Commonwealth v. Houston

• Decision Date: 21 January 2000
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. O.C. HOUSTON, THIRD.

430 Mass. 616

722 NE 2d 942

COMMONWEALTH v. O.C. HOUSTON, THIRD.

Supreme Judicial Court of Massachusetts, Plymouth.

September 13, 1999.

January 21, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, & COWIN, JJ.

David M. Skeels, Committee for Public Counsel Services, for the defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

BY THE COURT.

The judgment on the aggravated rape is affirmed. For the reasons articulated by the Appeals Court, Commonwealth v. Houston, 46 Mass. App. Ct. 378, 383 (1999), the judgment on the kidnapping charge is reversed, the verdict is set aside, and the indictment is dismissed.

So ordered.

Separate opinions of Chief Justice Marshall, with whom Justices Abrams and Greaney join; Justice Lynch, with whom Justice Ireland joins; and Justice Cowin appear below.

MARSHALL, C.J. (concurring, with whom ABRAMS and GREANEY, JJ., join). The defendant was convicted by a Superior Court jury of aggravated rape, kidnapping, and assault and battery. He was sentenced to serve from seven to ten years on the aggravated rape charge, and from three to five years on the kidnapping charge, to run concurrently; and the assault and battery conviction was placed on file with the defendant's consent. The Appeals Court affirmed the aggravated rape conviction and reversed the kidnapping charge, set aside the kidnapping verdict and dismissed that indictment.¹ Commonwealth v. Houston, 46 Mass. App. Ct. 378, 383 (1999). We granted the defendant's application for further appellate review.

The defendant maintains that the judge erred when he prohibited the defendant from impeaching the rape victim with her five prior convictions for prostitution-related offenses. In Commonwealth v. Joyce, 382 Mass. 222, 231 n.8 (1981), the court left open the question whether, in a case like this, a defendant could introduce in evidence under G. L. c. 233, § 21, records of conviction of prostitution, or other sex-related crimes, to impeach a rape complainant's credibility. We believe that, pursuant to the rape-shield statute, G. L. c. 233, § 21B, evidence of convictions of a rape complainant involving sexual conduct with others, including prostitution, is not generally admissible for the purpose of impeachment of the credibility of the testifying complainant, notwithstanding the provisions of G. L. c. 233, § 21.² A complainant's convictions involving sexual conduct could be admissible if they are relevant to motive to lie or bias, see Commonwealth v. Joyce, supra at 229, 231, or fall within the two statutory exceptions to the rape-shield statute. See G. L. c. 233, § 21B, and notes 7 & 8, infra.

I

The victim testified that in the early hours of July 2, 1995, she walked to a gasoline station in Brockton to buy cigarettes. The defendant drew his vehicle to within a couple of feet from her, and offered her a ride. When she declined, he grabbed her, pulled her into the vehicle, and, with a gun, threatened her with death if she tried to scream or flee. The victim testified he drove to an abandoned building on West Chestnut Street in Brockton, ordered her to undress, and threatened to cut off her clothes with his knife. The defendant forced her to perform oral sex on him, then raped her repeatedly, vaginally and anally, until approximately one hour after daybreak. She testified that she never had any conversation with the defendant about performing sexual acts with him for money.

The victim further testified that a few minutes after the defendant left her and drove away, as she walked down a nearby street, an unmarked police car pulled up to her and the officer asked her what had happened. She told the officer she had just been raped. Another officer who arrived on the scene testified that the victim was crying, confused, incoherent, and very upset. She was transported to a hospital by ambulance sometime around 6:30 A.M. The emergency room examining nurse observed fresh bruises on the victim, and testified that she was disheveled, rambling, crying, and upset.

In his testimony, the defendant admitted having oral and vaginal sexual intercourse with the victim from sometime after 1:30 A.M. that morning until sometime after 2 A.M. But he gave the following, very different account of the incident: He testified he was looking for a prostitute, as he had done in the past. After making eye contact with the victim at an intersection, she approached him in his car and offered to perform oral sex and have intercourse with him for $40. He suggested $30, which was agreed to. He testified the victim then directed him to drive to an abandoned building on West Chestnut Street where they had oral and vaginal intercourse until he told the victim to get out of the car. He refused to give the victim a ride home and an argument ensued. The defendant then pulled the victim out of the car by her arm. Before driving off, he pretended to give her $30, but in fact gave her only three dollars.

