NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-195
COMMONWEALTH
vs.
COREY D. WEST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Corey D. West, appeals from his conviction
of rape after a jury trial in the Superior Court.1 The defendant
argues that an evidentiary ruling by the trial judge was error
and deprived him of his right to confront witnesses. We discern
no abuse of discretion in the judge's ruling and no substantial
risk of a miscarriage of justice. We affirm.
Background. Before trial, the Commonwealth moved in limine
to admit testimony of a different victim alleging that the
defendant had raped her in Boston under circumstances similar to
those in the present case. The judge ruled that the bad act
evidence was not admissible in the Commonwealth's case in chief.
1 On an indictment charging aggravated rape, the defendant was convicted of the lesser included offense of rape. The jury acquitted him of armed kidnapping with sexual assault, armed robbery, and assault by means of a dangerous weapon (a knife). The judge warned, "depending on what the evidence is, the door
may be opened at a later time."
At trial, the jury heard evidence that in September 2016,
the victim was addicted to heroin, worked as a prostitute, and
advertised her services on a Web site called Backpage. On the
night of September 16 to 17, she, Jeffrey Hopkins, and Mike
Depina drank Hennessy cognac, smoked marijuana, and rode around
in Depina's car.
In the early morning of September 17, the victim received a
text message from someone seeking one-half hour of sex. After
she negotiated a price, she received another text message
directing her to a condominium building in Brockton, and Depina
drove her there. While Hopkins and Depina waited in the car,
the victim went into the building, where the defendant escorted
her to an apartment. After the defendant asked if she wanted to
use the bathroom, the victim went into the bathroom and closed
the door. At that point, the victim would have been willing to
have sex with the defendant for money.
When the victim opened the bathroom door, the defendant was
standing there holding a knife. The defendant held the knife to
the victim's throat and ordered her to get undressed; she
complied. Wearing a condom, the defendant raped the victim
orally and vaginally. Then the defendant flushed the condom
down the toilet. At knifepoint, he forced the victim to take a
2 shower and brush her teeth. The victim dressed and ran to
Depina's car. Crying and upset, the victim told Hopkins and
Depina that the defendant had raped her at knifepoint.
During a subsequent search of the apartment, police found
the defendant hiding inside a suitcase. The victim was treated
at a hospital; she had marks on her neck where the defendant had
pressed the knife against her. At the hospital, she was shown a
photo array and identified the defendant as the man who had
raped her.
Discussion. The defendant argues that the judge improperly
restricted his cross-examination of the victim. Questioned by
defense counsel, the victim testified that before this rape in
Brockton, Depina drove her to Fall River to meet another
Backpage customer for sex, but she never met that man because
"He didn't show up." At sidebar, defense counsel made an offer
of proof that Hopkins and Depina had testified before the grand
jury that the victim had said that she had been raped and robbed
by the Fall River man. During a voir dire, the victim admitted
that she did meet the Fall River man but he was "sketchy," so
she returned to Depina's car. She denied telling Hopkins or
Depina that the Fall River man had raped or robbed her.
Defense counsel argued that he should be permitted to
impeach the victim with her statement to Hopkins and Depina
because it showed that she had a "pattern of claiming rape."
3 The judge ruled that if Hopkins or Depina testified to the
statement, the defendant could recall the victim to elicit her
denial that she said it, and it would be admitted as a prior
false allegation of rape tending to show fabrication. Reminded
by the prosecutor of his in limine ruling about the Boston rape
allegation, the judge commented that if the defendant introduced
the victim's prior statement, "then I will explore whether or
not the Commonwealth can put in the prior act in Suffolk,"
telling defense counsel, "You can decide how you're going to
proceed." On cross-examination of Hopkins, defense counsel
elicited that earlier that evening the victim had met a Backpage
customer in Fall River for sex, but counsel did not ask Hopkins
about the victim's statement. Depina did not testify.
On appeal, the defendant argues that he should have been
permitted to cross-examine the victim about her statement to
Hopkins and Depina that the Fall River man had raped and robbed
her. As set forth above, the trial record shows that the judge
did permit the defendant to introduce the victim's statement
through cross-examination of Hopkins, but the defendant
refrained from doing so. In those circumstances, the defendant
did not preserve the issue for appellate review, and we consider
it to determine whether a substantial risk of a miscarriage of
justice arose. See Commonwealth v. Otsuki, 411 Mass. 218, 236
4 (1991). See also Commonwealth v. Shruhan, 89 Mass. App. Ct.
320, 324 (2016).
