Com. v. Rodriguez

• Decision Date: 21 June 1979
• Citation: 391 N.E.2d 889,378 Mass. 296
• Parties: COMMONWEALTH v. Jose RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 889

391 N.E.2d 889

378 Mass. 296

COMMONWEALTH v. Jose RODRIGUEZ.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued April 3, 1979.

Decided June 21, 1979.

Eric D. Blumenson, Boston, for defendant.

Charles J. Hely, Dist. Atty. (Sydney Hanlon, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted by a Superior Court jury of assault and battery with a dangerous weapon and forcible rape. Prior to trial, the defendant moved to suppress certain evidence on the ground that it was obtained during an illegal search and seizure. He also moved to suppress both in-court and out-of-court identifications of himself by the victim on the ground that the pretrial identification procedures were unnecessarily suggestive. At the close of the hearings, the trial judge denied both motions. After entry of the verdicts, and on his own motion, the judge ordered the defendant committed to the treatment center at Bridgewater State Hospital for a determination as to sexual dangerousness. See G.L. c. 123A, § 4. At a subsequent Superior Court hearing, the defendant was found sexually dangerous and committed to the treatment center for an indeterminate period of from one day to life. See G.L. c. 123A, § 5.

The defendant appealed both the determination that he is sexually dangerous and his convictions on the two indictments. This court ordered direct appellate review of the former issue and affirmed, contingent on affirmance of the criminal convictions. Commonwealth v. Rodriguez, --- Mass. --- ^A, 382 N.E.2d 725 (1978). The Appeals Court reversed the convictions, citing prejudicial error in a portion of the judge's charge. That court also ordered that a new hearing be held on the defendant's motion to suppress items obtained during the search of his apartment by the police. Commonwealth v. Rodriguez, --- Mass.App. --- ^B, 383 N.E.2d 851 (1978). We granted the parties' applications for further appellate review. ¹

In this appeal, we are asked to decide whether the judge erred in (1) declining to instruct the jury on the possibility of mistaken identification, (2) denying the defendant's motions to suppress, and (3) making certain evidentiary rulings at trial. We are substantially in agreement with the results reached by the Appeals Court. However, we extend our opinion to include additional comments on several of the many hundreds of exceptions and motions offered by the defense. Many of these were of little substance, which obviously made this trial difficult for the judge to conduct with fairness. We conclude that the judge erred in instructing the jury and in denying the defendant's motion to suppress all but one item, and possibly two items, seized during the search of his apartment. For reasons presented Infra, we remand the case to the Superior Court for limited findings of fact as to the second item. We also conclude that the defendant is entitled to a partial new hearing on his motion to suppress those identifications that occurred shortly before his probable cause hearing and at the probable cause hearing itself. This new hearing shall be confined to the issue whether the police interfered impermissibly with the defendant's right to counsel at those times. Finally, in the interests of assuring the defendant a fair second trial and hopefully avoiding another appeal, we shall discuss those evidentiary matters that raise substantial questions of error and that are likely to recur.

We summarize the facts briefly as follows. On September 27, 1976, around 11 P.M., the victim was walking from an MBTA station in Brookline to the single- family dwelling in which she lived. She soon became aware of being followed. Initially, she could see only the man's general build and hairstyle, and the type of jacket that he was wearing. However, after a few minutes, he called out, and she turned around to ask what she could do for him. While pretending to ask for directions, he walked toward her a distance of approximately ten feet. When he arrived within a few feet of her, he thrust a broken bottle under her throat, turned her around, pushed her up a driveway into a backyard, and raped her. The victim's only opportunity to view her assailant occurred during their brief conversation. At the time, they were standing between two street lights placed approximately one-half block apart. A nearby porch light and lights from nearby homes provided the only additional illumination.

