Com. v. Joyce

Decision Date06 January 1981
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John P. Courtney, Newton, for defendant.

Robert L. Rossi, Asst. Dist. Atty., for the Commonwealth.


LIACOS, Justice.

The defendant was tried before a jury in the Superior Court and convicted on charges of rape and commission of an unnatural and lascivious act. He appeals from these convictions pursuant to G.L. c. 278, §§ 33A-33G. We transferred the appeal here on our own motion.

The defendant raises three issues: first, that the trial judge improperly excluded a line of questioning by defense counsel intended to show bias of the complaining witness; second, that since the prosecution's use of peremptory challenges violated the principles enunciated in Commonwealth v. Soares, --- Mass. --- a, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), the judge improperly denied the defendant's motion for a mistrial; and third, that the judge improperly denied the defendant's motion to suppress certain items seized from the defendant's car.

We agree that there was error in the exclusion of the questions intended to show bias and that there must be a new trial. As this conclusion is dispositive, we need not reach the defendant's second and third grounds for reversal. 1

We summarize the evidence presented by the prosecution. On December 2, 1977, at approximately three o'clock in the morning the defendant picked up the complainant hitchhiking just outside of Malden Square. The complainant had been drinking heavily prior to the incident. The complainant testified that she asked to be let off at her boy friend's house about one-half mile from Malden Square. Instead, the defendant drove to a nearby church parking lot where he forced the complainant to perform oral sex and to engage in intercourse twice. The complainant unsuccessfully attempted to escape from the car twice, resulting in the defendant's punching her many times. At one point she screamed for about ten seconds. Seeing the headlights of an approaching car, the complainant, now naked and bleeding around the mouth, jumped from the defendant's car and ran toward the other car screaming and waving her arms. The other car was a police cruiser. The police officers testified that they had entered the lot to investigate screams. On reaching the police car the complainant accused the defendant of raping her.

The defendant's account differed in several material respects. His testimony raised the defense of consent. He testified that the complainant's mouth was already bloodied when he picked her up; that she had told him it was the result of a fight with her boy friend. He testified that he entered the church parking lot at the complainant's request to talk and so she could smoke some "angel dust." They discussed sex. At the complainant's suggestion they engaged in sexual acts. Shortly thereafter, the defendant saw a police cruiser approaching. He warned the complainant and told her to get dressed. He began to back up the car when the complainant jumped out, ran to the cruiser, and accused him of raping her. At no time prior to jumping out of the car did the complainant scream.

The defendant attempted to introduce evidence at trial that the complainant had been charged with prostitution, once each in May and September, 1977. The first complaint purportedly alleged that the complainant had approached an undercover police officer and solicited him to perform oral sex for twenty dollars. The second complaint purportedly alleged that the complainant was found undressed in a car engaged in sexual acts. Her male companion told the police officer that he had picked her up and she agreed to "perform all (sic) sex" for twenty dollars. The defendant intended to introduce this evidence either through cross-examination of the complainant or through the testimony of police officers involved in the complaints.

The defendant's purpose to introduce this evidence was not to show that the complainant was or had been a prostitute, and that it was therefore more likely that she had solicited or consented to have sex with the defendant. Rather, it was to show that, having been found in a similar situation on two prior occasions, the complainant was herself arrested and charged with a crime. Thus, the allegation of rape against the defendant may have been motivated by her desire to avoid further prosecution. 2

Over the defendant's objection, the judge ruled that the defendant could neither offer testimony that the complainant had been charged with prostitution nor inquire about those charges in cross-examination of the complainant. The judge based this ruling on the prohibition in the Massachusetts rape-shield statute, G.L. c. 233, § 21B, 3 against admitting in a rape trial evidence of reputation or of specific instances of a rape victim's sexual conduct.

The defendant argues that the judge's rulings under G.L. c. 233, § 21B, amounted to an unconstitutional abridgement of both his Sixth Amendment right of confrontation as elaborated in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and its progeny, and the cognate rights guaranteed under art. 12 of the Declaration of Rights to the Massachusetts Constitution and by G.L. c. 263, § 5. Also, the defendant argues that his due process right to have a fair trial was abridged. He cites in this regard, In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948) (right to present relevant evidence in one's defense), and Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). The Commonwealth challenges the defendant's claims that G.L. c. 233, § 21B, as applied, deprived the defendant of any constitutional rights, and further claims that the defendant failed to demonstrate that the evidence proffered by the defendant adequately raised the issue of bias as to the complainant witness. In the view we take of this record, the issue of bias was squarely raised, 4 and the judge misapplied the statute. Hence, we need not reach the constitutional contentions of the parties. 5

We do not believe that the prohibition in the rape-shield statute sweeps so broadly as to render inadmissible evidence of specific instances of a complainant's sexual conduct in situations when that evidence is relevant to show the complainant's bias. 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). The justification for this rule is twofold. First, collateral questions relating to the specific acts would prolong the trial and divert the attention of the trier of fact from the alleged criminal acts of the defendant. See Commonwealth v. McKay, supra at 227, 294 N.E.2d 213. Second, such evidence has little probative value on the issue of consent. "(T)he victim's consent to intercourse with one man does not imply her consent in the case of another." Id. Nor is the fact that a woman engages in sex for hire relevant to the issue of her credibility. "The rule is well established that the fact that a female witness is a prostitute or keeps a house of ill fame is not admissible to impeach her." Commonwealth v. Vandenhecke, 248 Mass. 403, 404, 143 N.E. 337 (1924).

The major innovative thrust of the rape-shield statute is found in the first sentence, which reverses the common-law rule under which evidence of the complainant's general reputation for unchastity was admissible. See Commonwealth v. McKay, supra, at 226, 294 N.E.2d 213 (stating rule). Such reputation evidence was considered probative on the issue of consent (see Commonwealth v. Kendall, 113 Mass. 210 (1873)) and was therefore admissible when consent was in issue. Cf. Commonwealth v. McKay, supra at 225, 294 N.E.2d 213. This rule was "part of a legal tradition, established by men, that the complaining woman in a rape case is fair game for character assassination in open court." Commonwealth v. Manning, 367 Mass. 605, 613-614, 327 N.E.2d 715 (1975) (Braucher, J., dissenting). Reformers have argued that inquiries into the sexual history of the rape complainant chills her willingness to testify. Moreover, reputation evidence is only marginally, if at all, probative of consent. See Commonwealth v. Manning, supra at 613-617, 327 N.E.2d 715 (Braucher, J., dissenting). Rape-shield statutes are "aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of this strategy was harassment and further humiliation of the victim as well as discouraging victims of rape from reporting the crimes to law enforcement authorities." State v. Williams, 224 Kan. 468, 470, 580 P.2d 1341 (1978). See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544 (1980) (collecting literature and authorities, together with appendix of various statutes enacted); cf. Fed.R.Evid. 412. The legislative history of § 21B is "limited." Burnim, Massachusetts Rape-Shield Law An Over-Step in the Right Direction, 64 Mass.L.Rev. 61, 63 (1979). There is nothing in the history of the enactment of § 21B which indicates any legislative consideration of constitutional issues, and, more particularly, the question of impeachment by proof of bias. 6

In certain circumstances, however, evidence of prior acts, statements or circumstances may be relevant to show a complainant's motive to accuse falsely the defendant. Reasonable...

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