366 Mass. 284 (1974), Commonwealth v. Franklin

Citation:366 Mass. 284, 318 N.E.2d 469
Party Name:COMMONWEALTH v. Ronnie MacArthur FRANKLIN.
Case Date:October 21, 1974
Court:Supreme Judicial Court of Massachusetts
 
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366 Mass. 284 (1974)

318 N.E.2d 469

COMMONWEALTH

v.

Ronnie MacArthur FRANKLIN.

Supreme Judicial Court of Massachusetts, Suffolk.

October 21, 1974

Argued May 13, 1974.

[318 N.E.2d 470] Jonathan Shapiro, Boston, for defendant.

Elizabeth A. Casey, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

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HENNESSEY, Justice.

The defendant challenges, under G.L. c. 278, §§ 33A--33G, his convictions of rape and armed robbery alleging certain errors of both a procedural and substantive nature. We reverse the convictions and remand the cases for a new trial in the Superior Court for reasons that will appear below.

The parties appear to agree that the procedural history of the cases is as follows, although not all of it may be gleaned from the record. The defendant was originally arrested on February 19, 1972. On February 22, 1972, delinquent child complaints were issued against him by the Boston Juvenile Court charging him with delinquency by reason of rape, armed robbery, and entering a dwelling house while armed with intent to commit a felony. After a hearing in the Juvenile Court on March 31, 1972, the delinquent child complaints were dismissed on the judge's finding that the defendant was not a fit subject for commitment to the Department of Youth Services and that such a determination was in the best interest of the public. Criminal complaints were immediately issued, and the defendant was bound over to the Superior Court after waiving a preliminary hearing.

On April 12, 1972, the defendant was indicted by a Suffolk County grand jury for [318 N.E.2d 471] the same three charges on which he had been bound over. Thereafter the indictments were tried before a jury. At the close of the Commonwealth's

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case, the defendant's motion for a directed verdict was allowed on the indictment charging him with entering a dwelling house while armed with intent to commit a felony. He was convicted by the jury on the other two indictments and eventually resentenced by the Appellate Division of the Superior Court to a twelve to twenty year term on the rape charge and a concurrent five to ten year term on the armed robbery charge, to be served at Massachusetts Correctional Institution, Walpole.

We state the evidence as testified to by the Commonwealth's witnesses in so far as necessary to a consideration of the appeal. On February 5, 1972, the victim (Carol) returned home from a brief shopping trip about 7:25 P.M. and was asked by one of two men standing in front of her apartment building if they could enter to get warm. At the trial she identified one of these men as the defendant. 1 After some hesitation, she let them in. As Carol was going upstairs, the other man asked to come in and have a glass of water. Again, after some hesitation, she acquiesced. After entering he received permission from Carol's husband, Gary, for the defendant to enter. As the two men were apparently preparing to leave, the defendant pulled a knife out of his sleeve and ordered Carol to join Gary on the couch. Thereafter, $2 was taken from Gary, who was then bound and gagged, each of the two men raped Carol, and the victims were left in the bathroom. When the two men had left, the victims discovered their tape recorder, some money and other items were missing. The entire incident took about forty-five minutes. Lights were on in every room of the apartment.

The police were called, and the victims gave a description of their assailants. The defendant was described as being a black male 'twenty-one years, six feet, medium complexion, medium build, wearing three quarter length brown coat, gray and black wool Cossack hat.'

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Two weeks later, as the victims were walking near their apartment, they thought they saw the two men standing under a lit street light. They went straight home and called the police, who arrived shortly. Gary went with them to search for the men who were located a short distance from where they had originally been sighted by the victims. The two men were then arrested. One was the defendant.

The victims persisted in their positive identifications of the two men throughout the Juvenile Court proceedings. Then, on the morning the trial in the Superior Court was to begin, they stated that they were mistaken in their identification of the other man and withdrew that identification. The trial then proceeded against the defendant alone. We are reversing the convictions because the trial judge erroneously excluded, in cross-examination of the victims by defense counsel, questions related to the mistaken identification.

1. The defendant's first assignment of error alleges that the trial court was without jurisdiction to try him, as the dismissal of the delinquent child complaints by the Boston Juvenile Court was invalid. He urges that this is so because he was not provided either with specific formal notice that at the March 31 hearing the issue of dismissal would be considered or with a statement of reasons for the waiver of jurisdiction, both allegedly in violation of his constitutional rights.

As the defendant recognized in his brief, we have dealt with these issues in several recent cases. We have held that adequate notice that dismissal of the complaints may be taken up in the Juvenile Court hearing [318 N.E.2d 472] is provided by G.L. c. 119, § 61, itself. A JUVENILE, PETITIONER, 364 MASS. ---, 306 N.E.2D 822 (1974) A. Cf. Commonwealth v. A Juvenile, --- Mass. ---, ---, b 296 N.E.2d 194 (1973). As to the necessity for a statement of reasons, we held in Commonwealth v. Roberts, --- Mass. ---, ---, c 285 N.E.2d 919, 926, that 'no constitutional rights of the defendant were violated . . . by the failure of the Boston Juvenile Court judge to file a written statement of his findings and reasons for dismissing the juvenile complaint.' The statutory standard for this decision, 'the

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interests of the public,' G.L. c. 119, § 61, was upheld earlier this year against a challenge that it was unconstitutionally vague. A JUVENILE, PETITIONER, 364 MASS. ---, 306 N.E.2D 822 (1974) D. The defendant would have us reconsider and overrule these decisions. We instead choose to reaffirm them.

2. At numerous points in the cross-examination of the victims, who were, of course, the mainstay of the Commonwealth's case, defense counsel attempted to undercut the effect of their unequivocal identification of the defendant by questioning about their prior identification of the other assailant. Each time the trial judge sustained an objection to the line of questioning. His remarks in doing so indicate that his ruling was that this was a collateral matter. 2

The Commonwealth contends that the prior misidentification of the other assailant was a collateral matter in that it did not directly tend to prove the guilt or innocence of the defendant. Theoretically this may be true. However, we are not persuaded by the Commonwealth's argument that this was the type of collateral inquiry, if collateral at all, which may be properly excluded in the judge's discretion. 3 The excluded questions were closely related to the crucial jury issue whether the defendant had been correctly identified by the victims.

Both Carol and Gary were steadfast at the trial in their identification of the defendant. The Commonwealth's case stressed the victims' lengthy observation of the defendant at close hand and in good light and especially their

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unwavering certainty. The defendant offered an alibi defense and thus the jury were presented with the clear-cut choice of which witness to believe. The record does not indicate that either victim had a better opportunity to observe the defendant than the other assailant. On the contrary, there is every indication that the opportunity of the victims to observe and thus identify the two criminals was substantially the same as to both criminals. In so far as the record discloses, every factor which made it possible for the victims to identify one of the two criminals, or to be mistaken as to the identity of one, applied equally to the other criminal. Therefore, those factors which caused the victims mistakenly to identify one participant would be relevant in assessing the reliability of the identification of [318 N.E.2d 473] the defendant. We emphasize the significant fact that the mistaken identification had been made under oath.

The judge showed a traditional concern that the jury should...

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