Commonwealth v. Jacques

242 N.E.3d 571

494 Mass. 739

COMMONWEALTH

v.Eden JACQUES.

SJC-13461

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 8, 2024

Decided October 2, 2024

Assault with Intent to Rape. Indecent Assault and Battery. Child Abuse. Rape-Shield Statute. Witness, Credibility, Cross-examination. Evidence, Sexual conduct, Credibility of witness. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses, Argument by prosecutor.

Indictments found and returned in the Superior Court Department on November 15, 2016, and November 7, 2017.

The cases were tried before Robert L. Ullmann, J.

After review by the Appeals Court, 102 Mass. App. Ct. 157, 202 N.E.3d 524 (2023), the Supreme Judicial Court granted leave to obtain further appellate review.

Joshua M. Daniels for the defendant.

Andrew Shepard Doherty, Assistant District Attorney (Kyle E. Siconolfi, Assistant District Attorney, also present) for the Commonwealth.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

GEORGES, J.

₇₃₉The defendant, Eden Jacques, appeals from his convictions of sexual offenses against two minor girls. The defendant₇₄₀ asserts two claims of error. First, he contends that the trial judge erred in concluding the rape shield statute, G. L. c. 233, § 21B, barred evidence of one complainant’s prior allegations of sexual abuse by a third party. Second, he maintains that, even if evidence of the prior allegations of sexual abuse was proscribed by the statute, the trial judge nonetheless erred by precluding this line of questioning during defense counsel’s cross-examination of the complainant, thwarting his constitutional rights¹ to confront an adverse witness and to present a complete defense.

As to the defendant’s first argument, we disagree; prior sexual abuse constitutes "sexual conduct" for purposes of the rape shield statute, thereby restricting the admissibility of evidence of that abuse. As to his second argument, we agree that the trial judge erred by foreclosing all cross-examination about the third-party abuse. We reverse the defendant’s convictions and remand for a new trial.²

1. Background, a. Procedural history. In January 2016, a grand jury indicted the defendant for sexual assault offenses against Kathy and Denise,³ two minor girls who lived with the defendant at the time the alleged sexual abuse occurred. As against Kathy, the defendant was charged with one count of assault with intent to rape a child, G. L. c. 265, § 24B; two counts of aggravated rape of a child, G. L. c. 265, § 23A; and two counts of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B. Regarding Denise, the defendant was charged with one count of aggravated rape of a child, G. L. c. 265, § 23A; two counts of assault with intent to rape a child, G. L. c. 265, § 24B; and three counts of indecent assault and battery on a person age fourteen or older, G. L. c. 265, § 13H. Prior to trial, the Commonwealth moved, pursuant to the rape shield statute, G. L. c. 233, § 21B, to exclude evidence of a third-party sexual assault against Denise. The trial judge reserved judgment on the motion until trial and ultimately foreclosed this line of questioning as discussed below.

₇₄₁The jury found the defendant guilty of assault with intent to rape a child (Kathy), indecent assault and battery on a child under fourteen years of age (Kathy) as a lesser included offense of aggravated rape of a child, assault with intent to rape a child (Denise), and two counts of indecent assault and battery on a person age fourteen or older (Denise).⁴ As to the remaining charges, the jury found the defendant not guilty with respect to several offenses, including assault with intent to rape a child (Denise), and the remainder were dismissed at the request of the Commonwealth. The defendant appealed from his convictions, which the Appeals Court affirmed. Commonwealth v. Jacques, 102 Mass. App. Ct. 157, 202 N.E.3d 524 (2023). We granted the defendant’s application for further appellate review.

b. Facts. The Commonwealth’s case relied primarily on the testimony of Kathy and Denise. We summarize the evidence pertaining to each complainant.

i. Kathy. The defendant began living with Kathy and her mother, Sophia,⁵ in their Boston apartment when Kathy was approximately six years old. At that time, the defendant was dating Sophia. Kathy, who was eleven years old by the time of trial, described three incidents of sexual abuse, as summarized by the Appeals Court:

"On one … occasion Kathy was sleeping alone in her mother’s [bed]room when the defendant got on top of her, naked, and touched her vagina with his penis. On another occasion, Kathy was standing in the basement of the apartment when the defendant penetrated her vagina while standing behind her. Kathy also testified that the defendant[, over her clothes,] touched her thigh near her vagina with his hand while carrying her on his shoulders."

