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07/25/78 COMMONWEALTH v. WILLARD E. BOHANNON

July 25, 1978

COMMONWEALTH
v.
WILLARD E. BOHANNON, JR.



Plymouth. Indictments found and returned in the Superior Court on January 24, 1975. The cases were tried before Dwyer, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Evidence, Impeachment of credibility. Witness, Credibility.

The opinion of the court was delivered by: Abrams

At a rape trial, the Judge erred in excluding evidence of prior false accusations of rape made by the complainant where the credibility of the complainant as to whether she consented to the acts involved was the critical issue in the case, the evidence might have had a significant impact on the outcome of the trial, the defendant made an offer of proof which indicated that he had a factual basis for concluding that prior false accusations had been made, and the proposed questions in no way sought to elicit a response concerning the complainant's prior sexual activity or reputation for chastity. [92-96]

The defendant Willard E. Bohannon, Jr., was convicted after a jury trial of rape, kidnapping, commission of an unnatural act, and assault and battery by means of a dangerous weapon. He appeals these convictions pursuant to G. L. c. 278, §§ 33A-33G. We conclude that there must be a new trial.

We summarize the evidence presented at the trial. On May 22, 1974, Bohannon, Robert Stonestreet, and a juvenile picked up the complainant who was hitchhiking to Brockton. The group went to a liquor store where Stonestreet bought two quarts of beer. They then drove to a sandpit near Brockton. At trial, the complainant and the two codefendants, Bohannon and Stonestreet, *fn1 agreed that various sexual acts took place at the sandpit, but they disagreed sharply as to which defendant had done what and as to whether the complainant had consented to participate in these acts.

The complainant, the only witness that the Commonwealth presented on the issue of consent, was a thirty-three year old, mildly retarded woman with an I.Q. of 63. She testified that after they arrived at the sandpit Bohannon ordered her out of the car and that she complied. She stated that he then forcibly undressed her and pushed her down on the ground. She maintained that he then penetrated her briefly and forced her to commit fellatio. She testified that he also briefly inserted a bottle and a stick into her vagina. The complainant testified that Stonestreet had also raped her.

The complainant's testimony concerning the events of the night in question was inconsistent and confused. Her allegations concerning Bohannon were inconsistent with testimony she had earlier given in the District Court of Brockton and with her statements to the district attorney two days prior to trial. On these occasions she had stated that Bohannon had not raped her. When she was asked on cross-examination to explain this inconsistency, the complainant stated that she had recently seen "in a mist" that Bohannon had penetrated her. Her testimony concerning Stonestreet was also inconsistent. In the District Court, prior to trial, and at the trial, the complainant had maintained that Stonestreet had raped her. However, after her trial testimony was concluded, she informed the district attorney that she was now uncertain as to whether Stonestreet was involved. When recalled by the district attorney, the complainant testified that Stonestreet had not raped her.

Both Bohannon and Stonestreet testified at the trial. They asserted that the complainant consented to the sexual activities which had occurred. Bohannon testified that he asked her to get out of the car with him and she did. He stated that she then voluntarily performed fellatio on him and undressed. They lay down together outside the car, but he was unable to have intercourse. Bohannon testified that the complainant then became annoyed, and he tried using a beer bottle for a few seconds. Then the complainant handed him a stick and said, "Use this." After a while she asked him to bring over his friends. Both Stonestreet and the juvenile then came over. Stonestreet testified that the complainant left the car voluntarily with Bohannon and that she appeared to acquiesce in the acts involved. He stated that the complainant had invited him to participate, but that he had been unwilling. He denied that he engaged in intercourse with her.

Medical evidence of the injuries sustained by the complainant indicated a small cut on the cervix which slowly oozed blood for several hours and a bruise on her eye. No evidence of sperm was found.

The central focus of the trial was the credibility of the complainant, particularly in connection with the issue of consent. During the cross-examination of the complainant, defense counsel requested a bench conference to determine whether it was permissible to ask her the following questions: "hether or not she has prior to this made accusations that other men have raped her, and how many times, if the answer is yes, she has made these accusations." *fn2 In support of the propriety of these questions, defense counsel made an offer of proof that, according to hospital records, the complainant had made a number of unsubstantiated, and apparently false, accusations of rape. The trial Judge concluded that the questions could not be asked. The correctness of this determination is the sole issue presented for review.

In general, evidence of prior bad acts may not be used to impeach a witness's credibility. *fn3 One clear exception to this general rule is that records of criminal convictions may be used to impeach credibility. See Commonwealth v. Cheek, 374 Mass. 613, 615 (1978); Commonwealth v. Clifford, 374 Mass. 293, 305 (1978); Commonwealth v. Binkiewicz, 342 Mass. 740, 755 (1961); Jones v. Commonwealth, 372 Mass. 491, 494 (1951); Commonwealth v. Schaffner, 146 Mass. 512, 515 (1888); W. B. Leach & P.J. Liacos, Massachusetts Evidence 121-123 (4th ed. 1967). Evidence of prior false allegations has been excluded as a consequence of this general rule. Miller v. Curtis, 158 Mass. 127 (1893). Commonwealth v. Regan, 105 Mass. 593 (1870).

In the Miller opinion, however, we indicated that the rule was not inflexible and that there might be cases presented in which such evidence might be competent. Miller v. Curtis, supra at 131. We conclude that this is such a case. When evidence concerning a critical issue is excluded and when that evidence might have had a significant impact on the result of the trial, the right to present a full defense has been denied. *fn4 See Chambers v. Mississippi, 410 U.S. 284 (1973); Commonwealth v. Chase, 372 Mass. 736, 740-748 (1977); Commonwealth v. Franklin, 366 Mass. 284, 288-291 (1974); United States v. Nixon, 418 U.S. 683, 707-713 (1974). See generally Commonwealth v. Ahearn, 370 Mass. 283 (1967); Commonwealth ...


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