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SJC-12125

                     COMMONWEALTH   vs.   DOUGLAS GARCIA.



            Essex.        December 6, 2016. - April 21, 2017.


    Present (Sitting at Lawrence): Gants, C.J., Lenk, Hines,
                    Gaziano, Lowy, & Budd, JJ.


Rape.  Evidence, Conversation between husband and wife,
     Impeachment of credibility. Witness, Impeachment.



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

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

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


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


     LOWY, J.    A Superior Court jury convicted the defendant of

raping his nineteen year old stepdaughter, Sally.1          The defendant

was married to Sally's mother.        At trial, in response to a

     1
         A pseudonym.
                                                                       2


question that should not have been asked, the mother denied that

she told Sally that the defendant had confessed to the crime in

a private conversation between the spouses.    Then, to impeach

the mother, Sally was improperly permitted to testify to the

contrary.   We reverse because the trial judge's admission of

such highly prejudicial evidence regarding the defendant's

purported confession created a substantial risk of a miscarriage

of justice.

    Background.      The Commonwealth introduced the following

evidence at trial.    We reserve the circumstances of the

erroneously admitted testimony for our analysis of the issue.

    After an argument with her boy friend, Sally spoke with her

mother on the telephone and asked to stay at her apartment,

where the defendant also lived.     Although out of town, her

mother told Sally that she could.     Sally arrived at the

apartment, greeted the defendant briefly, and went to bed in the

spare bedroom.

    Several hours later, Sally was awakened by the feeling of

someone's hand in her vagina.     She turned over to see the

defendant, naked, lying next to her.     Sally realized her pants

and underwear were pulled down around her ankles.     The defendant

stood up, wrapped a towel around himself, and said, "I'm so

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

dressed, gathered her belongings, and left.
                                                                     3


     At trial, in response to a question by the Commonwealth,

the mother denied that she had told Sally that the defendant had

confessed to her.    Then, to impeach the mother, the Commonwealth

elicited testimony from Sally who stated that, in a conversation

she had had with her mother, the mother stated that the

defendant had told her that he was "sorry that he did it and he

was so overtired he thought [Sally] was [his wife]."    The

defendant objected to this testimony.

     The jury convicted the defendant of rape by unnatural

sexual intercourse in violation of G. L. c. 265, § 22.    The

Appeals Court reversed, concluding that G. L. c. 233, § 20,

First, precluded Sally from testifying about a private marital

conversation between her mother and the defendant, the substance

of which her mother had purportedly disclosed to her.

Commonwealth v. Garcia, 89 Mass. App. Ct. 67, 72-74 (2016).     We

granted the Commonwealth's application for further appellate

review and reverse the defendant's conviction on different

grounds.2

     Discussion.    With limited exceptions that do not apply

here, § 20, First, provides that "neither husband nor wife shall

testify as to private conversations with the other."     The

defendant argues that it was error to permit Sally to testify

     2
       The defendant sets forth multiple additional arguments for
a reversal of his conviction, which we need not reach, given our
conclusion.
                                                                   4


that she had had a conversation with her mother in which her

mother told her that the defendant essentially confessed to the

rape.   On appeal, the Commonwealth argues that, although § 20,

First, disqualifies a spouse from testifying to the substance of

a private conversation with the other spouse during their

marriage, the disqualification does not apply when the statement

is admitted through a nonspouse third party to whom one of the

spouses subsequently disclosed the communication.    The

Commonwealth thus contends that it was proper for the trial

judge to allow Sally to testify to the private marital

conversation between the defendant and his wife.    We disagree

and set forth the labyrinthine path by which Sally's testimony

was admitted in evidence; the rules about spousal

disqualification and privilege; and their application to the

facts of this case where the purported conversation was

disclosed to a third party.

    1.    Sally's testimony regarding her conversation with her

mother.   According to the mother, a witness for the defense, she

had a conversation with Sally in which Sally claimed that the

defendant had impregnated her by digital penetration.      The

defense sought to introduce this claim to attack Sally's

credibility and to demonstrate her bias against the defendant.

The Commonwealth then indicated that if this testimony was

elicited it would introduce other parts of the conversation to
                                                                   5


show that Sally's claim was sarcastic and stemmed from

frustration with her mother, who was standing by the defendant

and encouraging Sally to drop the case.

     The judge allowed the defense to elicit testimony regarding

the pregnancy claim, but warned the defendant that doing so

would "open the door to the Commonwealth . . . allowing [Sally]

to explain the context of that remark."    The judge did not

specifically address whether the defendant's alleged confession

to his wife was part of that context.

