Com. v. Mattei

• Decision Date: 03 September 2008
• Docket Number: No. 06-P-1227.,06-P-1227.
• Citation: 892 N.E.2d 826,72 Mass. App. Ct. 510
• Parties: COMMONWEALTH v. Alexander MATTEI.
• Court: Appeals Court of Massachusetts

892 N.E.2d 826

72 Mass. App. Ct. 510

COMMONWEALTH v. Alexander MATTEI.

No. 06-P-1227.

Appeals Court of Massachusetts, Essex.

Argued February 5, 2008.

Decided September 3, 2008.

Bonny M. Gilbert, Brookline, for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, ARMSTRONG, & RUBIN, JJ.

ARMSTRONG, J.

On April 2, 2004, a Superior Court jury found the defendant guilty of home invasion, assault with intent to commit rape, indecent assault and battery on a person over fourteen years old, and assault by means of a dangerous weapon (G.L. c. 265, §§ 18C, 24, 13H, and 15B[b], respectively), and breaking and entering with intent to commit a felony (G.L. c. 266, § 17).¹ The defendant alleges numerous errors.

1. Background. On the evidence, the jury could properly find that at approximately 1:00 P.M., on April 26, 2002, the thirty-six year old victim, who was legally blind, returned to her apartment, where she lived alone. It was located in a multiple-unit, low-income, elderly housing complex in Andover. As she entered the front foyer and walked down the stairs to the basement where her apartment was located she observed a man she did not recognize mopping the basement floor. The man in question, the defendant, was working at the apartment complex on a work-release program from the Correctional Alternative Center under the supervision of three Andover housing authority (AHA) employees. One-half hour earlier, Earl Bell, one of the AHA employees, had assigned the defendant to clean the hallways in the victim's apartment building.

After a brief exchange of words with the defendant, the victim entered the door to her apartment, closed the door behind her locked it with a "push-button" mechanism, and prepared to take a nap by removing her skirt and blouse. While she was changing, she heard a knock. Through the closed door, she spoke with a person who she thought was the man she had just seen mopping the floor (the defendant acknowledged to the police it was he who had knocked) informing her that she should be careful if she left the apartment because the floors were wet and slippery.

A minute or two later, an intruder opened the door to her apartment and entered. The intruder grabbed her from behind and told her, "Be quiet. I just want to make love to you." Given his position, she was not able to observe the intruder's face, but she was able to discern that he was a white male (possibly Hispanic), taller than she, with a medium-heavy build, and wearing a white or light gray sweatshirt and sneakers.

The intruder grabbed the victim around the neck and applied pressure on her neck with the inside of his elbow. He placed his hand on her mouth tightly, up against her nostrils, to the point that she complained of having difficulty breathing. She pulled at his hand in an effort to release the pressure, scratching his hand in the process.

When the intruder loosened his grasp slightly, the victim managed to get away and ran to the telephone. He quickly chased after her, knocked the telephone from her hand, and grabbed her from behind again by placing his hand over her mouth and applying pressure on her neck with the inside of his elbow. She made repeated efforts to struggle free, once calling out to a nearby neighbor, who later reported having heard only muffled sounds. The intruder struck her in the face more than once, knocking off her thick, "Coke-bottle" like glasses onto the floor and causing her to bleed from the nose.²

Fatigued by the effort to escape, the victim gave up resisting, and the intruder forced her on the bed, stomach-side down, hands spread in front of her. Although pinned by his weight, she pulled her underpants down on demand. During the assault, the intruder used a piece of duct tape roughly seven inches long to cover the victim's mouth. She managed to work the tape off from her mouth, however, and his repeated efforts to seal her mouth with another piece of duct tape proved unsuccessful.

The intruder attempted anal rape, "thrusting, and trying to get in." His attempts continued for what "seemed like ... a long while." The intruder then "just stopped," put his pants back on, and left the apartment, closing the door behind him. The victim estimated that the entire assault, from the time the intruder entered the apartment to the time he left, took ten to fifteen minutes.

