GOUVEIA. |
| Decision Date | 21 December 1976 |
Page 1001
Decided Dec. 21, 1976.
Page 1002
Fern L. Nesson, Cambridge, for defendant.
James W. Sahakian, Sp. Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, and WILKINS, JJ.
[371 Mass. 567] BRAUCHER, Justice.
The defendant appeals from convictions of rape and an unnatural act, argues two assignments of error: (1) exclusion of evidence of prior sexual intercourse by the victim, and (2) denial of his motion for a mistrial after the prosecutor in his closing argument asserted that there was no evidence to refute the victim's testimony as to what happened when she and the defendant were alone together. We hold that there was no error in excluding evidence of prior sexual acts between the victim and a person other than the defendant. We also hold that in all the circumstances of this case, the prosecutor's closing argument, though improper in view of the defendant's failure to testify in his own defense, did not require a mistrial. We therefore affirm the convictions.
The case for the Commonwealth consisted almost entirely of the testimony of the victim, which we summarize. She was nineteen years old and lived and worked in Billerica. On the evening of Saturday, August 25, 1973, she drove her automobile to a bar in Lowell and had two or three drinks with friends and with a young man whom she met there and who invited her to a family birthday party. She drove him to the party, a few minutes away, arriving about 11:30 to 12 P.M., and found approximately thirty people there. About a half hour later, she felt sick and she and her escort went out and got into the back seat of her car. He passed out, she vomited, and she discovered that her wallet and car keys were missing. She got out of the car and spoke to others who said they would look for the car keys.
At this point he defendant, whom she did not know, suggested that she could lie down in his van, parked nearby, and she did so. She was there for about two hours, during which time several men looked in, and one made sexual advances which she repulsed. Finally, the defendant got into the van and committed the crimes charged. After ten or fifteen minutes the defendant 'gave up'; she put her jeans back on; and she went back to her car, leaving her underwear in the van. She rolled up the windows and locked the doors of her car, and a woman came over and [371 Mass. 568] screamed at her. Others were standing around. Later the defendant came back, said the woman was going to beat her up, and offered to give her 'a ride to get out of there.' They got into the van, and he drove her to within a quarter of a mile of her home. He gave her the wrong name of the street where the party was, and he falsely said the van was not his. She noted the license number and
Page 1003
wrote it down when she arrived home about 5:15 A.M.About 7 or 7:30 A.M. she called a friend, and he drove her to Lowell to look for her car. The same morning, after searching without success, they went to the Lowell police department. She gave the police the license number of the van and learned the defendant's name. About a week later the police recovered her car, and her wallet was found in a mailbox.
The defendant stipulated that he was at the party with his van, and that he drove the victim home. The escort, six women, and the husband of one of them testified for the defendant. All the witnesses were related to the escort by blood or marriage and all but one testified that they had known the defendant for many years. He did not testify.
In September, 1975, the defendant was convicted of both rape and an unnatural act, and was sentenced to nine to twelve years for rape and to a lesser concurrent sentence for an unnatural act. An appeal to the Appellate Division of the Superior Court resulted in concurrent sentences of three to five years. The defendant appealed pursuant to G.L. c. 278, §§ 33A--33G, and we allowed the parties' joint application for direct appellate review, which focused on the admissibility of evidence of prior sexual acts by a rape victim.
1. Evidence of prior sexual acts. The victim testified on direct examination that she was outside in the back seat of her car with her escort about two hours before the crimes took place. On cross-examination she said that she was talking to him, and that he kissed her and 'attempted to make a pass' at her, 'and that was it.' She denied having sexual intercourse with him, but the judge sustained[371 Mass. 569] an objection to the question and instructed the jury to disregard it. She denied that she was undressed.
Defense witnesses testified that the victim and her escort were in the back seat of her car, and that he passed out and was carried into the house. They testified that both the victim and her escort were completely undressed, and two of them testified to obscene behavior on her part. Several also testified that she got out of the car...
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Com. v. Cepulonis
...he pointed. These remarks were not objected to, nor was an exception saved. See Commonwealth v. Gouveia, --- Mass. ---, --- - --- d, 358 N.E.2d 1001 (1976). In any case the [374 Mass. 501] context was such that the comments would be understood as no more than argument, if emphatic, that the......
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Com. v. Edgerly
...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......
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Com. v. Storey
...together with clear instructions by the judge that opening and closing statements are not evidence, see Commonwealth v. Gouveia, 371 Mass. 566, --- - --- W, 358 N.E.2d 1001 (1976); Commonwealth v. DeChristoforo, 360 Mass. 531, 536-538, 277 N.E.2d 100 (1971), prevented these remarks from hav......
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Com. v. Haas
...defense counsel requests a curative instruction at the conclusion of closing argument. Commonwealth v. Gouveia, --- Mass. ---, --- g, 358 N.E.2d 1001 (1976). Commonwealth v. Killelea, --- Mass. --- h, 351 N.E.2d 509 (1976). Commonwealth v. Nordstrom, 364 Mass. 310, 303 N.E.2d 711 (1973). In......
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Com. v. Cepulonis
...he pointed. These remarks were not objected to, nor was an exception saved. See Commonwealth v. Gouveia, --- Mass. ---, --- - --- d, 358 N.E.2d 1001 (1976). In any case the [374 Mass. 501] context was such that the comments would be understood as no more than argument, if emphatic, that the......
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Com. v. Edgerly
...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......
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Com. v. Storey
...together with clear instructions by the judge that opening and closing statements are not evidence, see Commonwealth v. Gouveia, 371 Mass. 566, --- - --- W, 358 N.E.2d 1001 (1976); Commonwealth v. DeChristoforo, 360 Mass. 531, 536-538, 277 N.E.2d 100 (1971), prevented these remarks from hav......
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Com. v. Haas
...defense counsel requests a curative instruction at the conclusion of closing argument. Commonwealth v. Gouveia, --- Mass. ---, --- g, 358 N.E.2d 1001 (1976). Commonwealth v. Killelea, --- Mass. --- h, 351 N.E.2d 509 (1976). Commonwealth v. Nordstrom, 364 Mass. 310, 303 N.E.2d 711 (1973). In......