Com. v. Miles
Decision Date | 13 April 1995 |
Citation | 420 Mass. 67,648 N.E.2d 719 |
Parties | , 55 A.L.R.5th 813 COMMONWEALTH v. Kurt MILES. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Mary F. Costello, Boston, for defendant.
Judy Zeprun Kalman, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
After a mistrial, the defendant was retried and convicted by a second jury on three indictments charging rape and one indictment charging indecent assault and battery.
On appeal, the defendant raises five issues. First, he argues that the trial judge abused his discretion in allowing the Commonwealth's motion to limit the scope of cross-examination of a police witness. Second, the defendant asserts that the judge erred in denying his motion to exclude the testimony of his former girl friend about two incidents of harassment after the assaults. Third, the defendant contends that the judge erred in denying his motion to suppress the photographic identification. Fourth, the defendant argues that trial counsel's failure to object to a voice identification procedure and to the absence of a hearing prior to the court-ordered physical examination of his body constituted ineffective assistance of counsel. Finally, the defendant alleges that the judge erred in denying his motion for a continuance before the commencement of the second trial. We affirm the defendant's convictions.
Facts. We recite some of the facts that the jury could have found from the evidence admitted, leaving other facts for our discussion of the specific issues raised on appeal.
On May 20, 1991, the victim was attacked as she jogged along the Ashley Reservoir in Holyoke. The assailant grabbed the victim from behind and strapped her arms to her chest so that she could not move. He threatened that he would kill her if she yelled. The assailant then dragged the victim through the brush into a wooded area near the reservoir. He forced her to undress. The assailant then forced the victim to submit to oral, vaginal, and anal intercourse. The victim could not see her assailant during the attack because he forced her to place her shirt over her face.
During and following the attack, in order to "make him see me as a human being [and] get away with my life," the victim engaged the assailant in conversation. The assailant disclosed that (1) he had had a girl friend for seven years, but they had ended the relationship approximately one year before; (2) that he had once weighed between 250 and 270 pounds; (3) that he smoked marihuana; and (4) that he was between twenty and twenty-five years old. The victim told the police that according to her assailant their conversation lasted for ten minutes and that she was close enough to hear him distinctly.
After the attack, the assailant left the victim in the woods. She dressed, returned home, and later went to the hospital accompanied by her mother. Two days later, a rash had developed over her entire body. A dermatologist confirmed that the rash was caused by poison ivy. Based on the victim's complaint to the doctor that she had been sexually assaulted at the reservoir, the doctor came to a medical opinion that the assailant likely would have a similar poison ivy rash. The victim reported her condition to the police, who determined that there were dense poison ivy plants on the path into the area where the victim was raped and at the site of the rape. The police then advised the news media that the assailant had a red mountain bicycle and possibly had poison ivy. As a result, the police received a telephone call from a man who provided them with the defendant's name.
During the defendant's first trial, the trial judge allowed defense counsel to question the police about their investigation of other suspects. Before the start of the second trial, the Commonwealth moved to limit the scope of cross-examination to preclude any questioning about other suspects. During voir dire on the motion, Sergeant Michael McMullan, the lead investigating officer in the case, testified that, at one time, the police did have other suspects. He stated that the police removed one individual from the list of suspects on learning that this individual had been incarcerated in a halfway house on the day of the attack. The officer admitted that he never determined whether the halfway house was a "locked-down" facility. McMullan testified that the police excluded another suspect who had been in a jail on that day. In addition, McMullan stated that the police eliminated a third suspect, who had been seen riding a red mountain bicycle at the reservoir on the day of the attack, because he was Hispanic and did not match the victim's description of the man she had seen at the reservoir prior to the rape.
