Commonwealth v. Harris, No. SJC-09260 (MA 3/24/2005), SJC-09260.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtSosman
Citation443 Mass. 714
Docket NumberNo. SJC-09260.,SJC-09260.
Decision Date24 March 2005

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Rape-Shield Statute. Kidnapping. Intimidation of Witness. Assault and Battery. Assault and Battery on Certain Public Officers and Employees. Resisting Arrest. Evidence, Prior conviction, Impeachment of credibility. Practice, Criminal, Impeachment by prior conviction. Witness, Impeachment.

Indictments found and returned in the Superior Court Department on February 28, 2002.

The cases were tried before Paul A. Chernoff, J.

The Supreme Judicial Court granted an application for direct appellate review.

Nona E. Walker, Committee for Public Counsel Services, for the defendant.

Sheryl F. Grant, Assistant District Attorney, (Suzanne M. Kontz, Assistant District Attorney, with her) for the Commonwealth.


The defendant was convicted of aggravated rape (two indictments), kidnapping, intimidation of a witness, assault and battery, assault and battery on a public employee, and resisting arrest. On appeal, he contends that the judge erred in ruling that he had no discretion to admit impeachment evidence that the complaining witness had been convicted as a common nightwalker. The defendant thus asks us to revisit whether the rape-shield statute, G. L. c. 233, § 21B, precludes introduction of convictions of the complaining witness under G. L. c. 233, § 21, if the convictions are for sex-related offenses, a question addressed but left unresolved by an equally divided court in Commonwealth v. Houston, 430 Mass. 616 (2000) (Houston). We conclude that it is within the judge's discretion to admit evidence of such convictions pursuant to G. L. c. 233, § 21, but that the exercise of that discretion must take into consideration the objectives of the rape-shield statute. As such, the judge below erred in failing to exercise discretion when ruling on the defendant's request to introduce the complainant's conviction as a common nightwalker.

The defendant also alleges error in the prosecutor's closing argument. Knowing that the rape-shield statute had precluded the defendant from introducing any evidence of the complaining witness's history of prostitution, the prosecutor attacked the defendant's theory of consensual sexual intercourse with a prostitute by arguing that there was no evidence that the complaining witness was a prostitute. We agree with the defendant that the prosecutor's argument was improper, and that it created a substantial risk of a miscarriage of justice. We therefore vacate the convictions of aggravated rape, kidnapping, intimidation of a witness, and assault and battery, and remand those indictments for a new trial.1

1. Facts. The evidence at trial was as follows. At approximately 11 P.M. on January 22, 2002, the complainant's boy friend left her by herself at a bar in Lowell. The complainant was a regular customer at that establishment. The defendant, whom she did not know, was already in the bar when she arrived. The defendant approached the complainant and spoke to her briefly, but she ignored him. At approximately 12:30 A.M., the complainant called her boy friend to pick her up, waited inside the bar for a few minutes, and then went outside to wait for her ride.

The defendant followed her out of the bar, grabbed her by the arm, and pulled her across the street. He made a remark that he was "loaded," which she took to mean that he had a gun. Once across the street, the defendant forced her down a stairwell, grabbed the back of her head, and pushed her against the wall. He proceeded to rape her twice, penetrating her both vaginally and anally. At some point during the encounter, he forced her to her knees. The defendant warned her not to "rat" on him, and threatened to kill her if she did. Some noise distracted the defendant momentarily, and the complainant was able to break free. Crying, she ran up the stairs and back toward the bar, with the defendant in pursuit. A witness nearby telephoned the police, reporting that a woman was screaming and running down the street, with a man chasing and trying to strike her.

The complainant entered the bar, in a distraught state, followed by the defendant, who acted "nonchalant[]." The complainant told the bartender that she had been raped.2 Overhearing the complainant's accusation of rape, the defendant said that he "didn't do nothing." He then went over to the pool tables and resumed apparently normal conversation with other patrons. The police arrived in response to the 911 call.3 The complainant told one of the officers that the defendant had raped her, and pointed the defendant out to him. When the officer asked the defendant to come outside, the defendant replied that he "didn't do nothing wrong," and refused to accompany the officer. While being placed under arrest, the defendant struggled, biting one of the officers. He was eventually subdued with some form of pepper spray.

The complainant was taken to a hospital. She showed the nurse bruises on her knees and a clump of hair (which she said the defendant had pulled from her head). Subsequent testing of the rape kit evidence yielded DNA samples consistent with the defendant's DNA.