The defendant contends that the victim's statement was
admissible during her cross-examination on any of three grounds:
as a prior false allegation of rape, as her prior inconsistent
statement, or to explain her physical injuries. We are not
persuaded. First, the defendant argues that because the victim
testified on voir dire that her only interaction with the Fall
River man was a brief conversation, her statement to Hopkins and
Depina that the man had raped her was admissible as a prior
false allegation of rape. See Commonwealth v. Bohannon, 376
Mass. 90, 92-94 (1978). In contrast, trial defense counsel
repeatedly told the judge that he was not seeking to introduce
the victim's statement as a prior false allegation of rape.2 In
any event, the judge permitted the defendant to introduce the
victim's statement as a prior false allegation, but required him
first to prove by extrinsic evidence -- the testimony of Hopkins
or Depina -- that the victim had made the statement. After the
voir dire in which the victim denied making the statement, it
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-195
COMMONWEALTH
vs.
COREY D. WEST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Corey D. West, appeals from his conviction
of rape after a jury trial in the Superior Court.1 The defendant
argues that an evidentiary ruling by the trial judge was error
and deprived him of his right to confront witnesses. We discern
no abuse of discretion in the judge's ruling and no substantial
risk of a miscarriage of justice. We affirm.
Background. Before trial, the Commonwealth moved in limine
to admit testimony of a different victim alleging that the
defendant had raped her in Boston under circumstances similar to
those in the present case. The judge ruled that the bad act
evidence was not admissible in the Commonwealth's case in chief.
1 On an indictment charging aggravated rape, the defendant was convicted of the lesser included offense of rape. The jury acquitted him of armed kidnapping with sexual assault, armed robbery, and assault by means of a dangerous weapon (a knife). The judge warned, "depending on what the evidence is, the door
may be opened at a later time."
At trial, the jury heard evidence that in September 2016,
the victim was addicted to heroin, worked as a prostitute, and
advertised her services on a Web site called Backpage. On the
night of September 16 to 17, she, Jeffrey Hopkins, and Mike
Depina drank Hennessy cognac, smoked marijuana, and rode around
in Depina's car.
In the early morning of September 17, the victim received a
text message from someone seeking one-half hour of sex. After
she negotiated a price, she received another text message
directing her to a condominium building in Brockton, and Depina
drove her there. While Hopkins and Depina waited in the car,
the victim went into the building, where the defendant escorted
her to an apartment. After the defendant asked if she wanted to
use the bathroom, the victim went into the bathroom and closed
the door. At that point, the victim would have been willing to
have sex with the defendant for money.
When the victim opened the bathroom door, the defendant was
standing there holding a knife. The defendant held the knife to
the victim's throat and ordered her to get undressed; she
complied. Wearing a condom, the defendant raped the victim
orally and vaginally. Then the defendant flushed the condom
down the toilet. At knifepoint, he forced the victim to take a
2 shower and brush her teeth. The victim dressed and ran to
Depina's car. Crying and upset, the victim told Hopkins and
Depina that the defendant had raped her at knifepoint.
During a subsequent search of the apartment, police found
the defendant hiding inside a suitcase. The victim was treated
at a hospital; she had marks on her neck where the defendant had
pressed the knife against her. At the hospital, she was shown a
photo array and identified the defendant as the man who had
raped her.
Discussion. The defendant argues that the judge improperly
restricted his cross-examination of the victim. Questioned by
defense counsel, the victim testified that before this rape in
Brockton, Depina drove her to Fall River to meet another
Backpage customer for sex, but she never met that man because
"He didn't show up." At sidebar, defense counsel made an offer
of proof that Hopkins and Depina had testified before the grand
jury that the victim had said that she had been raped and robbed
by the Fall River man. During a voir dire, the victim admitted
that she did meet the Fall River man but he was "sketchy," so
she returned to Depina's car. She denied telling Hopkins or
Depina that the Fall River man had raped or robbed her.
Defense counsel argued that he should be permitted to
impeach the victim with her statement to Hopkins and Depina
because it showed that she had a "pattern of claiming rape."
3 The judge ruled that if Hopkins or Depina testified to the
statement, the defendant could recall the victim to elicit her
denial that she said it, and it would be admitted as a prior
false allegation of rape tending to show fabrication. Reminded
by the prosecutor of his in limine ruling about the Boston rape
allegation, the judge commented that if the defendant introduced
the victim's prior statement, "then I will explore whether or
not the Commonwealth can put in the prior act in Suffolk,"
telling defense counsel, "You can decide how you're going to
proceed." On cross-examination of Hopkins, defense counsel
elicited that earlier that evening the victim had met a Backpage
customer in Fall River for sex, but counsel did not ask Hopkins
about the victim's statement. Depina did not testify.
On appeal, the defendant argues that he should have been
permitted to cross-examine the victim about her statement to
Hopkins and Depina that the Fall River man had raped and robbed
her. As set forth above, the trial record shows that the judge
did permit the defendant to introduce the victim's statement
through cross-examination of Hopkins, but the defendant
refrained from doing so. In those circumstances, the defendant
did not preserve the issue for appellate review, and we consider
it to determine whether a substantial risk of a miscarriage of
justice arose. See Commonwealth v. Otsuki, 411 Mass. 218, 236
4 (1991). See also Commonwealth v. Shruhan, 89 Mass. App. Ct.
