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14-P-1238                                                Appeals Court

                 COMMONWEALTH    vs.   DOUGLAS GARCIA.


                                No. 14-P-1238.

       Essex.      September 11, 2015. - February 16, 2016.

            Present:   Vuono, Agnes, & Maldonado, JJ.


Rape. Evidence, Conversation between husband and wife, First
     complaint.


     Indictment found and returned in the Superior Court
Department on August 4, 2010.

     The case was tried before Richard E. Welch, III, J.


     Michelle Menken for the defendant.
     Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.


     VUONO, J.   This appeal raises the issue whether the spousal

disqualification set forth in G. L. c. 233, § 20, First, which

bars a spouse from testifying "as to private conversations with

the other," applies when one spouse has disclosed the substance

of a private conversation to a third party.
                                                                         2


     The defendant was convicted by a jury of rape, G. L.

c. 265, § 22 (b).       The victim, whom we shall call Sally, 1 is the

defendant's stepdaughter.       Sally was nineteen years old at the

time of the offense, which occurred at the defendant's home,

where Sally was spending the night.       Among several challenges to

his conviction, the defendant claims that the judge erred by

permitting the Commonwealth to introduce testimony about a

conversation between himself and his wife, who also is Sally's

mother, in which he allegedly apologized to the mother and

explained that he had been tired and, as a result, had confused

Sally for the mother on the night of the incident.       For the

reasons that follow, we conclude that, even though the evidence

of the conversation was admitted for the limited purpose of

impeaching the mother's credibility, the defendant is entitled

to a new trial.

     Background.    a.     The Commonwealth's case-in-chief.    The

jury could have found the following facts.       On April 18, 2010,

Sally was living with her boy friend in North Andover.         The

couple were arguing.       Upon the advice of her mother, who was on

vacation in Florida, Sally drove to her mother's home in Lynn. 2

The house is a duplex; Sally's family lived on the top floor and

     1
         A pseudonym.
     2
       Sally had previously lived in the home with her mother,
the defendant, and Sally's half-sister, before moving out at the
age of eighteen.
                                                                      3


Sally's aunt lived on the first floor.    Sally arrived at about

11:00 P.M. and let herself into the house.    She had a brief

conversation with the defendant, who was in bed in his bedroom

watching television.

     Sally was wearing a shirt and capri-style pants.    She did

not change before getting into bed in the spare room as she had

brought only her work clothes for the next day.    Sally also

brought her cat, and testified that she had closed the bedroom

door so that the cat would not escape from the room.    At around

2:00 A.M., Sally was awakened by "[t]he feeling of someone's

hand inside [her] vagina."    At first, before she was fully

awake, Sally thought she was with her boy friend.    However, when

she opened her eyes, she realized that she was not in her

apartment and found the defendant, naked, lying next to her.     He

stood up and wrapped a towel around his torso.    Sally asked him

what he was doing, to which he responded:    "I'm so sorry, . . .

it's all my fault."    He left the room, and Sally then realized

that her pants and underwear had been pulled down to her ankles.

She quickly dressed, gathered her belongings, and drove back to

her apartment.   After showering, Sally slept on the couch for a

few hours until her boy friend woke her, after which she went to

work at 6:00 A.M.

     Around mid-morning, Sally spoke to her aunt on the

telephone and told her what had happened.    Distraught, Sally
                                                                    4


left work and returned to Lynn where she spoke further with her

aunt in the first-floor apartment of the duplex.    Soon

thereafter, the police were contacted and the defendant was

arrested.

     b.   The defendant's case.   The defendant denied the

allegation and mounted a vigorous defense, which focused on

Sally's alleged bias.   Through cross-examination, his own

testimony, and the testimony of other witnesses, including the

mother, the defendant attempted to show that Sally was lying

because of her hostility toward him. 3   To that end, the defendant

filed a motion in limine seeking to question Sally about a

conversation she had with her mother in which Sally had stated

that she was pregnant and that the defendant was responsible

even though no penile penetration had occurred.    The essence of

defense counsel's argument was that Sally's "absurd" allegation

demonstrated her willingness to fabricate.

