Opinion
No. 12–P–566.
2013-06-13
COMMONWEALTH v. Dustin K. KONAN.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of rape in violation of G.L. c. 265, § 22( b ). On appeal, he argues that (1) his motion for a required finding of not guilty should have been allowed because there was insufficient evidence that the victim lacked capacity to consent to intercourse, and (2) the trial judge erred by prohibiting him from cross-examining the victim about her pregnancy. We affirm.
Motion for required finding. Relying on Commonwealth v. Goldenberg, 338 Mass. 377 (1959), the defendant argues that, because the victim was conscious and did not protest when he removed her clothes, the evidence was insufficient to prove that she was so impaired by drugs and/or alcohol as to be incapable of consent. The defendant reads Goldenberg to require that the victim be unconscious in order to be incapable of consent. However, “[t]he law does not require that the complainant have been rendered ‘unconscious or nearly so’ before she may be deemed past the point of consent.” Commonwealth v. Blache, 450 Mass. 583, 591 (2008). The evidence was sufficient to prove that the victim was incapable of consent in this case. In the hours prior to intercourse, the victim and a friend consumed a bottle of vodka, smoked a bowl of marijuana at the friend's house, and smoked additional marijuana and cigarettes at the defendant's house. The victim vomited and blacked out on the defendant's porch. During a car ride with the defendant, another male, and her friend, the victim was passed out for most of the time. It was clear to the victim's friend that the victim needed to sober up and go home. Instead, the defendant took the victim to his house. Since the victim was incapable of entering the house on her own, the defendant “[threw] her arm over his shoulder to help carry her, [and] carr[ied] most of her weight so she could still walk without falling down the top flight of stairs.” The victim had no memory of how she ended up in the defendant's house or bedroom. During the rape, the victim fell in and out of consciousness, but she could not move and could not say anything. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979), this evidence permitted the jury to find beyond a reasonable doubt that the victim “was so impaired as to be incapable of consenting to intercourse,” and that “the defendant knew or should have known of the complainant's incapacity to consent.” Blache, supra at 591–592, 593.
Cross-examination about victim's pregnancy. The trial judge prohibited the defendant from cross-examining the victim about the fact that she was pregnant
with the first complaint witness's child at the time of the rape. The defendant argues that this violated his confrontation and due process rights because it prevented him from exploring the victim's motive to fabricate the rape.
The parties and the trial judge assumed that pregnancy is “[e]vidence of specific instances of a victim's sexual conduct” within the meaning of the rape shield statute. G.L. c. 233, § 21B, inserted by St.1977, c. 110. However, we do not reach this statutory issue because we conclude that the evidence was properly excluded under common law principles. Cf. Commonwealth v. Domaingue, 397 Mass. 693, 697–698 (1986) (where rape shield statute did not apply to incest charges, proffered evidence was nonetheless excludable under common law principles).
“It is well established that a defendant has the right to present evidence that a prosecution witness is biased or has a motive to lie.” Commonwealth v. DiGiacomo, 57 Mass.App.Ct. 312, 324 (2003). “Determining whether the evidence demonstrates bias [or motive to lie], however, falls within the discretion of the trial judge.” Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993). The judge also has discretion to limit cross-examination “when further questioning would be redundant; where there has been such extensive inquiry that the bias issue has been sufficiently aired; where questioning involves a collateral matter; where the offered evidence is too speculative; or where the evidence is being offered only to show the bad character of the witness.” Commonwealth v. Avalos, 454 Mass. 1, 7 (2009) (quotation marks and citations omitted). “If a defendant believes that the judge improperly restrained his cross-examination of a witness, the defendant must demonstrate that the judge abused his discretion and that he was prejudiced by such restraint.” Commonwealth v. Barnes, 399 Mass. 385, 393 (1987).
Here, the probative value of the victim's pregnancy was outweighed by its prejudicial effect, see Mass. G. Evid. § 403 (2012), and the issue of bias was otherwise “sufficiently aired.” Avalos, supra. On the one hand, the pregnancy evidence was arguably relevant to suggest that the victim hoped to renew her relationship with the first complaint witness (her former boyfriend) and therefore lied about whether intercourse with the defendant was consensual. But on the other hand, the fact that the pregnant victim had voluntarily consumed vodka and marijuana would have been highly prejudicial to the prosecution. See Commonwealth v. Domaingue, 397 Mass. 693, 699 (1986) (where complainant's pregnancy is only marginally relevant to defendant's theory of bias, judge “may properly exclude evidence where the danger of unfair prejudice outweighs its probative worth”).
In addition, the victim's motive to fabricate the rape was “sufficiently aired” through cross-examination of the victim and the first complaint witness.
See also Commonwealth v. Weichel, 403 Mass. 103, 106 (1988) (trial judge properly limited cross-examination where evidence of a witness's prior bad act “might well have led the jury to discount [the witness's] testimony, not on the ground of bias, but on the ground that the ... bad act ... demonstrated [the witness's] lack of character and consequent unreliability as a witness”).
See Avalos, supra. It was also the major, if not sole, theme of the defendant's closing argument. We accordingly conclude that the trial judge did not abuse her discretion in excluding evidence of the victim's pregnancy.
For example, on cross-examination the victim testified that she loved the first complaint witness and would never purposely hurt him, and the first complaint witness testified that he still loved the victim at the time of the alleged rape and had gotten back together with her since then.
Judgment affirmed.