Com. v. Levasseur
| Decision Date | 05 June 1992 |
| Docket Number | No. 91-P-668,91-P-668 |
| Citation | 592 N.E.2d 1350,32 Mass.App.Ct. 629 |
| Parties | COMMONWEALTH v. Mark LEVASSEUR. |
| Court | Appeals Court of Massachusetts |
Thomas J. Gleason, Haverhill, for defendant.
Patricia M. Darrigo, Asst. Dist. Atty., for the Com.
Before PERRETTA, PORADA and GREENBERG, JJ.
On his appeal from convictions by a jury on indictments charging rape and indecent assault and battery, the defendant argues that his trial attorney was ineffective. He contends that his convictions must be reversed because of his attorney's failure to file a motion to suppress the victim's one-on-one identification of him and to object to certain evidence and the jury instructions. We conclude that the alleged shortcomings of counsel did not deprive the defendant of an available defense and affirm the convictions.
1. The evidence. There was evidence, the victim's testimony, to show that on the night of June 30, 1988, the victim and a friend went to the Foxtail, a lounge in Lowell. Because the victim did not have a purse, she asked her friend to carry her wallet. They stayed at the Foxtail a while and then walked about a quarter of a mile down the road to another lounge, Chevy's.
Once inside Chevy's, the victim and her friend became separated. Because she was without her wallet, the victim decided that she would return to the Foxtail in the hope that there she would meet up with her friend. It was some time after midnight when she started back to the Foxtail. As she walked along the road, a man driving a large, dark-colored, "4 X 4", pickup truck pulled up. He drove alongside her and repeatedly asked if she would like a ride. At first the victim ignored him, next she explained that she was only going a short way down the road, and finally, not wanting to hurt his feelings, she relented. The driver reached over, opened the door, and helped the victim as she climbed up into the truck.
At first, the victim thought that the driver went past the Foxtail to find a parking space. Apprehension turned to alarm as he drove down deserted streets and stopped behind a large building. The man grabbed the victim, forced her back on the seat, and raped her. Still restraining the victim, he began to drive away. As he drove, she was struggling and fighting with him. He reached over, opened her door, and pushed the victim out of the truck. She fell out of the truck face first, landing in the street on her hands. The driver raced away.
Another witness testified that he drove up behind the truck just as the victim was being thrown onto the street. He described the truck as a dark blue or black "4 X 4." He drove the victim, who was crying and in a state of panic, to his nearby home so that his wife could help her. The victim would not allow anyone to touch her, and she would not talk. It took the witness's wife some effort to persuade the victim to write out her boyfriend's telephone number. The witness called the boyfriend and the police. Upon their arrival, they found the victim curled up on the floor in a corner of the bathroom. The victim was taken to the hospital in an ambulance. Although the police followed and waited over two hours, they could not get any helpful statement from the victim. She was still distraught when she later left the hospital with her boyfriend.
About a week later, on July 6 and 7, Inspector John Boutselis of the Lowell Police Criminal Bureau was able to interview the victim. She described her assailant as being of medium build with a thin face, high cheekbones, dark hair, dark eyelashes and a small mustache. The victim viewed approximately 6,000 photographs of white males. There was a picture of the defendant, taken in 1983, among those photographs. Although the victim noted that several people looked similar to the man who had raped her, she was unable to make an identification.
In the course of their investigation of this matter, on July 13, Boutselis and his partner, Inspector John Guilfoyle, were driving toward the defendant's house in North Chelmsford. They were on School Street in Lowell, when they saw the defendant driving a dark blue "4 X 4" pickup truck. The victim had described the interior of the truck as smelling "new", and the police observed that the truck was shiny and well-maintained. Boutselis pulled over and heard the defendant call out, "Come on," to a young girl, about sixteen years of age, as she walked along the sidewalk near the truck.
After confirming the registration, the two officers stopped the defendant, and he produced his license as requested. When asked about the identity of the young girl to whom he had called out, the defendant stated that she was his cousin and he had offered her a ride. The police asked for her name, but the defendant did not answer. Boutselis told the defendant that they were investigating an assault and asked whether he would come to the police station for an interview. Boutselis described the defendant as "very forward and aggressive in his eagerness to cooperate with us."