     The judge held a hearing on the defendant's motion just

before opening arguments at which the prosecutor conceded that

Sally had told her mother that she could be pregnant, but had

explained that the comment was a sarcastic response made in


     3
       The jury heard testimony that the defendant asked Sally to
move out of the family home because he was "sick and tired" of
Sally fighting with her mother. In addition, there was evidence
that Sally had hosted a graduation party at the home after she
had moved out, which resulted in more tension with the defendant
when he came home to "a mess."
                                                                   5


anger after Sally's mother urged her to drop the case because it

would be difficult not only for Sally but for her younger

sister.   In addition, the prosecutor informed the judge that,

during that same conversation, the mother said that the

defendant had apologized to her for the incident and had

explained that he had been tired and had mistaken Sally for the

mother.   The prosecutor then expressed her intent to introduce

the mother's statement about the defendant's alleged admission

if the judge were to permit the line of questioning proposed by

the defendant.   She argued that this testimony was probative of

Sally's state of mind and explained the context in which Sally

said she could be pregnant. 4   In response to this argument, trial

counsel stated that the mother denied saying to Sally that her

husband had apologized.

     At the conclusion of the hearing, the judge allowed the

motion in limine. 5   As it turned out, however, when defense


     4
       The prosecutor also maintained that evidence whether Sally
was actually pregnant was inadmissible under the rape shield
statute, G. L. c. 233, § 21B. The judge agreed with the
Commonwealth on this point, and evidence as to actual pregnancy
was excluded.
     5
       The judge warned counsel, however, that soliciting such
testimony would "open the door" to the Commonwealth. Trial
counsel responded that he was "willing to take that risk." At
that point, however, the extent of the "risk" was not entirely
clear as the issue of the mother's privilege not to testify and
the question whether the rule of disqualification applied had
not yet been addressed. Later, as the evidence developed, trial
counsel objected to the testimony.
                                                                    6


counsel asked Sally whether she had told her mother that she was

pregnant, Sally denied it.   The defendant then called the mother

to the stand for the purpose of impeaching Sally's credibility.

The mother testified that Sally had, indeed, claimed to be

pregnant as a result of the defendant's conduct. 6

     c.   The defendant's alleged admission to the mother.

Before commencing her cross-examination of the mother, the

prosecutor sought a sidebar conference to inquire whether she

could ask the mother if she told Sally that the defendant

admitted culpability and claimed to have made a mistake.      The

judge permitted the cross-examination, stating that the rule of

disqualification does not apply once a spouse has disclosed the

contents of a private conversation to a third party. 7    Trial

counsel's objection "for the record" was overruled.      However,

the prosecutor did not understand the judge's ruling and did not

ask the question for which she had obtained permission, and as a

result, after the defense rested, the prosecutor requested and

obtained permission to recall the mother as a rebuttal witness.


     6
       While there was no allegation of penile penetration, the
mother testified on direct examination that Sally explained she
could have become pregnant because of "a drip," meaning that the
defendant could have been masturbating before she woke up and,
as a result, there could have been semen on his fingers when he
put them in her vagina.
     7
       The judge stated: "Well yeah, you could elicit that
because that's not spousal privilege. Once she discloses that
so and so told me, that's not spousal privilege."
                                                                    7


The sole purpose for recalling the mother was to ask her whether

she had disclosed the defendant's apology for the incident to

Sally.   The defendant did not object to this procedure, and the

judge permitted the prosecutor to recall the mother.

