COMMONWEALTH vs. JOSEPH VIEIRA. (and a companion case [Note 1]).

LYNCH, J. After a jury trial in the Superior Court, the defendants were convicted of aggravated rape. G. L. c. 265, Section 22 (a) (1986 ed.). Silvia was sentenced to from nine to twelve years at the Massachusetts Correctional Institution at Cedar Junction; Vieira to from six to eight years. They appeal from their convictions and from the denial of their motions for a new trial. We transferred the cases here on our own motion and we affirm.

The facts the jury could have found are as follows. On the evening of March 6, 1983, a young woman (victim) entered Big Dan's Tavern in New Bedford to purchase cigarettes. While

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there, she ordered a drink and engaged in a brief conversation with another woman patron. The two women also conversed with and observed the pool game of codefendants John Cordeiro and Victor Raposo. [Note 2] There were approximately fifteen men in the tavern.

Sometime after the other woman left Big Dan's, the victim also prepared to leave. Cordeiro and Raposo offered to give her a ride home, which she declined. While the victim was standing in the area of the bar, Silvia and Vieira approached her from behind, knocked her to the floor, and removed her pants as Cordeiro and Raposo tried to force the victim to perform fellatio.

Silvia and Vieira then dragged the victim, kicking and screaming, and swung her onto the pool table. There, Silvia penetrated her vaginally while she was restrained at various points by Cordeiro, Raposo, and Vieira. After Silvia got off the victim, he held her by the hair as Vieira got on top of her. While the victim was restrained on the pool table, Cordeiro again attempted to force her to perform fellatio. Eventually, clothed only in a shirt and one shoe, the victim escaped and ran into the street where she flagged down a passing truck.

On appeal, the defendants Vieira and Silvia raise the following arguments. First, they claim that the prosecution's failure timely to disclose exculpatory evidence, in the form of inconsistent and more incriminating statements by the victim, deprived them of State and Federal due process rights; similarly, they contend that the prosecutor's suppression until after trial of a witness's recorded account of the victim's condition and statements shortly after the alleged rape deprived them of due process. The remaining contentions addressed here [Note 3] concern evidentiary rulings which the defendants assert prejudiced their ability to present a consent defense. First, the defendants argue

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that, under Commonwealth v. Bohannon, 376 Mass. 90 (1978), S.C., 385 Mass. 733 (1982), they were denied a full and fair opportunity to present a defense, because the judge excluded a hospital record of an allegedly false prior complaint of rape. Second, they contend that the woman patron, called as a defense witness, should have been permitted to testify to a statement which is asserted to be relevant to the victim's state of mind and purpose to engage in "unusual consensual sexual activity." Finally, the defendants argue that the judge erred in excluding evidence of a prior conversation between Silvia and the victim concerning prostitution. We discuss the contentions seriatim.

1. The prosecutor's failure to disclose exculpatory evidence.

a. The defendants [Note 4] argue that their due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights were violated by the prosecution's failure to provide timely disclosure of certain inconsistent pretrial statements made by the victim, and that the resulting prejudice entitles them to a new trial. On February 7, 1984, more than two weeks prior to commencement of trial, the victim told the prosecutors for the first time a version of the events at Big Dan's in which she was able to specify the precise number of men who attacked her and described their specific roles. This version was the first in which she (1) connected Silvia with forcibly assisting her other assailants after he had sexual intercourse with the victim on the pool table, and (2) connected Vieira with acts of sexual intercourse, dragging her to the pool table, and forcibly restraining her while Silvia had sexual intercourse.

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Neither Vieira nor Silvia had been identified in the information supplied prior to trial as being involved in restraining the victim. However, the defendants had knowledge of prior statements of the bartender, in which he stated that Vieira, as well as Silvia, dragged the victim to the pool table and then followed Silvia in having sexual intercourse with her.

There is no dispute that the details provided by the victim just prior to trial were inconsistent with reports initially provided to defense counsel and that the information should have been furnished to the defendants under Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976). [Note 5] The defendants, however, first learned of these details through the victim's direct testimony, whereupon they moved for a mistrial or, in the alternative, a continuance. The motions for mistrial were denied, but the defendants ultimately were granted a weekend-long continuance.

