COMMONWEALTH vs. MURRAY HELFANT
Supreme Judicial Court of Massachusetts
August 13, 1986
Middlesex. April 7, 1986. — August 13, 1986.
398 Mass. 214
Present: HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & O‘CONNOR, JJ.
In the case of a physician charged with administering a drug to a female patient with the intent to overpower her so as to enable him to have unlawful sexual intercourse with her, the requirement of
Where, at the trial of an indictment for rape, there was ample evidence from which the jury could have found beyond a reasonable doubt that the complainant, as the result of the effects of a certain drug administered to her by the defendant, was incapable of consenting to sexual intercourse, the defendant‘s conviction could properly be based on proof of only such force as was necessary to accomplish intercourse. [220-222]
Although a physician on trial for rape and for administering a drug to a female patient with the intent to overpower her so as to enable him to have unlawful sexual intercourse with her should have been allowed, during his redirect examination, to explain why he gave the police a false reason for his removal of a hypodermic needle and syringe from the complainant‘s apartment, the judge‘s error in rejecting the proffered testimony was nonprejudicial where, inasmuch as the defendant had admitted that he injected the complainant with Valium, the testimony would have related to a subject collateral to the issues being tried and where the explanation, namely, that the complainant and some of her friends used cocaine, would not have detracted from the substantial evidence of the defendant‘s guilt. [222-224] O‘CONNOR, J., dissenting.
At the trial of a physician charged with rape and with administering an injection of a drug to a female patient at her home with the intent to overpower her so as to enable him to have unlawful sexual intercourse with her, the judge did not err in admitting the testimony of two other female patients of the defendant that the defendant, at their respective homes, had injected them with the same drug and had sexually molested
A judge did not abuse her discretion in denying a defendant‘s motion to sever for trial two indictments charging him, respectively, with rape and with administering a drug to the complainant with the intent to overpower her so as to enable him to have unlawful sexual intercourse with her, where the two offenses could be proved by evidence connected with a single line of conduct and grew out of essentially a single transaction. [229-231]
The fact that the complaining witness in a rape case had spoken by telephone, shortly after the time of the alleged rape, with several persons to whom she made no mention of rape did not preclude the admissibility, under the fresh complaint doctrine, of her subsequent statements made during a ten to twelve hour period, where there was ample evidence tending to prove that, at the time of the initial conversations, the complainant was under the influence of a Valium injection administered by the defendant and was barely conscious and severely handicapped in her ability to express herself. [231-232]
INDICTMENTS found and returned in the Superior Court Department on October 1, 1983.
The cases were tried before Elizabeth J. Dolan, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Joseph J. Balliro for the defendant.
Fern L. Nesson, Assistant District Attorney, for the Commonwealth.
ABRAMS, J. After trial by jury, the defendant, Murray Helfant, was convicted of rape and of drugging a person for unlawful sexual intercourse.1 The defendant appealed his convictions,
1a. Required findings of not guilty. At the close of the Commonwealth‘s case, and again at the close of the evidence, the defendant moved unsuccessfully for required findings of not guilty. The standard of review we apply to the denial of a defendant‘s motion for a required finding of not guilty is stated in Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979): “‘[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ [emphasis in original]. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). . . . Thus, to sustain the denial of a directed verdict, it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt.” See Commonwealth v. Barry, 397 Mass. 718, 719-720 (1986); Commonwealth v. Anderson, 396 Mass. 306, 311-312 (1985). We consider the state of the evidence both at the close of the Commonwealth‘s case and at the close of the evidence.2
We summarize the evidence as it may have appeared to the jury. The defendant, a fifty-one year old neurosurgeon, practiced medicine at the Framingham Union Hospital, where the complainant worked as a radiologic technologist. The defendant and the complainant dated from September, 1980, to Feb-
The complainant testified that immediately after the injection she became virtually unconscious, did not feel the needle being removed, and felt “[v]ery groggy. Very out of it. Very heavy. . . . Like I couldn‘t move my arm or my legs.” Sometime later, a ringing telephone awakened her. The defendant told her not to answer the telephone, but, after it had rung several times, she answered. The complainant recalled speaking with her friend, Lisa Block, but could not remember the conversation. She then noticed that the defendant was lying naked beside her, that her clothes had been removed, and that the defendant was “handling” her crotch. The complainant “blacked out again” and later reawoke to find the defendant on top of her, having intercourse with her. She did not remember saying anything to the defendant at this time. Her mind was “in a fog . . . like it wasn‘t real . . . Like I was in like a Twilight Zone.” She lost consciousness and reawoke to find the defendant having intercourse with her again. She asked him “why he was doing it, because wouldn‘t it hurt my back?” He replied that “the medicine would take care of it.” Again she fell asleep and later reawoke; she saw the defendant dressing and heard water running in the bathroom. At the defendant‘s request, she got out of bed to let him out of the apartment. Her legs were “[l]ike rubber” and she felt like she had “about ten drinks.” The defendant departed at about 2:45 P.M. and the complainant fell back asleep.
