MEMORANDUM OF DECISION AND ORDER ON DEFENDANTâS
MOTION TO ADMIT EVIDENCE OF COMPLAINING WITNESSâS
B. Gordon, Justice of the Superior Court
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 Defendantâs motion shall be
ACCUSATION OF RAPE
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 victimâs 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 âcrying wolfâ 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
âcrying wolfâ 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).
there is by no means clear evidence that Ms. Whiteâs
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 Defendantâs 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 complainantâs 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).
complainantâs 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 Barryâs penile penetration
of Ms. White did not fall within the boundaries of the
partiesâ 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).
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.
Whiteâs 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 complainantâs 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. Whiteâs 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
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.
whatever limited probative value the evidence might have for
impeachment purposes is, in the Courtâs 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 Courtâs judgment
that this evidence is not properly admitted at the trial of
Mr. Nashâs case. See generally Mass. G.
Evid. § 403 (2018 ed.).
to the second matter raised in the Defendantâs 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. The Defendantâs 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 partyâs
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.).
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
complainantâs 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.
the foregoing reasons, the Defendantâs Motion in Limine to
Admit Evidence of the Complaining ...