     The mother then took the stand for a second time, and after

a few preliminary questions, the prosecutor asked the mother if

she had told Sally that the defendant had said that he was sorry

and that he had been tired and confused.   The mother denied that

she had told Sally anything of that nature. 8   The prosecutor then

recalled Sally to impeach the mother's credibility.    Sally

testified, over the defendant's objection, as follows:    "[My

mother] told me that [the defendant] told her he's sorry that he

did it and he was so overtired he thought it was her."    The

testimony was preceded by a limiting instruction in which the

judge said:   "[T]his is only admissible on whether or not you



     8
       The prosecutor asked: "[Y]ou told [Sally] that you had
had a conversation with [the defendant] about the sexual assault
that had occurred at the house and you told her that what he
told you was he was sorry but he was very tired and he got
confused, and he got into that bed and he thought it was you,
correct?" The mother responded that she had not. The
prosecutor then asked: "You never told [Sally] that?" Again,
the mother responded: "No, I did not tell her that." The
prosecutor persisted: "So you never told her that you had a
conversation with your husband after the sexual assault and his
explanation to you was that he was sorry, he was tired, he got
confused and he got into bed and got confused . . . and he
thought it was you?" The mother denied this a third time, and
the prosecutor had no further questions for the witness.
                                                                       8


believe [the mother], and that's the sole purpose of this

upcoming testimony." 9

     Discussion.    a.   Waiver of marital privilege.   As we have

previously noted, the mother was first called to the stand by

the defendant.     Before she was asked any questions, the judge

conducted a brief voir dire during which the mother confirmed

that she and the defendant were married.     The judge then

informed her that she held a "spousal privilege" and was not

required to testify as to conversations with her spouse, the

defendant.   When asked if she wanted to invoke her privilege,

the mother responded affirmatively.     Defense counsel then

explained that the mother would testify only about her

conversation with Sally, specifically whether Sally had told her

that she could be pregnant.     Without explicitly ruling that the

mother had waived her marital privilege, the judge concluded

that the mother could testify about Sally's comment.

     As an initial matter, we observe that the record fails to

establish whether the mother's decision to waive her privilege

not to testify at her husband's trial was voluntary.      The second

clause of G. L. c. 233, § 20, as amended by St. 1983, c. 145,

provides in relevant part that "neither husband nor wife shall

be compelled to testify in the trial of an indictment,

     9
       In addition, Sally acknowledged, contrary to her earlier
testimony on cross-examination, that she had told her mother
that she could be pregnant, but did so because she was angry.
                                                                    9


complaint[,] or other criminal proceeding against the other."

See Mass. G. Evid. § 504(a) (2015).    Because the marital

privilege belongs to the witness spouse alone, the defendant

lacks standing to challenge the decision of his or her spouse to

take the stand.   See Commonwealth v. Stokes, 374 Mass. 583, 595

(1978).   See also Commonwealth v. Paszko, 391 Mass. 164, 190

(1984) ("[A] defendant has no standing to contest an alleged

infringement of a privilege he could not have exercised").

However, our cases hold that where a spouse's testimony is

obtained in the absence of a valid waiver of the privilege, use

of that testimony at trial "offends fundamental fairness."    See

Commonwealth v. Rosa, 412 Mass. 147, 162 (1992).

     The judge's explanation of the marital privilege was

inaccurate.   He told the mother that she could refuse to testify

about conversations with the defendant, when, as the defendant

correctly asserts, she was not obligated to testify at all.

This error raises a serious question of fairness.    Therefore,

should there be a retrial, after properly explaining the

privilege, the judge should conduct a colloquy to determine

whether the mother voluntarily chooses to waive her marital

privilege.

     b.   Marital disqualification.   The defendant claims that

the admission in evidence of Sally's testimony about statements

the mother made to her that the defendant had apologized for the
                                                                  10


incident was improper, highly prejudicial, and in violation of

the marital disqualification statute, which prohibits spouses

from testifying "to private conversations with the other." 10   The

Commonwealth asserts that the statute does not preclude third

parties from testifying about a private conversation between

spouses based on statements made to them by one of the spouses.

See Commonwealth v. O'Brien, 377 Mass. 772, 775 (1979).

