Com. v. Jewett

• Decision Date: 23 July 1984
• Parties: , 50 A.L.R.4th 1039 COMMONWEALTH v. Bruce JEWETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 155

467 N.E.2d 155

392 Mass. 558, 50 A.L.R.4th 1039

COMMONWEALTH v. Bruce JEWETT.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 5, 1984.

Decided July 23, 1984.

Ellen L. Bane, Asst. Dist. Atty., for the Com.

Margaret H. Van Deusen, Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant was convicted of rape and was sentenced to a term of thirty-five to fifty years at the Massachusetts Correctional Institution, Walpole. He filed a timely appeal from this conviction. The defendant also filed a motion for a new trial, which the trial judge denied. A notice of appeal from this denial was filed, and this was consolidated with the appeal from the defendant's conviction.

After a decision by the Appeals Court reversing the judgment of the Superior Court, Commonwealth v. Jewett, 17 Mass.App. 354, 458 N.E.2d 769 (1984), we granted the Commonwealth's application for further appellate review. We reach the same result.

We summarize the facts, based upon the findings of the trial judge in response to a motion to suppress the identification of the defendant. On October 31, 1979, the victim was alone at her mother's home in Newton. About 8 p.m., she heard noises outside which sounded as if her cat were fighting with another animal. She decided to go outside and investigate. She walked out the front door and around the porch to the rear of the house. Hearing the noises continuing from some point beyond the rear yard, she walked down a path into the woods for a short distance. She came to a clearing in the woods, and, although the noises continued, she decided to turn back. As she was turning, the victim was grabbed from behind, dragged from the path, thrown down and raped. The episode lasted no more than five minutes; at the sound of a rustling nearby, the victim's assailant fled on foot.

Although it was dark at the time of the incident, there was evidence that the victim was able to see her assailant's face adequately on account of light from a nearby MBTA train station and a warehouse, and because it was a clear night with some moonlight. Soon after the incident, the police were called and they went to the victim's home. They showed her an array of about twenty photographs, and from this she selected the defendant's picture as being the one she "thought" was that of her assailant. However, she stated that she "would like to see" the man in person so as to confirm her initial impression. On November 19, 1979, the victim again picked the defendant's picture out of a smaller array of about nine color photographs. Again, she declined to state that she was "positive" that the picture she selected was that of her assailant. Finally, three months after the incident, the victim attempted an in-person identification of her attacker. On February 1, 1980, the defendant was in the Newton District Court on another matter. The victim walked around the courtroom and identified the defendant as her assailant.

The defendant has consistently maintained a defense of mistaken identity. Through the testimony of a number of witnesses, he introduced evidence that at the time of the incident he and a friend were driving to or waiting at a railroad station located a number of miles from the victim's home, for the purpose of meeting a train carrying their girl friends. However, the Commonwealth placed emphasis on the fact that during the course of the defendant's trip to the station, he and his companion stopped at a restaurant located within one mile of the victim's residence. They left the restaurant about 8 p.m.

Identification was, essentially, the sole issue at trial, with the defendant's alibi defense being weighed against the victim's testimony. After three full days of deliberations, during which the judge instructed the jury according to the standard set out in Commonwealth v. Rodriquez, 364 Mass. 87, 98-103, 300 N.E.2d 192 (1973), ¹ the jury returned a guilty verdict.

The Commonwealth argues that the trial judge correctly refused to permit the defendant to introduce testimony by a victim (hereafter, victim B) of a sexual assault five days before the incident at issue. Victim B, a teenager one year younger than the victim in the instant case (hereafter, victim A or the victim), was walking to school along a "short cut" path in a neighboring town (Watertown) when she was attacked. She, like victim A, was grabbed from behind and thrown to the ground, and as in the instant case her assailant fled on foot when startled by a noise along the path (in this case, a group of children). Acting on information provided by the Newton police department, the Watertown police included the same photograph of the defendant in the array shown to victim B. As with victim A, although victim B tentatively suggested that the defendant's photograph could be that of her attacker, she stated that she could not positively confirm this fact unless she saw him in person. On November 19, 1979, victim B viewed twenty to twenty-five people in the Newton District Court and identified the defendant as the person who had assaulted her. She stated that she was "85% positive" of this fact. However, on November 26, 1979, the charges against the defendant in victim B's case were dropped on the prosecutor's recommendation, since on the day of the incident the defendant was a voluntary in-patient at the treatment center at the Massachusetts Correctional Institution, Bridgewater, and therefore could not have been in Watertown. ²

At trial, the defendant's counsel explained these facts to the judge in some detail, and proposed to call victim B as a witness and to introduce the dismissed complaint in evidence, in support of his theory of misidentification on the part of victim A. His offer of proof was cut off by the judge, and his request to introduce the evidence denied. ³ The defendant argues that this ruling deprived him of the ability to present a defense, misidentification--an especially serious deprivation considering that the prosecution's entire case hinged on the accuracy of victim A's identification. The defendant argues that the judge's action was error, and that therefore he is entitled to a new trial. We agree.

Initially we must consider the Commonwealth's argument that the defendant's offer of proof regarding the misidentification evidence was inadequate and that this issue was not properly raised until the defendant's amended motion for a new trial. We conclude that the defendant's offer of proof was sufficient under the circumstances. He was not required to make further efforts "in the face of the judge's unequivocal adverse ruling." Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975). Mass.R.Crim.P. 22, 378 Mass. 892 (1979). Defense counsel's description of the misidentification evidence was enough to alert the judge to its relevance in a case where alibi and mistaken identity figured so significantly.

"Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). This broad right has given rise to a rule allowing a defendant to introduce evidence that another person recently committed a similar crime by similar methods, since such evidence tends to show that someone other than the accused committed the particular crime. See Commonwealth v. Keizer, 377 Mass. 264, 385 N.E.2d 1001 (1979); Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486 (1933). See also Pettijohn v. Hall, 599 F.2d 476 (1st Cir.1979); Holt v. United States, 342 F.2d 163 (5th Cir.1965); People v. Bueno, 626 P.2d 1167 (Colo.App.1981), cited with approval in People v. Flowers, 644 P.2d 916, 919 (Colo.), appeal dismissed, 459 U.S. 803, 103 S.Ct. 25, 74 L.Ed.2d 41 (1982). State v. Garfole, 76 N.J. 445, ...