The complainant‘s mother and two of her friends testified that they spoke with the complainant by telephone between 3 and 3:30 P.M. They, along with Lisa Block (who had called
Two physicians testified on the proper dosage of intravenous Valium and to the probable effects of injecting it into a twenty-six year old woman. Doctor Jonathan Moss told the jurors that intravenous Valium was used almost exclusively to sedate people prior to operations because it is “an amnesia drug . . . patients frequently don‘t remember even going to the operating room until their procedure is over.” It renders them “more pliable” and lessens their protestations and resistance to uncomfortable procedures. Intravenous Valium sedates people physically, relieves their anxiety, and stops them from moving or trembling. Most patients receiving a five to ten milligram Valium injection would “become very tranquil and fall spontaneously off to sleep” and their decision-making capacity, thought processes, physical coordination and speech would be impaired for several hours. Doctor Robert Boyd stated that the accepted treatment for muscle spasms in the back is bed rest, with oral doses of pain relievers and muscle relaxants when necessary; intravenous injection of Valium would not be recommended because of the potential for “serious and devastating consequences.”
The defendant claimed that he came to the complainant‘s apartment, examined her, and prescribed bed rest and an oral dose of Valium. In order to give her immediate relief from the spasm she was then experiencing, he injected her with five milligrams of Valium. He denied having intercourse with the complainant.
1b. We consider first the defendant‘s argument that he was entitled to a required finding of not guilty on the drugging charge because the complainant‘s testimony was not corrobo-
The defendant argues that because he did not contest that he administered a drug to the complainant, that issue cannot be considered a “material particular.” We do not agree. While we have not heretofore attempted to define “material particular” as used in
1c. On the rape charge, the defendant claims, based on his reading of Commonwealth v. Goldenberg, 338 Mass. 377, 383, cert. denied, 359 U.S. 1001 (1959), that, where the complainant is possessed of her faculties, the amount of actual force required to sustain proof of rape must exceed that which is necessary to accomplish mere intercourse. Because there was no evidence that the complainant resisted, the defendant claims, the Commonwealth did not sustain its burden of proof.
“The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim‘s will or compelled by threat of bodily injury. See
In Commonwealth v. Goldenberg, supra, on which the defendant relies exclusively, this court reversed a conviction of rape where the complainant‘s consent had been obtained by fraud. The court reasoned that the “essence of the crime is not the fact of intercourse but the injury and outrage to the feelings of the [victim] by the forceful penetration of her person. . . . Fraud cannot be allowed to supply the place of the force which the statute makes mandatory.” Id. at 384.5 In Goldenberg, the court specifically stated: “This is not a case where a woman is incapable of consent by reason of stupefaction, unconsciousness or helplessness, and the amount of force required to commit the crime may be only that sufficient to effect the intercourse. Commonwealth v. Burke, 105 Mass. 376.” Id. at 383.