     In the circumstances of the present case, we conclude that

the statute disqualifies Sally from testifying about the

mother's statements.   We further conclude, regardless of the

operation of the statute, that the prejudice to the defendant

warrants a reversal of his conviction. 11

     Over a century ago, in Brown v. Wood, 121 Mass. 137, 138

(1876), the Supreme Judicial Court held that the privacy of a

communication is not destroyed by one spouse's voluntary

postconversation disclosure of the conversation's content to a

     10
       General Laws c. 233, § 20, First, as amended through St.
1996, c. 289, § 10, provides in pertinent part that "neither
husband nor wife shall testify as to private conversations with
the other." See Mass. G. Evid. § 504(b) (2015). "The rule is
one of disqualification, not privilege, and spouses are
forbidden, on objection, to testify about the contents of their
private conversations." Commonwealth v. Perez, 460 Mass. 683,
698 (2011), quoting from Commonwealth v. Walker, 438 Mass. 246,
254 (2002).
     11
       We note that the judge did not make a finding as to
whether the conversation had actually occurred or whether it was
private. Solely for the purposes of this analysis, we assume
that a private conversation about the incident did, in fact,
take place.
                                                                    11


third party.     The case was decided under the 1870 precursor to

the statute at issue here. 12   The question before the court was

whether the husband could avoid replevin of a horse on the

ground that he had conveyed the animal to his wife in repayment

of a loan she had made to him in a private conversation.

Although, in Brown, the statute was applied to avoid the

perpetration of a fraud by collaborating spouses, the court

ruled that the statute disqualifies third parties from

testifying about a private conversation between spouses.     The

court stated that such testimony "was even more objectionable,

as it was necessarily only a repetition of what the husband or

wife had stated to have been the substance of their

conversation."    Id. at 138.   See Gallagher v. Goldstein, 402

Mass. 457, 459 (1988) ("Testimony as to the contents of a

private conversation is inadmissible even if both spouses desire

the evidence to be admitted").

     While we have found no later published Massachusetts

decision that discusses this point, there is persuasive

authority in various Massachusetts legal publications that

supports our conclusion.    See Young, Pollets, & Poreda,

Annotated Guide to Massachusetts Evidence § 504, at 238 (2014)

("Third persons ought not be permitted to testify where

     12
       The statute stated that spouses "shall not be allowed to
testify as to private conversations with each other." St. 1870,
c. 393, § 1.
                                                                   12


disclosure is made by a spouse subsequent to a confidential

communication"); Carney, Massachusetts Evidence:   A Courtroom

Reference § 3.3(c), at 3-9 (Mass. Cont. Legal Educ. 2015)

("Privacy is also not destroyed by one spouse's voluntary

postconversation disclosure of the conversation's content to a

third party"); 3 Federico & Zupcofska, Massachusetts Divorce Law

Practice Manual § 18.3.3, at 18-6 (Mass. Cont. Legal Educ. 2012)

("[O]ne cannot circumvent the general disqualification by

introducing otherwise inadmissible evidence through the

testimony of a selected third party by having the content of the

private conversation told to that third party").   Additionally,

our position is consistent with the purpose of the statute,

which is to ensure the privacy of marital communications.    See

Commonwealth v. Gillis, 358 Mass. 215, 217-218 & n.2 (1970)

("The policy underlying the statutory exclusion of private

marital conversations has been much discussed[:] . . . to

protect the marital relationship or to encourage confidence

between spouses, or merely [to] reflec[t] legislative reticence

concerning marital confidences" [citations omitted]).   See also

Gallagher v. Goldstein, supra at 460 (wherein the court observed

that "the statutory disqualification as to evidence of private

conversations between spouses may be viewed as a statutory

preservation of a remnant of an outdated common law

concept. . . . However, the Legislature has enacted a statute
                                                                    13


stating a clear and unambiguous preference for the marital

disqualification").

