Com. v. Mahar
| Decision Date | 15 November 1985 |
| Citation | 21 Mass.App.Ct. 307,486 N.E.2d 1120 |
| Parties | COMMONWEALTH v. Dennis MAHAR. |
| Court | Appeals Court of Massachusetts |
Kenneth Quat, Maynard, for defendant.
J.W. Carney, Jr., Asst. Dist. Atty., for Com.
Before GREANEY, C.J., and DREBEN and KAPLAN, JJ.
About 5:15 P.M. on November 16, 1983, a woman (victim A) was attacked and raped on Westford Street in Lowell. At about the same time the following evening, a second woman (victim B) was attacked in approximately the same location. The defendant was accused in various indictments of both assaults. 1 Following a single trial of all the indictments before a jury in the Superior Court, the defendant was convicted of rape (unaggravated) of victim A and of the assault with intent to rape and assault by means of a dangerous weapon of victim B. 2 Consecutive terms of imprisonment were imposed. 3 Represented by new counsel on appeal, the defendant argues: (1) that his motion for a required finding of not guilty should have been allowed with respect to so much of the indictment as charged him with an intent to rape victim B; (2) that there was prejudicial joinder of all the charges for a single trial; and (3) that, in final argument, his trial counsel provided him with ineffective assistance. We affirm.
We first summarize the evidence in the Commonwealth's case as to each incident as well as the evidence presented for the defense.
The victim A incident. Victim A testified that on November 16, 1983, she left work in Lowell at 5:00 P.M. and boarded a bus. At approximately 5:15 P.M., she got off the bus and began walking towards her apartment on Westford Street. A man, whom she later identified as the defendant, approached her from the rear and said hello. As she returned the greeting, she had a full face view of the man, who then asked whether she was "busy the next night." She replied that she was. The man also told her that he lived in the area. The victim continued on her way, leaving the man about six feet behind. As she approached the vicinity of 377 Westford Street, the man pulled her left arm back and covered her mouth. He then pushed the victim into a yard and to the ground, where he pulled off her pants and her underwear. The victim began to scream. He again covered her mouth and inserted his penis into her vagina. During the rape, which lasted approximately five minutes, the victim observed the man's eyes to be "spacey" or "drugged." The assailant struck her three times in the area of her eyes and lips. The victim became "very scared" when her assailant warned her, "next time don't scream or I'll kill you." As the episode ended, the man kissed her and asked if she could see his face. After she told him she could not, he got up and ran away. The victim hurried to her apartment and told a neighbor that she had been raped. The police were called, and the victim was taken to the hospital. The victim also testified that her attacker was wearing a khaki green slicker or rain jacket. She identified a slicker seized from the defendant's automobile as similar to the one worn by her assailant.
The next day, Inspector Edward F. Davis of the Lowell police brought 100 photographs to victim A for examination. She selected the defendant's photograph from the group, stating that she was "99 percent sure" that the photo depicted her assailant. On December 15, 1983, the victim was taken to the Lowell District Court to view seven individuals in a line-up. She testified that she had picked the defendant out of the line-up as her assailant, and that she was certain at that point of her identification.
On cross-examination, the defendant's trial counsel elicited that the victim was unsure of whether the man who attacked her wore a mustache. Defense counsel attempted, unsuccessfully, to get the victim to testify that the defendant's eyes were not brown, as she had testified, but hazel. An admission was also obtained from the victim that she had identified the defendant as "number six" in the photograph taken of the line-up, but had identified man "number five" in the photograph as her assailant in her testimony before the grand jury.