A defendant is deprived of due process if he was prejudiced by the prosecution's failure timely to disclose requested exculpatory and material evidence. There is no real dispute that the statement was exculpatory, and, therefore, subject to disclosure under Brady and its progeny. Although the evidence was more incriminating than the earlier statements, it was exculpatory in the sense that the variance with the previous statements permitted "challenge[] [to] the credibility of a key prosecution witness." Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).

The more difficult issues here concern the closely related questions of materiality and prejudice. "Undisclosed exculpatory evidence is `material' if, `evaluated in the context of the entire record,' it `creates a reasonable doubt that did not otherwise exist.'" Commonwealth v. Gregory, ante 437, 442 (1988), quoting United States v. Agurs, supra at 112. See Commonwealth v. Gallarelli, 399 Mass. 17 (1987). For purposes

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of judicial review, where, as here, there was a specific request, in order to be deemed material the evidence need only provide "a substantial basis for claiming materiality exists." Commonwealth v. Wilson, 381 Mass. 90, 109 (1980), quoting Agurs, supra at 106. As elaborated more fully in Commonwealth v. Ellison, supra at 23-26, the question of materiality involves an examination of various factors which have bearing on "the consequences of the delay . . . [W]e ask whether the prosecution's disclosure was sufficiently timely to allow the defendant `to make effective use of the evidence in preparing and presenting his case.'" Commonwealth v. Wilson, supra at 114, quoting Commonwealth v. Adrey, 376 Mass. 747, 755 (1978). [Note 6] Here, the asserted materiality and prejudice revolve around issues of effective impeachment of witnesses, trial strategy, and preparation. The defendants argue that they were prejudiced (1) by being denied adequate time to investigate possible causes of the variances in the victim's statements and to prepare for cross-examination, and (2) by the fact that the theories of their respective defenses were undermined by testimony significantly different from that anticipated on the basis of earlier statements. Additionally, Vieira argues that his decision not to object to being joined for trial with Silvia was premised upon a careful appraisal of the evidence obtained prior to trial. His agreement to joinder is asserted to have been determined by the congruence of Vieira's defense strategy with Silvia's defense of consent and intention to testify in his own behalf. He contends that, had he properly been apprised of the February 7, 1984, statement, he would not have agreed to such joinder. We agree with the ruling of the judge that there was

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no prejudice. See Commonwealth v. Baldwin, 385 Mass. 165, 176-177 (1982).

First, whether or not additional time might have enhanced the defendants' preparedness for cross-examination of the victim, the defendants' cross-examination of this key witness "was not only extended but searching, and we do not think it would have been materially improved by earlier warning about the witness's departure from the written statement." Commonwealth v. Gilbert, 377 Mass. 887, 895 (1979). Counsel for the defendants vigorously attempted to impeach the victim's trial testimony with her prior statements to the police and others. Where the victim repeatedly denied ability to remember her earlier statements, such an impediment to direct impeachment would not be remedied by additional preparation time. There was also thorough cross-examination on the influence of exposure to media accounts, and of conversations with the police, the office of the district attorney, and the attorney handling her civil suit arising out of the incident. Since there was thorough cross-examination on these matters, no prejudice resulted from the judge's denial of voir dire, an alternative form of relief requested in the defendants' motion for dismissal with prejudice.

Next, we consider the defendants' contentions of prejudice related to preparation of their respective defenses. Silvia argues that he had anticipated relying on a defense of consent and arguing nonparticipation in any joint venture. Numerous pretrial statements available to Silvia provided evidence of his acts of force and her resistance, thus contradicting his consent defense. While it is true that it was in the course of the victim's trial testimony that Silvia first learned that she claimed he restrained her after having sexual intercourse, he was aware that the bartender had told the police that Silvia had been undressing the victim while Cordeiro forced her to perform fellatio. Silva was therefore apprised before trial of acts which contradicted both prongs of his defense theory. In these circumstances, the prosecution's failure to disclose a statement which provided some additional evidence of a continuing joint venture does not warrant the grant of a new trial.

