COMMONWEALTH v. ALIJEVIC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of two counts of rape. In this direct appeal, he argues that the trial judge made certain evidentiary errors. We affirm.

Background. We summarize the trial testimony as follows. After a night of drinking at a bar, the victim needed a ride home. She accepted a ride in the defendant's car, and at one point she and the defendant stopped at a storage container at which someone supposedly was going to bring the defendant marijuana. According to the victim, once they were inside the container, the defendant violently sexually assaulted her, committing both digital and penile rapes. She testified that, at one point, the defendant held some sort of blade against her that, in the struggle, cut her leg. After the victim managed finally to escape, a passerby found her disheveled and hysterical with her pants and underpants pulled down to her ankles, screaming “he did it to me” and “I need help.” When the police arrived, the victim was in a fetal position under a truck. Once at the hospital they photographed her injuries, which included a gash on her upper right thigh, cuts above her right eye, red marks on her neck, abrasions and bruising on both of her arms, and abrasions on both of her buttocks.

The defendant testified in his own defense. He claimed that the victim consensually fellated him in the car, before they went into the storage container. Although he denied ever penetrating the victim's vagina once inside the container, he testified that while the victim had her pants and underpants down to her ankles, they were “feeling each other up.” According to him, the victim wanted cocaine from him and once she learned that he was not going to supply it to her, she became angry, attacked him, and indicated that she would claim that he had raped her.

Discussion. 1. Bad acts by victim. The defendant filed a motion in limine seeking to cross-examine the victim with respect to, and to introduce extrinsic evidence of, four “bad acts” involving the victim. These incidents were as follows:

1) a July 2, 2014, incident in which the victim was charged with assault and battery on her estranged husband based on allegations that she had slapped him several times during an argument (and where the underlying incident report refers to the husband's allegation that the victim had sent him text messages threatening to lie to the police that he had assaulted her);

2) a July 30, 2015, restraining order that the victim's husband 2 had obtained against her based on his affidavit alleging that one night she had approached his house, yelled into his windows, and apparently let the air out of his tires, and that she was “bipolar and unstable”;

3) a September 5, 2015, incident during which the victim, while apparently intoxicated, was arrested for disorderly conduct based on allegations that she was screaming while on Revere Beach; and

4) an April 13, 2017, incident during which the victim, while again apparently intoxicated, was arrested for assault and battery on a police officer, resisting arrest, and disorderly conduct, after she became irate over the police arresting a man she described as her husband for driving under the influence of alcohol.

The judge denied the defendant's motion after thoughtfully examining each incident.³

On appeal, the defendant claims on numerous grounds that the evidence of the incidents should have been admitted, or that, at the least, he be allowed to impeach the victim about them. According to him, the incidents showed the victim's propensity -- especially when she was drinking -- for violence, hysterical behavior, and a willingness to make false accusations of assault. This in turn, the defendant argues, would have provided support for his version of the events and could have made a difference to the jury's verdict.

Although a defendant has a constitutional right to confront his accusers, a trial judge nevertheless retains significant discretion to place limits on his cross-examination of them. Commonwealth v. Johnson, 431 Mass. 535, 538 (2000) (“[t]he right [to cross-examine the prosecution's witnesses] is not absolute, however, and the judge has broad discretion to determine the scope and extent of cross-examination”). As a general rule, a witness cannot be impeached based on his or her specific bad acts unless they resulted in a conviction. See Commonwealth v. Harris, 443 Mass. 714, 720 (2005). The defendant seeks to place his situation within recognized exceptions to that general rule.

In one such exception, the Supreme Judicial Court has recognized that a defendant can delve into a putative victim's propensity for violence where the defendant has raised a self-defense claim and there is a dispute over who was the first aggressor. See Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005). This is a narrow exception, however, and it has never been applied where, as here, the defendant has not raised a defense of self-defense (which he, in any event, could not have raised as a defense to rape). Id. at 660. Moreover, even if a victim's prior specific bad acts could be admissible to show a propensity for violence outside the self-defense context, we are satisfied that the judge properly exercised his discretion in excluding the evidence here.

