Com. v. Simmons

• Decision Date: 12 January 1981
• Citation: 414 N.E.2d 623,11 Mass.App.Ct. 156
• Parties: COMMONWEALTH v. Shon S. SIMMONS.
• Court: Appeals Court of Massachusetts

Page 623

414 N.E.2d 623

11 Mass.App.Ct. 156

COMMONWEALTH v. Shon S. SIMMONS.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 14, 1980.

Decided Jan. 12, 1981.

William P. Homans, Jr., Boston (Sandra G. Forman, Brookline, with him), for defendant.

M. Catherine Huddleson, Legal Asst. to the Dist. Atty. (Kevin Connelly, Asst. Dist. Atty., with her), for the Commonwealth.

Before BROWN, GREANEY and DREBEN, JJ.

GREANEY, Justice.

In January, 1977, the defendant was convicted and sentenced in the Superior Court on indictments charging him with breaking and entering in the nighttime with armed assault (G.L. c. 266, § 14), assault and battery (G.L. c. 265, § 13A), armed robbery (G.L. c. 265, § 17), and rape (G.L. c. 265, § 22). ¹ On July 7, 1977, he moved under G.L. c. 278, § 29 (see now Mass.R.Crim.P. 30(b), 378 Mass. --- (1979)), for a new trial on the basis of newly discovered evidence. That motion alleged, in pertinent part, that on May 7, 1977, while the defendant was serving his sentences, several crimes, including a rape, were committed in the same apartment complex where the incident attributed to the defendant had taken place, that the circumstances of the later crimes were similar to those of the offenses for which the defendant had been convicted, and that one Joseph L. Powell who "looked like" the defendant had been identified by the victim of the 1977 incidents as the person who had assaulted her. ² On February 27, 1978, the judge allowed the motion and ordered a new trial. His decision was based on the parallel circumstances between the 1976 and 1977 crimes and on the physical resemblance between Powell and the defendant. The judge's memorandum characterized this resemblance as "remarkable" to the point that "if they were identical twins, which they are not, it would come as no surprise."

The defendant was retried in February, 1979, in the Superior Court before a jury and a different judge. The jury returned verdicts of guilty on all four indictments. The defendant argues that the judge erred in failing to instruct the jury adequately on the issue of identification. We are satisfied that the judge's charge properly dealt with the question, and as a consequence, that the convictions before us ³ must be affirmed.

The evidence and events at the second trial relevant to this appeal may be summarized as follows. In the early morning hours of June 13, 1976, the victim became aware of the fact that a black male had entered her basement apartment by breaking through a window. Thereafter, this man armed himself with a steak knife from her kitchen, took money from her purse, beat the victim about the face, and twice sexually assaulted her. He left the apartment about 6:00 A.M. Over the approximate ninety-minute span of the incident, the victim conversed with her assailant and "studied his features ... thoroughly." ⁴ She also observed, in the course of the sexual assault, that her assailant was not circumcised. It was stipulated that the defendant was not circumcised on June 13, 1976. ⁵ The victim provided the police with a description and the following day viewed a police album containing about fifty photographs of black males (but which did not contain a photograph of the defendant) without making an identification.

On August 2, 1976, at about 10:30 P.M., while walking towards her parked automobile, the victim observed the defendant. She exchanged a series of glances with him, recognized him to be her assailant and immediately notified a security guard that he had been in her apartment a few weeks earlier. This information was communicated to the police, who assembled a new twelve photograph array which, when shown to the victim on August 4, 1976, resulted in her positive identification of the defendant ("That's him"). ⁶ The victim also made an in-court identification of the defendant without objection, stating at the time that there was "no doubt whatsoever in (her) mind" that the defendant was her assailant.

The defense was based in large part on testimony from the victim of the May 7, 1977, rape. The victim of the 1977 offense recounted at length the circumstances of her assault and the course of the police investigation which led ultimately to the arrest and conviction of Joseph Powell. Additionally, Powell was brought into court and identified by the 1977 victim as her assailant. ⁷ During a voir dire concerning Powell's possible testimony, the victim in the present case viewed both Powell and the defendant frontally and in profile. When the jury was recalled, she again positively identified the defendant as the man who had been in her apartment, repeating the statement that she had "no doubt whatsoever."

