Com. v. Freeman

• Decision Date: 06 March 1967
• Citation: 352 Mass. 556,227 N.E.2d 3
• Parties: COMMONWEALTH v. Richard Denis FREEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 3

227 N.E.2d 3

352 Mass. 556

COMMONWEALTH v. Richard Denis FREEMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

March 6, 1967.

June 1, 1967.

James L. Haley, Ayer, for defendant.

Aaron K. Bikofsky, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

CUTTER, Justice.

In November, 1965, Freeman was indicted (a) for assault on September 24, 1965, with intent to commit rape and (b) for accosting or annoying a female 'with offensive and disorderly act or language' on that day. He was found guilty on both indictments, after a trial in January, 1966, under G.L. c. 278, §§ 33A--33G, as amended. The accosting indictment was placed on file. Freeman was sentenced to the Massachusetts Correctional Institution, Walpole, for not more than ten or less than six years. The evidence is stated in its aspect most favorable to the Commonwealth.

About 5 P.M. on September 24, 1965, a girl fifteen years old (Catherine) was riding her bicycle near the Maynard Country Club. She had stopped because of traffic. A 'greenish-blue' automobile pulled up near her. The driver was a man with 'mussed' hair, wearing a dirty green work shirt, whose appearance was 'very dirty and greasy.' He spoke to Catherine and asked her if she 'really wanted to go home.' As she started riding, he shouted a question at her, 'What size are your breats?' She was 'shocked and terrified' and 'pedaled home.' Her mother called the Maynard police.

About 5:30 P.M. on the same day a seventeen year old girl (Marilyn) was riding her bicycle behind the Merriam School in Action. A 'boy' drove up in a 'bluish green compact' automobile and came over to her. His description was closely like that of the man who had accosted Catherine.

He asked some questions about her school activities. Then he grabbed her by the wrist, pushed her to the ground, 'was on top of * * * (her) about two or three minutes,' and 'felt of * * * (her) breast.' He picked her 'off the ground and dragged * * * (her) into the woods.' She screamed. He told her to take off her clothes and, when she said, 'No, I won't,' he said, 'i'll do something to you.' She took off her 'dungaree shorts' and sweat shirt. He pushed her to 'the ground and * * * ripped * * * (her) underpants off.' His conduct was grossly offensive. He, however, did not attempt to have intercourse with her. He then told her to put her 'clothes back on.' She asked if she 'could get out of the woods because * * * (she) was afraid.' He 'went to his car, and * * * (she) went to * * * (her) bike.' They both left the scene and she went home. She promptly complained to a friend and to her mother. Marilyn's parents called the Acton police.

There was substantial evidence that some person had struggled with Marilyn near the school. She had bruises and injuries, her clothing was torn, and there were broken branches of trees at the scene. The principal issue at the trial was the identity of Marilyn's attacker.

Officer Harrison, an off-duty Acton policeman who had known Freeman for several years, testified that he had seen him about 5 P.M. in a 'bluish green' compact automobile talking with a girl holding a bicycle near the Maynard Country Club on September 24. He identified the girl as Catherine. Officer Roche of the Action police testified that at 5 P.M. on September 24, he, while parked near the Maynard-Acton line, had seen Freeman driving a 'green' compact sedan coming from the direction of the school and heading south toward Maynard. He had known Freeman for nine years. On September 24 during the day, Freeman was in fact wearing a green work shirt and grey pants. Because of his work his clothing was somewhat dirty. That afternoon he had been driving his mother's 'green' compact automobile. ¹

Both Catherine and Marilyn identified Freeman at the trial. Earlier they had each picked out his picture in a high school yearbook shown to them by the police. They each also identified him at the Acton police station in the circumstances described below.

About 10:20 P.M. Sergeant Fenton of the Acton police called Freeman and asked him to go to the police station. About thirty minutes later, Sergeant Fenton went to the Freeman house, told Freeman of the two girls' complaints, and requested him to go to the police station so that the girls could have a look at him. Freeman or his fiance e, who was with him during the evening, called his lawyer, Mr. Haley, who arranged to go to the police station with Freeman.

