Commonwealth v. Ruffen

Abrams, J.

(dissenting in part and concurring in part). I would not reverse the convictions but would remand the matter for a hearing on the issue whether relevant evidence as to prior abuse was wrongly excluded.

1. Error in excluding the defendant’s denial at the confrontation. I conclude, as does the court, that it was error to exclude the question whether the defendant denied the accusation when confronted by the victim at the police station. I agree with the court that neither an accusation nor a denial ordinarily is admissible. See ante at 812-813. The issue, as I see it, is whether the error so misled the jurors that the defendant’s case was significantly damaged or that the error made the trial grossly unfair. See ante at 813.1 conclude that the error neither misled the jurors nor made the trial grossly unfair.

On cross-examination, defense counsel brought out facts indicating that the defendant went voluntarily to the police station, and that, after the confrontation, the defendant was not arrested but was released by the police detective. He also elicited the facts that the defendant had always appeared in court voluntarily and that there was a hearing before a clerk *818prior to the issuance of the complaint. In final argument, defense counsel argued that the defendant was never arrested, that the defendant appeared in court voluntarily after being summoned, and that the defendant was relased after the confrontation by a police officer with seven years’ experience as a detective investigating rape and child abuse cases and nine years’ experience as a police officer. Defense counsel vigorously argued to the jurors that, if the complainant were not credible, there was no other evidence against the defendant. It was clear that if the victim were not credible, the Commonwealth had no case. The only reasonable inference to be drawn from the entire record is that the defendant denied the charges. The jurors were not misled and, in my view, the exclusion of the one question, while error, does not require reversal.

2. Voir dire examination concerning prior sexual abuse of the victim. I agree that there should be a hearing on whether there was past abuse and whether that abuse was similar to the abuse alleged in this case. If the defendant can show those facts, there might be grounds for a new trial because there may be credence to his theory that the child had sexual knowledge beyond her years for which the defendant was not responsible.

Simply stated, the general principle is that if a child-victim displays knowledge of sexual matters beyond his or her years,1 and if the prior abuse is factually similar to the abuse in the case at bar the prior abuse is admissible on the issue of the victim’s knowledge of sexual matters. See State v. Padilla, 110 Wis. 2d 414, 428-429 (1982). See also State v. Peterson, 35 Wash. App. 481, 484 (1983); People v. Arenda, 416 Mich. 1, 12 (1982); Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal For the Second Decade, 70 Minn. L. Rev. 763, 868 (1986). If the child-victim does not display knowledge beyond his or her years, or if the past abuse is not factually similar to the abuse in the case at bar, the evidence is irrelevant and inadmissible.2

*819In the absence of such an offer of proof* *3 at the voir dire, I believe the evidence of the prior sexual abuse is not relevant and not admissible at trial. “Certainly the constitutional right to confront one’s accuser does not extend so far as to entitle the defendant to engage in an unbounded and free-wheeling cross-examination in which the jury are invited to indulge in conjecture and supposition.” Commonwealth v. Chretien, 383 Mass. 123, 138 (1981).

I would not reverse the defendant’s convictions. I would remand for hearing to determine whether the evidence of past sexual abuse is relevant because it was similar to the present abuse and thus admissible on the issue whether the victim had knowledge of sexual matters beyond her years. If, after hearing, it appears that such evidence exists, the judge then should grant the defendant a new trial.

Such a determination is for the finder of fact.

The court makes a suggestion in dictum which may mislead the trial judge. Commonwealth v. Bohannon, 376 Mass. 90 (1978), S.C., 385 Mass. *819733 (1982), is not relevant because the defendant does not suggest that the victim made a prior false accusation against another person and that there are independent third-party records to support such an assertion.

At trial, defense counsel requested a voir dire based on the ground that the child transferred the details of the prior abuse to the present alleged abuse. Defense counsel asserted in his written motion that “[he] might argue the transference of details of the actual assault to imagined attacks by the defendant.” There was no offer of proof that there would be expert testimony or other evidentiary support for the “transference theory.” In my view, the Appeals Court correctly concluded that the request for a voir dire was based on “highly theoretical suggestions. . . [which] could reasonably be regarded by the trial judge as speculative in the extreme.” Commonwealth v. Ruffen, 21 Mass. App. Ct. 90, 95 (1985). The offer of proof was insufficient on the “transference theory.” The court does not state otherwise in its opinion.