Commonwealth v. Nash

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO ADMIT EVIDENCE OF COMPLAINING WITNESS’S CONDUCT

          Robert B. Gordon, Justice of the Superior Court

         The Defendant has moved in limine to admit evidence of two instances of prior conduct allegedly engaged in by the putative victim in this case, Heather White. The first involves an episode in which Ms. White is alleged to have made a false accusation of rape in connection with a consensual "threesome" she engaged in back in 2003. The second involves an instance in which Ms. White is alleged to have feigned unconsciousness in response to a crying toddler, until she overheard a 911 call placed to address the matter as an emergency. Both items of evidence are offered by the Defendant to suggest that Ms. White is fabricating her present charge, viz., that Mr. Nash raped her while she was unconscious and thus incapable of consent. For the reasons which follow, the Defendant’s motion shall be DENIED.

         PRIOR ACCUSATION OF RAPE

         Regarding the first matter, the Court does not find that this case fits the narrow paradigm identified in Commonwealth v. Bohannon, 376 Mass. 90, 94-95 (1978), in which the SJC held that evidence of an alleged victim’s prior false accusations of rape may-in exceptional circumstances-be admitted to impeach her credibility. First, there is no evidence of any pattern of mendacious accusation on the part of Ms. White, as post-Bohannon cases have suggested is required. See, e.g., Commonwealth v. Talbot, 444 Mass. 586, 591 (2005) ("the context in which the statement was made does not establish the necessary ‘crying wolf’ pattern to the allegations"); Commonwealth v. Lavelle, 414 Mass. 146, 152 (same). Under the Bohannon exception to the general rule against admission of prior bad acts evidence, "the defendant is entitled to cross-examine the alleged victim about a pattern of false accusations or ‘crying wolf’ when ... there is independent evidence of such a pattern, the false allegations all pertain to the type of crime which is the subject of the trial, and the evidence would significantly touch a central issue of the trial. Absent such a pattern, the exception does not apply." Commonwealth v. Lavelle, 414 Mass. at 152 n.4. Here, there is, at most, an isolated episode in which the complainant was involved in a sexual encounter with two other persons. The encounter was rife with ambiguity and confusion, and led the complainant to accuse one of her partners of sexual assault. Whether true or false, a single accusation of rape does not a pattern make for purposes of Bohannon. See, e.g., Commonwealth v. Hicks, 23 Mass.App.Ct. 487, 490 (1987) (one false allegation of assault by boyfriend does not suggest a pattern of false accusations of sexual misconduct); Commonwealth v. Blair, 21 Mass.App.Ct. 625, 629 n.8 (1986) (single, unsupported accusation of rape does not demonstrate a pattern).

         Second, there is by no means clear evidence that Ms. White’s statements at South Shore Hospital regarding what happened to her with Barry and Katrina were either false or the subject of a later recantation (as the Defendant’s motion alleges). See Commonwealth v. Costa, 69 Mass.App.Ct. 823, 831, rev. den., 450 Mass. 1101 (2007) ("To open the gate to cross-examination, the evidence of falsity of an accusation must be solid, as when the accusing witness has recanted the other allegation."). Indeed, the hospital record before the Court is altogether consistent with the complainant’s contemporaneous journal entry regarding this incident. See Commonwealth v. Vieira, 401 Mass. 828, 839 (1988) (no right to cross-examine when proffered hospital record did not provide evidence that prior allegation of rape was false).

         The complainant’s alleged statement to her mother, Denise McCarthy, that she had exaggerated the events of the evening likewise fails to demonstrate falsity within the contemplation of Bohannon. That Ms. White chose ultimately not to characterize what happened to her in this unusual situation as "rape" does not mean that her initial claim that she had been sexually assaulted was a fabrication. The documented evidence does, after all, indicate that what began as a consensual sexual encounter among three adults culminated in a vaginal penetration that surprised and upset the complainant, a penetration to which Ms. White had not consented. That Barry’s penile penetration of Ms. White did not fall within the boundaries of the parties’ agreed sexuality on this occasion is, at least to some degree, corroborated by the ensuing violence it evidently sparked among the three participating individuals. The records further indicate that Ms. White was intoxicated at the time, and thus could not have given proper consent to sexual intercourse. See Commonwealth v. Urban, 450 Mass. 608, 612-14 (2008); Commonwealth v. Blache, 450 Mass. 583, 591-92 (2008).