     Having determined that it was error to admit testimony

regarding the defendant's apology to the mother, we now consider

whether the error prejudiced the defendant such that it created

a substantial risk of a miscarriage of justice.    Clearly, the

defendant's reported statement that "he's sorry that he did it"

amounted to a confession.   Its introduction plainly suggested to

the jury that he was guilty.   "[A] defendant's statement is

usually 'the key item in the proof of guilt, and certainly one

of overpowering weight with the jury.'"    Commonwealth v. Berg,

37 Mass. App. Ct. 200, 203 (1994), quoting from Commonwealth v.

Tavares, 385 Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982).

Furthermore, the rest of the evidence against the defendant was

not overwhelming.   To a large extent, the case was a credibility

contest between Sally and the defendant.    Given this, we have no

doubt that the error contributed to the verdict and, therefore,

was prejudicial.    See Commonwealth v. Fidalgo, 74 Mass. App. Ct.

130, 134 (2009).

     Moreover, contrary to the Commonwealth's argument, the

testimony was no less prejudicial because it was admitted for

the limited purpose of impeachment.   To begin with, we are

concerned about the propriety of the prosecutor's questions to

the mother about the defendant's statement.    See note 8, supra.
                                                                     14


While it appears that the prosecutor believed she had a good

faith basis for posing the questions, it is far less clear that

her belief rested on solid footing. 13   Indeed, defense counsel

contended from the beginning that the mother denied having made

the statements in question. 14

     Nor are we persuaded that the judge's limiting instruction

as to the use of the impeachment evidence, while appropriate in

the ordinary case, was sufficient to cure the error.

"Generally, '[w]e presume, as we must, that a jury understands

and follows limiting instructions.'"     Commonwealth v. Rosa, 412

Mass. at 160, quoting from Commonwealth v. Jackson, 384 Mass.

572, 579 (1981).   See Commonwealth v. Crayton, 470 Mass. 228,

251 (2014).   Here, however, Sally's testimony about the

defendant's statements was too prejudicial for the jury to hear




     13
       We recognize that the prosecutor, commendably, sought
guidance from the judge before proceeding with her questions.
The prosecutor's conduct in this regard establishes the absence
of bad faith but does not mitigate the harm to the defendant.
The questions themselves, although not evidence, were
nevertheless before the jury, taking the form of prejudicial
evidence. See Commonwealth v. Stewart, 454 Mass. 527, 532
(2009) ("The leading questions put by the prosecutor were
effectively transformed into evidence" [footnote omitted]).
     14
       It appears from the record that the sole purpose of the
mother's testimony was to lay a foundation to impeach her
credibility. Massachusetts courts have rejected this practice.
See Commonwealth v. Maldonado, 466 Mass. 742, 758 (2014).
                                                                    15


and use to impeach the mother without considering it

substantively. 15

     c.   First complaint instruction.   Although the defendant

did not object at trial, he now claims that the judge's

instruction on the use of first complaint testimony given at the

time Sally testified was incomplete.     It suffices to say that at

any retrial it should be kept in mind that Commonwealth v. King,

445 Mass. 217, 247-248 (2005), and its progeny require that the

jury be instructed on first complaint testimony at each instance

first complaint testimony is introduced at trial, and in the

judge's final instructions to the jury.

     d.   Remaining claims.   The defendant's remaining claims of

error relate to various evidentiary rulings.    In view of our

disposition, we need not address these issues.     See Commonwealth

v. Anestal, 463 Mass. 655, 663 n.12 (2012).

     Conclusion.    The judgment is reversed and the verdict is

set aside.

                                     So ordered.


     15
       We also conclude that the prosecutor's comment in closing
argument about the defendant's statement might have contributed
to the risk that the jury would use the testimony substantively.

     The prosecutor stated: "[H]er mother has already told her
that the defendant said I'm sorry, I thought it was you but I
was tired. . . . So [h]er state of mind is that her mom knows
that this happened." Although the remark did not draw an
objection, it could have been construed by the jury as an
invitation to use the testimony for all purposes.