The defendant's version of events was that the complainant was a prostitute, who had falsely accused him of rape when he had been unable to pay her the agreed price for consensual intercourse. He testified that he had arrived at the bar around 9:30 P.M. At some point, he had gone over to the complainant and offered to buy her a drink. She declined, as she already had a beer, but asked him if he "wanted a date," which he understood to be an offer of sex in exchange for money. She told him that she would be leaving after she finished her beer, and that they would meet outside. Later on, when the complainant headed to the door to leave, she turned and winked at him, which he understood as the signal to follow her. After a brief discussion about where they could go, they proceeded across the street and down the stairwell. He inquired about price, and the complainant told him that her price depended on "what [he] wanted." He indicated that he wanted oral sex, and she got down on her knees and began to perform oral sex on him. However, when he changed his mind and wanted intercourse, she told him that the price would be higher. He agreed, and they proceeded to engage in vaginal and anal intercourse, with the complainant on her hands and knees. Afterward, when the complainant demanded payment, the defendant gave her the small amount of money he had left in his pocket and told her that he would have to owe her the rest. A loud argument ensued, and the complainant headed back toward the bar, with the defendant following her, both of them yelling and screaming. Back in the bar, when he heard the complainant saying that she had been raped, he told the bartender that he had not raped her and that she was just angry because she had not been paid. He admitted struggling with the officers (and that he had bitten one of them) when they later arrested him. He also claimed that, when the arresting officer told him he was being arrested for rape, he had explained again that the complainant was just angry because she had not been paid.

2. Discussion. a. Impeachment of the complainant by prior conviction as a common nightwalker. Prior to trial, the Commonwealth filed a motion in limine based on the rape-shield statute, G. L. c. 233, § 21B, seeking to exclude the complainant's "sexual history," including the fact that she had "been convicted of prostitution in the past." The defendant opposed the motion, arguing that he should be allowed to introduce the complainant's prior convictions for the purpose of impeaching her. See G. L. c. 233, § 21. On May 24, 2002, the complainant had been convicted of being a common nightwalker, G. L. c. 272, § 53, for which a fine of one hundred dollars had been imposed. She also had two earlier convictions of common nightwalking in 1999 and 2001, and had been placed on probation for both of those offenses. The judge allowed the Commonwealth's motion in limine with respect to the common nightwalker convictions, on the ground that they were precluded by the rape-shield statute. He also noted that, irrespective of the rape-shield statute, only one of the common nightwalking convictions (the 2002 conviction that resulted in a fine) would satisfy the prerequisites for introduction under G. L. c. 233, § 21, First.4 He later articulated the view that, in light of the rape-shield statute and Houston, supra, he was required to exclude that conviction, and that he had exercised no discretion in deciding to exclude it. He did allow the defendant to impeach the complainant with a prior conviction of a nonsexual offense, specifically, a 1997 conviction of larceny of property over $ 250.

On appeal, the defendant contends that a judge should have discretion to admit evidence of a complaining witness's conviction of a prior sexual offense for purposes of impeaching that witness, G. L. c. 233, § 21, notwithstanding the rape-shield statute's prohibition against admitting evidence of a sexual assault victim's "sexual conduct," G. L. c. 233, § 21B. The court identified the potential conflict between these two statutes in Commonwealth v. Joyce, 382 Mass. 222, 231 n.8 (1981), but declined to decide the question. The court confronted the issue directly in Houston, supra, but were equally divided as to how the competing requirements of the two statutes should be resolved. Compare id. at 623-626 (Marshall, C.J., concurring) (§ 21 does not allow impeachment by conviction of sexual offense committed by witness entitled to protection of rape-shield statute) with id. at 626-629 (Lynch, J., concurring) (judges have discretion to admit evidence of such convictions under § 21, but should consider policies underlying...

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2 cases
  • Commonwealth v. Harris
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 24, 2005
    ...443 Mass. 714825 NE 2d RICHARD HARRIS. Supreme Court of Massachusetts, Middlesex. October 5, 2004. March 24, 2005. Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ. 443 Mass. 715 Nona E. Walker, Committee for Public Counsel Services, for the defendant. Sheryl F. ......
  • Commonwealth v. Demetrius D., 17-P-793
    • United States
    • Appeals Court of Massachusetts
    • September 14, 2018
    ...of absent, excluded evidence is fundamentally unfair and reprehensible" (quotations and citation omitted). Commonwealth v. Harris, 443 Mass. 714, 732, 825 N.E.2d 58 (2005). See Mass. G. Evid. § 1113(b)(3)(A) (2018). The juvenile argues, however, that this general proposition does not apply ......

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