Upon his arrival at the police station, the defendant was advised of his rights. He consented to being photographed and told the police that he was employed at Avco, in Wilmington, working the 7:00 A.M. to 3:00 P.M. shift. He also drove a truck in the morning for a delivery company. In response to questioning, the defendant stated that on June 29, at midnight, he was home with his family. On June 30, about 9:00 P.M., he was in downtown Lowell, but he could not remember his precise whereabouts. When first asked, he denied being acquainted with any prostitutes in the Market and Merrimack Streets area, the vicinity of the rape. He then admitted that he had relationships with several prostitutes in that area and added that his wife was unaware of that fact. Once the defendant understood that the police were investigating a rape complaint, he stated that he wanted to leave and speak with his family. He later returned to the station with his wife and mother-in-law and advised the police that he would make no further statements.
The victim returned to the police station the next day, July 14, and Boutselis showed her a group of sixty photographs. The picture of the defendant, taken the day before, was included in this array. The victim stopped her scrutiny of the pictures at the defendant's photograph. She exclaimed, She asked whether there were any other pictures of the man depicted in the photograph she had selected, and the police gave her the picture of the defendant taken in 1983.
When the victim commented that the second (1983) photograph was more consistent with the defendant's appearance on the night of the rape, Boutselis asked her whether she was "comfortable" or "confident" enough to make a "positive identification." The victim responded that, because of the serious nature of the charges, she wanted to be "sure." She suggested that for her to be certain, she wanted "to see him."
On nine separate occasions, from July through December, Boutselis and the victim drove to Wilmington and North Chelmsford. The victim observed thousands of vehicles and people. On five of those nine occasions, Boutselis drove the victim to the plant in Wilmington where the defendant had stated he was employed. Four trips, including the last, were taken to North Chelmsford. On the last occasion, December 16, at 2:00 P.M., Boutselis and the victim were sitting in his parked car. Several cars and trucks passed them. At about 3:20 P.M., Boutselis noticed that a blue, "4 X 4" pickup truck was approaching. The truck was about thirty yards away before the victim, without comment or prompting from Boutselis, noticed it. She was silent at first, leaning forward to peer out the window. As the truck came closer, she stated, The truck passed within six feet of them, and Boutselis saw that the defendant was behind the wheel. The victim began to scream, Boutselis asked who she was talking about, and the victim stated that the driver of the truck was the man whose picture she had selected, he was the man who had raped her. Boutselis drove back to the police station. The victim was sobbing uncontrollably and would not get out of the car.
Testifying on his own behalf, the defendant related that on June 30, 1988, at about 9:00 P.M., he and his wife went for pizza on Broadway in Lowell, drove home, watched television, and retired for the night. He drove a truck, which he described as a 1986 Ford F250, "4 X 4", with a three-inch lift kit, smoked glass, and extra heavy duty suspension. He intimated that he thought Boutselis might have a grudge against him. He stated that he once cut Boutselis off in traffic. Boutselis made a check for outstanding warrants against the defendant, asked him whether there were drugs in the truck, and told him, "Next time I won't be so easy on you."
The defendant explained that the girl Boutselis had seen him call to from his truck on July 13 was his aunt's cousin. He had gone swimming with his aunt and her cousin and had brought his aunt to her house first. He had just dropped off the cousin when Boutselis saw him. The cousin was twenty-seven or twenty-eight years old and might be a prostitute. The defendant no longer knew where she lived. When the police asked him if he would go to the station and answer questions and when they advised him of his rights, they told him only that they were investigating unspecified crimes. He told them that he worked at Digital in Woburn and that he knew several prostitutes, who were friends of his, in the Lowell area.
Explaining why he interrupted his interview with the police on July 13, the defendant related that he was in casual dress and felt out of place at the station. He went home to change and met his wife. They went to pick up his mother-in-law at a place where she was playing...
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