At the police station Mr. Haley objected to Sergeant Fenton's proposal that the two girls view Freeman from behind a one-way mirror. Sergeant Fenton said, 'We'll do it any way you want.' Freeman was then seated at a table in the front office. Also present in the room were four police officers, Mr. Haley, and, a few feet away from Freeman, his fiance e. Freeman was not in any sort of 'line-up.' Officer Roche testified that Freeman then was not under arrest. One at a time, the girls were brought to the doorway, some ten to twenty feet from Freeman. Catherine was asked if this was the person who had spoken to her, and she nodded her head, meaning 'yes,' and perhaps said 'yes.' Marilyn when asked, 'Is that the man?' nodded and said 'Yes,' or 'That's the man.' Freeman's fiance e testified that she heard Marilyn's answer, but Freeman denied hearing that answer. In answer to questions put by Freeman's attorney on cross-examination, several witnesses testified to the fact that Freeman said nothing at all when the girls identified him as the man who had accosted or molested them. The police did not then place Freeman under arrest, but told him that they would bring formal charges against him the next day.

Freeman's assignments of error, so far as not waived, relate principally to testimony concerning the alleged identification at the Action police station and the portion of the judge's charge concerning the identification. He also presses an exception to the denial of his motions for directed verdicts of acquittal.

1. Testimony concerning the identification of Freeman by the two girls was admissible. Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359. Commonwealth v. Vanetzian, 350 Mass. 491, 497, 215 N.E.2d 658. See Commonwealth v. Palladino, 346 Mass. 720, 722--723, 195 N.E.2d 769. Although the use of fair line-ups is commendable police practice, we need not consider the extent to which other types of identification may or may not be proper. This identification was conducted in the presence of Freeman's attorney and it could reasonably be found that he consented to the method employed. Indeed, it seems likely that the police would have followed any feasible, fair procedure suggested by Mr. Haley, if he had made a suggestion. We perceive no unfairness on the part of the police or prejudice to Freeman. The case, because of the presence of Freeman's attorney, is wholly unlike United States ex rel. Stovall v. Denno, 355 F.2d 731 (2d Cir.), cert. granted 384 U.S. 1000, 86 S.Ct. 1983, 16 L.Ed.2d 1014.

2. That the judge participated in questioning Catherine concerning her identification of Freeman at the police station, presumably in order to clarify her testimony, was not prejudicial. Commonwealth v. Oates, 327 Mass. 497, 500, 99 N.E.2d 460. See Commonwealth v. Lewis, 346 Mass. 373, 378--380, 191 N.E.2d 753, cert. den. 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653. See also Spindler v. United States, 336 F.2d 678, 682 (9th Cir.), cert. den, 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797; United States v. Godel, 361 F.2d 21, 24 (4th Cir.). We perceive no exhibition of bias in the manner or form of his questioning.

3. Freeman was not prejudiced by the action of the judge in permitting Officer Roche to testify that, when he was with Marilyn and her parents at the scene of the episode near the Merriam School, she bent over and picked up a hair clasp, and said, 'That is mine. It was knocked off in the struggle.' This at most merely tended to identify the hair clasp as belonging to Marilyn and to fix the place of the struggle. It had no tendency to connect Freeman with that struggle or with Marilyn.

4. The evidence amply permitted the trial judge to submit the case to the jury and warranted his denial of the motions for directed verdicts. The jury were not required to believe that Freeman was not at the scene of the offences or (see fn. 1) that he parted from his father at the Riverside bus station as late as 4:32 P.M. The distance from there to the Maynard Country Club was not so great as to preclude Freeman from reaching the club by 5 P.M. in any event. The identification of Freeman in open court as the accoster of Catherine and the assailant of Marilyn, together with their accounts of the events, warranted the verdicts. The weight of this testimony was for the jury.

5. No exceptions were taken to the judge's charge. It is pressed upon us, however, that, even in the absence of an exception, we should set aside the verdicts to prevent a miscarriage of justice because of the portion of the charge mentioned below. It is argued, in effect, that this portion of the charge involved prejudicially incorrect instruction on a decisive issue, the error in which was not raised at the trial. See Commonwealth v. Conroy, 333 Mass. 751, 756--757, 133 N.E.2d 246. See also Commonwealth v. Smith, 342 Mass. 180, 188--189, 172 N.E.2d 597.

The judge correctly instructed the jury that they could not consider the fact that Freeman called his lawyer before going to the police station. That, said the judge, 'does not indicate guilt.' He then referred to the circumstance that Freeman 'was brought to the station voluntarily by his lawyer and * * * it was for the purpose of identification.' Apparently with respect to Freeman's identification by the girls, he said, 'Now, you ask yourselves, 'Was the defendant in a position to hear what the officer said and...