The officer further testified that the police ruled out a fourth suspect identified by an anonymous caller. This suspect had poison ivy on his arms and legs. In addition, the suspect had a questionable alibi. He told police that he had been fishing with a friend at the Quabbin Reservoir on the day in question. When the police interviewed the friend on the same day, he told them that the suspect had telephoned him and told him to tell police that they had been fishing together on the day of the rape. The friend told the police that he could not remember whether this was in fact true. The police returned to the suspect's home, and asked why he had made the telephone call. The suspect said that his friend was forgetful. When the police asked to see the suspect's bicycle, he showed them a rusty ten-speed bicycle with an attached baby carrier.
The defendant pointed out to the court that the police never obtained a warrant to search this suspect's home or body for poison ivy, nor did they determine adequately whether he owned a red mountain bicycle. Over the defendant's objection, the judge allowed the Commonwealth's motion to limit the scope of cross-examination.
The defendant argues that the judge abused his discretion in allowing the Commonwealth's motion. He alleges that, by precluding cross-examination about police investigation of other suspects, the judge denied him the right to confront witnesses against him in violation of art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution. Although we agree that the judge did err in allowing the Commonwealth's motion to limit the scope of cross-examination as to one suspect, we conclude that the error was harmless beyond a reasonable doubt.
Both the Sixth Amendment and art. 12 guarantee a criminal defendant's right to confront the witnesses against him through cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 736-737, 107 S.Ct. 2658, 2662-2663 96 L.Ed.2d 631 (1987); Commonwealth v. Fordham, 417 Mass. 10, 18, 627 N.E.2d 901 (1994); Commonwealth v. Tanso, 411 Mass. 640, 650, 583 N.E.2d 1247, cert. denied, 505 U.S. 1221, 112 S.Ct. 3033, 120 L.Ed.2d 902 (1992). The right to confrontation guarantees that, in most circumstances, a criminal defendant as a matter of right may cross-examine the prosecution's witnesses. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); Commonwealth v. Fuller, 399 Mass. 678, 684, 506 N.E.2d 852 (1987). Indeed, the right to confrontation and cross-examination "is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Commonwealth v. Tanso, supra, quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).
However, a criminal defendant's confrontation right is not absolute. Commonwealth v. Barnes, 399 Mass. 385, 393, 504 N.E.2d 624 (1987). Although the defendant is entitled to a reasonable cross-examination of witnesses against him, the scope of cross-examination rests largely in the sound discretion of the trial judge. Commonwealth v. Daye, 411 Mass. 719, 735, 587 N.E.2d 194 (1992). Commonwealth v. Weichel, 403 Mass. 103, 105, 526 N.E.2d 760 (1988). We shall not overrule a trial judge's determination as to the proper scope of cross-examination unless the defendant demonstrates that the judge abused his discretion and that the defendant was prejudiced thereby. Commonwealth v. Gagnon, 408 Mass. 185, 192, 557 N.E.2d 728 (1990). Commonwealth v. Fuller, supra 399 Mass. at 685, 506 N.E.2d 852.
In determining whether a defendant's constitutional right to cross-examine and thus to confront a witness against him has been denied because of an unreasonable limitation of cross-examination, we weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination. Commonwealth v. Kirouac, 405 Mass. 557, 561, 542 N.E.2d 270 (1989). In this case, Sergeant McMullan's testimony about the police investigation that led to the defendant's arrest was critical to the Commonwealth's case, in particular because the victim did not see her assailant's face at the time of the rape. Such testimony was highly material to one of the most important issues at trial, the identification of the defendant as the perpetrator of the crimes. Although defense counsel did have an opportunity to cross-examine McMullan, the judge precluded him from asking any questions about other persons investigated by the police. This was a substantial restriction of cross-examination, because misidentification was the crux of the defense. The facts sought to be raised on cross-examination, namely that the police had investigated other suspects, particularly one suspect who had poison ivy and a questionable alibi, "went to the essence of the defense." Commonwealth v. Funches, 379 Mass. 283, 293, 397 N.E.2d 1097 (1979). The defendant had a legitimate purpose in seeking to inquire about other suspects because such evidence would tend to show that someone other than he attacked the victim. See Commonwealth...
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