Commonwealth v. Joyce
Commonwealth v. Joyce
Opinion of the Court
The defendant was tried before a jury in the Superior Court and convicted on charges of rape and commission of an unnatural and lascivious act. He appeals from these convictions pursuant to G. L. c. 278, §§ 33A - 33G. We transferred the appeal here on our own motion.
The defendant raises three issues: first, that the trial judge improperly excluded a line of questioning by defense counsel intended to show bias of the complaining witness;
We agree that there was error in the exclusion of the questions intended to show bias and that there must be a new trial. As this conclusion is dispositive, we need not reach the defendant’s second and third grounds for reversal.
We summarize the evidence presented by the prosecution. On December 2,1977, at approximately three o’clock in the morning the defendant picked up the complainant hitchhiking just outside of Malden Square. The complainant had been drinking heavily prior to the incident. The complainant testified that she asked to be let off at her boy friend’s house about one-half mile from Malden Square. Instead, the defendant drove to a nearby church parking lot where he forced the complainant to perform oral sex and to engage in intercourse twice. The complainant unsuccessfully attempted to escape from the car twice, resulting in the defendant’s punching her many times. At one point she screamed for about ten seconds. Seeing the headlights of an approaching car, the complainant, now naked and bleeding around the mouth, jumped from the defendant’s car and ran toward the other car screaming and waving her arms. The other car was a police cruiser. The police officers testified that they had entered the lot to investigate screams. On reaching the police car the complainant accused the defendant of raping her.
The defendant attempted to introduce evidence at trial that the complainant had been charged with prostitution, once each in May and September, 1977. The first complaint purportedly alleged that the complainant had approached an undercover police officer and solicited him to perform oral sex for twenty dollars. The second complaint purportedly alleged that the complainant was found undressed in a car engaged in sexual acts. Her male companion told the police officer that he had picked her up and she agreed to “perform all [sic] sex” for twenty dollars. The defendant intended to introduce this evidence either through cross-examination of the complainant or through the testimony of police officers involved in the complaints.
The defendant’s purpose to introduce this evidence was not to show that the complainant was or had been a prostitute, and that it was therefore more likely that she had solicited or consented to have sex with the defendant. Rather, it was to show that, having been found in a similar situation on two prior occasions, the complainant was herself arrested and charged with a crime. Thus, the allegation of rape against the defendant may have been motivated by her desire to avoid further prosecution.
The defendant argues that the judge’s rulings under G. L. c. 233, § 21B, amounted to an unconstitutional abridgement of both his Sixth Amendment right of confrontation as elaborated in Davis v. Alaska, 415 U.S. 308 (1974), and its progeny, and the cognate rights guaranteed under art. 12 of the Declaration of Rights of the Massachusetts Constitution and by G. L. c. 263, § 5. Also, the defendant argues that his due process right to have a fair trial was abridged. He cites in this regard, In re Oliver, 333 U.S. 257, 273 (1948) (right to present relevant evidence in one’s defense), and Stovall v. Denno, 388 U.S. 293, 302 (1967). The Commonwealth challenges the defendant’s
The major innovative thrust of the rape-shield statute is found in the first sentence, which reverses the common law rule under which evidence of the complainant’s general
In certain circumstances, however, evidence of prior acts, statements or circumstances may be relevant to show a
The Commonwealth argues that evidence of the prostitution charges is not relevant to show that the complainant was biased because nothing in the record suggests that there was ever an actual threat of prosecution against the com
However, the defendant is entitled to present his own theory of the encounter to the jury. The bias theory is not inconsistent with the defendant’s version of the facts. The relevancy of testimony depends on whether it has a “rational tendency to prove an issue in the case.” Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977). See Commonwealth v. Durkin, 257 Mass. 426, 427 (1926). Under the defendant’s theory he and the complainant, previously strangers to each other, were in a car late at night parked in a vacant parking lot. Having just engaged in sexual acts, they were both naked. A police car was approaching. The defendant intended to show that the complainant, having been found in a similar situation on two prior occasions, had been arrested on each occasion and charged with prostitution. We cannot say that this evidence has no rational tendency to prove that the complainant was motivated falsely to accuse the defendant of rape by a desire to avoid further prosecution.
The Commonwealth’s reliance on Commonwealth v. Haywood, supra, and Commonwealth v. Santos, 376 Mass. 920 (1978), is misplaced. In Haywood, the trial judge concluded that the witness’s arrest record was not probative of bias because the witness’s arrest took place after the witness made his initial statements to the police, and because his trial testimony, which was given subsequent to the arrest, was in every material respect consistent with his original statements. In contrast, the basis for any bias on the part of the complainant here already existed at the time of the complainant’s initial accusation. In Santos, unlike here, the ex-
We emphasize that we do not depart from the long held view that prostitution is not relevant to credibility.
So ordered.
Additionally, the claim of error arising from the denial of the motion to suppress was raised for the first time in the defendant’s reply brief. It is doubtful that this issue is properly before us. See Mass. R. A. P. 16 (c), 365 Mass. 860 (1974); 5 Am. Jur. 2d, Appeal and Error § 689 (1962). Cf. Molnar v. Aurora, 38 Ill. App. 3d 580 (1976); Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md. App. 446 (1979). See also Murphy v. Charlestown Sav. Bank, 380 Mass. 738, 742 n.6 (1980).
