Com. v. Charles

Decision Date06 March 1986
Citation489 N.E.2d 679,397 Mass. 1
PartiesCOMMONWEALTH v. Rodriguez U. CHARLES.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Linda H. Morton, Boston, for defendant.

Judy G. Zeprun, Asst. Dist. Atty. (Charles M. Campo, Jr., Boston, with her), for Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

After trial in Superior Court the defendant was convicted of various crimes 1 arising from his forced entry into a Brighton apartment where he confined, raped, and robbed three women. On appeal, the defendant argues that the verdicts should be set aside because: (1) the judge improperly denied the defendant's motion to suppress evidence of certain out-of-court statements which identified the defendant; (2) certain evidence was admitted which violated the defendant's rights to due process and a fair trial; (3) the judge improperly charged the jury; (4) the judge erred in declining to conduct a voir dire or give curative instructions regarding the fact that jurors had accidently seen the defendant in shackles outside the courtroom; (5) prosecutorial misconduct prior to and at trial violated the defendant's constitutional rights, and (6) of ineffective assistance of counsel. We affirm the convictions.

There was evidence of the following facts. Three women, "Karen," "Shannon," and "Valerie," were roommates in Brighton. On December 8, 1980, as Karen left her apartment, she confronted in the well-lit hallway, a man, whom she later identified as the defendant, and described as a five feet, nine inches tall, thin, black man with "scruffy" hair, a beard and wearing a tan trench coat.

The man forced Karen back into the apartment and held a screwdriver to her throat. He told her not to scream or he would kill her. Valerie testified that she saw a five feet, nine or ten inches tall, thin, black man, with scruffy black hair, a beard and a moustache, wearing a tan trench coat and dark colored pants, push Karen into the apartment. After Valerie screamed the assailant told her to shut up and threatened to kill either Karen or both women. 2 The third victim, Shannon, was awakened in her bedroom, then bound and threatened by the defendant. While in the apartment the defendant took jewelry from two of the victims, threatened the lives of all three victims, raped two of them vaginally, one anally as well, and one orally, and otherwise threatened, assaulted and abused them.

On December 9, 1980, the victims assembled at the District 4 police station and were asked, one by one, to view photographs. After reviewing approximately one hundred and fifty photographs of black males between the ages of twenty and thirty, Shannon selected a photograph of the defendant that she said she was "99 percent sure" was the assailant. 3 Valerie was unable to select any photograph. After viewing about fifty photographs in a group of about two hundred, Karen stopped at the photograph Shannon had picked and said, "The side view looks like him." On Detective Keough's request, she continued looking and selected another photograph of the defendant and ran from the room, crying. When she returned she stated, "That's him. I'm positive." 4

The defendant was arrested on June 1, 1981. In the course of testifying at the probable cause hearing, Karen correctly stated that the defendant was not present in the courtroom (the judge had excused the defendant). At that hearing, Karen and Shannon testified that the assailant had a distinctive accent. 5

The defendant did not appear at his arraignment on September 2, 1981, and a default warrant was issued. He was arrested in 1983, and on November 3, 1983, nearly three years after the incident, the victims attended a lineup at the Boston police headquarters at which the defendant was represented by counsel. Neither Valerie nor Shannon was able to identify the assailant. 6 Karen initially stated that she was unable to identify the defendant, because it had been too long since the incident. However, immediately after the lineup she stated to the prosecutor before he initiated any conversation with her, "I think it was No. 4 [the defendant], but it had been too long and I was scared to say anything." At trial Karen identified the defendant, who was seated among the spectators.

1. The motion to suppress identification evidence. The defendant filed a motion to suppress evidence of the out-of-court identification made by Karen on the day of the lineup and any in-court identification made by her. The judge denied the motion. The defendant argues that the out-of-court identification made after the lineup occurred was an extension of the lineup which resulted in a denial of the defendant's rights to assistance of counsel, confrontation of witnesses and due process. The defendant also asserts that the in-court identification was tainted by the out-of-court identification.

