Opinion
09-P-1967
12-09-2011
COMMONWEALTH v. ANGEL CEPEDA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a Superior Court judge revoking his probation on the grounds that he violated the terms and conditions of his probation by committing two new offenses, rape and assault and battery, against two different victims. The defendant contends that he is entitled to a new hearing because the judge erred in applying the rape-shield statute to exclude allegedly exculpatory evidence. We discern no basis for the defendant's claim that the judge erred or otherwise abused his discretion and affirm the order revoking his probation.
The defendant raises no issues regarding the revocation of probation as a result of his committing an assault and battery for which a concurrent term of incarceration (five years to five years and a day) was imposed.
The judge heard from four witnesses, including both victims, at the probation revocation hearing. Briefly, after consuming alcohol and various controlled substances for approximately twenty-four hours, the victim of the rape asked the defendant to procure some heroin. While waiting for the heroin in an abandoned house, the defendant asked the victim if she would engage in sexual activity in exchange for drugs. When the victim declined, the defendant forced her to have vaginal sexual intercourse.
On cross-examination, defense counsel asked the victim whether she gave a 'blow job' to a friend named Jose in exchange for drugs. The victim said, 'no.' Defense counsel then posed the following question: 'And were you aware that [Jose] told [the police] that he had in fact received a blow job from you?' Upon the prosecutor's objection, the judge excluded this line of inquiry, ruling that evidence of the alleged prior sexual encounter was inadmissible under the rape-shield statute, G. L. c. 233, § 21B. The defendant did not object to the judge's ruling. Nor did he request a voir dire of the victim or make an offer of proof.
G. L. c. 233, § 21B, as amended by St. 1983, c. 367, provides in relevant part as follows: '[e]vidence of the reputation or specific instances of a victim's sexual conduct . . . shall not be admissible in any investigation or proceeding before . . . any court of the Commonwealth.'
The defendant argues for the first time that the ruling was erroneous because the testimony he sought to introduce was 'relevant to show [the] complainant's motive to accuse falsely the defendant.' Commonwealth v. Joyce, 382 Mass. 222, 228-229 (1981).
The defendant's theory at the hearing was that the victim was not credible given the amount of drugs and alcohol she had consumed and that she willingly had oral intercourse with him in exchange for drugs.
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Passing on whether this issue has been properly preserved, and apart from defense counsel's failure to comply with the procedural requirements of the rape-shield statute, see Commonwealth v. Cortez, 438 Mass. 123, 129-130 (2002), there was no evidence whatsoever that the alleged sexual conduct was relevant to any contested issue. As such, the judge did not err in excluding this evidence.
Order revoking probation affirmed.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),