Heard: December 6, 2016.
found and returned in the Superior Court Department on August
4, 2010. The case was tried before Richard E. Welch, III, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Catherine Langevin Semel, Assistant District Attorney, for
Michelle Menken for the defendant.
Present (Sitting at Lawrence): Gants, C.J., Lenk, Hines,
Gaziano, Lowy, & Budd, JJ.
Superior Court jury convicted the defendant of raping his
nineteen year old stepdaughter, Sally. The defendant was
married to Sally's mother. At trial, in response to a
question that should not have been asked, the mother denied
that she told Sally that the defendant had confessed to the
crime in a private conversation between the spouses. Then, to
impeach the mother, Sally was improperly permitted to testify
to the contrary. We reverse because the trial judge's
admission of such highly prejudicial evidence regarding the
defendant's purported confession created a substantial
risk of a miscarriage of justice.
Commonwealth introduced the following evidence at trial. We
reserve the circumstances of the erroneously admitted
testimony for our analysis of the issue.
an argument with her boy friend, Sally spoke with her mother
on the telephone and asked to stay at her apartment, where
the defendant also lived. Although out of town, her mother
told Sally that she could. Sally arrived at the apartment,
greeted the defendant briefly, and went to bed in the spare
hours later, Sally was awakened by the feeling of
someone's hand in her vagina. She turned over to see the
defendant, naked, lying next to her. Sally realized her pants
and underwear were pulled down around her ankles. The
defendant stood up, wrapped a towel around himself, and said,
"I'm so sorry, . . . it's all my fault." He
then left the room. Sally dressed, gathered her belongings,
trial, in response to a question by the Commonwealth, the
mother denied that she had told Sally that the defendant had
confessed to her. Then, to impeach the mother, the
Commonwealth elicited testimony from Sally who stated that,
in a conversation she had had with her mother, the mother
stated that the defendant had told her that he was
"sorry that he did it and he was so overtired he thought
[Sally] was [his wife]." The defendant objected to this
jury convicted the defendant of rape by unnatural sexual
intercourse in violation of G. L. c. 265, § 22. The
Appeals Court reversed, concluding that G. L. c. 233, §
20, First, precluded Sally from testifying about a private
marital conversation between her mother and the defendant,
the substance of which her mother had purportedly disclosed
to her. Commonwealthv.Garcia, 89
Mass.App.Ct. 67, 72-74 (2016). We granted the