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Similarly, Vieira argues that the victim's testimony undercut his central theory of defense, viz., that he was a mere bystander who neither had sexual intercourse with the victim nor aided other alleged joint venturers other than Silvia who, it was contended, had consensual sexual relations with the victim. Vieira concedes that the bartender's pretrial statements, contrary to his trial testimony, alleged that Vieira had sexual intercourse with the victim. Moreover, Vieira was aware of the bartender's statements to the effect that Vieira participated in removing the victim's pants and dragging her to the pool table. Thus, he argues it was important to his defense that the bartender's version of the events remain uncorroborated and that the victim remain unable to describe Vieira's specific roles in the incident. His ability to impeach prosecution witnesses, therefore, was a task made more difficult by the victim's trial testimony. But her testimony did not present a version of the facts so different in substance that he was prejudiced by relying on what "amounts to a representation . . . that no such evidence exists." Commonwealth v. Gallarelli, supra at 23, 24 n.7. The evidence at trial portrayed a version of the events previously disclosed, albeit through different witnesses. There was, therefore, no prejudice with regard to preparation of a defense theory.

Also related to the issue of the defendants' ability to impeach the victim, the defendants argue that the prosecutor's failure to disclose the victim's ability to make critical identifications where she had not done so before implicated another key feature of their anticipated defense strategy. [Note 7] Until trial, for reasons not relevant here, the defendants held the understandable, but mistaken, belief that the victim had previously failed to identify Silvia or Vieira from an array of photographs. The defendants contend that their inability to demonstrate to the jury that the

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victim had failed to identify the defendants constitutes prejudice attributable to misrepresentation on the part of the Commonwealth which, coupled with failure to preserve the photographic array and certain questioning at trial by the prosecutor, created the misimpression that there had been no failure by the victim to identify the defendants.

As to Silvia, there simply is no prejudice inasmuch as his defense was one of consent and identification was not a material issue. Nor do we perceive any prejudice to Vieira, whose precise role and actions in the incident were a major issue. Notwithstanding the unfortunate surprise and confusion caused by misapprehension concerning various photographic arrays, defense counsel successfully elicited testimony that the victim not only had viewed an array of photographs and selected only those of Cordeiro and Raposo, but also that she had not identified Vieira and Silvia at Big Dan's immediately after the incident. In sum, irrespective of whatever role the office of the district attorney may have had in creating or not disspelling the defendants' misapprehension, we see nothing in the record which indicates that "a more credible defense would have been available" had this misapprehension been clarified earlier. See Commonwealth v. Bryant, 390 Mass. 729, 749 n.29 (1984).

Last, we briefly address Vieira's contention that his decision not to object to being joined for trial with Silvia was made in reliance upon the state of the evidence as it was known through pretrial discovery and that he was therefore prejudiced by lack of timely disclosure. The short answer is that matters of joinder and severance are within the sound discretion of the trial judge and that a new trial is granted only where there has been an abuse of that discretion. Commonwealth v. Moran, 387 Mass. 644 (1982). In Moran, supra at 658, we held that failure to sever, upon the making of a timely motion, constitutes an abuse of discretion "when the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial." We further noted that such compelling prejudice is not found where codefendants are "merely pursuing inconsistent trial strategies" or where "a defendant would have had a better chance of acquittal had he been tried alone." Id. at

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658, 659. Here, even had full disclosure been made in a timely fashion, we can see no basis upon which Vieira successfully could have maintained that severance was required. We therefore conclude that none of the defendants' asserted grounds for new trials related to delayed disclosure of inconsistent statements warrants reversal of the convictions.

b. The defendants [Note 8] contend that they are entitled to new trials on the additional ground that the prosecution suppressed exculpatory evidence which had bearing on the credibility of the victim and contradicted the testimony of a nurse at Parkwood Hospital. The statement alleged to have been suppressed was made by a hospital ward clerk to an assistant district attorney and a State trooper. The statement was made during an interview conducted while the trial was in progress; the defendants did not learn of the contents of this statement until after trial. According to the defendants, the ward clerk stated that on the night of the incident (1) the victim claimed that she had been raped on top of the bar, rather than on the pool table, (2) the victim stated that she had gone out to purchase milk but never mentioned cigarettes, and (3) it was her distinct impression that the victim was "high." The defendants contend that the ward clerk's testimony would have been valuable evidence serving to impeach the victim's testimony by virtue of both the discrepancy in details and providing evidence that the victim was so "high," or intoxicated, that she had no independent perception of what happened to her at Big Dan's and subsequently modified her testimony to conform with that of other Commonwealth witnesses.