320, 324 (2016).
The defendant contends that the victim's statement was
admissible during her cross-examination on any of three grounds:
as a prior false allegation of rape, as her prior inconsistent
statement, or to explain her physical injuries. We are not
persuaded. First, the defendant argues that because the victim
testified on voir dire that her only interaction with the Fall
River man was a brief conversation, her statement to Hopkins and
Depina that the man had raped her was admissible as a prior
false allegation of rape. See Commonwealth v. Bohannon, 376
Mass. 90, 92-94 (1978). In contrast, trial defense counsel
repeatedly told the judge that he was not seeking to introduce
the victim's statement as a prior false allegation of rape.2 In
any event, the judge permitted the defendant to introduce the
victim's statement as a prior false allegation, but required him
first to prove by extrinsic evidence -- the testimony of Hopkins
or Depina -- that the victim had made the statement. After the
voir dire in which the victim denied making the statement, it
2 The defendant has not argued, in the trial court or on appeal, that the victim "confabulated" her interactions with the defendant and the Fall River man. Contrast Commonwealth v. Polk, 462 Mass. 23, 38 (2012) (expert testimony of psychologist supported claim that rape victim had "confabulated" allegations against defendant with prior sexual assaults by uncles). Thus we do not consider that issue.
5 was within the judge's discretion to require the defendant to
elicit the statement through Hopkins or Depina before recalling
the victim to question her about it. See Commonwealth v.
Parent, 465 Mass. 395, 399-400 (2013) (after sexual assault
victim denied having made inconsistent statements to detective,
defendant should have been permitted to elicit inconsistencies
from detective). That the defendant chose not to do so did not
give rise to a substantial risk of a miscarriage of justice.
Second, the defendant contends that because the victim had
testified before the jury that the Fall River man "didn't show
up," her statement that that man raped her was admissible as her
prior inconsistent statement. See Commonwealth v. McGowan, 400
Mass. 385, 390 (1987) (no discretion to exclude prior
inconsistent statement "directly related" to "central issue in
the case"). The jury heard the victim's testimony that she was
working as a prostitute, was addicted to heroin, and would have
been willing to have sex with the defendant for money. On
cross-examination, the defendant elicited that the victim had
lied both to police and under oath before the grand jury. In
that context, evidence of whether the victim met the Fall River
man or had sex with him -- consensually or
nonconsensually -- would have gone to a collateral matter. Cf.
Commonwealth v. Dabney, 478 Mass. 839, 857-860 (2018) (judge
properly precluded impeachment of sex trafficking victim with
6 Backpage invoices). Even assuming that the victim had made
inconsistent statements about her interaction with the Fall
River man, their omission did not create a substantial risk of a
miscarriage of justice.
Finally, the defendant argues, for the first time on
appeal, that the victim's statement that the Fall River man had
raped her would have been admissible to explain her physical
injuries. The defendant did not file a written motion in limine
or make an offer of proof that the evidence was admissible for
that purpose, as required by the rape-shield statute, G. L.
c. 233, § 21B. See Commonwealth v. Cortez, 438 Mass. 123, 129
(2002). Thus the defendant made no showing that whatever
happened in Fall River would have explained the marks on the
victim's neck. See id. at 129-130 (consensual intercourse two
days before murder would not have explained injuries including
bloody fingermarks on victim's thighs).
The judge's evidentiary ruling did not create a substantial
risk of a miscarriage of justice by violating the defendant's
right to confront witnesses under the Sixth Amendment to the
United States Constitution or art. 12 of the Massachusetts
Declaration of Rights. That right "is 'not absolute,' . . . and
'the scope of cross-examination rests largely in the sound
discretion of the trial judge.'" Commonwealth v. Gallett, 481
Mass. 662, 682 (2019), quoting Commonwealth v. Miles, 420 Mass.
7 67, 71 (1995). As explained above, the judge did not preclude
the defendant from introducing the statement as a prior false
allegation of rape, or otherwise abuse his discretion by
excluding the statement. See Commonwealth v. Sealy, 467 Mass.
617, 624 (2014) (in judge's discretion to preclude cross-
examination of rape victim about motive to fabricate arising
from immigration benefits she received after reporting prior
rape). Nor did any violation of the defendant's confrontation
rights arise from the judge's comment that, if the defendant
introduced the victim's statement to show her motive to
fabricate this rape, that might "open the door" to admission of
evidence of the Boston rape allegation against the defendant.
The judge's ruling was not a definitive one. See Commonwealth
v. Pierre, 486 Mass. 418, 431 (2020).
Judgment affirmed.
By the Court (Massing, Grant & Brennan, JJ.3),
Assistant Clerk
Entered: January 25, 2024.
3 The panelists are listed in order of seniority.