Com. v. Rodriguez

• Decision Date: 22 December 1978
• Citation: 383 N.E.2d 851,6 Mass.App.Ct. 738
• Parties: COMMONWEALTH v. Jose RODRIGUEZ.
• Court: Appeals Court of Massachusetts

Page 851

383 N.E.2d 851

6 Mass.App.Ct. 738

COMMONWEALTH v. Jose RODRIGUEZ.

Appeals Court of Massachusetts, Norfolk.

Argued Nov. 13, 1978.

Decided Dec. 22, 1978.

Eric D. Blumenson, Boston, for defendant.

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

Before HALE, C. J., and KEVILLE and GRANT, JJ.

GRANT, Justice.

The defendant has appealed from convictions on separate indictments charging him with rape and with assault and battery by means of a dangerous weapon. His ensuing commitment as a sexually dangerous person has already been reviewed by the Supreme Judicial Court on a contingent basis. Commonwealth v. Rodriguez, --- Mass. ---, --- n.20 ^A, 382 N.E.2d 725, n.20 (1978). We review the convictions, confining our consideration to those assignments of error which have been argued (Rule 1:13 of the Appeals Court, as amended, 3 Mass.App. --- (1975)), which have merit, and which are directed to questions which seem likely to arise upon the retrial which we hold is required. Commonwealth v. Dutney, 4 Mass.App. ---, --- ^B, 348 N.E.2d 812 (1976); Commonwealth v. Coburn, 5 Mass.App. ---, --- ^C, 360 N.E.2d 651 (1977). The retrial is required by what we perceive as prejudicial error in a portion of the charge.

Both assaults occurred in a residential area of Brookline some time shortly after 11:15 P.M. on an overcast September night. The victim became aware that a man had been following her for several minutes as she walked in the direction of the single-family dwelling in which she lived, but at that time she could only make out the general build and hair style of the man and the type of jacket he was wearing. The man spoke to the victim, who turned to face him as he stood approximately ten feet away with a broken bottle in his hand in an area which was roughly equidistant from two street lights which were spaced approximately half a block apart. Some additional measure of illumination (how much is problematical) was shed on the area by a nearby porch light and by lights in nearby houses. The man took approximately three steps in the victim's direction, grabbed her, turned her around, placed the bottle to her neck (cutting her under her chin), dragged her into a nearby back yard, threw her to the ground, knelt over her, covered her head with his jacket, and raped her. The ground was wet from previous rain. It was only during the few seconds after the victim turned to face the man and during his final approach that she had an opportunity to observe the man's facial features, hair and eyeglasses; once he had turned her around he kept her effectively blinded, either by placing his fingers on her eyes or his jacket over her head.

The victim ran to her home as soon as the man departed, and the police were summoned. The victim gave the police a description of the color and shade of the man's skin, together with descriptions of his build, approximate height, hair style, moustache, glasses and jacket. She referred to him as "possibly Hispanic." Working on that information, the police attempted to obtain a photographic identification of the man in question, with a somewhat indecisive result; the most the victim could do was point to a photograph of the defendant as resembling the man who had assaulted and raped her. A second attempt to secure a photographic identification from the same array of photographs on the following morning yielded the same result. (On that occasion the victim may have said that the photograph of the defendant "most resembled" the man.) The victim's first positive identification of the defendant as her assailant occurred approximately a month later, when the victim got a momentary glimpse of the defendant as he entered the court house on the morning of the probable cause hearing. She made positive identifications of the defendant at that hearing and at trial.

It should be explained at this point that the facts and details of the assaults were undisputed; the principal thrust of the defense was that the victim had been and still was mistaken in identifying the defendant and that her mistakes had been and were the products of impermissibly suggestive procedures employed by the police. ¹ At no time during the course of the trial did the defendant ever suggest that the victim was lying or biased, either consciously or unconsciously.