The defendant also presented testimony through himself and his girlfriend that he had moved into the apartment complex in the late winter of 1976 and that he was in his apartment at the critical times on the night of the incident. He denied seeing the victim near her vehicle outside the apartment complex on August 2, 1976. Cross-examination of the defendant was extensive and included his impeachment by prior convictions of receiving stolen property, unarmed robbery, and assisting a prisoner to escape.

The balance of the trial was devoted to development of the similarities and dissimilarities between the 1976 and 1977 assaults, to testimony concerning physical differences between Powell and the defendant, ⁸ and to other circumstances tending to prove or disprove Simmons's culpability. The victim's ability to make an accurate identification was argued to the jury in the respective closings of counsel. Prior to final argument, defense counsel filed detailed requests for instructions on the issue of identification which were based largely on the discussions of identification instructions contained in United States v. Barber, 442 F.2d 517, 526-528 (3d Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971), and United States v. Telfaire, 469 F.2d 552, 558-559 (D.C.Cir.1972). After a charge conference (see now Mass.R.Crim.P. 24(b), 378 Mass. --- (1979)), the judge allowed some of the requests, denied the remainder, and generally indicated how he would cover the identification question. At the conclusion of the charge, defense counsel registered a timely objection to the judge's failure to give all of his requested instructions.

The retrial of this case took place after this court's decision in Commonwealth v. Rodriguez, 6 Mass.App. --- ^a, 383 N.E.2d 851 (1978), but prior to the opinion of the Supreme Judicial Court in the same case (378 Mass. --- ^b, 391 N.E.2d 889 (1979)), in which the model instructions suggested in the Telfaire decision concerning identification issues were generally approved for use by our trial judges. 378 Mass. at --- ^c, 391 N.E.2d 889. We have recently indicated that a judge is not required to give the specific language of the model, but that he has the discretion to tailor the exact language of his charge to the proofs and contentions of the particular case on trial. ⁹ See Commonwealth v. Alleyne, --- Mass.App. ---, --- ^d, 405 N.E.2d 171 (1980); Commonwealth v. Durant, --- Mass.App. ---, --- ^e, 412 N.E.2d 1276 (1980). See also Commonwealth v. Rodriguez, supra 6 Mass.App. at --- ^f, 383 N.E.2d 851; United States v. Kavanagh, 572 F.2d 9, 11-13 (1st Cir. 1978). We now turn to the question whether, in the context of this record, "the charge adequately directed the jury's attention to the question of a possible mistaken identification (without placing improper) stress on the veracity of a particular witness." Commonwealth v. Alleyne, supra --- Mass.App. at --- ^g, 405 N.E.2d 171. Commonwealth v. Rodriguez, 6 Mass.App.Ct. at --- - --- ^h, 383 N.E.2d 851.

Prior to empanellment, the judge primed the jury on the identification issue by instructing the venire that testimony by the witnesses in the case as to their observations would be important and that "(t)he critical juror ... will examine (the) opportunity for observation, the fact of observation, and the fact of memory, and will attend to that during the course of the trial." Throughout the trial, the jury's attention was intensely focused on the reliability of the victim's identification and on the question whether Powell might have committed the crimes. Defense counsel's extensive cross-examination of the victim concentrated on the circumstances prevailing on the morning of the assault and their bearing on a good identification. Defense counsel argued these circumstances to the jury along with the discrepancies and infirmities in the testimony.

The part of the charge on the presumption of innocence was clearly and correctly stated, and the judge told the jury several times that the Commonwealth had the burden of establishing each and every element of the various crimes charged beyond a reasonable doubt, explaining that concept by reading lengthy excerpts from Commonwealth v. Webster, 5 Cush. 295 (1850). The judge singled out the question of identification as "(o)ne of the significant issues in the case," and informed the jury on three separate occasions in the context of the identification charge that the prosecution "has the burden of proving identity beyond a reasonable doubt." He also stated that the defendant has "no corresponding burden of proof." In addressing whether the Commonwealth had met this burden, he instructed the jury to consider all of the evidence, both "circumstantial ... and ... the so-called eye-witness testimony," and to make sure that "the testimony of a witness as to identification ... (was) received (by them) with caution and scrutinized with care." As to the testimony of the identifying witness, he indicated that "identification is an expression of (the) belief ... of the witness" and that it was linked to witness perception including "the opportunity the witness had to observe the offender at the time of (its commission) and (to) make a reliable identification later." He...