     However, the defendant's confession was ultimately admitted

for a different purpose:   to impeach Sally's mother.   The

defense introduced Sally's pregnancy claim through the testimony

of her mother.3   On cross-examination, the prosecutor refrained

from asking the mother about her private marital conversation

with the defendant.   After the defense rested, the prosecutor

expressed to the judge at sidebar that she had not asked about

the conversation because § 20, First, disqualified the mother

from testifying regarding her private conversations with the

defendant.   The trial judge responded, "[T]he fact that [the

mother] disclose[d] [the conversation] to a third party is what

takes it out of the [disqualification]."   Now believing it

permissible to elicit the substance of the private marital


     3
       The defense had asked Sally about the pregnancy claim on
cross-examination, but Sally denied claiming to be pregnant.
                                                                      6


conversation between the defendant and the mother, the

Commonwealth recalled Sally and her mother.

     As a recall witness, the mother denied telling Sally that

the defendant had admitted to the crime.    Sally then testified

that her mother told her that the defendant had confessed.       At

that point, the judge instructed the jury that Sally's testimony

as to what her mother had said concerning the defendant's

purported confession was admissible only to impeach the mother.4

Thus, the defendant's statement was not before the jury for the

purposes originally contemplated by the judge and the parties,

because the jury were not instructed that they should consider

the defendant's confession to explain the context of Sally's

pregnancy claim.5

     2.   Evidentiary rules applicable to spouses.   At trial,

there appeared to be conflation of the spousal disqualification

set out in G. L. c. 233, § 20, First, and the spousal privilege

     4
       At the time of the   testimony, the trial judge instructed
the jury, "[T]his is only   admissible on whether or not you
believe [the mother], and   that's the sole purpose of this
upcoming testimony." The    judge reiterated a similar instruction
in the final charge.
     5
       Whether admitted as context for the pregnancy claim or for
impeachment purposes, Sally's account of her mother's out-of-
court statement, containing the defendant's out-of-court
statement, was not admitted to prove its truth and, therefore,
did not run afoul of the rule against hearsay. Commonwealth v.
Phinney, 446 Mass. 155, 165-166 (2006). See Mass. G. Evid.
§§ 801, 802 (2017). As discussed infra, however, the undue
prejudice stems from the jury's potential use of the defendant's
confession for its truth.
                                                                    7


set out in § 20, Second.    Only the disqualification is

implicated by our decision in this case.6

     Our law and rules of evidence respects the sanctity of the

marital relationship in two ways:    first, by protecting private

conversations between spouses that occur during the course of

marriage, and second, by not allowing a spouse to be compelled

to testify against his or her spouse in a criminal proceeding.7


     6
       Before the mother testified, the trial judge held a voir
dire, designed to ensure that the mother understood that,
pursuant to the spousal privilege, she was not obligated to
testify -- even as a witness for the defense -- at her husband's
criminal trial. Largely because the parties confused the
privilege and the disqualification, the voir dire was inadequate
to determine whether Sally's mother testified voluntarily.
Because we reverse on other grounds, we need not decide in this
case whether such inadequacy itself warrants reversal. Cf.
Commonwealth v. Rosa, 412 Mass. 147, 161-162 (1992), S.C., 422
Mass. 18 (1996) (admission of testimony following involuntary
waiver of spousal privilege may offend fundamental fairness).
As the Appeals Court noted, however, in the event of a new
trial, the judge should conduct a proper voir dire to ensure
that the mother's testimony as to nondisqualified marital
conversations is voluntary. Garcia, 89 Mass. App. Ct. at 71-72.
     7
         In relevant part, G. L. c. 233, § 20, states:

          "First, Except in a proceeding arising out of or
     involving a contract made by a married woman with her
     husband, a proceeding under [G. L. c. 209D] and in a
     prosecution begun under [G. L. c. 273, §§ 1-10], any
     criminal proceeding in which one spouse is a defendant
     alleged to have committed a crime against the other spouse
     or to have violated a temporary or permanent vacate,
     restraining, or no-contact order or judgment issued
     pursuant to [G. L. c. 208, § 18, 34B, or 34C; G. L. c. 209,
     § 32; G. L. c. 209A, § 3, 3B, 3C, 4, or 5; or G. L.
     c. 209C, § 15 or 20,] or a similar protection order issued
     by another jurisdiction, obtained by the other spouse, and
     except in a proceeding involving abuse of a person under
                                                                     8


G. L. c. 233, § 20, First, Second.    See Mass. G. Evid. § 504(a),

(b) (2017).

    Even in criminal cases, where both protections apply, these

protections differ in key respects.     For example, under § 20,

First, spouses are "disqualified" from testifying to private

marital conversations, absent certain statutory exceptions.        See

Mass. G. Evid. § 504(b).   As a result, neither spouse can waive

the disqualification, even when both spouses wish for the

conversation to be considered in evidence.    See Gallagher v.

Goldstein, 402 Mass. 457, 458-459, 461 (1988) (affirming

exclusion of private marital conversation when only nonspouse

party objected to its admission).     Contrast Commonwealth v.

