Com. v. Dougan

• Decision Date: 14 February 1979
• Citation: 386 N.E.2d 1,377 Mass. 303
• Parties: COMMONWEALTH v. Warren W. DOUGAN (and nine companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

386 N.E.2d 1

377 Mass. 303

COMMONWEALTH v. Warren W. DOUGAN (and nine companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1978.

Decided Feb. 14, 1979.

Michael J. Traft, Sp. Asst. Dist. Atty. (Philip T. Beauchesne, Asst. Dist. Atty., with him), for the Commonwealth.

Susan J. Baronoff, Boston, for Warren W. Dougan.

J. Russell Hodgdon, Boston, for Fred M. Woodard.

Ann Lambert Greenblatt, Boston, for Robert R. Linehan.

Before QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

These three defendants were tried jointly on several indictments arising out of an incident in which one James Lopes was kidnapped and beaten, his girl friend Maryanne Connolly, now his wife, was raped in his presence, and several items were stolen from their home. The defendant Dougan was convicted of kidnapping, armed robbery, rape and commission of an unnatural act, the defendant Linehan of kidnapping, armed robbery and rape, and the defendant Woodward of kidnapping, armed robbery, and assault and battery by means of a dangerous weapon. On appeal, the convictions of Dougan and Linehan were reversed by the Appeals Court on several grounds (Commonwealth v. Dougan, 6 Mass.App. --- ^A, 376 N.E.2d 1255 (1978)), and their cases come before this court on the Commonwealth's application for further appellate review. Woodard failed to file a timely claim of appeal, but after the reversal of his codefendants' convictions, a single justice of this court allowed his petition to file a late claim of appeal, and that appeal has been consolidated with the appeal of Dougan and Linehan.

We are asked to review three claims of error that relate to all three defendants: First, that the trial judge erred in admitting evidence of several criminal incidents occurring after the date of the crime for which the defendants were being tried; second, that the judge unduly restricted the scope of the defendants' cross-examination of Lopes; and third, that comments made by the prosecutor in closing argument constituted reversible error. For the reasons set forth below, we hold, contrary to the opinion of the Appeals Court, that there was no error as to any of these grounds. A fourth claim of error applies solely to the defendant Linehan, and concerns several rulings relating to the handling of identification testimony before and during trial. On this issue we reverse the judgments against Linehan.

The Commonwealth's case consisted primarily of the testimony of the victim James Lopes and Maryanne Connolly who testified as follows. On March 29, 1974, Connolly was at home with her young son when Woodard and another man named Giers ² came to visit. Connolly and Lopes had known both men for over a year through association with a motorcycle club ³ to which Woodard and Giers belonged, and in which Lopes had been a probationary member. When Lopes arrived home from work about an hour later, the three men had a couple of beers and talked, until suddenly Woodard stood up, pulled a gun on Lopes, and announced that "he'd come to kidnap" him. Holding guns to Lopes's back, Woodard and Giers forced him outside into a waiting car and drove him across town to a house belonging to Linehan. There Lopes was made to lie face down on a bed and Dougan, whom Lopes also knew as a member of the motorcycle club, accused him of making certain telephone calls to his girl friend, and slapped him several times. Dougan, Linehan and Giers then drove Lopes back to his apartment (Woodard remaining behind), tied him up with wire and tape, and hit him in the chest. Dougan and Giers ordered Connolly into the bedroom and forced her to have intercourse and commit fellatio. At some point, Dougan and Linehan dragged Lopes, still bound, into the bedroom to witness these acts; Linehan commenting that Connolly was lucky that he did not want to do it too. After these acts of rape, Giers and Dougan beat Lopes until he lost consciousness, and they left with Linehan. When Lopes regained consciousness five or ten minutes later, he and Connolly dressed and went to a hospital, where Lopes was treated in the emergency room. When they returned home at about 1 or 2 A.M., Connolly called her father and told him what had happened. He testified to that telephone call in corroboration of the victim's claim of fresh complaint.