Similarly inapposite is the exception recognized in Commonwealth v. Bohannon, 376 Mass. 90, 94-95 (1978), S.C. 385 Mass. 733 (1982). That case recognizes that, under certain limited circumstances, a defendant charged with a sexual assault can raise a putative victim's history of making false sexual assault allegations against others. As with Adjutant, supra, the exception recognized in Bohannon is extremely limited and has no application here. See Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993). Putting aside the absence of a reliable showing by the defendant that the victim here in fact had threatened to make false allegations of domestic violence against her estranged husband, as the judge observed, the context in which such allegations arose are completely different than rape charges involving the defendant, an individual whom she had just met. The trial judge acted well within his discretion in declining to apply Bohannon to the circumstances of this case.

We also find unpersuasive the defendant's reliance on other cases in which we vacated convictions based on limits the trial judge had placed on a defendant's cross-examination of the putative victim. For example, Commonwealth v. Civello, 39 Mass. App. Ct. 373 (1995), is nothing like the case before us. There, the defendant claimed that his step-daughter had alleged that he had sexually assaulted her in order to have the Department of Social Services (DSS) remove him from the household. Even in the face of the step-daughter's acknowledgement that she had “threatened to report the defendant to the DSS for ‘abuse’ if she did not ‘get [her] way,’ ” the judge denied the defendant the opportunity to explore her familiarity with how the DSS process worked. Id. at 375. Given the centrality of the issue to the defense of bias, we reversed. Id. at 376-377. By contrast, nothing about the victim's alleged involvement in the four incidents goes to the defendant's claim that the victim was motivated to lie that he had raped her based on her anger that he had not supplied her with cocaine.

In sum, the defendant is unable to show that the judge abused his discretion in declining to let him delve into the four incidents of alleged bad acts by the victim.

2. Saliva evidence. An external genital swab taken of the victim revealed the presence of saliva. Follow up testing indicated two male DNA profiles found in the sample, and that the defendant could have been the source of one of those profiles. In lieu of live testimony, the parties entered into the following stipulation at trial:

“The external genital swab taken from [the victim] as part of the evidence collection kit was positive for saliva. Upon further testing, the defendant is included as a potential contributor to the DNA profile obtained from this swab. The possible profile obtained from this sample has been observed 196 times in a database of 6,714 males.”

On the Commonwealth's objection, the judge excluded evidence that the DNA testing revealed that the defendant could not have been a potential source of a second DNA profile. On appeal, the defendant claims this constituted reversible error.⁴ For the reasons that follow, we disagree.

The excluded evidence went to whether DNA from a second male was found on the victim's external genitalia. Even apart from the rape shield statute, the defendant is unable to demonstrate how such evidence was relevant. See Commonwealth v. Domaingue, 397 Mass. 693, 698 (1986) (common-law rules of evidence apply even where rape shield statute does not). This was not a case where identity ever was at issue, or the defendant had sought to mount a third-party defense. Contrast Commonwealth v. Fitzgerald, 412 Mass. 516, 523-524 (1992); Commonwealth v. Cardoza, 29 Mass. App. Ct. 645, 648-649 (1990). Given that the other DNA profile had no relevance to whether the defendant had raped the victim, the judge acted well within his discretion in excluding it.⁵

Judgments affirmed.

FOOTNOTES

2.   It is not clear whether the victim and her husband by this time were divorced.

3.   The Commonwealth filed its own motion in limine seeking to exclude references to the victim's prior bad acts. That cross motion was allowed.

4.   There is a suggestion in the defendant's brief that the judge should not have accepted the stipulation because it did not adequately explain its overall conclusion that the defendant was a potential contributor to a DNA profile in the sample. We cannot fault the judge for accepting stipulated evidence to which both parties freely agreed, and the defendant does not argue that his trial counsel (who is also current appellate counsel) was constitutionally ineffective for entering into the stipulation. We do note that the defendant's characterization of the stipulation is not accurate. Specifically, he summarizes the stipulation as signifying that he “was a very low possibility to have contributed the second profile: 3% chance.” In fact, the thrust of the stipulation appears to be that while the defendant could have been the source of the DNA profile found in the sample, that also would be true for about three percent of the male population. None of this is to suggest that the stipulation about DNA sampling had any real significance in this case, especially where the defendant acknowledged that he had been “feeling ․ up” the victim while her genitals were exposed on the night that she sustained her injuries.

5.   As the judge observed, the evidence regarding the victim's sexual contact with a second male might well have been relevant had the Commonwealth offered evidence -- as it originally had intended to do -- that the victim had suffered a small vaginal tear. The judge's exclusion of the DNA evidence regarding a second male was conditioned on the Commonwealth not offering the evidence of the tear. No such evidence was offered.