Commonwealth v. David W. Mendez, July 15, 2010
77 Mass. App. Ct. 253
Assault and Battery, Rape-Shield Statute, Prior Misconduct
The defendant was found guilty of indecent assault and battery on a person over fourteen years of age following a jury trial in District Court. On appeal, the defendant argued that (1) the judge erred in not allowing defense counsel to reference testimony concerning the victim's prior sexual conduct in his closing argument, (2) the evidence was insufficient to permit an instruction about the victim's incapacity to consent, and (3) the judge's use of the word “unconscious” in the jury instructions on the element of consent was improper. The Appeals Court affirmed the judgment.
On March 16, 2007, the defendant sexually assaulted the victim after a night of drinking together at a bar. The Commonwealth proceeded on the theory that the defendant planned in advance to sexually assault the victim. At trial, the Commonwealth called Lincoln, the bartender at the bar on the night of the assault. On cross-examination, when asked by defense counsel to describe the interaction between the defendant and victim at the bar, Lincoln testified that “[i]t seemed flirtatious. But that was just the way [the victim] was anyways.” On redirect, the prosecutor asked Lincoln to clarify what he meant by describing the victim as a flirtatious person. Lincoln testified to the victim's past flirtatious behavior, and to sexual advances the victim made to Lincoln in the past. On recross, Lincoln expanded on the nature and frequency of the victim's sexual advances towards Lincoln. The prosecutor did nothing and Lincoln's testimony went unaddressed until the jury charge conference. The judge stated that the testimony would have been inadmissible under the rape shield statute and forbade both counsel from referring to the evidence.
On appeal, the defendant argued that since the testimony concerning the victim's prior sexual conduct was elicited spontaneously and without objection by the Commonwealth, defense counsel should have been able to use the testimony in his closing to impeach the victim.
The Appeals Court considered how a judge may react when improper evidence is introduced. During the course of any trial, a judge may intervene although there was no objection to the admissibility of certain evidence. “The judge is not required to sit idly by while counsel for either side questions a witness in an effort to obtain an answer which could be the basis of either a motion for mistrial or a claim on appeal that prejudicial matters were brought to the attention of the jurors.” Commonwealth v. Sapoznik, 28 Mass.App.Ct. 236, 241 n. 4 (1990), quoting from Commonwealth v. Wilson, 381 Mass. 90, 118 (1980).
Lincoln's testimony concerning the victim's prior sexual conduct was inadmissible. The Appeals Court held that the judge acted within her discretion in prohibiting reference to testimony concerning the victim's prior sexual conduct, and no error was committed. The judgments were affirmed.
- Prepared by AYK
