8 Mass. App. Ct. 793

November 8, 1979 - December 12, 1979

Norfolk County

Present: HALE, C.J., GOODMAN, & GRANT, JJ.

At the trial of a defendant charged with kidnapping and forcible rape of a child, the judge erred in excluding evidence of the juvenile victim's probationary status at the time she made a fresh complaint. [794-795]

INDICTMENTS found and returned in the Superior Court on February 6, 1978.

The cases were tried before Irwin, J.

John F. Palmer for the defendant.

Charles J. Hely, Assistant District Attorney, for the Commonwealth.

HALE, C.J. This is an appeal from the defendant's conviction on jury verdicts for the kidnapping (G. L. c. 265, Section 26), and for the forcible rape of a child (G. L. c. 265, Section 22A, as amended by St. 1974, c. 474, Section 2).

The jury could have found the following facts. The victim, then fourteen years old, was hitchhiking with her boyfriend at about 11:00 P.M. on February 1, 1978, when they were picked up by the defendant, whom they had

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never seen before. After a fifteen-minute stop at the home of the boyfriend's aunt the three drove around for some time, made at least two more stops, smoked a marihuana cigarette and discussed stealing a truck.

They planned to find a truck and drop the boyfriend off to "hot wire" it while the defendant and the victim drove once around the block. They located a truck, and the boyfriend was let off. But the defendant, instead of circling the block, drove to a dirt road where he raped the victim.

The defendant then drove the victim to the home of an acquaintance of hers and left her there at about 4:30 A.M. She waited in an entryway for about two hours until she heard someone moving about in the house. There was no telephone in the house, and no one there attempted to notify the police of the incident. The victim's mother called the police when her daughter did not come home and suggested that they look for her at the acquaintance's house. The police did so, arriving at the house about 11:00 the following morning. The victim told them that she had been raped and of the events leading up to the rape.

The defendant asserts that the trial judge erred in three respects: (1) by refusing to permit the defendant's inquiry into the victim's juvenile record and into her mother's attitude concerning the victim's boyfriend and the victim's perception of that attitude; (2) by forbidding comment on the Commonwealth's failure to call the boyfriend as a witness and by inaccurately instructing the jury on that matter, and (3) by interrupting the defendant's direct examination of the victim's mother and eliciting hearsay testimony from her.

1. In the course of his cross-examination of the victim the defendant sought to introduce parts of her record as a juvenile offender to show her probationary status at the time she made a fresh complaint as well as at the time of trial. When this approach was denied him, the defendant made an offer of proof in the form of certified copies of three juvenile complaints, on each of which all

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of the proceedings before the Juvenile Court are noted and the court's actions thereon are stated. The complaints were marked for identification, and we have them before us.

The basic question before us, as it was before the trial judge, is whether the victim's probationary status was such as to permit the jury to infer that she was motivated to fabricate a rape in order to disguise the true nature of her activities on the night she met the defendant. Two of these complaints show that she was adjudged delinquent on January 17, 1978, and was placed on probation until January 16, 1979. Thereafter she was before the court on several occasions for hearings on whether she had violated the terms of her probation. At the time of the present trial, October 16-24, 1978, final hearings on the violation question were pending, having been continued from September 8 to October 27, 1978. We note that the docket of this case indicates that she was in the custody of the Division of Youth Services at the time of trial. We conclude on the basis of the reasoning of Commonwealth v. Ferrara, 368 Mass. 182 , 183-190 (1975), that the defendant was denied his constitutional right of confrontation, and that the "State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Id. at 190, quoting from Davis v. Alaska, 415 U.S. 308, 320 (1974). Contrast Commonwealth v. Santos, 376 Mass. 920 (1978). Compare Commonwealth v. Hogan, 7 Mass. App. Ct. 236 , 242 (1979); S.C. 379 Mass. 190 (1979).

The judge did not bar the defendant from exploring as a possible motive for fabrication the victim's concern about her mother's reaction to her being out all night when she was supposed to be home no later than 11:30 P.M. The questions which were excluded by the judge were irrelevant, and there was no error in excluding them.