First, we note that, during the course of hearings on the defendants' motions for a new trial, an evidentiary hearing was conducted with respect to the alleged suppression of the ward clerk's statement. The judge expressly found, inter alia, that, contrary to the defendants' assertion, the ward clerk did

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not characterize the victim as "high" on the night in question. Rather, it was found that she emphasized that the victim was distraught and hysterical. Since there is no suggestion that this finding was clearly erroneous, we deal only with the allegedly unconstitutional suppression of the remainder of the ward clerk's statement. Even assuming that such inconsistencies in detail render the statements exculpatory within the meaning of Brady and its progeny, we conclude that there is no prejudice warranting a new trial where the substance of the ward clerk's statement was known to the defendants through other materials, was "merely cumulative," Commonwealth v. Medina, 380 Mass. 565, 576 (1980), and created no reasonable doubt which did not otherwise exist. [Note 9]

2. Evidentiary Rulings.

The defendants challenge various evidentiary rulings made during the course of trial which, it is argued, deprived them of a full and fair opportunity to present their defense, in contravention of the Massachusetts Declaration of Rights and the United States Constitution, or in the alternative, were otherwise in error because the excluded evidence should have been admitted for impeachment purposes.

a. Prior complaint of rape. At trial, the defendants sought to introduce a medical record, dated July 21, 1981, from Parkwood Hospital indicating that a woman having the same name as the victim had complained of rape. Examination of the record indicates that the complaining patient requested that hospital personnel telephone the police but that she was not examined "because she signed out, after an emotional confrontation [with] the [New Bedford Police Department], in which she was recalcitrant and uncooperative." The judge ruled that the record itself could not be admitted as extrinsic evidence of a prior bad act (false allegation of rape), but permitted cross-examination regarding the recorded July 21, 1981, hospital

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admission. On cross-examination the victim testified to certain self-identifying facts which corresponded with hospital admissions data, but denied or said that she could not recall going to Parkwood Hospital on July 21, 1981, claiming she was raped, or signing the hospital report.

Relying on Commonwealth v. Bohannon, 376 Mass. 90 (1978), the defendants argue that, where the defendants interposed consent defenses and the victim's credibility on the issue of consent was a central issue, the judge's ruling deprived them of a full and fair opportunity to present their defense. In Bohannon, we recognized an exception to the general rule that prior bad acts may not be used to impeach a witness's credibility and held that, in the circumstances of that case, the denial of the defendants' request to cross-examine the victim on the central issue of consent, by asking about prior false allegations of rape and thereby testing her credibility on this issue, deprived the defendants of a full and fair opportunity to present their defense to the jury. In the instant case, the defendants argue that, where, under cross-examination, the victim denied the 1981 incident or any recollection of it, the reasoning of Bohannon requires admission of the document itself.

We would agree, but for the critical fact that, as was found by the judge, the hospital record itself provides no evidence that the allegation of rape was indeed false. As we stressed in Bohannon, supra at 95, our decision there was premised in part upon the defendant's offer of proof which "indicated that he had a factual basis from independent third party records for concluding that prior allegations of rape had, in fact, been made and were, in fact, untrue" (emphasis added). The entries in the hospital record do not create an inference of falsity. Nonetheless, the judge permitted cross-examination on that issue. The judge having done so, however, the admission of the document itself to impeach the victim's denial of the 1981 hospital admission would have served no purpose other than to impeach her on a collateral issue. [Note 10] There was no error.