         This case does not, therefore, present a situation in which the complainant previously contrived an accusation of rape having no basis in fact. Sexual intercourse occurred, and Ms. White’s consent to same appears to be in substantial doubt. That Ms. White may subjectively have come to believe it an overstatement to say that she had been raped does not mean that her prior claim to this effect was in fact false; so the premise that the complainant’s statements to Denise McCarthy were in the nature of a retraction of a fictitious charge is simply not the case. These facts once again remove Ms. White’s prior conduct from the narrow purview of Bohannon. See Commonwealth v. Talbot, 444 Mass. at 591 ("mere fact that [complainant] had said she was joking did not establish that her statement was false"); Commonwealth v. Lee, 2002 WL 172004 at *3 (Mass.App.Ct. Rule 1:28), rev. den., 436 Mass. 1103 (2002) (evidence that complainant was extremely intoxicated and later believed she was mistaken about whether she had been sexually assaulted did not establish falsity of prior accusation). Compare Commonwealth v. Nichols, 37 Mass.App.Ct. 332, 335 (1994) (permitting cross-examination where complainant admitted that her prior accusation was false).

         Third, the collateral accusation that the Defendant seeks to introduce into evidence occurred fully 11 years prior to the charged rape at issue in this case. It is not, therefore, "proximate in time" to the accusation sought to be impeached, as several decisions of the Appeals Court handed down since Bohannon have required. See Commonwealth v. Wise, 39 Mass.App.Ct. 922 (1995) ("The false accusation may be prior to or later than the accusation that is being tried, but the collateral false one must have been made close in time to the primary one"); Commonwealth v. Nichols, 37 Mass.App.Ct. at 335 ("It is surely important that the collateral allegation be proximate in time to the primary accusation against the defendant"); Commonwealth v. Walsh, 2005 WL 1552862 at *2 (Mass.App.Ct. Rule 1:28) (similar). The temporal remoteness of the false accusation ascribed to Heather White in 2003 constitutes an independently sufficient ground for exclusion of this evidence.

         Finally, whatever limited probative value the evidence might have for impeachment purposes is, in the Court’s estimation, far outweighed by its risk of unfair prejudice. The admission of such evidence would expose the jury to a multi-party episode of arguably promiscuous behavior on the part of an alleged victim, and do so in a manner inconsistent with the aspirations of the Massachusetts rape-shield statute, G.L. c. 233, § 21B. See Commonwealth v. Domaingue, 397 Mass. 693, 696-700 (1986). The related risk of juror confusion and undue consumption of time trying collateral matters further reinforces the Court’s judgment that this evidence is not properly admitted at the trial of Mr. Nash’s case. See generally Mass. G. Evid. § 403 (2018 ed.).

         FEIGNED UNCONSCIOUSNESS

         Turning to the second matter raised in the Defendant’s motion, the Court finds that the would-be testimony of Denise McCarthy-viz., that Ms. White once pretended to be asleep while her young son was crying, and only woke up when she realized that a 911 call was being placed to address the matter-is offered for an improper propensity purpose.^[1] The Defendant’s theory of relevance appears to be that Heather White has a history of feigning unconsciousness to serve selfish purposes. That is, having once pretended to be asleep to avoid the burden of caring for a crying child, Ms. White should be considered more likely (than would be the case without the evidence) to have engaged in a similar charade to conceal her consent to sexual intercourse with the Defendant. This, of course, is a textbook example of offering prior bad acts to show a party’s bad character or propensity for untruthfulness, and it is impermissible under our rules of evidence. See Commonwealth v. Veiovis, 477 Mass. 472, 481-82 (2017). See generally Mass. G. Evid. § 404(b)(1) (2018 ed.).

         Although the Defendant seeks to evade the bar of exclusion set by Section 404(b) by attributing to the complainant a "modus operandi," that exception only applies where prior bad acts evidence is offered to prove the identity of a perpetrator-such as where the prior events and the circumstances of the crime share distinctive similarities. See Commonwealth v. Veiovis, 477 Mass. at 483. There is no issue of identity in the present case, however; and, in all events, pretending to be asleep to avoid dealing with a crying toddler is in no sense similar to claiming false unconsciousness during a sexual encounter. The Defendant has not demonstrated any distinctive pattern of conduct on the part of Ms. White. Nor has he shown that the prior incident is otherwise relevant for some legitimate purpose, such as to show motive, intent, knowledge, absence of mistake, or the like. See Mass. G. Evid. § 404(b)(2). Instead, the Defendant offers evidence of the complainant’s prior bad act-feigning lack of consciousness to avoid maternal responsibility-in the hope that the jury will infer that she did something similar in the present case to avoid sexual responsibility. This is the very essence of what our rules against the admission of prior bad acts evidence is designed to prevent. See Commonwealth v. Bregoli, 431 Mass. 265, 275 (2000); Commonwealth v. Lavelle, 414 Mass. at 151.

         CONCLUSION AND ORDER

         For all the foregoing reasons, the Defendant’s Motion in Limine to Admit Evidence of the Complaining ...