Under both United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), an accused is entitled to counsel at any pretrial corporeal identification conducted after indictment. See Moore v. Illinois, 434 U.S. 220, 224-227, 98 S.Ct. 458, 462-464, 54 L.Ed.2d 424 (1977). Defense counsel is entitled to be present at a lineup to ensure that the procedure does not suggest who the prosecutor believes committed the crime. Moore v. Illinois, supra, 434 U.S. at 224-225, 98 S.Ct. at 462. The question presented here is whether or not Karen's unelicited utterance identifying the defendant, made out of the presence of defense counsel, was part of the lineup and as such entitled the defendant to the presence of counsel.

Although several State courts have held that a defendant has a right to have counsel present at a post-lineup interview, People v. Williams, 3 Cal.3d 853, 856-857, 92 Cal.Rptr. 6, 478 P.2d 942 (1971); 7 State v. McGhee, 350 So.2d 370, 373 (La.1977); Richardson v. State, 600 P.2d 361, 364-365 (Okla.Crim.App.1979), the Federal circuit courts which have addressed this issue have held that a defendant does not have such a right, as have several State courts. See Hallmark v. Cartwright, 742 F.2d 584, 585 (10th Cir.1984); United States v. White, 617 F.2d 1131, 1134-1135 (5th Cir.1980); United States v. Bierey, 588 F.2d 620, 624-625 (8th Cir.1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1260, 59 L.Ed.2d 482 (1979); United States v. Tolliver, 569 F.2d 724, 727-728 (2d Cir.1978); United States v. Parker, 549 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. Cunningham, 423 F.2d 1269, 1274-1275 (4th Cir.1970); Graham v. United States, 377 A.2d 1138, 1139-1140 (App.D.C.1977); State v. Cherry, 298 N.C. 86, 106-108, cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1979); State v. Favro, 5 Wash.App. 311, 313-315, 487 P.2d 261 (1971), cert. denied, 405 U.S. 1040, 92 S.Ct. 1309, 31 L.Ed.2d 580 (1972). Compare United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (photographic identification does not require presence of counsel). Although the cases holding that defense counsel does not have a right to be present at a post-lineup interview would appear to represent the better reasoned view, it is unnecessary for us to decide the issue. None of the cases suggests that defense counsel has a right to be present at every interview of the victims by the prosecutor, after a lineup has taken place, or that the prosecutor must anticipate unsolicited post-lineup remarks by victims identifying the defendant. Here Karen said she was unable to identify the defendant during the lineup and was then taken to a separate room. She testified, however, that when the prosecutor walked into that room she immediately identified the defendant. Under this version of the incident there was no chance for the prosecutor to suggest or influence her statement. The defendant does not contest this testimony nor did he offer any evidence to show that the identification after the lineup was suggested by or came about as a result of continued questioning or urging by the prosecutor. Thus, to the extent the policies underlying United States v. Wade, supra, and Gilbert v. California, supra, would apply to a post-lineup identification interview (and we do not reach that issue here), those policies have no applicability where the viewer made a sudden and unelicited statement which could not have been suggested or influenced by the prosecutor. 8 The admission of Karen's out-of-court statements was proper, and therefore did not taint her in-court identification.

2. Evidentiary matters.

a. Prior inconsistent statements. Robin Howell, the defendant's friend and Commonwealth's witness, testified that she had never seen the defendant play the guitar and she was not aware that he had ever played the guitar. 9 Detective MacKinnon testified, however, that Howell had stated earlier that the defendant played the electric bass guitar and that she had seen him play several times in her apartment. The defendant objected to MacKinnon's statement on the ground that the Commonwealth was precluded from impeaching its own witness. There was no error since that objection was without merit. G.L. c. 233, § 23 (1984 ed.). Although no limiting instruction was requested or given, the evidence was not used substantively since both counsel in their closing arguments only referred to the statement for its impeachment value.

b. Consciousness of guilt. When the detectives who arrested the defendant revealed their identity to him he said, "----, man, I knew you were ------- cops." The prosecution offered the evidence to show the defendant's consciousness of guilt, in that it implied that he knew the police were looking for him. The defendant argues that the evidence was irrelevant, and, for the first time on appeal, that this testimony somehow informs the jury of...

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