Stokes, 374 Mass. 583, 595 n.8 (1978) (if no objection is made

to admission of private marital conversation, it may be admitted

for its substance).   By contrast, a spouse called upon to

testify may waive his or her "privilege" not to testify for or

against his or her spouse -- although that testimony still may

not include the contents of private conversations made during



    the age of eighteen, including incest, neither husband nor
    wife shall testify as to private conversations with the
    other.

         "Second, Except as otherwise provided in [G. L. c.
    273, § 7,] and except in any proceeding relating to child
    abuse, including incest, neither husband nor wife shall be
    compelled to testify in the trial of an indictment,
    complaint or other criminal proceeding against the other."
    (Emphases added.)
                                                                    9


the marriage, which remain disqualified.    See Mass. G. Evid.

§ 504(a)(2), (b).

     The disqualification unambiguously precludes spouses from

testifying to private conversations made within the realm of

marriage.   G. L. c. 233, § 20, First.   See Gallagher, 402 Mass.

at 459; Commonwealth v. Gillis, 358 Mass. 215, 216-217 (1970).

Moreover, no language in the statute suggests that disclosure by

a spouse to a third party eliminates the disqualification.

G. L. c. 233, § 20, First.   See Mass. G. Evid. § 504(b)(2)

(marital disqualification exceptions).    Therefore, where an

objection is raised, a spouse may not testify to a private

marital conversation, even if that spouse has disclosed the

conversation to a third party.   See Gallagher, supra.   But see

Miller v. Miller, 448 Mass. 320, 326 (2007) (private marital

conversation admitted without objection may be considered for

full probative effect).

     Accordingly, the prosecutor in this case should not have

been permitted to ask the mother regarding the contents of a

private marital conversation about which she could not testify.

It follows that Sally's testimony regarding the private marital

conversation also should not have been admitted to impeach her

mother's response to a question that should not have been asked.8


     8
       In concluding that Sally should not have been permitted to
testify to a private marital conversation between her mother and
                                                                   10


Because Sally's testimony contained a confession to the crime by

the defendant, we are persuaded that the error "materially

influenc[ed] the guilty verdict," creating a substantial risk of

a miscarriage of justice (quotation and citation omitted).

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).9

     3.   Admissibility of Sally's testimony to provide context

for the mother's testimony at retrial.    In the event of retrial,

the portion of Sally's testimony that contained the defendant's

purported confession would not be admissible even to provide

context to Sally's pregnancy claim, as originally contemplated

by the parties.   Introducing a confession, inadmissible for its

truth, in these circumstances creates a danger of undue

prejudice that substantially exceeds the statement's probative

value for its admissible purpose:    the influence of Sally's

mother's statement as to what the defendant had said on Sally's

state of mind.    See Commonwealth v. Martinez, 431 Mass. 168, 174

(2000); Commonwealth v. Rosario, 430 Mass. 505, 508-511 (1999).



the defendant, the Appeals Court determined that the
disqualification under § 20, First, extended to Sally, a third
party; i.e., that Sally too was precluded from testifying about
the private marital communication. Garcia, 89 Mass. App. Ct. at
72-74. This is not the basis of our decision, and we do not
reach the issue. This question is one better left for another
day, when the third party's testimony is not, as here, unduly
prejudicial evidence used to impeach incompetent testimony.
     9
       The parties dispute whether the issue is properly
preserved. We do not reach this issue because reversal is
warranted even under this less forgiving standard.
                                                                  11


See also Commonwealth v. Bishop, 461 Mass. 586, 596 (2012)

(judge's balancing of probative value against danger of unfair

prejudice subject to abuse of discretion review).

    That Sally's mother told Sally that the defendant had

confessed adds little to explain the circumstances of Sally's

pregnancy claim.   The context could be adequately explained

through Sally's testimony that she "lashed out and told [her

mother] [she] was pregnant," because she was "upset that [her

mother] wanted [her] to drop the case."   The defendant's

confession provides little additional probative value for this

narrow purpose.

    Admitting the defendant's confession in this way also would

be unduly prejudicial.   "Testimony of this kind carries a high

probability of misuse . . . ."   Rosario, 430 Mass. at 509.

There is a grave danger that the jury would consider, for its

truth, the defendant's confession to the conduct underlying the

criminal charge, rather than as evidence of Sally's motivation

for claiming to be pregnant.

    Accordingly, the defendant's confession should not be

admitted for the collateral purposes of providing context to

Sally's pregnancy claim.   See Mass. G. Evid. § 403 (2017).

Contrast Commonwealth v. Berry, 420 Mass. 95, 109 (1995) (no

abuse of discretion when inflammatory evidence was relevant to

material issue).
                                                                12


    Conclusion.   The defendant's conviction is reversed, the

verdict is set aside, and the case is remanded for further

proceedings consistent with this opinion.

                                   So ordered.
