Posts tagged "1101616"

Commonwealth v. Garcia (Lawyers Weekly No. 11-016-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   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. 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 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 […]


Posted by Massachusetts Legal Resources - February 16, 2016 at 3:33 pm

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