Com. v. Dutra

• Decision Date: 29 March 1983
• Citation: 15 Mass.App.Ct. 542,446 N.E.2d 1091
• Parties: COMMONWEALTH v. Stanley R. DUTRA, second (and five companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1091

446 N.E.2d 1091

15 Mass.App.Ct. 542

COMMONWEALTH v. Stanley R. DUTRA, second (and five companion cases

¹

).

Appeals Court of Massachusetts Barnstable.

Argued Feb. 11, 1983.

Decided March 29, 1983.

John E. Warren, Norwich, for Stanley R. Dutra, II.

Severlin B. Singleton, III, Cambridge, for Sebren M. Shagoury.

Paul W. Shaw, Sp. Asst. Atty. Gen., for the Commonwealth.

Before BROWN, KAPLAN and GREANEY, JJ.

GREANEY, Justice.

Stanley R. Dutra, II, and Sebren M. Shagoury, were convicted after a joint trial before a jury in the Superior Court of aggravated rape (G.L. c. 265, § 22[a] ), sodomy (G.L. c. 272, § 34), and assault and battery (G.L. c. 265, § 13A). Dutra was sentenced to a thirty-five to forty year State prison term on the rape indictment and a concurrent term of years on the sodomy conviction. A sentence of life imprisonment was imposed on Shagoury on the rape charge and a concurrent term of years on the sodomy charge. The assault convictions of both defendants were filed with their consent and are therefore not before us. See Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975). In this appeal, Dutra claims that the trial judge erred by denying him a continuance on the day of trial and by admitting photographs depicting the victim's injuries. Shagoury claims that he was denied his constitutional right to effective assistance of trial counsel.

The jury heard evidence from which they could have found the following facts. At approximately 1:15 A.M. on November 2, 1980, the victim began walking home from downtown Provincetown, a distance of about one-third of a mile, after having dinner and visiting a bar with some friends. On her way, she met a friend with whom she spoke briefly in front of a pizza shop. She then continued on her way alone, and the friend lost sight of her. As she approached the vicinity of her home, the victim became aware of two men some distance behind her. Turning a corner, she heard a noise, "had a sensation of being totally stunned," and then became aware that she was being beaten about the head by more than one person. She was dragged to a parking lot which was nearly adjacent to her home, where two men disarranged her clothing and she was forced to submit to acts of vaginal, oral and anal intercourse for a period of approximately two hours. When the victim began to convulse from the effects of her exposure to the windy, forty-degree weather, the men took her to an unlocked van parked nearby in which they forced her to perform similar acts for another two hours. The men elicited a promise from the victim not to talk to the police, made vague references to meeting her again and left at approximately 5:20 A.M. The victim identified the defendants as her assailants some six hours later.

Both defendants proceeded on a theory of consent. Dutra testified that he first observed the victim as she was talking to Shagoury near the pizza shop at about 1:30 A.M. He said he walked with the victim and Shagoury, who were holding hands and talking, until they reached the parking lot, at which point he left as the victim and Shagoury began kissing. He testified that he returned to the site some forty-five minutes later, to find Shagoury and the victim leaving the parking lot and entering the van. He said that he again left the scene for about ten minutes, returned, entered the van and observed the victim and Shagoury engaging in intercourse. He testified that after a period of time the victim began making sexual overtures to him and they subsequently performed consensual sexual acts. Shagoury did not testify.

1. On the day of trial, April 14, 1981, Dutra, who had been found indigent and was represented by appointed counsel, Mass.R.Crim.P. 8(b), 378 Mass. 857-858 (1979), made, both through his attorney in a lobby conference and personally in open court, an oral motion for a continuance in order to retain private counsel. A conference had been held on the case on March 26, 1981, and April 14 had been chosen as the trial date. There is no record of any prior motion for a continuance. Dutra's court-appointed counsel stated that Dutra, about ten days prior to April 14, had mentioned that he was "thinking about [retaining] private counsel but that he [Dutra] had not made any attempt to do so." Dutra himself indicated only that he was "checking into" a lawyer to whom he had been referred. It appears that no lawyer had been approached, and that his procurement of private counsel depended almost wholly on the receipt of financial aid from his mother who was, at the time, hospitalized on the west coast and of limited financial means. Counsel appointed for Dutra (who also represents him on this appeal) was prepared to try the case. Dutra expressed no dissatisfaction with his counsel's representation. The Commonwealth was also ready with its proof and had made arrangements to have a physician who examined the victim flown back from Arizona to testify on April 16, 1981. Bypassing the obviously serious defects in the form of the motion, see Mass.R.Crim.P. 13(a) & (d), 378 Mass. 871, 873-874 (1979); rule 9 of the Superior Court, as amended effective September 1, 1980, we think the decision to deny the last-minute request for a continuance did not necessarily bespeak insensitivity to Dutra's right to be represented by counsel of his choice, and in the circumstances described, was within the discretion given trial judges on this subject. See Lamoureux v. Commonwealth, 353 Mass. 556, 560, 233 N.E.2d 741 (1968); Commonwealth v. Scott, 360 Mass. 695, 701, 277 N.E.2d 483 (1971); Commonwealth v. Cavanaugh, 371 Mass. 46, 50-51, 353 N.E.2d 732 (1976); Commonwealth v. Perry, 6 Mass.App. 531, 539, 378 N.E.2d 1384 (1978); Commonwealth v. Nero, 14 Mass.App. 714, 719, 442 N.E.2d 430 (1982). See also Mass.R.Crim.P. 10(a), 378 Mass. 861-862 (1979).