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b. Exclusion of the victim's alleged prior statement that she was under the care of a psychiatrist. At trial, the defendants sought to elicit the testimony of the woman patron with whom the victim initially had a brief conversation, to the effect that the victim had stated to the patron, "I've never been here before, but I'm under the care of a psychiatrist." The defendants argued at trial, as they do on appeal, that this statement was admissible to show both the victim's state of mind and her purpose to engage in sex because it would serve as an explanation or excuse for the unusual, public, consensual sexual activity upon which she was about to embark with Silvia. Where the victim later denied making the statement, the defendants additionally argue that the statement should have been admitted for impeachment purposes. The victim was also said to have told the patron that she had not had sexual relations for nine months. The judge excluded that portion of the statement referring to the victim's being under psychiatric care but permitted the patron to testify to the remainder of the conversation. The ruling was clearly within the scope of the judge's discretion.

Citing Commonwealth v. Lowe, 391 Mass. 97, 105 (1984), and Commonwealth v. Weichell, 390 Mass. 62, 73-74 (1983), the defendants appear to argue that the victim's statement was admissible either as nonhearsay or under the state-of-mind exception to the hearsay rule to show motive, design, or intent relevant to the issue of consent. This argument is without merit. First, a statement to the effect that one is under the care of a psychiatrist, whether or not admitted for its full probative value, has no "tendency to show what that mental condition was." Commonwealth v. Trefethen, 157 Mass. 180, 190 (1892). Most importantly, there was no error in the judge's ruling that the proffered statement lacked relevance to matters at issue in the trial. While the probative value to be attached to evidence of motive or intent is a matter for the jury and a statement which "merely suggests" rather than "clearly shows" a declarant's

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state of mind may be admissible, Commonwealth v. Lowe, supra at 106, the asserted relationship between this statement and a probative link with the victim's consent does not even remotely approach what is "reasonable and possible." Commonwealth v. Casale, 381 Mass. 167, 173 (1980).

The defendants additionally assert by way of a footnote that the statement was admissible for impeachment purposes. It does not appear from the record that this argument was raised in the defendants' motion for a new trial, nor does this assertion here rise to the level of an appellate argument. Mass. R. A. P. 16 (a) (4). We, therefore, do not consider the issue.

c. Exclusion of testimony concerning prior conversation between Silvia and the victim. Prior to trial, Silvia moved, pursuant to the rape-shield statute, G. L. c. 233, Section 21B (1986 ed.), to be permitted to introduce evidence of a conversation between Silvia and the victim allegedly occurring two to three months prior to the incident in which the victim expressed an interest in engaging in sex in exchange for money with Silvia and others. The judge excluded that part of the conversation which pertained to matters of prostitution but permitted Silvia to testify about any past relationship and his state of mind. Additionally, the judge ruled that the defendants could cross-examine the victim with regard to her prior association with Silvia. Vieira joined Silvia's objection to these rulings. The defendants apparently elected not to cross-examine the victim on the issue.

The defendants contend that the portion of the conversation pertaining to prostitution was improperly excluded because (1) it had bearing on the issue of consent and was not barred under G. L. c. 233, Section 21B, and (2) it was relevant to Silvia's state of mind and his defense that he honestly and reasonably believed the victim to be consenting to sexual intercourse. [Note 11] They did not seek to introduce the testimony for purposes of demonstrating

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bias. See Commonwealth v. Joyce, 382 Mass. 222, 229 (1981).

The defendants do not contend that the evidence of the conversation was admissible under G. L. c. 233, Section 21B, as evidence of prior sexual conduct. Therefore, the judge was well within his discretion in ruling that the conversation was too remote in time and substance to give rise to a logical or reasonable inference of consent to the incident at Big Dan's. The judge correctly permitted only a portion of the prior conversation to show a prior relationship bearing on the issue of consent. See Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 13-15 (1980). We also conclude that, even assuming that an "honest and reasonable, although mistaken, belief that the victim consented," constitutes a defense to a charge of rape, Commonwealth v. Grant, 391 Mass. 645, 651 (1984), the excluded portion of the conversation does not tend to prove reasonableness of belief that the victim consented some months later to public sexual intercourse with a group of men. There was, therefore, no error.

Judgments affirmed.