There was ample evidence from which a jury could have found beyond a reasonable doubt that the complainant was incapable of consent. She was injected with Valium and rendered unconscious. She awoke from her stupor only when jarred by noises such as a ringing telephone and by the motion of the defendant‘s body on top of her own. Her speech was barely coherent. There was also evidence that intravenous Valium is used in hospitals to lessen patients’ capacity to resist or protest invasive procedures. The court‘s conclusion in Burke is particularly apt here: “[T]he crime, which the evidence in this case tended to prove, of a man‘s having carnal intercourse
2. Exclusion of rehabilitation testimony. On cross-examination, the defendant testified that he had taken back to the hospital the needle, syringe, and other items used to give the Valium injection. He conceded that, although he knew there was a wastebasket in the complainant‘s apartment, he had originally told the police that because he could not find a wastebasket there, he returned the items to the hospital. On redirect examination, the defendant explained that he had told the police he could not find a wastebasket “[b]ecause I did not want the police to know the reason I would not leave a syringe and needle in that apartment.” When defense counsel asked the defendant to state his reason, the Commonwealth objected. Defense counsel made an offer of proof that the defendant would say “that he knew that [the complainant] used cocaine and that some of her friends used cocaine; that under those circumstances he wouldn‘t leave the needle.” The judge sustained the objection and indicated she might prohibit the prosecutor from arguing the point to the jury. The prosecutor did not mention this point again either during trial or in his closing.
We agree with the defendant that he should have been permitted to explain the reason for his statement to the police. “It is well established that a witness may explain, modify, or correct damaging testimony that was elicited on cross-examination.” Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982), and cases cited. The defendant admitted on cross-examination that he had fabricated a reason for removing the needle and syringe from the complainant‘s apartment. He had a right to explain why he had lied to the police. Commonwealth v. Kerrigan, 345 Mass. 508, 513 (1963), cert. denied, 377 U.S. 1004 (1964). Commonwealth v. Fatalo, 345 Mass. 85, 87 (1962).6
In this case, even if the jury were to have heard and believed the defendant‘s explanation of his reason for not telling the police why he had taken the needle and syringe, we can say with fair assurance that a reasonable jury would not have returned a different verdict. See Commonwealth v. Reed, 397 Mass. 440, 443 & n.4 (1986); Kotteakos v. United States, 328 U.S. 750, 763-765 (1946). The testimony related to a subject wholly collateral to the issues then being tried. Commonwealth v. Mandeville, supra. The defendant admitted to the police and at trial that he had injected the complainant with Valium. Given this admission, the jury had no reason to infer that the defendant attempted to conceal the syringe from the police because of a guilty frame of mind concerning the injection. No further mention of the testimony was made during the re-
3. Evidence of prior misconduct. Over the defendant‘s objection, two other women, L.J. and K.H., testified that, when they were patients of the defendant, he came to their apartments, injected them with Valium and then sexually molested them while they were under the influence of the drug. The defendant claims the admission of this evidence was erroneous because its questionable probative value on the drugging charge was outweighed by its prejudicial impact and because the evidence was clearly not relevant to the charge of rape, yet no limiting instruction could confine the jury‘s consideration of the prior misconduct exclusively to the drugging charge.
It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose. Commonwealth v. Drew, 397 Mass. 65, 79 (1986). Commonwealth v. Trapp, 396 Mass. 202, 206 (1985). Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1981). Commonwealth v. Stone, 321 Mass. 471, 473 (1947). Such evidence can be highly prejudicial to the defendant, and therefore must be excluded unless it comes within one of the permitted uses, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive. Commonwealth v. Schoening, 379 Mass. 234, 242 (1979), and cases cited. Accord Commonwealth v. Lowe, 391 Mass. 97, 106, cert. denied, 469 U.S. 840 (1984) (victim‘s state of mind); Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984) (motive); Commonwealth v. King, 387 Mass. 464, 472 (1982) (common course or pattern of conduct); Commonwealth v. Gallison, 383 Mass. 659, 672-673 (1981)
The judge in this case, commendably sensitive to the potential for undue prejudice from the introduction of irrelevant evidence, conducted a voir dire and strictly limited the scope of the two witnesses’ testimony to the defendant‘s sexual misconduct associated with injections of Valium in patients’ homes.7 L.J. testified that in November, 1980, when she was twenty-two, she consulted the defendant twice in his office for treatment of migraine headaches. In January, 1981, the defendant proposed that he come to her home to administer a ten milligram injection of Valium. When he arrived, he persuaded L.J., despite her misgivings, to change into a nightgown, and then gave her the injection. While she was under the influence of the Valium and “fading in and out,” the defendant had intercourse with her. K.H. testified that she injured her back in June, 1981, and spent one week in the Framingham Union Hospital under the defendant‘s care. After her discharge, K.H. suffered a muscle spasm on July 1, 1981. Her roommate gave her a Valium tablet at about 7 P.M. and telephoned the defendant. K.H. fell asleep in her bed and awakened when the defendant arrived at 11 P.M. Although she told the defendant that she was no longer in pain, he insisted on examining her and giving her a ten milligram Valium injection. Almost immediately she
The judge instructed the jury that both witnesses’ testimony could be considered only on the drugging indictment, not the rape, and only for the limited purpose of whether it “tends to prove the existence of a plan or scheme or state of mind on the part on the defendant.”8 The judge also charged the jury that they were not to use the two witnesses’ testimony at all unless they believed it beyond a reasonable doubt.9 The instructions were strong and forceful.