2. Photographs showing cuts and bruises on the victim's body were put in evidence. The series of photos was taken by a Provincetown policewoman the day after the incident. Dutra argues that the photographs were not properly authenticated and should have been excluded as prejudicial.

Verification that the injuries depicted in the photographs had been inflicted on the victim during the four-hour period in which she was repeatedly raped and assaulted was implicit in the victim's testimony of her mistreatment and the resulting injuries, which was corroborated by the testimony of the examining physician. The judge could have found that the photographs might aid the jury in understanding the nature of the victim's injuries, see Commonwealth v. Retkovitz, 222 Mass. 245, 248, 110 N.E. 293 (1915); in considering the medical testimony, see Commonwealth v. Lee, 324 Mass. 714, 718-719, 88 N.E.2d 713 (1949); in evaluating the question of "serious bodily injury" in connection with the indictment charging aggravated rape under G.L. c. 265, § 22(a), and in assessing the claims that the victim consented to have sex. That the photographs might have some tendency to inflame the jury did not require their exclusion. That consideration did not control once the judge determined, in his discretion, that they had evidentiary value on a material matter. The trial judge committed no error by admitting the photographs. See Commonwealth v. Lamoureux, 348 Mass. 390, 392-393, 204 N.E.2d 115 (1965); Commonwealth v. Clifford, 374 Mass. 293, 305-306, 372 N.E.2d 1267 (1978); Commonwealth v. Stewart, 375 Mass. 380, 385, 377 N.E.2d 693 (1978); Commonwealth v. Fratus, 385 Mass. 551, 553, 432 N.E.2d 710 (1982); Commonwealth v. Westmoreland, 388 Mass. 269, 279, 446 N.E.2d 663 (1983).

3. Shagoury, represented by new counsel on appeal, has asserted numerous failures of trial counsel which he claims cumulatively amount to ineffective assistance. We think the perceived failures can be assessed adequately on the basis of the record at trial, see generally Commonwealth v. LeBlanc, 11 Mass.App. 960, --- - ---, 417 N.E.2d 978 (1981); contrast Commonwealth v. Porter, 9 Mass.App. 908, 403 N.E.2d 430 (1980), in light of the standards governing claims of ineffective assistance set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974); Commonwealth v. Rondeau, 378 Mass. 408, 413, 392 N.E.2d 1001 (1979); Commonwealth v. Mercado, 383 Mass. 520, 420 N.E.2d 330 (1981); and Commonwealth v. Dalton, 385 Mass. 190, 195, 431 N.E.2d 203 (1982).

a. The manner in which trial counsel introduced himself to the jury venire (giving his name, stating he represented Shagoury and identifying himself as "a public defender on the Cape") was indifferent and did not constitute ineffective assistance.

b. There was nothing unreasonable about trial counsel's decision not to object to the denial of a continuance on the basis of an article in the April 12, 1981, edition of the Cape Cod Times in light of the trial judge's stated willingness (subsequently acted upon) to conduct a voir dire of the jury venire on their exposure to the article.

c. The claim that the failure of counsel to request a voir dire of the jurors concerning racial bias prejudiced Shagoury is speculative and raises no substantial issue for the reasons discussed in Commonwealth v. Moffett, 222 Mass. 245, ---, Mass.Adv.Sh. (1981) 745, 759, 418 N.E.2d 585. We note the trial judge's observation that he was unable to tell by looking at them whether either defendant was black. See also Commonwealth v. Dalton, supra, 385 Mass. at 194-195, 431 N.E.2d 203.

d. The decision not to file a pretrial motion to suppress the victim's out-of-court identification of Shagoury is not, in context, indicative of inadequate counsel. See Commonwealth v. Drayton, 386 Mass. 39, 42, 434 N.E.2d 997 (1982); Commonwealth v. LeBlanc, supra 11 Mass.App. at ---, 417 N.E.2d 978, and cases cited. The victim spent approximately four hours in the presence of her assailants and shortly after her release provided the police with exceptionally detailed...