Com. v. Rivera

• Decision Date: 07 April 1986
• Citation: 490 N.E.2d 1160,397 Mass. 244
• Parties: COMMONWEALTH v. Tomas RIVERA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1160

490 N.E.2d 1160

397 Mass. 244

COMMONWEALTH v. Tomas RIVERA.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Jan. 7, 1986.

Decided April 7, 1986.

Thomas C. Federico, Committee for Public Counsel Services, Boston, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for Com.

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

O'CONNOR, Justice.

A jury convicted the defendant on two indictments for aggravated rape of a child and on single indictments for kidnapping, indecent assault and battery, assault and battery by means of a dangerous weapon, and armed robbery. The defendant was sentenced to life imprisonment on one of the rape convictions ¹ and to concurrent terms of life imprisonment on the armed robbery conviction, eight to ten years on the kidnapping and assault and battery with a dangerous weapon convictions, and three to five years on the conviction for indecent assault and battery. The defendant appeals and claims that the judge made the following errors: (1) admitting, over defendant's objection, certain hearsay testimony which bore on the reliability of the victim's identification of the defendant; (2) refusing to give the defendant's requested instruction on consciousness of guilt, as required by Commonwealth v. Toney, 385 Mass. 575, 433 N.E.2d 425 (1982); and (3) failing to conduct a colloquy with the defendant to assure that he understood the risks involved in raising racial issues when examining prospective jurors. Commonwealth v. Sanders, 383 Mass. 637, 421 N.E.2d 436 (1981). The defendant also appeals his kidnapping conviction on the ground that the acts underlying the crime were merely incidental to the rape (presumably the rape conviction on which he was sentenced) and robbery, and that, therefore, the convictions were duplicitous. We transferred the case here on our own motion and now affirm the defendant's convictions.

At trial, the following evidence was introduced. At 9:00 p.m. on April 18, 1983, the victim, a fifteen year old girl, left her home and walked a few blocks to buy some food at a local convenience store. On her way home, she became aware that she was being followed. She quickened her pace and noticed that the person following her, who turned out to be the defendant, did so also. The victim ran up the driveway of a nearby house. The defendant then jumped from bushes that lined the driveway and pushed the victim against the house. The defendant held a knife against the victim and told her that he would kill her if she was not quiet.

The defendant then dragged or pushed the victim out of the driveway into the street stating that he only intended to take the victim's money. On reaching the opposite side of the street, the victim handed the defendant all the money that she had, a dime. The victim viewed the defendant's face for at least ten seconds.

The defendant then dragged the victim into a bushy, dimly lit area at the side of another house, undressed himself and the victim, and raped her. When a porch light came on, the defendant held his knife to the victim's throat and warned her to keep quiet or he would kill her. He then dressed himself and the victim and dragged her to the rear of the house. After the light went out, the defendant dragged the victim back to the bushy area at the side of the house and raped her again.

Immediately thereafter, the defendant and the victim got dressed. As the victim stepped from the bushes, she saw at the end of the driveway the owner of the property where the rapes had occurred. The victim told the property owner that she had been raped, and ran home. She arrived at her home within forty to forty-five minutes after she had left it to go to the store. She was screaming hysterically. She spoke to her mother. The only thing the mother could understand was "man, knife and bushes." The victim's mother promptly called the police and police arrived at the home before the telephone conversation had been completed.

With her mother present, the victim gave the officers a description of her assailant as being a Puerto Rican male about six feet tall with a small moustache and tight wavy hair pushed behind the ears. In addition, she described him as looking like a gas station attendant, wearing dark blue pants and a blue-green jacket, and smelling bad. The victim's mother testified that the victim was asked whether she had gotten a look at her assailant, and that she answered, "Oh yes, my God, I will never forget that face."

