Com. v. Hyatt

• Decision Date: 04 April 1995
• Citation: 647 N.E.2d 1168,419 Mass. 815
• Parties: COMMONWEALTH v. Dwayne HYATT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1168

647 N.E.2d 1168

419 Mass. 815

COMMONWEALTH v. Dwayne HYATT.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 11, 1995.

Decided April 4, 1995.

Carol A. Donovan, Committee for Public Counsel Services, Boston, for defendant.

Robert C. Cosgrove, Asst. Dist. Atty., for Com.

Philip G. Cormier, Boston, amicus curiae, for Massachusetts Ass'n of Criminal Defense Lawyers, submitted a brief.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

WILKINS, Justice.

This is the defendant's second appeal following jury verdicts of guilty of aggravated rape and armed robbery. On his first convictions the judge sentenced the defendant in March, 1988, to concurrent terms of from twenty-five to forty years, to commence following service of the sentence that the defendant was then serving on an unrelated matter. In 1991 we reversed the first convictions and remanded the case for a new trial. Commonwealth v. Hyatt, 409 Mass. 689, 568 N.E.2d 1148 (1991).

The defendant was again convicted on both charges. The judge, who was not the judge at the first trial, sentenced the defendant to the same term on the aggravated rape charge as did the first judge (from twenty-five to forty years on and after the sentences then being served). On the conviction of armed robbery, however, the judge did not impose a concurrent sentence but rather imposed a sentence of from eighteen to twenty-five years to be served on and after the sentence on the rape conviction. We granted the defendant's application for direct appellate review.

The issues do not depend on the circumstances of the crimes except that the victim is a white woman and the defendant is an African-American man. The defendant claims that he was not retried within the time that Mass.R.Crim.P. 36(b)(1)(D), 378 Mass. 909 (1979), requires and that the judge erred in denying a jury instruction concerning the cross-racial nature of the victim's identification of the defendant. The third and most challenging issue is whether the second judge was warranted in imposing harsher sentences than those that the first judge imposed.

We uphold the verdicts of guilt and the sentence imposed on the aggravated rape charge. We vacate the sentence on the armed robbery charge because the record does not show that the judge relied on appropriate circumstances when he imposed a consecutive sentence on that charge. We therefore remand the armed robbery conviction for resentencing pursuant to standards set forth in this opinion.

1. The defendant argues that he was not retried within the time prescribed by Mass.R.Crim.P. 36(b)(1)(D). The judge who considered the defendant's motion to dismiss ruled that the period from May 6, to October 1, 1991, was excludable in calculating the time within which the defendant's retrial had to commence. If this time was properly excluded, the retrial commenced within the time limits of the rule, and we need not consider other arguments of the Commonwealth.

The motion judge found that the defendant acquiesced in the delay from May 6, to October 1, 1991, and, therefore, that the period of delay is excludable in measuring time under rule 36. See Commonwealth v. Lauria, 411 Mass. 63, 68, 576 N.E.2d 1368 (1991). When the rescript issued, the defendant's original counsel no longer worked for the Committee for Public Counsel Services (CPCS), but the regional supervisor of the CPCS office indicated to an assistant district attorney in April, 1991, that the case would be reassigned to another attorney and agreed that it would be better to wait until October to retry the case when the victim's pregnancy was expected to end.

It would have been better practice to have put this understanding on the record, but the defendant does not challenge the judge's factual findings. The defendant agrees that, if made in open court, the statements of the CPCS regional supervisor might have been fairly construed as acquiescence in the delay. The Commonwealth could reasonably rely on these statements, although the regional supervisor was not counsel of record. The motion judge was entitled to reach that conclusion on the uncontested facts.

2. The judge did not err in declining to instruct the jury that they could consider the cross-racial nature of the white victim's identification of the African-American defendant in determining the reliability of that identification. In Commonwealth v. Charles, 397 Mass. 1, 8, 489 N.E.2d 679 (1986), this court held that the trial judge acted within his discretion in declining to give such an instruction. On the other hand, the giving of such an instruction may be appropriate in the judge's discretion. ¹ No abuse of discretion occurred here where, as the judge noted, the victim was terrorized for fifteen to twenty minutes in broad daylight and forced into a face-to-face confrontation with her assailant. The defendant points to no relevant empirical study that assessed the relative reliability of cross-racial and non-cross-racial identifications in confrontations of the sort involved here.