II

Prior to trial, the prosecutor filed a motion in limine to preclude defense counsel from impeaching the rape victim with her prior convictions for prostitution-related offenses. The motion also sought to obtain the judge's permission to impeach the defendant with his prior conviction of indecent assault and battery.³

Defense counsel argued that evidence of the victim's prostitution-related convictions did not fall within the rape-shield exclusion, see G. L. c. 233, § 21B, nor into the category of impermissible reputation or bad acts evidence. He argued the victim's convictions were admissible because of the statutory provision allowing impeachment of a witness with prior convictions. See G. L. c. 233, § 21. He made no constitutional claim.⁴ The judge initially decided that the prostitution-related convictions would be admissible for impeachment purposes, despite the danger that the jury might use the convictions as propensity evidence concerning the victim, reasoning that the convictions showed the victim's "supreme indifference" to conducting herself in accordance with law. However, when he learned that the prosecution intended to introduce the defendant's prior conviction to impeach the defendant, the judge excluded evidence of both the defendant's prior assault and battery conviction and the victim's prior prostitution-related convictions. The judge did permit impeachment of the victim by means of her prior convictions for cocaine possession and a violation of a G. L. c. 209A protective order. Defense counsel objected immediately to the exclusion of the prostitution-related convictions.

At trial the victim's estranged son testified that his mother had told him she had falsely claimed she was raped because a man had not paid her for an act of prostitution. He also stated that he did not know if his mother's comment referred to the defendant or to someone else. The son was impeached with several prior convictions.⁵ Defense counsel did not object to this impeachment evidence, nor did he renew at that point his earlier objections to the exclusion of the victim's prior prostitution-related convictions.

III

This case takes us into the ill-mapped area where the mandate to shield rape victims, see G. L. c. 233, § 21B, and the discretionary authority of judges to admit prior convictions to impeach witnesses, see G. L. c. 233, § 21, have unsettled or overlapping borders. The defendant argued that impeachment of the complainant with her five prior prostitution-related convictions was statutorily permissible.⁶ See G. L. c. 233, § 21. The Commonwealth argued that the judge should exercise his discretion to exclude the convictions and asserted that the convictions were excludable under the provisions of the rape-shield statute, G. L. c. 233, § 21B.⁷

A

We discuss first the mandate of the rape-shield statute, because the Commonwealth's legitimate interest in protecting rape victims sets an important limit on a judge's discretionary authority to admit prior convictions submitted generally to impeach a complainant witness. The rape-shield statute, G. L. c. 233, § 21B, prevents a defendant in a rape case who claims consent from putting the complainant on trial by raising collateral issues of little or no probative value concerning the complainant's alleged predisposition for promiscuity.⁸ The statute governs the admissibility of evidence of the complainant's sexual conduct with others and generally requires exclusion of this type of evidence, with several recognized exceptions. See G. L. c. 233, § 21B; Commonwealth v. Joyce, 382 Mass. 222, 225-229 (1981). We recently reaffirmed that "[t]he rape-shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim's promiscuity as part of a general credibility attack." Commonwealth v. Pearce, 427 Mass. 642, 647 (1998), quoting Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992). The policy rationale for this law is that evidence of the victim's prior sexual conduct might divert attention from the alleged criminal acts of the defendant, inappropriately putting the victim on trial. See Commonwealth v. Joyce, supra at 227. Moreover, such evidence often has little relevance in rape cases where consent is the issue: the "victim's consent to intercourse with one man does not imply her consent in the case of another." Id., quoting Commonwealth v. McKay, 363 Mass. 220, 227 (1973). See Commonwealth v. Vandenhecke, 248 Mass. 403, 404 (1924) ("[t]he rule is well established that the fact that a female witness is a prostitute ... is not admissible to impeach her").

We have acknowledged, however, that evidence of the complainant's prior sexual conduct may be admissible to show the complainant's bias or motive to lie. See, e.g., Commonwealth v. Pearce, supra at 647-648; Commonwealth v. Stockhammer, 409 Mass. 867, 875-876 (1991); Commonwealth v. Domaingue, 397 Mass. 693, 699 (1986). The victim's prior prostitution-related convictions were not admissible...