At about 9:35 that evening, the defendant was observed crawling on the roof of a garage near the scene of the crimes. The observer notified the police who apprehended the defendant on the roof. Approximately ten minutes after the victim had returned to her home, the police brought the victim and her mother to a nearby location to view the defendant. Several officers held the defendant in front of the police cruiser's headlights, and the victim positively identified him as her assailant. The victim's mother testified that after the victim identified the defendant she again stated to a police officer, "I will never forget that face." No more than thirty minutes elapsed from the time the victim arrived home after being attacked until she identified the defendant.

The thrust of the defense was to challenge the victim's identification of the defendant as her assailant. The defendant testified that shortly after the crimes occurred he was on his way to an apartment building in the vicinity of the crimes when he encountered several police vehicles. He was intoxicated and nervous, and he was on probation, so he attempted to avoid the police by heading down a driveway which he hoped would lead to a path to the apartment building. When he discovered that the driveway would not take him to the path, he climbed onto a roof to look for the path. The police took the defendant into custody while he was on the roof. The defendant denied being involved in the crimes, and at trial focused on alleged discrepancies between his appearance and the victim's description of him.

1. Admissibility of Evidence. The defendant argues that the trial judge committed prejudicial error by admitting in evidence over his objection the victim's mother's testimony that, shortly after the victim's return to her home and again after the victim's identification of the defendant, the victim stated that she would never forget her assailant's face. The defendant points out that the victim was not asked at trial whether she had made that statement and she gave no testimony concerning it. There was no error. The defendant acknowledges that an identification made outside of court and corroborated by the identifying witness at trial is admissible for probative purposes. See Commonwealth v. Daye, 393 Mass. 55, 58-62, 469 N.E.2d 483 (1984); Proposed Mass.R.Evid. 801 (d)(1)(C)(1980). But, the defendant argues, the statements challenged here are not made admissible by Daye. He asserts that the victim's statements were only inadmissible hearsay, and that their admission in evidence was not only error but was prejudicial error because the victim's out of court statements lent credibility to her identification of the defendant as her assailant.

The victim's first statement that she would never forget her assailant's face does not depend on Commonwealth v. Daye, supra, for its admissibility. Hearsay evidence may be admissible under exceptions to the hearsay rule other than the exception articulated in Daye. Commonwealth v. Mendrala, 20 Mass.App.Ct. 398, 401, 480 N.E.2d 1039 (1985). Although the record does not disclose the judge's rationale, nothing in the record suggests that an error was committed. The judge would have been well within his discretion in admitting the evidence as a spontaneous exclamation, occurring while the declarant was in a state of hysteria within a few minutes after she suffered severe trauma. "The judge could well have concluded within his 'broad discretion' that [the victim's statement was] made 'before there [had] been time to contrive and misrepresent,' " Commonwealth v. Sellon, 380 Mass. 220, 229, 402 N.E.2d 1329 (1980), quoting Commonwealth v. McLaughlin, 364 Mass. 211, 223, 303 N.E.2d 338 (1973), and that the statement, therefore should be admitted. ²

The victim's second statement was made when the victim identified the defendant while he was in police custody. Although the record is not entirely clear, it appears that the judge admitted evidence of the victim's second statement (that she would not forget her assailant's face) because the statement was "directly involved with the identification." Assuming that to have been the judge's reasoning, we agree with it.

The clear lesson of Daye is that a nonidentifying witness may give probative testimony concerning an extrajudicial identification made by another witness who corroborates that identification at trial. Id., 393 Mass. at 60-63, 469 N.E.2d 483. Of course, "testimony by a nonidentifying witness that differs in material respects from the testimony of the identifying witness concerning a particular extrajudicial identification or that concerns an extrajudical identification at a different time or place not acknowledged by the identifying witness cannot be considered corroborative or probative and remains within the hearsay proscription." Id. at 60 n. 8, 469 N.E.2d 483. Here, not only the victim's mother, but the victim as well, testified that shortly after the criminal events the victim identified the defendant as he was being held by the police in front of cruiser headlights. Although the mother, and not the victim, testified that, after identifying the defendant, the victim told the police that she would never forget the defendant's fact, the victim did not deny that she had made that statement. The judge could properly view the alleged second statement by the victim as part of her extrajudicial identification of the defendant, and he...