1. Evidence of other crimes. The defendants presented no evidence, their primary defense being that the incident had never occurred. In support of this theory, they relied heavily on the fact that Lopes and Connolly had made no report about the incident to the police until after Lopes was arrested on June 29, 1974, by Federal agents for handgun dealing. To explain this delay, the Commonwealth sought to introduce testimony from Lopes and Connolly about threats and violence that occurred against them after the March 29 incident which later acts deterred them from going to the police. The defendants moved before trial to have such evidence excluded, and the judge agreed to hold a voir dire on it when it arose during the trial. When the prosecutor attempted to refer to such incidents in his opening statement, the judge sustained the defendants' objections to his remarks.

On direct examination Lopes testified without objection that the reason he had waited so long to tell the police about the incident was that "I was in hiding from these people." He also testified, again without objection, that he had moved to a new apartment three weeks after the incident, and that he had to move from that apartment about a month and one-half later because somebody broke into it and "cleaned it out." Two weeks after that, according to his testimony, he was put under police protection. The prosecutor then asked him about a further incident involving a yellow Mustang automobile and the defendants objected. At a bench conference, the prosecutor made an offer of proof that Lopes would testify he was run off the road, while riding his motorcycle, by a yellow Mustang automobile, and that Connolly would testify that she had seen such a Mustang automobile being driven by Giers on another occasion. The judge, although finding such evidence relevant to the victims' state of mind and lack of fresh complaint, ruled that he would exclude it at that time but allow it in on redirect if the defendants pursued those issues on cross-examination.

During cross-examination Lopes was indeed questioned about his delay in reporting to the police. Therefore, on redirect the judge permitted him to testify about three incidents which he stated had caused him to change his mind about reporting to the authorities: one, the robbery of his apartment which he had testified to on direct; two, an occasion when an unidentified car whizzed by him as he was crossing the street; and three, an occasion when a yellow Mustang automobile ran his motorcycle off the road. The defendants took exception to all of this testimony.

Connolly testified that she did not go to the police at first "because they had threatened me" and that she had changed her mind because "I just got tired of running." The defendants made no objection to this line of testimony until the prosecutor asked the witness about specific incidents that affected her state of mind with regard to speaking to the police. In response to a defense objection at that point, and on the prosecutor's representation that this testimony would be corroborative of what Lopes had testified to previously, the judge excluded the answer to the question on the ground that the evidence had already been admitted.

The Appeals Court held that since "(t)here was no showing that either defendant had ransacked the apartment of the male victim . . . or had attempted to run him off the road," 6 Mass.App. ---, --- ^B, 376 N.E.2d 1255, 1256 (1978), it was error to admit such evidence. We first note that no defendant objected to the testimony about the ransacking of the apartment when it was originally offered, and therefore we are faced with no issue concerning that testimony on appeal. Commonwealth v. Coleman, 366 Mass. 705, 710, 322 N.E.2d 407 (1975). Commonwealth v. Underwood, 358 Mass. 506, 508-509, 265 N.E.2d 577 (1970). But even assuming that exceptions were properly saved to the testimony of that incident as well as to the car incidents, we find no error in the judge's ruling admitting them. These incidents were relevant to the victims' state of mind and reasons for the delay in making a complaint, and for this purpose no evidence linking them to the defendants was necessary. A closely analogous situation arose in the case of Commonwealth v. Fitzgerald, --- Mass. ---, --- ^C, 381 N.E.2d 123, 133 (1978), where the defendants objected to the admission of evidence concerning a bullet which a witness found outside her door sometime after the alleged assault. We held that "(t)he evidence concerning this incident, with its strong implication that (the witness) was being threatened concerning her testimony, did not become improper simply because it was not linked to the defendants." Nor would a different result be required if this evidence were linked directly or by implication to the defendants. Although evidence of other crimes can of course not be admitted as tending to prove the commission by the defendants of the crime charged, Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896 (1947), such evidence can be admitted for other relevant purposes including the explanation of a witness's fear of going to the police or testifying. Commonwealth v. Chalifoux, 362 Mass. 811, 816, 291 N.E.2d 635 (1973). Commonwealth v. Douglas, 354 Mass. 212, 225, 236 N.E.2d 865 (1968), cert. denied, 394 U.S 960, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969). United States v. Cirillo, 468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973).

In this case, the judge took steps to minimize any prejudicial impact from the testimony. He did not permit ...