Commonwealth v. Garcia , 89 Mass. App. Ct. 67 ( 2016 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-1238 Appeals Court
COMMONWEALTH vs. DOUGLAS GARCIA.
No. 14-P-1238.
Essex. September 11, 2015. - February 16, 2016.
Present: Vuono, Agnes, & Maldonado, JJ.
Rape. Evidence, Conversation between husband and wife, First
complaint.
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.
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.
2
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 testimony about a
conversation between himself 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.
Background. 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
1
A pseudonym.
2
Sally had previously lived in the home with her mother,
the defendant, and Sally's half-sister, before moving out at the
age of eighteen.
3
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
4
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 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.
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
3
The jury heard testimony that the defendant asked Sally to
move out of the family home because he was "sick and tired" of
Sally fighting with her mother. In addition, there was evidence
that Sally had hosted a graduation party at the home after she
had moved out, which resulted in more tension with the defendant
when he came home to "a mess."
5
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
4
The prosecutor also maintained that evidence whether Sally
was actually pregnant was inadmissible under the rape shield
statute, G. L. c. 233, § 21B. The judge agreed with the
Commonwealth on this point, and evidence as to actual pregnancy
was excluded.
5
The judge warned counsel, however, that soliciting such
testimony would "open the door" to the Commonwealth. Trial
counsel responded that he was "willing to take that risk." At
that point, however, the extent of the "risk" was not entirely
clear as the issue of the mother's privilege not to testify and
the question whether the rule of disqualification applied had
not yet been addressed. Later, as the evidence developed, trial
counsel objected to the testimony.
6
counsel asked Sally whether she had told her mother that she was
pregnant, Sally denied it. The defendant then called the mother
to the stand for the purpose of impeaching Sally's credibility.
The mother testified that Sally had, indeed, claimed to be
pregnant as a result of the defendant's conduct. 6
c. The defendant's alleged admission to the mother.
Before commencing her cross-examination of the mother, the
prosecutor sought a sidebar conference to inquire whether she
could ask the mother if she told Sally that the defendant
admitted culpability and claimed to have made a mistake. The
judge permitted the cross-examination, stating that the rule of
disqualification does not apply once a spouse has disclosed the
contents of a private conversation to a third party. 7 Trial
counsel's objection "for the record" was overruled. However,
the prosecutor did not understand the judge's ruling and did not
ask the question for which she had obtained permission, and as a
result, after the defense rested, the prosecutor requested and
obtained permission to recall the mother as a rebuttal witness.
6
While there was no allegation of penile penetration, the
mother testified on direct examination that Sally explained she
could have become pregnant because of "a drip," meaning that the
defendant could have been masturbating before she woke up and,
as a result, there could have been semen on his fingers when he
put them in her vagina.
7
The judge stated: "Well yeah, you could elicit that
because that's not spousal privilege. Once she discloses that
so and so told me, that's not spousal privilege."
7
The sole purpose for recalling the mother was to ask her whether
she had disclosed the defendant's apology for the incident to
Sally. The defendant did not object to this procedure, and the
judge permitted the prosecutor to recall the mother.
The mother then took the stand for a second time, and after
a few preliminary questions, the prosecutor asked the mother if
she had told Sally that the defendant had said that he was sorry
and that he had been tired and confused. The mother denied that
she had told Sally anything of that nature. 8 The prosecutor then
recalled Sally to impeach the mother's credibility. Sally
testified, over the defendant's objection, as follows: "[My
mother] told me that [the defendant] told her he's sorry that he
did it and he was so overtired he thought it was her." The
testimony was preceded by a limiting instruction in which the
judge said: "[T]his is only admissible on whether or not you
8
The prosecutor asked: "[Y]ou told [Sally] that you had
had a conversation with [the defendant] about the sexual assault
that had occurred at the house and you told her that what he
told you was he was sorry but he was very tired and he got
confused, and he got into that bed and he thought it was you,
correct?" The mother responded that she had not. The
prosecutor then asked: "You never told [Sally] that?" Again,
the mother responded: "No, I did not tell her that." The
prosecutor persisted: "So you never told her that you had a
conversation with your husband after the sexual assault and his
explanation to you was that he was sorry, he was tired, he got
confused and he got into bed and got confused . . . and he
thought it was you?" The mother denied this a third time, and
the prosecutor had no further questions for the witness.
8
believe [the mother], and that's the sole purpose of this
upcoming testimony." 9
Discussion. a. Waiver of marital privilege. As we have
previously noted, the mother was first called to the stand by
the defendant. Before she was asked any questions, the judge
conducted a brief voir dire during which the mother confirmed
that she and the defendant were married. The judge then
informed her that she held a "spousal privilege" and was not
required to testify as to conversations with her spouse, the
defendant. When asked if she wanted to invoke her privilege,
the mother responded affirmatively. Defense counsel then
explained that the mother would testify only about her
conversation with Sally, specifically whether Sally had told her
that she could be pregnant. Without explicitly ruling that the
mother had waived her marital privilege, the judge concluded
that the mother could testify about Sally's comment.
