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Commonwealth v. Garcia

Appeals Court of Massachusetts, Essex

February 16, 2016

Douglas Garcia

         Argued September 11, 2015.

          Indictment found and returned in the Superior Court Department on August 4, 2010.

         The case was tried before Richard E. Welch, III, J.

          Michelle Menken for the defendant.

          Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

         Present: Vuono, Agnes, & Maldonado, JJ.


          [45 N.E.3d 603] Vuono, J.

          This 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.

         The defendant was convicted by a jury of rape, G. L. c. 265, § 22 ( b ). The victim, whom we shall call Sally,[1] 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

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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.


          a. The Commonwealth's case-in-chief.

          The 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.[2] 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.

         Sally 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.

         Around 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.

         b. The defendant's case.

         The defendant denied the allegation and mounted a vigorous defense, which focused on Sally's

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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.[3] 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.

          [45 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.[4] In response to this argument, trial counsel stated that the mother denied saying to Sally that her husband had apologized.

         At the conclusion of the hearing, the judge allowed the motion in limine.[5] As it turned out, however, when defense counsel asked Sally whether ...

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