After several minutes of groping, without glasses, for the telephone, which had been knocked to the floor by the intruder, the victim reached a 911 operator. The call took place no more than five minutes after the intruder left the apartment. At 1:23 P.M., Officer Michael Connor arrived and observed the victim in her sports bra and underwear, still on the phone with the 911 dispatcher. He noted further that she was shaking nervously, had blood on her face, a black eye, bruises, and blood on her hands. The victim complained of a "black spot" on her eye, obscuring her already limited vision, which was eventually revealed to be the result of bleeding that occurred behind the retina of her right eye. After telling the officer that a man wearing a white sweatshirt had broken in, beaten her, and raped her, she was taken to Lawrence General Hospital to receive medical assistance.

2. The tape recording of the 911 call. The defendant objected to the Commonwealth's putting in evidence, and playing for the jury, the recording of the victim's 911 call to the police, on the basis that (1) the recording was "testimonial" under Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and (2) the victim, because of her inability to remember what she had said to the police 911 dispatcher during that call, was "unavailable" for cross-examination. For purposes of decision, we can assume, without deciding, that the conversation on the 911 recording was testimonial. The victim was not, however, unavailable for cross-examination. She in fact testified at the trial.

The defendant bases his claim that the victim was "unavailable for cross-examination" on an assertion that she could not remember what she had said in her 911 call to the police. The victim did so state. "Unavailability as a witness," the defendant argues, quoting from Rule 804(a)(1) of the Uniform Rules of Evidence,³ "includes situations in which the declarant ... (C) testifies to a lack of memory of the subject matter of [her] statement." The victim's testimony, however, belies her statement that she could not remember, which seems to be true only in the limited sense that she could not then, at trial, recall everything she had said in the 911 call two years earlier. Much of what she said she did remember. Moreover, she had a remarkably detailed present memory of the events preceding her 911 call and could be effectively cross-examined on statements made to the dispatcher during the call.

A subsidiary contention is that the judge, who was faced with ruling on the Crawford motion the first day of the trial, withheld a ruling until the fifth day with the result that the jury did not hear the 911 recording until the sixth day, as the last evidence in the trial. Thus, the defendant was put, as his counsel ruefully explained, "in [the] untenable position of putting, as the last thing the jury hears, the complaining witness back in front of the jury to recount that initial moment." Although courts "have frequently expressed [their] preference for early rulings on motions in limine," Commonwealth v. Vaidulas, 433 Mass. 247, 250, 741 N.E.2d 450 (2001), here the judge was faced with a question (what makes a report "testimonial"?) under the Crawford decision that was utterly novel (Crawford was decided March 8, 2004, and the trial began March 24, 2004) and remains a gray area four years later. The conscientious judge had not yet read the case and had to ponder with little assistance the extent to which the spontaneous utterance exception to the hearsay rule survived it. The delay was understandable and unavoidable, however unfortunate the effect on the defendant's preferred order for presentation of the Commonwealth's case.

3. The inconclusive DNA evidence. In the investigation following the victim's removal by ambulance to the hospital, the police located a crumpled, bloodstained, white sweatshirt in a trash can in the laundry room across the hall from the victim's apartment. The sweatshirt was linked to the defendant by two AHA employees, one of whom had given it to the defendant the previous week, and another who claimed to have seen the defendant wearing it that morning. Shortly after the crime, that employee saw the defendant no longer wearing the sweatshirt and in a different building (which struck the employee as odd because he knew the defendant's work assignment that day was at the victim's building). Through DNA testing, the State police crime laboratory was able to make positive identification of both the victim's and the defendant's DNA on the sweatshirt. That match, including the gathering, testing, and analysis of the results, came in without objection and with the usual astronomical improbabilities of others being the source of the DNA. Given the victim's impairments in identifying the defendant as the intruder, the sweatshirt DNA results were doubtless the most incriminating evidence against the defendant.

The defendant objected when the Commonwealth put in evidence the police chemist's testimony that DNA tests of stains on the defendant's sweatpants and of a swabbing from the doorknob on the inside of the victim's apartment door were, because of a mix of DNA from different persons, inconclusive, such that the defendant could not be identified as a source of the DNA on the doorknob but also could not be excluded as a source,⁴ and the victim could not be identified as a source of the DNA on the defendant's...