The physical and circumstantial evidence pointing to the defendant was not overwhelming. The prosecution offered in evidence a pair of jeans and a jacket fitting the general description given by the victim which the police had found while searching the defendant's room on the morning following the assaults. When found, the knees of the jeans were wet and muddy. A police chemist testified that the soil found on the jeans was consistent with a sample of soil taken from the back yard where the victim had been raped, but it was common ground that the type of soil found on the jeans was consistent with what could be found in a great many lawns and other areas throughout the country. The police chemist found blood stains on the jacket but could not identify them as to blood type; an expert called by the defendant testified that he had been able to identify two distinct blood types on the jacket, one of which matched the type found on the neckband of the T-shirt which the victim had been wearing at the time of the assaults as well as the defendant's blood type; this expert berated the police for not conducting other tests which he thought should have been performed in the circumstances. The police chemist testified that the color of certain hairs found in the crotch of the underpants worn by the defendant when he was arrested on the morning following the assaults was consistent with the color of a sample of pubic hair which had been obtained from the victim and inconsistent with the color of a sample of the defendant's pubic hair; an expert called by the defendant testified that the numbers of hairs involved in all the samples were insufficient to permit valid color comparisons. No seminal stains were found in the underpants.

The defendant took the stand and testified to an alibi, which was corroborated in part by his father. He also testified to what the jury could have found were innocent explanations of the conditions found on the knees of his jeans and of the two types of blood found on his jacket; those explanations were corroborated in part by his father and in part by an acquaintance who was called as a witness. The defendant also testified that he had never seen the victim prior to the date of the probable cause hearing. He was cross examined at some length.

It was with the evidence in this general posture that the defendant requested instructions to the effect that in determining whether the Commonwealth had met its burden of proving the defendant guilty beyond a reasonable doubt, the jury should consider the possibility that the victim might have been mistaken in identifying the defendant as her assailant and that in that connection they could consider the victim's opportunity to observe her assailant, the length of her observation and the circumstances in which it had been made, the time lapse between the assaults and the date of the probable cause hearing, and the possibility that the victim's memory might have become faulty with the passage of time. A major portion of the defendant's closing argument was devoted to the proposition that the victim had been mistaken and to the factors of witness perception and memory which the defendant had referred to in his requests for instructions. None of the requested instructions was given, either as phrased or in substance. The only instructions which were given on evaluating the testimony of witnesses are set out in Appendix A to this opinion. ² The defendant's objections and exceptions to the instructions and refusals to instruct were timely and explicit.

There is nothing improper in a judge's pointing out factors to be considered by the jury in weighing the credibility of oral testimony so long as he does so fairly, gives the jury no indication of whom he believes, and clearly places the function of ultimate appraisal of the testimony on the jury. Commonwealth v. Christie, 145 Mass. 232, 233-234, 13 N.E. 614 (1887); Barrette v. Hight, 353 Mass. 268, 268-271, 230 N.E.2d 808 (1967). A.B.A. Standards, Trial by Jury § 4.7(b)(iv) (Approved Draft 1968). What the judge may not do is "invade the province of the jury by undertaking to decide on the weight or effect of evidence, or by refusing to submit to their consideration any question of fact, material to the issue, which may be in dispute." Commonwealth v. Cote, --- Mass.App. ---, --- ^D, 363 N.E.2d 276, 279 (1977), and case cited. See also Commonwealth v. Ingersoll, 145 Mass. 231, 231-232, 13 N.E. 613 (1887); Commonwealth v. Sneed,--- Mass. ---, --- - --- ^E, 383 N.E.2d 84 (1978); Commonwealth v. Perry, 3 Mass.App. 308, 311, 329 N.E.2d 150 (1975). These principles assume particular importance whenever there is a question of possible mistaken identity and the defendant takes the stand to testify to an alibi or asserts an alibi through other witnesses called in his behalf. Commonwealth v. Flynn,165 Mass. 153, 156-157, 42 N.E. 562 (1896). Commonwealth v. Borges, 2 Mass.App. 869, 316 N.E.2d 627 (1974). See also Commonwealth v. DiRoma,--- Mass.App. --- ^F, 364 N.E.2d 1280 (1977).

It should be noted that the challenged instructions (Appendix A) were prefaced by the question "how do we decide who(m) we believe?" ((1)). That question was followed by references to "bias or prejudice," to "(appearance) . . . when he talked to us" and to the "stake . . . he may have in the outcome of the case" ((2)) as "The tests that you use" (emphasis supplied) ((3)). The above was followed by an additional reference to "the stake that person has in what he is telling you or in the outcome of what he is telling you" as one of the ...