COMMONWEALTH vs. EDUARDO A. CARDOZA

IRELAND, J. This case comes to us after two trials, and involves a dispute over the exclusion of comparison evidence of a foreign pubic hair. In the first trial, in which the trial judge admitted the evidence, the jury was unable to reach a verdict. In the second trial, in which the trial judge excluded the evidence, the defendant was found guilty of indecent assault and battery and assault and battery. He appeals, arguing -- we think persuasively -- that the exclusion of the evidence in the second trial deprived him of the opportunity to present a complete defense. We reverse the convictions.

Page 646

Although the victim and the defendant offered crucially different versions of how each came to be in the area where they were found by the police, [Note 1] there are, nonetheless, certain basic facts that are not in dispute. In July of 1988, police found a woman, beaten and bloody, in Amory Park in Brookline. They also found the defendant in a car at the scene, as he was attempting to drive away. He had blood on his clothes and in his car, and the victim's purse was found in the back seat of his car. At some point, the victim passed out, and when she came to, the police had arrived. An officer asked her what had happened, and she pointed in the direction of the defendant and stated, "That man beat me up." There were no other witnesses. Both the victim and the defendant had been drinking, although not together. The victim was taken to Beth Israel Hospital, where an examination showed that she had not been penetrated by her assailant; however, a combing of her pubic area revealed a foreign pubic hair, dissimilar from her own. It was this single pubic hair that would become the subject of this appeal: four months later, after allowance of the Commonwealth's motion for samples of blood, saliva, and hair of the defendant, a forensic chemist determined that the pubic hair found on the victim was dissimilar to that of the defendant.

On April 10, 1989, a jury was empanelled for trial of the defendant on six charges. [Note 2] On that same day, the Commonwealth's motion in limine to exclude evidence or mention of the pubic hair was denied. On April 12, the trial judge admitted in evidence a forensic lab report, containing an analysis that a foreign pubic hair recovered from the victim's hospital specimen was dissimilar from the pubic hair sample

Page 647

taken from the defendant. The trial judge then allowed the defendant's motion in limine to prohibit the forensic chemist from speculating about the origin of the foreign pubic hair and to limit her testimony to the results of her scientific examination. After two days of jury deliberation, the judge declared a mistrial as to most of the charges because the jury could not reach a verdict. [Note 3]

A second trial on the remaining five charges was held in October, 1989. The Commonwealth again sought to exclude evidence about the foreign pubic hair. The judge deferred ruling on the issue, waiting to hear the complainant's testimony. [Note 4] Thereafter, the judge allowed the Commonwealth's motion in limine, and excluded the evidence on the ground of lack of relevance. The defendant testified in his own behalf. He was found not guilty of assault with intent to rape and assault and battery by means of a dangerous weapon. He was found guilty of indecent assault and battery and assault and battery.

We must determine whether exclusion of the pubic hair comparison evidence was error and, if so, whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982). In order to be admissible, evidence must, as a primary consideration, be relevant, i.e., have a tendency to "render[] the desired inference more probable than it would have been without it" (citations omitted). Commonwealth v. LaSota, ante 15, 24 (1990). To be relevant, the evidence must be shown to have a

Page 648

sufficient nexus with the crime charged. [Note 5] "Indecent assault and battery" has been defined as "an act or series of acts which are fundamentally offensive to contemporary moral values." Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43-44 (1985). An unauthorized touching of the victim's genital area would, of course, constitute an indecent assault and battery under G. L. c. 265, Section 13H. See Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52 (1982). Microscopic hair evidence has probative value for the purpose of excluding "persons from consideration as the source of . . . hair[] found on . . . the victim's body." Commonwealth v. Tarver, 369 Mass. 302, 310-311 (1975). The pubic hair evidence, therefore, had relevance.

We look next to whether the evidence was properly excluded on other grounds. The Commonwealth argues that admission of the evidence would subvert the policy underlying G. L. c. 233, Section 21B, the Rape Shield Law. That statute requires the exclusion of evidence of a victim's reputation and of specific instances of a victim's sexual conduct, unless the evidence is of "sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim." G. L. c. 233, Section 21B, as amended by St. 1983, c. 367. Commonwealth v. Joyce, 382 Mass. 222, 225 n.3 (1981). Application of the statute involves a careful balance between an accused's right to confront witnesses and "eliminating a common defense strategy of trying the complaining witness rather than the defendant." Id. at 228. The defendant did not seek to introduce the evidence to show the complainant's sexual behavior. He sought to introduce it to show

Page 649

that another, not he, attacked the victim. "No positive rule of law other than normal considerations of relevancy stands in the way of the admission of misidentification evidence." Commonwealth v. Jewett, 392 Mass. 558, 562 (1984). "When a defendant offers exculpatory evidence regarding misidentification, prejudice ceases to be a factor, and relevance should function as the admissibility standard." Id. at 563. That the Commonwealth asked for the hair identification -- thinking it possibly relevant -- makes the point that much more sharply.

Having determined that exclusion of the pubic hair comparison evidence was error, we turn next to the issue of whether that error was harmless beyond a reasonable doubt. It has been held to be harmless error, for example, where "the information the defendant unsuccessfully sought to elicit on cross-examination reached the jury through other means." Commonwealth v. Horn, 23 Mass. App. Ct. 319, 323 (1987). Here, meaningful evidence about the foreign pubic hair could only have reached the jury through the Commonwealth's forensic chemist. Cf. Smith v. Commonwealth, 331 Mass. 585, 591 (1954) (some circumstances may require the Commonwealth to direct the court's attention to evidence favorable to defendant).

Moreover, in Commonwealth v. McNickles, 22 Mass. App. Ct. 114, 118-119 (1986), this court noted that "[e]vidence of statements favorable to the defendant coming from the lips of the witnesses for the prosecution would be apt to be given complete credence by the jury, whereas coming from the defendant alone, they might be viewed with the suspicion that they were of later invention." The evidence here not only would have been favorable to the defendant, but, as it involved physical evidence that was discovered and analyzed by the Commonwealth, it could have had considerable weight in the jury's decision-making process.

The exclusion of the foreign pubic hair comparison evidence deprived the defendant of both the opportunity to present evidence directly relevant to the issue of misidentification,

Page 650

and the opportunity to present a full defense. See Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978).

Judgments reversed.

Verdicts set aside.