Although the question is close, we conclude there was no error. On the drugging indictment, the Commonwealth was obliged to prove as an element of the crime that the defendant administered the drug “with intent to stupefy or overpower [the complainant] so as thereby to enable any person to have unlawful sexual intercourse with [the complainant].”
This testimony was admitted only with respect to the drugging charge. Before each witness testified, and in the charge, the judge forcefully instructed the jury — at the defendant‘s request — not to consider the testimony with respect to the rape charge. The defendant now contends that, even if the evidence was admissible on the drugging charge, it was so prejudicial that no limiting instruction could be expected to confine the jury‘s use of the evidence.
“Jurors are expected to follow instructions to disregard matters withdrawn from their consideration.” Commonwealth v. Cameron, 385 Mass. 660, 668 (1982). The judge‘s instructions were clear, and we must presume the jury followed them.
4. Denial of the motion to sever. At trial, the defendant moved unsuccessfully to sever the indictments on the grounds that the indictments required disparate elements of proof and that the admission of the prior bad acts testimony on the drugging charge would have a prejudicial spillover effect on the indictment charging rape. Later, the defendant again moved to sever, this time on the ground that he would be unreasonably prejudiced on the rape indictment because conviction on the drugging indictment required the jury to find that the complainant‘s testimony be corroborated in a material particular.16
The defendant has failed to sustain that burden. The two offenses could be proved by “evidence connected with a single line of conduct, and grow out of what is essentially one transaction.” Commonwealth v. Maloney, 348 Mass. 610, 614 (1965). The drugging indictment would be incomprehensible without evidence of subsequent sexual intercourse; the complainant‘s testimony concerning the rape would have been incredible without evidence that she had been drugged. Most of the evidence was admissible on both indictments and the judge gave limiting instructions on the remainder. At the defendant‘s request, the judge limited the use of fresh complaint evidence
We add that severance would have resulted in a second proceeding, largely duplicative of the first. See Commonwealth v. Hoppin, 387 Mass. 25, 33 (1982); Commonwealth v. Gallison, supra at 673. In such circumstances, the judge properly could conclude that prejudice, if any, to the defendant did not outweigh the interests of the court, the Commonwealth, and the public in a shortened adjudication. See Commonwealth v. Sylvester, supra at 758, and authorities cited. We conclude that there was no error in denying the defendant‘s motions to sever.
5. Evidence of fresh complaints. The defendant contends that the judge erred in admitting testimony that the victim made a “fresh complaint” of the rape to several people. The defendant concedes fresh complaint of a recent rape normally is admissible, see Commonwealth v. Bailey, 370 Mass. 388 (1976), but argues that the evidence in this case was stale.
The evidence was as follows. The defendant arrived at the complainant‘s apartment at about 1 P.M. and, after examining her, administered the Valium injection. The complainant received one telephone call before the defendant left at 2:45 P.M. and three more calls between then and 3:30 P.M. All four callers testified to the effect that the complainant was groggy and her speech slurred and unclear, but that she made no mention of rape. Sometime between 3:30 and 4:45 (the testimony was divergent), as the complainant became more awake, she received another phone call from a friend. She described the injection, falling asleep, and awakening with the realization that she was naked and that the defendant was having intercourse with her. Her friend asked, “Don‘t you realize that you have been raped?” The complainant then started crying and became hysterical. Over the next ten to twelve hours, there followed a series of telephone and in-person conversations with other friends, an attorney, and a police officer, in which the complainant repeated her narrative of the incident.