Jacques, 102 Mass. App. Ct. at 158, 202 N.E.3d 524. Kathy explained that, after she disclosed the bedroom incident to her mother, she went to live with her father and grandmother, both of whom questioned her about the alleged abuse.

However, defense counsel suggested it was instead the disclosure of a shoulderriding incident -- rather than the bedroom incident -- that led to Kathy leaving her mother’s household and, ₇₄₂further, that the shoulder-riding incident was completely innocuous, without any intended inappropriate touching. Then, per defense counsel’s theory, the repeated questioning about the shoulder-riding incident by untrained individuals caused Kathy to infuse sexual details into that incident and to make additional sexual assault accusations, including the bedroom incident, that did not happen.

In support of this theory, defense counsel elicited testimony from Kathy that she discussed the abuse with multiple people, including her father, her grandmother, her aunt, and the prosecutor. Kathy further testified on cross-examination that, though she disclosed the shoulder-riding incident to her mother, she could not recall how soon thereafter she left the household. However, this testimony did not fully support the defendant’s theory, as Kathy’s uncertainty about the timing of her departure from that household left open the possibility that she continued to live with the defendant until she also disclosed the bedroom-incident -- i.e., before she was repeatedly questioned by other family members.

Defense counsel further attempted to undermine Kathy’s credibility by highlighting discrepancies between her trial testimony and her prior statements regarding the abuse. For example, although Kathy had previously claimed that the defendant penetrated her with a stick, she did not recall at trial having made this allegation and testified she did not know if the defendant had in fact done so.

ii. Denise. Denise is Kathy’s cousin. When she was fifteen years old, Denise moved into her Aunt Sophia’s apartment (Kathy’s mother), along with her mother and three siblings. When Denise and her family moved into the apartment, Kathy was not living there. Soon after the move, the defendant also began living with Sophia.

Denise initially thought the defendant was "cool." Her perception soon changed as the defendant began to harshly discipline Denise’s younger siblings. On one occasion, the defendant hit Denise’s sister, who was about eight years old, "because she gave his dog a bone," and this led to a physical altercation between Denise’s brother and the defendant.

Denise, who was eighteen years old at the time of trial, testified that the defendant eventually started to sexually abuse her while they lived together. As summarized by the Appeals Court:

"On one occasion, the defendant lay down next to Denise on ₇₄₃a bed in her aunt’s bedroom, took the covers off her, and rubbed her legs. On that same occasion, he eventually laid Denise over a stool or chair, [pulled down his pants and Denise’s pants,] and [then] penetrated Denise’s vagina with his penis. In other instances, when Denise was sleep-ing …, the. defendant would enter the … room, take the covers off her, pull up her shirt, and touch her breasts with his hands. Denise also testified that the defendant once moved Denise’s clothes and underwear aside and touched and licked her vagina."

Jacques, 102 Mass. App. Ct. at 159, 202 N.E.3d 524.

During cross-examination, defense counsel attempted to undermine Denise’s credibility by "establish[ing] that Denise’s trial testimony varied in several respects from her prior statements to the police." Jacques, 102 Mass. App. Ct. at 159, 202 N.E.3d 524. "For example, although Denise testified at trial that the defendant had touched her vagina, she said at a prior interview that the defendant had not done so." Id. Defense counsel also elicited further details about the defendant’s alleged abuse. Of note, on cross-examination, Denise testified: (1) her Aunt Sophia warned her that the defendant was "sneaky"; (2) the defendant offered her twenty dollars for sex and to dance for him; and (3) the defendant sometimes walked around the house with his penis exposed.

After eliciting these details from Denise, defense counsel sought to cross-examine her about her allegations of past sexual assaults by a third party, who was not the defendant, which were documented during a sexual abuse intervention network, or SAIN, interview. To justify this line of inquiry, defense counsel made an offer of proof to the trial judge pointing out the following similarities between Denise’s trial testimony regarding the defendant and the third-party assault allegations: (1) Denise’s initial impressions of both men were positive but soon changed; (2) Sophia and a different aunt each warned Denise about the defendant and the third party, respectively, using identical language -- i.e., "sneaky"; and (3) both men, on separate occasions, engaged in similarly abusive conduct, including...