As an initial matter, we observe that the record fails to
establish whether the mother's decision to waive her privilege
not to testify at her husband's trial was voluntary. The second
clause of G. L. c. 233, § 20, as amended by St. 1983, c. 145,
provides in relevant part that "neither husband nor wife shall
be compelled to testify in the trial of an indictment,
9
In addition, Sally acknowledged, contrary to her earlier
testimony on cross-examination, that she had told her mother
that she could be pregnant, but did so because she was angry.
9
complaint[,] or other criminal proceeding against the other."
See Mass. G. Evid. § 504(a) (2015). Because the marital
privilege belongs to the witness spouse alone, the defendant
lacks standing to challenge the decision of his or her spouse to
take the stand. See Commonwealth v. Stokes, 374 Mass. 583, 595
(1978). See also Commonwealth v. Paszko, 391 Mass. 164, 190
(1984) ("[A] defendant has no standing to contest an alleged
infringement of a privilege he could not have exercised").
However, our cases hold that where a spouse's testimony is
obtained in the absence of a valid waiver of the privilege, use
of that testimony at trial "offends fundamental fairness." See
Commonwealth v. Rosa, 412 Mass. 147, 162 (1992).
The judge's explanation of the marital privilege was
inaccurate. He told the mother that she could refuse to testify
about conversations with the defendant, when, as the defendant
correctly asserts, she was not obligated to testify at all.
This error raises a serious question of fairness. Therefore,
should there be a retrial, after properly explaining the
privilege, the judge should conduct a colloquy to determine
whether the mother voluntarily chooses to waive her marital
privilege.
b. Marital disqualification. The defendant claims that
the admission in evidence of Sally's testimony about statements
the mother made to her that the defendant had apologized for the
10
incident was improper, highly prejudicial, and in violation of
the marital disqualification statute, which prohibits spouses
from testifying "to private conversations with the other." 10 The
Commonwealth asserts that the statute does not preclude third
parties from testifying about a private conversation between
spouses based on statements made to them by one of the spouses.
See Commonwealth v. O'Brien, 377 Mass. 772, 775 (1979).
In the circumstances of the present case, we conclude that
the statute disqualifies Sally from testifying about the
mother's statements. We further conclude, regardless of the
operation of the statute, that the prejudice to the defendant
warrants a reversal of his conviction. 11
Over a century ago, in Brown v. Wood, 121 Mass. 137, 138
(1876), the Supreme Judicial Court held that the privacy of a
communication is not destroyed by one spouse's voluntary
postconversation disclosure of the conversation's content to a
10
General Laws c. 233, § 20, First, as amended through St.
1996, c. 289, § 10, provides in pertinent part that "neither
husband nor wife shall testify as to private conversations with
the other." See Mass. G. Evid. § 504(b) (2015). "The rule is
one of disqualification, not privilege, and spouses are
forbidden, on objection, to testify about the contents of their
private conversations." Commonwealth v. Perez, 460 Mass. 683,
698 (2011), quoting from Commonwealth v. Walker, 438 Mass. 246,
254 (2002).
11
We note that the judge did not make a finding as to
whether the conversation had actually occurred or whether it was
private. Solely for the purposes of this analysis, we assume
that a private conversation about the incident did, in fact,
take place.
11
third party. The case was decided under the 1870 precursor to
the statute at issue here. 12 The question before the court was
whether the husband could avoid replevin of a horse on the
ground that he had conveyed the animal to his wife in repayment
of a loan she had made to him in a private conversation.
Although, in Brown, the statute was applied to avoid the
perpetration of a fraud by collaborating spouses, the court
ruled that the statute disqualifies third parties from
testifying about a private conversation between spouses. The
court stated that such testimony "was even more objectionable,
as it was necessarily only a repetition of what the husband or
wife had stated to have been the substance of their
conversation." Id. at 138. See Gallagher v. Goldstein, 402
Mass. 457, 459 (1988) ("Testimony as to the contents of a
private conversation is inadmissible even if both spouses desire
the evidence to be admitted").
While we have found no later published Massachusetts
decision that discusses this point, there is persuasive
authority in various Massachusetts legal publications that
supports our conclusion. See Young, Pollets, & Poreda,
Annotated Guide to Massachusetts Evidence § 504, at 238 (2014)
("Third persons ought not be permitted to testify where
12
The statute stated that spouses "shall not be allowed to
testify as to private conversations with each other." St. 1870,
c. 393, § 1.
