Com. v. Grieco

• Decision Date: 09 June 1982
• Citation: 386 Mass. 484,436 N.E.2d 167
• Parties: COMMONWEALTH v. Victor GRIECO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 167

436 N.E.2d 167

386 Mass. 484

COMMONWEALTH v. Victor GRIECO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 2, 1982.

Decided June 9, 1982.

Carlo A. Obligato, for defendant.

David B. Mark, Legal Asst. to Dist. Atty. (Michael J. Traft, Asst. Dist. Atty., with him), for the Commonwealth.

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

LIACOS, Justice.

Following a trial by jury, the defendant was found guilty of unnatural rape and assault with intent to rape. At a pretrial hearing, the judge denied the defendant's motion to admit evidence filed pursuant to G. L. c. 233, § 21B, the rape-shield statute. The defendant appeals from his convictions citing, as error, the judge's exclusion of his proffered evidence. We transferred the appeal here on our own motion.

The defendant argues on appeal that the judge's refusal to permit the defendant to testify before the jury regarding past sexual relations between the complainant and the defendant was a misinterpretation of G. L. c. 233, § 21B, and that the exclusion of the evidence violated the due process and confrontation clauses of the United States Constitution. The defendant further argues that the exclusion was prejudicial, requiring a reversal of the judgments. We conclude that the evidence offered by the defendant should have been admitted, and its exclusion requires a new trial on both charges. We need not reach the constitutional issues raised by the defendant.

We summarize the evidence. The complainant testified that she met the defendant about "a month and one-half" prior to June 17, 1979, the evening of the alleged crimes. According to her testimony, she and the defendant had been out together previously on two occasions; the second time they went to the defendant's home where she met his mother.

On June 17, 1979, the complainant went to the Caravan Club, a "disco" and bar in Revere, where the defendant and she had spent their first "date." The defendant, who was also present, bought her a drink and danced with her. About 1:30 A.M. the defendant agreed to take the complainant home. The complainant testified that the defendant, while driving, undid his trousers and exposed himself. The defendant grabbed her by the back of the head and pulled her towards him. She pulled away from him, and the defendant let her go. Later, he drove into a parking lot and he pulled her head to his penis which entered her mouth. Again, she pulled away, but the defendant pushed her face against his passenger window and slapped her mouth. The complainant further testified that the defendant reclined her seat and attempted to undress her. At this point, the complainant got out and ran from the car; the defendant drove up beside her and threw her pocketbook to her. She then jumped over a "ramp" or guardrail, fell, and rolled down a grassy slope to a fire station.

A firefighter testified that when the complainant arrived at the fire station she was upset and her clothes were in disarray. When the police arrived, the complainant was in the back of an ambulance and upset, almost to the point of hysteria. A hospital report indicated no evidence of trauma or visible bruises or marks.

The defendant testified that he had known the complainant for about one year before the incident. He first dated her in January, 1979, and thereafter she had visited his home at least three times, and they spent many evenings together. He testified that on the night of the incident, he met the complainant at the Caravan Club and the two left together. As he was driving, the pair began kissing, and she unzipped his pants and voluntarily commenced fellatio. Then the complainant said that she did not want to continue. The defendant told her to get out of the car and threw her pocketbook to her. After she got out of the car, the defendant changed his mind and decided to drive her home. The complainant, however, refused to return to the car and ran off screaming, "rape." The defendant acknowledged, as testified to by a police officer, that when he was arrested outside his home later that morning, he had stated, "All this for half a blow job."

The defendant sought to introduce evidence of prior sexual conduct between the complainant and himself, pursuant to G. L. c. 233, § 21B. At a pretrial hearing on his motion, the defendant testified that he and the complainant engaged in acts of intercourse and fellatio at least five times between January and May, 1979. The defendant stated that he could not remember specific dates and would be lying to the court if he attempted to testify to "any special date." He testified that the sexual conduct took place in his house when the two were alone. The defendant also testified that his mother surprised them at home one day and found them both in their underclothes. The defendant's mother was also willing to testify regarding this particular occurrence.

