Opinion
14-P-47
06-03-2015
COMMONWEALTH v. TERRENCE HILL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Having been convicted by a Superior Court jury of assault and battery causing serious bodily injury in violation of G. L. c. 265, § 13A(b)(i), the defendant now appeals. We affirm.
The defendant was acquitted of three counts of aggravated rape, in violation of G. L. c. 265, § 22(a).
Discussion. Before trial, the defendant moved in limine to introduce evidence of a pattern of drug use, prostitution, and false sexual assault allegations by the victim, and to impeach the victim with a 2009 sex-for-fee conviction. The judge denied the motion. On appeal, the defendant contends that this denial constituted reversible error. We disagree.
First, we note that even if error, the ruling did not prejudice the defendant. The jury acquitted the defendant of the three rape charges to which the excluded evidence most directly related. Hence, "had the judge admitted the [excluded] testimony . . . it would have been without material effect on the jury." Commonwealth v. McNickles, 22 Mass. App. Ct. 114, 118 (1986) (quotation omitted). See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).
In any event, we do not discern error here. "[A] victim's sexual conduct . . . shall not be admissible except evidence of the victim's sexual conduct with the defendant," unless "the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim." G. L. c. 233, § 21B, inserted by St. 1977, c. 110. The judge's decision to exclude evidence from the jury is reviewed for abuse of discretion. Commonwealth v. Wise, 39 Mass. App. Ct. 922, 923 (1995). "In general, evidence of prior bad acts may not be used to impeach a witness's credibility." Commonwealth v. Bohannon, 376 Mass. 90, 93 (1978). The exception to the general rule is "to be applied in unusual fact situations where 'the interest of justice forbids strict application of the rule.'" Commonwealth v. Costa, 69 Mass. App. Ct. 823, 830 (2007), quoting from Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993). Under special circumstances, false allegations of rape may be used to impeach a witness's credibility. See LaVelle, supra (discussing the analysis in Bohannon). These special circumstances, set forth in Bohannon, supra at 94-95 are: "the witness was the victim in the case on trial, her consent was the central issue, she was the only Commonwealth witness on that issue, her testimony was inconsistent and confused, and there was a basis in independent third-party records for concluding that the prior accusations of the same type of crime had been made and were false." LaVelle, supra, quoting from Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979).
Here, the Commonwealth acknowledges that the witness was the victim, her consent was the central issue, and she was the only Commonwealth witness on the issue. However, the Commonwealth argues that two of the Bohannon factors are missing: the victim's testimony was not inconsistent and confused, and there was no basis in independent third-party records to establish falsity. The Commonwealth asserts that the circumstances in the instant case, therefore, do not fall within the narrow exception and the victim's sexual conduct was properly excluded.
We conclude that the few inconsistencies in the victim's testimony did not rise to the same level as the complainant's testimony in Bohannon. There, the complainant gave confused testimony as to whether it was the defendant who had raped her, and she was also confused about whether a codefendant had been involved. Bohannon, 376 Mass. at 90-91. Here, the victim did not initially reveal the defendant's offer of a sex-for-drugs deal, or that when the defendant continued to unzip his pants after she asked him to leave, she obtained scissors or a knife and told the defendant she would "cut it off if he pulled it out." The other point of confusion in the victim's testimony was whether there had been anal penetration. The prosecution clarified that the confusion was with the meaning of the words penetration and ejaculation, not the facts of the incident. The minor inconsistencies and confusion in this case are distinguishable from the significant ones in Bohannon. The judge was within his discretion to deny the defendant's motion here.
In addition, to be admissible, the defendant's proof of falsity "must be solid." Costa, 69 Mass. App. Ct. at 831. Here, we are missing the "factual basis from independent third party records" required to conclude that the rape allegations were, in fact, untrue. See Bohannon, 376 Mass. at 95. The exception under Bohannon is narrow, and the records that the defendant highlights do not satisfy this requirement. LaVelle, 414 Mass. at 151-152. He argues that falsity in this case is established by the police reports in the cases in which the victim made the prior false allegations of rape, the victim's failure to pursue charges in those cases, and the lack of prosecution in those cases. However, a "victim's mere failure to prosecute or confirm prior allegations of sexual assault, or the Commonwealth's decision not to move forward with criminal charges, are insufficient bases for inferring that the allegations in question are false." Costa, 69 Mass. App. Ct. at 831. Failure to pursue a claim is not evidence of falsity. Commonwealth v. Hrycenko, 417 Mass. 309, 319 (1994). See Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 490-491 (1987).
The defendant moved to introduce evidence of the victim's 2009 sex-for-fee conviction and a pattern of false allegations to demonstrate bias and a motive to fabricate. "[I]n addition to the exceptions set forth in the rape-shield statute, a defendant may introduce evidence of the complaining witness's sexual conduct where that conduct is relevant to the complainant's bias or motive to lie." Commonwealth v. Noj, 76 Mass. App. Ct. 194, 198 (2010). See Commonwealth v. Joyce, 382 Mass. 222, 226-227 (1981); Commonwealth v. Harris, 443 Mass. 714, 721 (2005) (sex-related conduct is admissible where it is relevant to bias or motive to fabricate). To be admissible, the evidence must be "clearly relevant to a showing of bias or motive to lie" by the victim. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), quoting from Joyce, supra at 232. The defendant argues that the evidence should be allowed in to prove the victim's bias by demonstrating that she previously fabricated claims of sexual violence in connection with sex-for-drugs transactions, and likely did the same here. However, in this case, the defendant relies on the argument that the prior allegations were, in fact, false. He cannot demonstrate falsity and, therefore, the prior allegations at issue were properly excluded. See Costa, supra at 831. The relevance of the victim's prior sex-for-fee conviction is distinguishable from Joyce, where the motive to lie was clear because the complainant made the allegation after she and the defendant were "discovered in an arguably compromising situation" by the police. Commonwealth v. Allen, 29 Mass. App. Ct. 373, 378-379 (1990). In Joyce, the complainant, "having been found in a similar situation on two prior occasions . . . [and] herself arrested and charged with a crime," had motive to avoid being charged again with prostitution. Id. at 377. Here, there was no risk to the victim of being discovered by the police or others doing anything improper that would create a motive to lie to police in order to avoid a prostitution charge or other similar offense. See id. at 379 ("[T]he victim was observed by the police doing nothing improper" and the court did not "see how [the victim] would be motivated to fabricate charges against the defendant, in order to avoid being charged"). See also Noj, 76 Mass. App. Ct. at 199.
Finally, we discern no merit in the defendant's contention that the judge abused his discretion in denying the request for a continuance (made on the first day of trial) to investigate and contact witnesses with respect to the prior claims of sexual assault. The defendant was not entitled to introduce evidence of the prior allegations and there was thus no abuse of discretion. See Commonwealth v. Gilchrest, 364 Mass. 272, 276-277 (1973).
Judgment affirmed.
By the Court (Katzmann, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 3, 2015.