We make a brief comment for the future. We remain convinced that expert testimony on the capacity of eyewitnesses to make identifications should not be admitted as of right and is admissible in the proper exercise of discretion by the trial judge. See Commonwealth v. Francis, 390 Mass. 89, 98-101, 453 N.E.2d 1204 (1983). A few jurisdictions favor the admission of expert testimony in some circumstances (see, e.g., People v. McDonald, 37 Cal.3d 351, 369-371, 208 Cal.Rptr. 236, 690 P.2d 709 (1984); People v. Johnson, 19 Cal.App. 4th 778, 786-789, 23 Cal.Rptr.2d 703 (1993)), but the weight of authority does not. See Commonwealth v. Francis, supra, 390 Mass. at 95, 453 N.E.2d 1204; Bloodsworth v. State, 307 Md. 164, 181-182, 512 A.2d 1056 (1986). We recognize that, based on a trial record or on the published results of studies, or both, some new principle concerning the process of eyewitness identification may become sufficiently reliable so as to justify formulating a jury instruction that should be given in particular circumstances on request, in addition to those instructions that we identified in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311, 391 N.E.2d 889 (1979), and Commonwealth v. Pressley, 390 Mass. 617, 619-620, 457 N.E.2d 1119 (1983). Nothing we say here is intended to preclude a judge in the exercise of discretion from instructing a jury that, in determining the weight to be given eyewitness identification testimony, they may consider the fact of any cross-racial identification and whether the identification by a person of different race from the defendant may be less reliable than identification by a person of the same race.

3. We consider now whether the second judge was justified in imposing sentences that were collectively more severe than those imposed by the judge at the first trial. This question leads us to consider whether we will be guided by principles expressed concerning judicial vindictiveness in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), even though Federal due process concerns are not implicated on this record because the second sentencing judge was not the first sentencing judge (see Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 979-80, 89 L.Ed.2d 104 (1986)). We must, therefore, confront the issue on State law grounds. Based on this latter consideration, we decide that the consecutive sentence on the armed robbery conviction may not stand.

The judge asked the Commonwealth for its sentencing recommendation. The prosecutor recommended consecutive terms of from twenty-five to forty years, to be served after any sentence that this defendant was then serving. This recommendation was based in part on the brutality of the crime; the defendant's prior criminal record, which included three other convictions of assaults on women; and the lasting impact of this incident on the victim and her family. The prosecutor also recited information concerning the defendant's misconduct while imprisoned, consisting of various violations for which he received discipline. The prosecutor explained that she did so because the Commonwealth was mindful of North Carolina v. Pearce, "which indicates that higher sentences that are received after a first conviction on a retrial should be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding and should affirmatively appear on the record." No mention was made of the impact of Texas v. McCullough, supra, on principles expressed in North Carolina v. Pearce, supra.

After hearing the victim and defense counsel, the judge made the following statement:

"This is perhaps the most gratuitously brutal crime of its type that I have encountered yet as a judge. I want to make a point of acknowledging a debt that society owes to [the victim] for the courage and dignity with which she confronted testifying a second time to an experience of horror, which none of us could ever imagine. The intent of this sentence is to ensure that if [the defendant] is ever released from prison, he will be incapable of ever attacking a woman again. I do not see the two crimes for which he has been convicted of to be sentenced concurrently. I believe they are independent of one another and deserve to be punished separately."

The sentences that we have already described were then imposed.

Both parties agree that it would be unfair to impose a more severe sentence after a second trial simply because the defendant successfully pursued an appeal from his first conviction. In North Carolina v. Pearce, supra, the Supreme Court concluded that due process required "that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id., 395 U.S. at 725, 89 S.Ct. at 2080. It therefore adopted a rule "that whenever a judge imposes a more...