Com. v. Guillory

• Decision Date: 12 January 1970
• Citation: 356 Mass. 591,254 N.E.2d 427
• Parties: COMMONWEALTH v. Edmond GUILLORY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 427

254 N.E.2d 427

356 Mass. 591

COMMONWEALTH v. Edmond GUILLORY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1969.

Decided Jan. 12, 1970.

Reuben Goodman, Boston (Robert W. Banks, Boston, with him), for defendant.

William A. Doherty, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

REARDON, Justice.

The defendant was convicted on indictments charging him with assault with intent to rape, and with breaking and entering a dwelling house in the nighttime with intent to commit rape. The trial was subject to G.L. c. 278 ss. 33A--33G. He argues three assignments of error: (1) denial of his motions to suppress; (2) refusal to admit in evidence a Boston police department journal report; and (3) language in the charge to the jury on the posture of the case.

There was evidence as follows. On December 17, 1967, about 8 P.M., Janet McGowan was alone in her apartment at 58 Westland Avenue, Boston. She had just emerged from a bathtub and, attired in undergarments and a bathrobe, was proceeding from the bathroom through a door to her bedroom when she was grabbed from behind. Her assailant placed his hand over her mouth and advised her not to cry out as he had a knife and she would be killed. He then threw her on a bed, at which time she saw the knife, and attempted to have intercourse with her. She asked him if he wished money and he then permitted her to go to the bathroom where she had left her pocketbook. At this time she observed the face of the man in the bathroom cabinet mirror, the area being well lighted according to her testimony. The $7 which the pocketbook contained was stated by the intruder to be not enough. He again threw her on the bed and made an unsuccessful attempt to rape her. Finally the assailant was induced to leave. Upon his departure the witness noticed that the window and screen in her bedroom had ben forced open.

At the trial the complainant testified that she had had five separate opportunities to observe her assailant before he left her apartment and she identified the defendant as that individual. When asked to come to police station 4 in Boston on October 25, 1968, she said she recognized him as she entered the station house and before he was placed before a two way mirror. A Boston police detective testified to the identification at station 4.

The denial of the defendant's motions to suppress presents questions which were discussed in Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343, and COMMONWEALTH V. COOPER, MASS., 248 N.E.2D 253.^A In this case the alleged crime occurred on December 17, 1967. The station house identification took place ten months later on October 25, 1968. The defendant was placed behind a two way mirror by himself save for a white officer who was near him. He was given the so called 'Miranda warnings.' He had come to the station house without compulsion, and after being so warned and told of his right to counsel stated, 'I haven't did anything; I'm not worried. I don't need anybody. I will see these people and let them look at me.' Previously he had been advised that his presence was desired 'because of some rapes that had occurred on the Division'. At the time of trial he was twenty-one years old. While he was given the warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, these 'did not encompass the information contemplated under' United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Commonwealth v. Cooper, supra, ^b 248 N.E.2d 253. Nor does it seem to us that his waiver was without cloud. While not yet under arrest he was summoned to the police station for a pre-trial confrontation. As the Supreme Court stated in the Wade case, it is necessary to 'scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.' United States v. Wade, supra, at p. 227, 87 S.Ct. at p. 1932. There was a critical need for counsel for the defendant at this confrontation, a...