The victim B incident. Victim B testified that on November 17, 1983, at about 5:00 P.M., she left work at a bank in downtown Lowell and boarded a bus for the Cupples Square area to the corner of Loring and Westford Streets, where she lived. She got off the bus at approximately 5:20 P.M. While walking down Loring Street, she was approached by a man, whom she later identified as the defendant. Stopping her by planting his foot on the left side of her foot, he asked her for a match. At this point, the victim had a direct view of the upper part of the man's face, his hair, his eyes and his nose. The victim replied that she did not have a match and continued walking. The man then grabbed her left arm and bent it behind her back. The victim screamed and tried to move away, but the man forced her to the ground, grabbed her hair and pushed her face down. He then straddled her, as she described it, with "one leg on each side of me with his left knee slightly bent to keep me from trying to get up." When the victim continued screaming, the man told her to stop and that he had a knife, which was drawn. As he held her by the hair, he stabbed her in the back of the neck. The first thrust with the knife pierced the victim's jacket; a second thrust drew blood as the knife struck the victim's neck.
The victim screamed again when she felt the knife and started struggling to get out of the man's hold. She swung her left shoulder around, and her purse struck her assailant in the shoulder. This movement threw him slightly off balance as the victim rolled onto her back. She then kicked the man in his legs and his "privates." As he "grunted and leaned forward," the victim "scooted under his legs and ran."
The victim further testified that the man's eyes were "very glassy", that he had a "very light mustache", and that he was wearing a khaki colored green army jacket. After the incident, she was shown approximately 480 photographs by the police, but was unable to make an identification. 4 Shortly thereafter, she met with Inspector Davis, who showed her fifty additional photographs. From this second display, she selected the defendant's photograph as the photograph of her assailant. On the next day, November 18, 1983, she was taken to the Lowell District Court and asked to look at the men in the "arresting box" to see if she could identify her assailant. "Nervous and frightened," she was unable to make an identification. On December 23, 1983, she returned to the Lowell District Court to view a line-up. From a line-up of six men, she picked out the defendant as her assailant.
On cross-examination, the defendant's trial counsel established that the color of the defendant's eyes was hazel, and not brown, as the victim had originally reported. He also brought out that the victim had thought that the assailant's hair had looked bushier on one side than the defendant's hair appeared to be in the photograph she selected. The victim was also questioned by defense counsel about a photograph of the defendant printed in a local newspaper on November 21, 1983. She denied basing her initial identification of the defendant upon that photograph. She admitted, however, that the line-up identification had occurred after the photo appeared in the newspaper.
Testimony about the police investigation. Inspector Edward F. Davis of the Lowell police department testified that on November 17, 1983, he began an investigation of both assaults by obtaining a composite drawing of the attacker from victim B. Armed with the drawing and other information about the man's appearance given by both victims, he went to the Cupples Square area of Lowell where the assaults had occurred. While Davis was meeting with the two police officers who patrolled in that area, he observed the defendant approximately twenty-five feet from the location where victim B had been assaulted earlier that evening, and approximately 100 yards from the point where victim A had been raped the evening before.
Inspector Davis testified that, when first observed, the defendant was wearing dungarees and a red, hooded sweatshirt. These articles of clothing were seized. 5 At about midnight on November 17, Inspector Davis found the defendant's automobile and seized from it a khaki green rain slicker, a green Army field jacket and liner, and a military knife in a buttoned sheath. These items were introduced in evidence. Inspector Davis' testimony also recounted the victims' identifications of the defendant from the photographic displays and their later identifications from the line-ups.
Cross-examination of Davis by the defendant's trial counsel brought out discrepancies in the victims' descriptions and identifications.
The defense. The defendant, a sergeant in the United States Army, testified on his own behalf. He noted that his eyes are hazel-colored, not brown, as victim A had testified, and that on November 16, he had a mustache. As to the incident involving victim A, he offered an alibi. He stated that on that date he had attended a meeting from 4:30 to 5:15 P.M. at Fort Devens, where he was stationed. After the meeting, he left for his home in Lowell, arriving at approximately 5:30 P.M. He then left his home at approximately 6:00 P.M. to go to a local tavern, where he remained until midnight. His testimony was corroborated, in part, by two sergeants at Fort Devens. Both testified that the defendant had been with them in a meeting at the base until 5:15 P.M. One of the soldiers also indicated that the khaki rain slicker found in the defendant's automobile was regular Army issue clothing of a type commonly worn by military personnel at Fort Devens.
As to the November 17 incident involving victim B, the defendant...
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