Defense counsel represented to the trial judge that one of the complaints had been continued without a finding, and the other dismissed for want of prosecution. Thus, an inference that the complainant was biased
General Laws c. 233, § 21B, inserted by St. 19.77, c. 110, provides: “Evidence of the reputation of a victim’s sexual conduct shall not be admissible in any investigation or proceeding before a grand jury or any court of the commonwealth for a violation of sections twenty-two, twenty-two A, twenty-three, twenty-four and twenty-four B of chapter two hundred and sixty-five. Evidence of specific instances of a victim’s sexual conduct in such an investigation or proceeding shall not be admissible except evidence of the victim’s sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim; provided, however, that such evidence shall be admissible only after an in camera hearing on a written motion for admission of same and an offer of proof. If, after said hearing, the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise not. If the proceeding is a trial with jury, said hearing shall be held in the absence of the jury. The finding of the court shall be in writing and filed but shall not be made available to the jury.”
At the hearing on the motion filed by the defendant as to the admissibility of evidence of the victim’s past sexual conduct, the defendant’s counsel stated: “But, your Honor, my client’s right to confront his accuser, the question of her bias for testifying the way she does, her possible motive, the question of her credibility, your Honor, is certainly a whole different case. A man says he picks up a woman and they have sex in the car. Well, if the woman says that the man forced himself upon her, it’s a whole different case if the woman never did that sort of thing before, of course the jury is going to believe her. But if on the other hand she has been in that same situation on two prior occasions that year, and she was arrested and charged with a crime, wouldn’t she then have a motive or reason for saying she was raped rather than it involved a sex for hire situation?”
Later defense counsel reiterated his claim, as follows:
Defense counsel: “I’m not trying to put in prior convictions; the District Attorney is mixing two separate things here. One case was continued without a finding. My purpose in introducing the prior sexual act would be to show that this is the type of thing this woman has engaged in before; and if she says it was not consensual, let the jury decide.”
The judge: “Are you referring to something referred to as reputation as to chastity?”
Defense counsel: “It is analogous to that but not specially to that.” Later defense counsel once again reiterated his claim, as follows: “And again so the record is clear, I am not trying to introduce the evidence as evidence that [the complainant] may have been a prostitute at one time, rather to show course of conduct such as she complains of in this case she has engaged in on other occasions, and that the jury might be aware of that conduct in judging her credibility and in judging her particular motive for testifying the way she has testified, that is, having been found in a similar situation on two prior occasions she herself was arrested and charged with a crime. Here, the allegation of rape may be motivated by her desire to avoid further prosecution.”
It is “well-established that a ‘statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’” Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 853 (1980) (judgment vacated, case remanded for reconsideration, 449 U.S. 894 [1980]), quoting from United States v. Jin
General Laws c. 233, § 21B, was enacted by St. 1977, c. 110. Other bills considered were 1976 Senate Doc. No. 678; 1977 Senate Doc. No. 752; 1977 House Doc. No. 2228; 1977 House Doc. No. 2586; and 1977 House Doc. No. 4133. The bill which was enacted, with some amendment, was 1977 Senate Doc. No. 1433.
Although we have never squarely considered the question whether the common law rule excluding evidence of specific instances of the complainant’s sexual conduct must give way in the face of the defendant’s right to show bias, there can be no doubt that the defendant’s right to show bias must take precedence. See State v. Elijah, 206 Minn. 619 (1940). Cf. Commonwealth v. Redmond, 357 Mass. 333, 338 (1970) (generally inadmissible evidence of prior criminal conduct held admissible to show bias); Commonwealth v. West, 312 Mass. 438, 441 (1942).
We express no view on the admissibility of a record of conviction of prostitution, or other sex-related crimes, to impeach the complaining witness’s credibility. Compare G. L. c. 233, § 21, with G. L. c. 233, § 21B.
Any such consideration would, in any event, be problematic. Despite defense counsel’s objections, the trial judge improperly neglected to identify and preserve defense counsel’s offer of proof of the applications for the prostitution complaints.
The trial judge should require a showing on a voir dire that the evidence offered is relevant to the issue of bias. Cf. Commonwealth v. Haywood, 377 Mass. 755, 763 (1979); G. L. c. 233, § 21B.
Concurring Opinion
(concurring in the result). I concur with the comments of Justice Braucher in his separate opinion. I add that as I read the opinion of the court, it is narrowly and carefully confined to cases where the disputed evidence is clearly relevant to a showing of bias or motive to lie by the complaining witness. If the court’s opinion is not read in this cautious fashion, there is a danger that there will be unwarranted inroads upon the rape-shield law, G. L. c. 233, § 21B, and the legislative purposes which inspired that statute.
Concurring Opinion
(concurring in the result). I agree with the court that the rape-shield law, G. L. c. 233, § 21B, does not abridge the right of a criminal defendant to show that a rape victim had a motive to accuse the defendant falsely. A contrary conclusion would raise a serious constitutional question. Davis v. Alaska, 415 U.S. 308, 316-318 (1974). See Commonwealth v. Bohannon, 376 Mass. 90, 93 n.3 (1978), and cases cited; Burnim, Massachusetts Rape-Shield Law — An Over-Step in the Right Direction, 64 Mass. L. Rev. 61, 65-72 (1979). But I think the judge should adhere to the policy of the rape-shield law and conduct a preliminary hearing to determine whether the weight and relevance of the evidence offered outweigh its prejudicial effect on the
Reference
- Full Case Name
- Commonwealth vs. Robert K. Joyce
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- 135 cases
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- Published