12
disclosure is made by a spouse subsequent to a confidential
communication"); Carney, Massachusetts Evidence: A Courtroom
Reference § 3.3(c), at 3-9 (Mass. Cont. Legal Educ. 2015)
("Privacy is also not destroyed by one spouse's voluntary
postconversation disclosure of the conversation's content to a
third party"); 3 Federico & Zupcofska, Massachusetts Divorce Law
Practice Manual § 18.3.3, at 18-6 (Mass. Cont. Legal Educ. 2012)
("[O]ne cannot circumvent the general disqualification by
introducing otherwise inadmissible evidence through the
testimony of a selected third party by having the content of the
private conversation told to that third party"). Additionally,
our position is consistent with the purpose of the statute,
which is to ensure the privacy of marital communications. See
Commonwealth v. Gillis, 358 Mass. 215, 217-218 & n.2 (1970)
("The policy underlying the statutory exclusion of private
marital conversations has been much discussed[:] . . . to
protect the marital relationship or to encourage confidence
between spouses, or merely [to] reflec[t] legislative reticence
concerning marital confidences" [citations omitted]). See also
Gallagher v. Goldstein, supra at 460 (wherein the court observed
that "the statutory disqualification as to evidence of private
conversations between spouses may be viewed as a statutory
preservation of a remnant of an outdated common law
concept. . . . However, the Legislature has enacted a statute
13
stating a clear and unambiguous preference for the marital
disqualification").
Having determined that it was error to admit testimony
regarding the defendant's apology to the mother, we now consider
whether the error prejudiced the defendant such that it created
a substantial risk of a miscarriage of justice. Clearly, the
defendant's reported statement that "he's sorry that he did it"
amounted to a confession. Its introduction plainly suggested to
the jury that he was guilty. "[A] defendant's statement is
usually 'the key item in the proof of guilt, and certainly one
of overpowering weight with the jury.'" Commonwealth v. Berg,
37 Mass. App. Ct. 200, 203 (1994), quoting from Commonwealth v.
Tavares, 385 Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982).
Furthermore, the rest of the evidence against the defendant was
not overwhelming. To a large extent, the case was a credibility
contest between Sally and the defendant. Given this, we have no
doubt that the error contributed to the verdict and, therefore,
was prejudicial. See Commonwealth v. Fidalgo, 74 Mass. App. Ct.
130, 134 (2009).
Moreover, contrary to the Commonwealth's argument, the
testimony was no less prejudicial because it was admitted for
the limited purpose of impeachment. To begin with, we are
concerned about the propriety of the prosecutor's questions to
the mother about the defendant's statement. See note 8, supra.
14
While it appears that the prosecutor believed she had a good
faith basis for posing the questions, it is far less clear that
her belief rested on solid footing. 13 Indeed, defense counsel
contended from the beginning that the mother denied having made
the statements in question. 14
Nor are we persuaded that the judge's limiting instruction
as to the use of the impeachment evidence, while appropriate in
the ordinary case, was sufficient to cure the error.
"Generally, '[w]e presume, as we must, that a jury understands
and follows limiting instructions.'" Commonwealth v. Rosa, 412
Mass. at 160, quoting from Commonwealth v. Jackson, 384 Mass.
572, 579 (1981). See Commonwealth v. Crayton, 470 Mass. 228,
251 (2014). Here, however, Sally's testimony about the
defendant's statements was too prejudicial for the jury to hear
13
We recognize that the prosecutor, commendably, sought
guidance from the judge before proceeding with her questions.
The prosecutor's conduct in this regard establishes the absence
of bad faith but does not mitigate the harm to the defendant.
The questions themselves, although not evidence, were
nevertheless before the jury, taking the form of prejudicial
evidence. See Commonwealth v. Stewart, 454 Mass. 527, 532
(2009) ("The leading questions put by the prosecutor were
effectively transformed into evidence" [footnote omitted]).
14
It appears from the record that the sole purpose of the
mother's testimony was to lay a foundation to impeach her
credibility. Massachusetts courts have rejected this practice.
See Commonwealth v. Maldonado, 466 Mass. 742, 758 (2014).
15
and use to impeach the mother without considering it
substantively. 15
c. First complaint instruction. Although the defendant
did not object at trial, he now claims that the judge's
instruction on the use of first complaint testimony given at the
time Sally testified was incomplete. It suffices to say that at
any retrial it should be kept in mind that Commonwealth v. King,
445 Mass. 217, 247-248 (2005), and its progeny require that the
jury be instructed on first complaint testimony at each instance
first complaint testimony is introduced at trial, and in the
judge's final instructions to the jury.
d. Remaining claims. The defendant's remaining claims of
error relate to various evidentiary rulings. In view of our
disposition, we need not address these issues. See Commonwealth
v. Anestal, 463 Mass. 655, 663 n.12 (2012).
Conclusion. The judgment is reversed and the verdict is
set aside.
So ordered.
15
We also conclude that the prosecutor's comment in closing
argument about the defendant's statement might have contributed
to the risk that the jury would use the testimony substantively.
The prosecutor stated: "[H]er mother has already told her
that the defendant said I'm sorry, I thought it was you but I
was tired. . . . So [h]er state of mind is that her mom knows
that this happened." Although the remark did not draw an
objection, it could have been construed by the jury as an
invitation to use the testimony for all purposes.