There was no error. There was ample evidence that, when the complainant received the first four phone calls, she was under the influence of a Valium injection, barely conscious, and severely handicapped in her ability to express herself. The fact that the complainant retained some minimal capacity to speak when a ringing telephone awakened her from a drug-induced stupor does not render her subsequent statements unreasonably remote. See Commonwealth v. Sherry, 386 Mass. 682, 691 (1982); Commonwealth v. McGrath, 364 Mass. 243, 249-250 (1973); Commonwealth v. Izzo, 359 Mass. 39, 42-43 (1971). We conclude that there is no error in the admission of this evidence.
6. Constitutionality of
Judgments affirmed.
The defendant offered to explain to the jury that the reason he had lied to the police was not self-interest but rather his desire to protect the complainant and her friends from being discovered to be cocaine users. The court recognizes that the defendant “had a right to explain why he lied to the police” (ante at 222), but concludes “with fair assurance” that the exclusion of that evidence was harmless because, even if the jury had believed the defendant‘s explanation, they would have found him guilty on the drugging and rape charges anyway (ante at 223). The court‘s assurance is unjustified.
The defendant‘s only realistic hope of acquittal depended on the jury‘s not being satisfied beyond a reasonable doubt that he had had intercourse with the complainant. Unless he had intercourse, it is unlikely that he administered the drugs to enable him to do so. See note 11, supra. The complainant testified that the defendant had had intercourse with her. The defendant testified that he had not. The defendant‘s credibility, therefore, was critical to the outcome of the case. The fact, brought out on cross-examination of the defendant, that he had lied to the police investigators, suggested with considerable force that (1) when he spoke to the police, the defendant was conscious of his guilt; human experience teaches that the guilty tend to lie to investigators about both important and unimportant details of the incident under investigation, and (2) the defendant was not a reliable witness because he was not averse to lying “to save his own skin.” Surely, it cannot rightly be said that the portrayal of the defendant as a deceitful man, conscious of his guilt, did not prejudice him. That portrayal, effectively accomplished on cross-examination, cried out for the defendant‘s rehabilitation. See Commonwealth v. Errington, 390 Mass. 875, 879-881 (1984). The defendant‘s legitimate attempt at rehabilitation was thwarted however. He was not permitted
In order to find the defendant guilty as charged, the jury had to believe the complainant‘s testimony and disbelieve that of the defendant. No one can say with fair assurance that, in choosing whom to believe, the jury was not influenced by the defendant‘s cross-examination unmet by any explanation, or that, had they heard the explanation, they would not have arrived at a different verdict. The error cannot properly be considered harmless. Therefore, a new trial on both charges is required.
A new trial on both charges is also required because evidence of the defendant‘s earlier conduct with L.J. and K.H. was erroneously admitted on the drugging charge over the defendant‘s objection. That error prejudiced the defendant with respect to both indictments. As the court observes (ante at 224), “[i]t is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.” The rationale for this rule is that while such evidence may be marginally probative, “there is the danger that, because a defendant appears to be a bad man capable of, and likely to commit, such a crime as that charged, a jury might be led to dispense with proof beyond a reasonable doubt that he did actually commit the crime charged. Moreover, it is not fair that a defendant in the course of a trial should be called upon to defend himself against accusations not set forth in the indictment.” Commonwealth v. Stone, 321 Mass. 471, 473 (1947). See McCormick, Evidence § 188 (2d ed. 1972). If this well-settled rule of fairness is to continue to have any vitality whatsoever, the other bad acts evidence in this case must be held inadmissible. The only function of the evidence was to show that the defendant had a general propensity to drug women in order to enable him to have intercourse with them, and that therefore he drugged the complainant for that purpose as charged. That is precisely what the rule prohibits.
