32 Mass. App. Ct. 949

April 30, 1992

Nona E. Walker, Committee for Public Counsel Services, for the defendant.

Anne M. Kendall, Assistant District Attorney, for the Commonwealth.

The defendant, on trial for rape and abuse of two minor female children and other charges of unlawful sexual activity involving them, called as one of his witnesses a person who offered but was not allowed to testify that the mother of one of the two children had stated to her, about the defendant, that "even if he didn't do it that after what he did to me I still hope all sorts of nasty things happen to him." The exclusion was error. The statement was relevant to the bias of the mother, who had been a prosecution witness, against the defendant, and, although the statement was hearsay (being offered to prove the truth of the state of mind declared), it was admissible under the state of mind exception to the hearsay rule. Compare Day v. Stickney, 14 Allen 255, 257-258, 260-261 (1867); McGuire v. McDonald, 99 Mass. 49 (1868); and Tasker v. Stanley, 153 Mass. 148, 150 (1891), each of which held admissible a witness's out-of-court declaration of hostility to discredit his testimony at trial.

The error was, in our view, harmless. Apart from the natural inference that a mother would feel hostility toward one who had raped her daughter, see Commonwealth v. Nicholas, 15 Mass. App. Ct. 354, 355 (1983), the jury could have been in no doubt as to the mother's bias against the defendant. Compare Commonwealth v. Bucknam, 20 Mass. App. Ct. 121, 122 (1985); Commonwealth v. Gonzalez, 23 Mass. App. Ct. 913, 914 (1986). They heard ample testimony about the collapse of the mother's romantic involvement with the defendant, about her upset when she thought he was seeing other women, about the fight that marked the end of her living in his apartment, about her anger when he started a relationship with a friend of the mother, about how "I had enough of him, enough of the abuse," and about how she told the friend "she could have him with my blessing."

The defendant argues that the exclusion undercut the basis for the defendant's contention at trial that the mother in revenge had put the daughter up to making the allegations against the defendant. The transcript, however, shows that no contention along those lines surfaced at the trial except as a brief rumination by the defendant's counsel in his closing argument. Nothing in his cross-examination of the child, her mother, or the Department of Social Services investigator was directed toward eliciting evidence that the mother had induced the daughter to make the allegations. Contrast Commonwealth v. Morris, 20 Mass. App. Ct. 114, 115-119 (1985). Indeed, the uncontradicted and unchallenged testimony of the child and the mother was that the mother learned of the allegations second-hand, through her father's girlfriend, in whom the child had originally confided.

Judgments affirmed.