Com. v. Rosa

Decision Date09 February 1996
Citation661 N.E.2d 56,422 Mass. 18
PartiesCOMMONWEALTH v. Thomas ROSA, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

INDICTMENTS found and returned in the Superior Court Department on February 11, 1986.

The cases were tried before Robert W. Banks, J.

Brownlow M. Speer, Boston, for defendant.

Edmond J. Zabin, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, with him), for Commonwealth.

Before LIACOS, C.J., WILKINS, LYNCH, GREANEY and FRIED, JJ.

LIACOS, Chief Justice.

On March 4, 1993, a Suffolk County jury convicted the defendant, Thomas Rosa, Jr., of murder in the first degree and kidnapping. The judge sentenced Rosa to life imprisonment, with a concurrent sentence on the kidnapping conviction of from nine to ten years. Rosa asserts several claims of instructional error, and argues that the judge interfered with his ability to put on a defense by excluding certain evidence. Finding no error, we affirm the convictions. 1 Having reviewed the entire record pursuant to our duty under G.L. c. 278, § 33E (1994 ed.), we discern no other errors and no reason to reduce the conviction to a lesser degree of murder.

The evidence at trial supported findings as to the following facts. 2 Sometime around midnight on the night of December 6, 1985, Gwendolyn Taylor, in the company of one Charles Ferguson, left the home of Ferguson's aunt in the Dorchester section of Boston. Taylor lived a short distance away on Talbot Avenue. The couple proceeded down Talbot Avenue. At a point within 150 feet of Taylor's apartment the two parted ways. Ferguson immediately ran back to his aunt's house, where he then telephoned Taylor's apartment, to see if she had made it home safely.

Ferguson's stepsister, Charita Offley, shared the apartment with Taylor. She answered the telephone, stating that Taylor had not yet arrived home. Ferguson called again five minutes later, and was again told that Taylor had not returned. Ferguson called a third and fourth time, and at that point Charita went onto the porch of the third-floor apartment to look for Taylor on the street. She saw Taylor sitting on the stairs to the apartment building's entrance, with a man standing in front of her. Charita shouted to Taylor to come to the telephone. Taylor responded that she would call Ferguson back. When Charita told Ferguson this, Ferguson demanded to speak to Taylor. Charita called out to Taylor again, and Taylor repeated that she would call Ferguson back.

A few minutes later the doorbell to Taylor and Charita's apartment rang. Charita went to the porch and saw Taylor had returned to the entrance of the building. Taylor saw Charita on the porch, and asked her to come downstairs. Arriving in the entranceway, Charita saw a man standing beside Taylor, holding what Charita testified was "a shiny object" near Taylor's shoulder. Charita described Taylor as visibly frightened, and Taylor asked Charita if she had $100. Charita went back upstairs to the apartment to see if their other two roommates had any money. The man at Taylor's side shouted after Charita not to call the police, and Taylor told Charita that "he's not kidding."

Charita woke her other two roommates, Kevin Neal and "Tammy" Offley, and reported that Taylor was in trouble. All three went onto the porch and saw that Taylor and the man had moved to the other side of Talbot Avenue, with the man holding Taylor close to him with his arm around her neck. Taylor, in an "hysterical" tone, again asked for $100. Neal stated that he did not have that much money. The man and Taylor then walked about in a nearby park and basketball court, finally proceeding down an alley.

Neal rushed down the stairs while Charita called the police. Shortly thereafter, the Boston police arrived. The three roommates related events to two police officers, and the officers drove down the alley with lights on to search for Taylor. They then waited for one-half hour in silence to listen for any sounds. These searches were in vain.

The next morning an employee of a nearby automobile body shop arrived at work. He noticed that the door of one of the motor vehicles awaiting repair was open, and he could see a limp human arm hanging out the door. Walking up to the vehicle he saw a woman's body, naked, with a cloth wrapped around her neck. He called the police, who subsequently identified the victim as Gwendolyn Taylor.

