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Appeals Court of Massachusetts.



Decided: February 25, 2021

By the Court (Vuono, Milkey & Ditkoff, JJ.1)


The defendant, George Perrot, pleaded guilty in District Court to assault and battery on a family or household member, G. L. c. 265, § 13M (a). The plea judge imposed a split sentence. The defendant now appeals from an order of the same judge revoking the defendant's probation and imposing the remaining portion of his sentence, following his arrest on new criminal charges. Concluding that any errors in the restrictions on the defendant's impeachment of the victim were harmless beyond a reasonable doubt, we affirm.2

In accordance with Commonwealth v. Hartfield, 474 Mass. 474, 481-482 (2016), the judge permitted the defendant to call the victim of the new charge of rape as a witness, despite the fact that her grand jury testimony was admitted in evidence. In such circumstances “the judge, consistent with due process, may restrict the scope of such testimony” if the defendant's “examination of a witness strays into issues that are irrelevant to the determination of whether the probationer violated the conditions of probation, cumulative of other evidence, or unduly harassing to the witness.” Id. at 482. If the judge erred, “we review to determine whether the error was ‘harmless beyond a reasonable doubt.’ ” Id. at 483, quoting Commonwealth v. Kelsey, 464 Mass. 315, 319 (2013). Without deciding whether the judge erred, we conclude that any error was harmless beyond a reasonable doubt.

The excluded impeachment was of marginal value. The judge excluded prior convictions for prostitution, trespassing, and drug possession. The victim's drug-related criminal activity, however, was not in question. The victim testified to years of illegal drug use, including repeated criminal activity leading up to the sexual assault. The defendant's friend also testified about the victim's illegal drug use. Indeed, the victim was actively overdosing when the emergency medical technicians arrived. The fact that she had been convicted of several minor crimes, all plainly related to her substance use disorder, would have added little. See Commonwealth v. Lopez, 485 Mass. 471, 484 (2020) (exclusion of evidence that was mostly cumulative was harmless beyond reasonable doubt).

The defendant also asked to introduce evidence that the victim had been charged (but not convicted) of lewd and lascivious behavior more than five years earlier. The defendant's theory that the victim, revived minutes earlier from an overdose by a dose of naloxone from an emergency medical technician, decided to lie about whether she consented to have the defendant penetrate her while she was unconscious to avoid another charge of lewd and lascivious behavior was fanciful, at best. See, e.g., Commonwealth v. DeCoste, 51 Mass. App. Ct. 691, 694-695 (2001). Similarly, information that the government assisted the victim in getting into a program was of marginal value in assessing her credibility.

Moreover, the victim's credibility concerning her description of the sexual assault and her lack of consent to it was already substantially impeached. The medical records reflected that the victim told the sexual assault nurse examiner that she did not remember anything. The emergency medical technician testified that the victim told him that she did not “recall anything that had happened.” The police officer testified that she told him that she remembered nothing after snorting heroin, and the victim confirmed that she told the police officer this. She was unconscious and not breathing from an overdose when medical assistance arrived. In light of this significant impeachment of her vague descriptions of the assault, there is no appreciable chance that the further impeachment proposed by the defendant would have influenced the violation judge's assessment of the victim's credibility. See Commonwealth v. Nass, 12 Mass. App. Ct. 948, 949 (1981), quoting Commonwealth v. Kerrigan, 370 Mass. 859, 860 (1976) (where trier of fact was presented “with several substantial questions pertaining to the victim's credibility[,] [w]e are satisfied that impeachment of the victim by his prior conviction [for a minor crime] would have added ‘no more than minimally to the damage already done’ ”).

The defendant's argument falters because the victim's testimony was of dubious value and was not the primary evidence used to prove that the defendant violated the terms and conditions of his probation. A police officer personally observed the defendant raping the victim. As the violation judge stated, “the issue is whether she was capable of consent to the conduct” where “the facts of this case demonstrate that at all time relevant she was unconscious.” See, e.g., Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59, 66 (2009).

To be sure, as the defendant argued before the violation judge, the government had to prove that the defendant knew or should have known that the victim was incapable of consenting. See Commonwealth v. Mountry, 463 Mass. 80, 91 (2012); Commonwealth v. LeBlanc, 456 Mass. 135, 140 (2010). Such proof, however, was abundant where the victim was fully unconscious and not breathing, and was blue in color. The judge was well justified in concluding that the defendant, who was plainly intoxicated but still capable of fighting the police officer well enough to land a blow, was not so intoxicated as not to be able to discern that the victim was unconscious or that an unconscious person is incapable of consenting to sexual activity. See Mountry, supra at 93 (no prejudice where defendant capable of driving to package store and visiting friend). Accordingly, the exclusion of the evidence impeaching the victim was harmless beyond a reasonable doubt.

Order revoking probation affirmed.


2.   “[I]n the exercise of discretion[, we] pretermit the mootness question.” Commonwealth v. Brown, 23 Mass. App. Ct. 612, 615 (1987). Accord Commonwealth v. Delacruz, 99 Mass. App. Ct. 189, 193 (2021).

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