The relevant part of G. L. c. 233, § 21B (rape-shield statute), inserted by St. 1977, c. 110, provides: "Evidence of specific instances of a victim's sexual conduct ... shall not be admissible except evidence of the victim's sexual conduct with the defendant ...; provided, however, that such evidence shall be admissible only after an in camera hearing on a written motion for admission of same and an offer of proof. If, after said hearing, the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise not.... The finding of the court shall be in writing and filed ...." The judge ruled that the proffered evidence of prior sexual conduct between the defendant and the complainant could not be admitted, based on his interpretation of the rape shield statute. The judge ruled that because the defendant had failed to provide the place, the date, and the time of the day of the prior sexual acts, the evidence did not meet the statutory requirement of "specific instances." The judge, if not "bound by the statute," stated that he would have admitted the evidence in his discretion in the form of direct examination of the defendant.

"The statutory bar to the admission of evidence of specific instances of sexual conduct is essentially a reflection of a pre-existing common law rule. In rape cases, evidence of specific instances of prior sexual intercourse with persons other than the defendant long has been inadmissible. See Commonwealth v. Gouveia, 371 Mass. 566, 569, 358 N.E.2d 1001 (1976); Commonwealth v. McKay, 363 Mass. 220, 226, 294 N.E.2d 213 (1973); Commonwealth v. Regan, 105 Mass. 593 (1870)." Commonwealth v. Joyce, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 39, 44, 415 N.E.2d 181 (1981). However, evidence of specific instances of sexual conduct between the victim and the defendant, relevant to the issue of consent, was admissible under the common law rule. See generally Annot., 94 A.L.R.3d 257 (1979). Professor Wigmore discusses evidence of prior acts of intercourse between the complainant and the defendant as involving a principle different from that involved in evidence of lack of chastity, or of acts of intercourse with other men. As to evidence of prior acts of intercourse between the complainant and the defendant, Wigmore wrote: "Such conduct is not intended to show a general willingness or disposition to commit acts of unchastity, but merely an emotion towards the particular defendant ...; it is thus not only more cogent as evidence, but is not open to the objections advanced against evidence of intercourse with third persons; and its admissibility has always been conceded." 1 J. Wigmore, Evidence § 200(3) (3d ed. 1940). See also 4 S. Gard, Jones on Evidence, Civil and Criminal § 25:16 (6th ed. 1972): "In this country, while the prosecutrix may be questioned as to acts of intercourse with the accused in order to disprove the allegation of force in a rape case, there is doubt as to whether questions as to her intercourse with other men are proper" (emphasis supplied). Cf. State v. Forshner, 43 N.H. 89 (1861). See also Commonwealth v. Kendall, 113 Mass. 210 (1873) (evidence of "former familiarities" between victim and defendant admitted); McLean v. United States, 377 A.2d 74, 78 n.5 (D.C.App.1977) (testimony that defendant and complainant had sexual intercourse "on many occasions" admitted); People v. Wilcox, 33 Ill.App.3d 432, 435, 337 N.E.2d 211 (1975) (defendant testified regarding sexual relations with victim occurring "ten or more times" prior to alleged incident). Thus, the trial judge in the instant case was correct in assuming that, under the common law rule, according to his discretion, the evidence could have been admitted.

That evidence of prior acts of intercourse with the defendant is distinguished from evidence attacking the victim's character, even under modern rape-shield legislation, is confirmed by the legislative history of Privacy Protection for Rape Victims Act of 1978, Pub.L.No. 95-540, 92 Stat. 2046 (now Fed.R.Evid. 412). See J. Weinstein and M. Berger, Evidence par. 412(01) (1980 Supp.). Federal Rules of Evidence 412 is comparable to G. L. c. 233, § 21B; it allows evidence of "specific instances" of complainant's "past sexual behavior with the accused," if relevant to the issue of consent. We perceive no change in this common law principle to be wrought by G. L. c. 233, § 21B.

The Massachusetts rape-shield statute does change the procedure that must be followed prior to admission of the evidence of prior sexual acts between the parties. Procedural requirements include a written motion, offer of proof, an in camera hearing, and written findings by the judge. The threshold determination of admissibility to be made under the statute is the same, however, as it was at common law in regard to the relevancy of any such proffered evidence. The probative worth of the evidence, or lack of it, is to be determined by the trial judge under the well...