At trial, two witnesses identified the defendant as the man with Taylor and the person who walked off with Taylor the last time she was seen alive. Charita Offley identified Rosa at trial, stating she saw his face when she, Taylor, and the man were in the entryway of the apartment building. 3 A second witness, Sharon Areh, testified that she had seen Rosa holding Taylor at the entrance to the apartment building. Areh had been walking home with a companion at the time. She stated at trial that she recognized the man holding Taylor as Rosa. Areh had seen him on several occasions previously because Rosa lived upstairs from Areh's cousin. 4

Physical evidence corroborated the identification of the two witnesses. Police detectives had collected physical evidence at the scene of the crime, including blood samples. The results of blood typing of those samples were consistent with the government's theory that Rosa committed the crime. Several hairs were found on Taylor's clothing, although none could be matched to anything that would implicate Rosa. The other major piece of evidence was a brown coat found at Rosa's apartment. Two identification witnesses, Charita and Tammy Offley, had stated that the man with Taylor had been wearing a brown coat and that the coat found at Rosa's was the same coat they had seen. 5

1. Evidence of a "look-alike." In July, 1986, some eight months after the murder but before the first trial began, Rosa's attorney visited the Charles Street jail in Boston on unrelated business. Spotting a prisoner he thought was Rosa, the attorney struck up a conversation. Only after the attorney spoke with this person for a while did he realize that the inmate was not Rosa.

Rosa made a pretrial motion to admit evidence regarding the person that his previous attorney had mistaken for Rosa. The proffered evidence consisted of police mugshots of the alleged look-alike and the affidavit of the prior attorney who had made the misidentification. The judge refused to admit the look-alike evidence at trial.

Rosa claims error. He contends that in his effort to show that he did not commit the crimes he had a right to demonstrate that some other person did in fact commit the crime. Rosa also argues that any issue of how similar the look-alike is in appearance is a matter for the jury, not for the judge in deciding admissibility. Finally, Rosa charges that the essence of the case against him is identification evidence, and therefore misidentification evidence is especially crucial to his defense.

Rosa is correct that the demonstration that a third party committed the crimes charged is a time-honored method of defending against a criminal charge. See, e.g., Commonwealth v. Abbott, 130 Mass. 472, 475 (1881). Yet that trial tactic is, like any other, limited by the fundamental principle that evidence must be relevant. If the defense offers its own theory of the case (beyond merely putting the government to its proof), its evidence must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative. Evidence that another person committed the crime charged also poses a real threat of prejudice, especially the risk of confusing jurors by diverting their attention to wholly collateral matters involving persons not on trial. See generally id. at 473-475.

A defendant may "show that crimes of a similar nature have been committed by some other person when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of defendant as the person who committed the crime." Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001 (1979), quoting State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887 (1949). If such evidence "is of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility." Id., quoting Holt v. United States, 342 F.2d 163, 166 (5th Cir.1965). The premises of such admissibility are relevance and lack of prejudice. Absent an abuse of discretion, the judge's decision in determining relevance and prejudice will not be reversed unless justice requires a different result. Commonwealth v. Perito, 417 Mass. 674, 685, 632 N.E.2d 1190 (1994). Commonwealth v. Scott, 408 Mass. 811, 816, 564 N.E.2d 370 (1990).

In Commonwealth v. Keizer, supra, we concluded that such evidence should have been admitted because there were "substantial connecting links" between the robbery charged and another robbery in which the defendant could not have participated. Id. at 267, 385 N.E.2d 1001. Not only did the two crimes share an identical modus operandi with several distinctive features, but the two robberies also had one common perpetrator (each robbery was by a team of three perpetrators). We also found distinctive a specific link between the identification testimony against the defendant and the identity of the perpetrators of the similar crime. Id. at 268 n. 2, 385 N.E.2d 1001 (only one witness could identify defendant, and same witness also identified common perpetrator of two crimes).

Unlike Keizer, Rosa offers only a few specific links between the look-alike and the crimes charged here. The look-alike has a criminal record with some history of violence, and lived in the neighborhood at the time of the killing. Rosa also cites one identification witness's testimony that the perpetrator might have been missing a tooth or had a space between the teeth on the right...

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