When a crime has been committed in a unique way, and the person charged with committing the crime has been shown to have had an opportunity to commit it, evidence that the defendant previously committed the same crime in the same unique way has a strong tendency to show that he, and not someone else, committed the crime with which he is charged. The evidence is admissible, therefore, to establish the identity of the assailant. Commonwealth v. Lacy, 371 Mass. 363, 366 (1976). Modus operandi evidence is designed to identify the perpetrator of a crime proven by other evidence. In this case, the question is whether a crime was committed, not who committed it, and therefore the distinctive modus operandi theory does not apply. The court cites no case from Massachusetts or elsewhere holding in a criminal case that evidence of the unusual manner in which a defendant has executed a crime or crimes in the past is admissible to prove that on a particular occasion he possessed criminal intent.
I recognize that in Commonwealth v. King, 387 Mass. 464, 469-472 (1982), this court held that at the trial of an indictment for unlawful, unnatural sexual intercourse with a child under sixteen years of age, the judge properly admitted evidence that during the period of the alleged misconduct the defendant also engaged in sexual acts with the victim‘s younger brother. For the first time, this court in King applied the common scheme theory in an action charging a sexual offense. Also for the first time, this court in King applied the common scheme theory, not just to prove the defendant‘s state of mind, but to prove that he committed the act with which he was charged. Id. at 478 (O‘Connor, J., dissenting). I continue to believe that King was wrongly decided. It is not necessary, however, that I urge the overruling of King in support of my contention that the evidence of other bad acts in this case should be held inadmissible. The King case and this one are readily distinguishable.
In King, the court did not purport to overrule Commonwealth v. Welcome, 348 Mass. 68 (1964). In fact, in Commonwealth v. Sylvester, 388 Mass. 749, 757 (1983), the court expressly stated that ”Commonwealth v. King, supra, and Commonwealth v. Gallison, [383 Mass. 659 (1981)], do not overrule Commonwealth v. Welcome, supra.” No principled distinction can be made between this case and Commonwealth v. Welcome. In that case, we held inadmissible in a trial for indecent assault and battery on a child under fourteen evidence that the defendant had assaulted other young girls. Id. at 70-71. We “invoke[d] the rule that evidence of a distinct crime unconnected with that for which the defendant is indicted cannot be received.” Id. See also Commonwealth v. Ellis, 321 Mass. 669, 670 (1947) (holding that it was error to admit in a statutory rape trial evidence that the defendant molested an older sister). The court makes no effort to distinguish the present case from Commonwealth v. Welcome, supra, or Commonwealth v. Ellis, supra. Rather, the court ignores those cases and turns to foreign jurisdictions for guidance. Commonwealth v. Welcome, supra, articulates good law, and has recently been characterized by the court as stating the current law. That case, and the sound principle of fairness that it enunciates, should not be overruled without discussion adequate to justify such action.
The evidence of the defendant‘s earlier conduct with L.J. and K.H. was probative, though not, as the court says, “highly probative” on the question whether the defendant injected Valium into the complainant to enable him to have intercourse with her or for therapeutic reasons. To infer criminal intent,
This court‘s decision in Commonwealth v. King, supra, and now in this case, displays a sharp retrogression in its sensitivity to the unfairness of admitting in a criminal case evidence of a defendant‘s prior bad acts that was earlier expressed so well in Commonwealth v. Stone, supra, Commonwealth v. Ellis, supra, and Commonwealth v. Welcome, supra. It is difficult, nay impossible, to reconcile that unenlightened trend with the court‘s recent progressive recognition of the danger of unfair prejudice inherent in admitting evidence of a defendant‘s conviction under
The judge instructed the jury that they should consider the contested evidence only with respect to the drugging charge. Clearly, the evidence, erroneously admitted, was prejudicial to the defendant with respect to that indictment. It was equally prejudicial as to the rape indictment despite the judge‘s limiting instruction. Commonwealth v. DiMarzo, 364 Mass. 669, 681-
Both convictions are flawed by prejudicial error, both in the exclusion of rehabilitative evidence to which the defendant was entitled, and the admission of evidence of the defendant‘s prior misconduct. The judgments should be reversed and the case should be remanded to the Superior Court for retrial.