September 11, 2015.
Indictment found and returned in the Superior Court
Department on August 4, 2010.
case was tried before Richard E. Welch, III, J.
Michelle Menken for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
Vuono, Agnes, & Maldonado, JJ.
N.E.3d 603] Vuono, J.
appeal raises the issue whether the spousal disqualification
set forth in G. L. c. 233, § 20, First, which bars a
spouse from testifying " as to private conversations
with the other," applies when one spouse has disclosed
the substance of a private conversation to a third party.
defendant was convicted by a jury of rape, G. L. c. 265,
§ 22 ( b ). The victim, whom we shall call
Sally, is the defendant's stepdaughter.
Sally was nineteen years old at the time of the offense,
which occurred at the defendant's home, where Sally was
spending the night. Among several challenges to his
conviction, the defendant claims that the judge erred by
permitting the Commonwealth to introduce [45 N.E.3d 604]
testimony about a conversation between the defendant and his
wife, who also is Sally's mother, in which
he allegedly apologized to the mother and explained that he
had been tired and, as a result, had confused Sally for the
mother on the night of the incident. For the reasons that
follow, we conclude that, even though the evidence of the
conversation was admitted for the limited purpose of
impeaching the mother's credibility, the defendant is
entitled to a new trial.
The Commonwealth's case-in-chief.
jury could have found the following facts. On April 18, 2010,
Sally was living with her boy friend in North Andover. The
couple were arguing. Upon the advice of her mother, who was
on vacation in Florida, Sally drove to her mother's home
in Lynn. The house is a duplex; Sally's
family lived on the top floor and Sally's aunt lived on
the first floor. Sally arrived at about 11:00 p.m. and let
herself into the house. She had a brief conversation with the
defendant, who was in bed in his bedroom watching television.
was wearing a shirt and capri-style pants. She did not change
before getting into bed in the spare room as she had brought
only her work clothes for the next day. Sally also brought
her cat, and testified that she had closed the bedroom door
so that the cat would not escape from the room. At around
2:00 a.m., Sally was awakened by " [t]he feeling of
someone's hand inside [her] vagina." At first,
before she was fully awake, Sally thought she was with her
boy friend. However, when she opened her eyes, she realized
that she was not in her apartment and found the defendant,
naked, lying next to her. He stood up and wrapped a towel
around his torso. Sally asked him what he was doing, to which
he responded: " I'm so sorry, ... it's all my
fault." He left the room, and Sally then realized that
her pants and underwear had been pulled down to her ankles.
She quickly dressed, gathered her belongings, and drove back
to her apartment. After showering, Sally slept on the couch
for a few hours until her boy friend woke her, after which
she went to work at 6:00 a.m.
mid-morning, Sally spoke to her aunt on the telephone and
told her what had happened. Distraught, Sally left work and
returned to Lynn where she spoke further with her aunt in the
first-floor apartment of the duplex. Soon thereafter, the
police were contacted and the defendant was arrested.
The defendant's case.
defendant denied the allegation and mounted a vigorous
defense, which focused on Sally's
alleged bias. Through cross-examination, his own testimony,
and the testimony of other witnesses, including the mother,
the defendant attempted to show that Sally was lying because
of her hostility toward him. To that end, the
defendant filed a motion in limine seeking to question Sally
about a conversation she had with her mother in which Sally
had stated that she was pregnant and that the defendant was
responsible even though no penile penetration had occurred.
The essence of defense counsel's argument was that
Sally's " absurd" allegation demonstrated her
willingness to fabricate.
N.E.3d 605] The judge held a hearing on the defendant's
motion just before opening arguments at which the prosecutor
conceded that Sally had told her mother that she could be
pregnant, but had explained that the comment was a sarcastic
response made in anger after Sally's mother urged her to
drop the case because it would be difficult not only for
Sally but for her younger sister. In addition, the prosecutor
informed the judge that, during that same conversation, the
mother said that the defendant had apologized to her for the
incident and had explained that he had been tired and had
mistaken Sally for the mother. The prosecutor then expressed
her intent to introduce the mother's statement about the
defendant's alleged admission if the judge were to permit
the line of questioning proposed by the defendant. She argued
that this testimony was probative of Sally's state of
mind and explained the context in which Sally said she could
be pregnant. In response to this argument, trial
counsel stated that the mother denied saying to Sally that
her husband had apologized.
conclusion of the hearing, the judge allowed the motion in
limine. As it turned out, however, when
defense counsel asked Sally whether ...