The victim ran home shortly after her assailant departed, and someone there immediately called the police. When the police arrived, the victim gave them a description of the man's skin color, build, height, hairstyle, mustache, glasses, and jacket, and described him as being possibly Hispanic. The police showed the victim an array of eight photographs, and she chose one of the defendant as most resembling her attacker. A second attempt to secure an identification from substantially the same array of photographs was made the next morning and yielded the same result. The victim's first positive identification of the defendant came approximately one month later, while he was entering the court room on the morning of the probable cause hearing. She made positive identifications of the defendant at that hearing and at trial.

In addition to the victim's identifications, the Commonwealth offered certain other evidence against the defendant at trial. The evidence consisted primarily of (1) a jacket, which matched the victim's description of that worn by her assailant, found by the police during their search of the defendant's apartment, (2) a pair of denim pants, the knees of which were wet and muddy, also found during the search of the defendant's apartment, (3) expert testimony that the soil on the denim pants was consistent with a sample taken from the backyard in which the victim was raped, ² (4) expert testimony that there were human bloodstains on the jacket, but that the blood had not been typed, ³ and (5) testimony that the color of certain hairs found in the underpants worn by the defendant on the morning after the rape was consistent with a sample obtained from the victim and inconsistent with a sample of his own.

The defendant took the stand and testified to an alibi. He also testified to what might be viewed as innocent explanations of the physical evidence against him. It should be emphasized that the facts and details of the assault and rape went undisputed by the defendant. He simply claimed that the victim was mistaken in identifying him as her assailant and that her mistake stemmed from impermissibly suggestive procedures employed by the police.

I. INSTRUCTIONS TO THE JURY.

The defendant requested that the jury be instructed to take into account the possibility of mistaken identification in determining whether the Commonwealth had proved his guilt beyond a reasonable doubt. Specifically, the defendant asked for instructions concerning the victim's opportunity to observe her assailant, the length of her observation and the circumstances surrounding it, the time lapse between the assaults and the date of the probable cause hearing, the police procedures employed to obtain the identifications, and the possibility that the victim's memory had deteriorated with the passage of time. None of these instructions was given, either as requested or in substance. Instead, the judge focused exclusively on those factors pertaining to witness credibility which have to do with honesty and bias. His instructions on the issue are set out in full in the decision of the Appeals Court.

We conclude, as did the Appeals Court, that there was error in the judge's instructions, and agree with the reasons set out at length in the Appeals Court decision. See Commonwealth v. Rodriguez, --- Mass.App. ---, --- - --- ^C, 383 N.E.2d 851 (1978). Although the judge gave detailed instructions to the jury on the subject of "how do we decide who(m) we believe," he failed entirely to mention that the victim might honestly have been mistaken in her identification of the defendant. This tended at least to submerge one of the crucial issues in the case, if not to rob the defendant of his defense entirely. Moreover, the instructions taken as a whole placed undue emphasis on the credibility of the defendant, who the Commonwealth maintained had been lying throughout. We add that, although we predicate our finding of error on the fact that the instructions given were one-sided and incomplete, a defendant who fairly raises the issue of mistaken identification might well be entitled to instructions of the type here requested. The Court of Appeals for the District of Columbia Circuit intimated as much in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972), and we are inclined to think that the more enlightened rule. We have set out the model instructions proposed in that case in the appendix to this opinion.

II. THE MOTIONS TO SUPPRESS.

A. Evidence seized from the defendant's apartment. On the morning after the rape, the police obtained a warrant authorizing a search of the defendant's apartment. The items listed in the warrant were a Boston University identification card, jackknife, set of keys, pair of corduroy pants, and belt with a brass buckle (all of which belonged to the victim), a dark blue or black leather jacket (described by the victim as having been worn by her assailant), and a broken end of a bottle. The items seized by the police were a pair of brown cord pants, two pair of denim pants (one of which had mud on the cuffs and knees), a tan shirt, a bracelet, four bottle caps, and a green suede jacket. The defendant moved unsuccessfully to suppress these items, arguing that they were not listed in the warrant and that the police lacked probable cause to believe them to be connected to the crime of which the defendant was suspected. The ...