Com. v. Vieira

• Decision Date: 10 March 1988
• Docket Number: No. BR-4354,BR-4354
• Citation: 519 N.E.2d 1320,401 Mass. 828
• Parties: COMMONWEALTH v. Joseph VIEIRA 1 .
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1320

519 N.E.2d 1320

401 Mass. 828

COMMONWEALTH v.Joseph VIEIRA¹.

No. BR-4354

Supreme Judicial Court of Massachusetts Bristol.

Argued Nov. 3, 1987.

Decided March 10, 1988.

David H. Waxler, Newton, for Joseph Vieira.

Edward Harrington, Jr.(Steven J. Rappaport, Boston, with him), for Daniel Silvia.

Patricia O. Ellis, Asst. Dist. Atty. (Phillip L. Weiner, Asst. Dist. Atty., with her), for the Com.

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

LYNCH, Justice.

After a jury trial in the Superior Court, the defendants were convicted of aggravated rape.G.L. c. 265, § 22(a )(1986 ed.).Silvia was sentenced to from nine to twelve years at the Massachusetts Correctional Institution at Cedar Junction; Vieira to from six to eight years.They appeal from their convictions and from the denial of their motions for a new trial.We transferred the cases here on our own motion and we affirm.

The facts the jury could have found are as follows.On the evening of March 6, 1983, a young woman (victim) entered Big Dan's Tavern in New Bedford to purchase cigarettes.While there, she ordered a drink and engaged in a brief conversation with another woman patron.The two women also conversed with and observed the pool game of codefendants John Cordeiro and Victor Raposo.²There were approximately fifteen men in the tavern.

Sometime after the other woman left Big Dan's, the victim also prepared to leave.Cordeiro and Raposo offered to give her a ride home, which she declined.While the victim was standing in the area of the bar, Silvia and Vieira approached her from behind, knocked her to the floor, and removed her pants as Cordeiro and Raposo tried to force the victim to perform fellatio.

Silvia and Vieira then dragged the victim, kicking and screaming, and swung her onto the pool table.There, Silvia penetrated her vaginally while she was restrained at various points by Cordeiro, Raposo, and Vieira.After Silvia got off the victim, he held her by the hair as Vieira got on top of her.While restrained on the pool table, Cordeiro again attempted to force the victim to perform fellatio.Eventually, clothed only in a shirt and one shoe, the victim escaped and ran into the street where she flagged down a passing truck.

On appeal, the defendants Vieira and Silvia raise the following arguments.First, they claim that the prosecution's failure timely to disclose exculpatory evidence, in the form of inconsistent and more incriminating statements by the victim, deprived them of State and Federal due process rights; similarly, they contend that the prosecutor's suppression until after trial of a witness's recorded account of the victim's condition and statements shortly after the alleged rape deprived them of due process.The remaining contentions addressed here ³ concern evidentiary rulings which the defendants assert prejudiced their ability to present a consent defense.First, the defendants argue that, under Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987(1978), id., 385 Mass. 733, 434 N.E.2d 163(1982), they were denied a full and fair opportunity to present a defense, because the judge excluded a hospital record of an allegedly false prior complaint of rape.Second, they contend that the woman patron, called as a defense witness, should have been permitted to testify to a statement which is asserted to be relevant to the victim's state of mind and purpose to engage in "unusual consensual sexual activity."Finally, the defendants argue that the judge erred in excluding evidence of a prior conversation between Silvia and the victim concerning prostitution.We discuss each contention seriatim.

1.The prosecutor's failure to disclose exculpatory evidence.

a. The defendants⁴ argue that their due process rights under the Fifth and Fourteenth Amendments to the United States Constitutionandart. 12 of the Massachusetts Declaration of Rights were violated by the prosecution's failure to provide timely disclosure of certain inconsistent pretrial statements made by the victim, and that the resulting prejudice entitles them to a new trial.On February 7, 1984, more than two weeks prior to commencement of trial, the victim told the prosecutors for the first time a version of the events at Big Dan's in which she was able to specify the precise number of men who attacked her and described their specific roles.This version was the first in which she(1) connected Silvia with forcibly assisting her other assailants after he had sexual intercourse with the victim on the pool table, and (2) connected Vieira with acts of sexual intercourse, dragging her to the pool table and forcibly restraining her while Silvia had sexual intercourse.Neither Vieira nor Silvia had been identified in the information supplied prior to trial as being involved in restraining the victim.However, the defendants had knowledge of prior statements of the bartender, in which he stated that Vieira, as well as Silvia, dragged the victim to the pool table and then followed Silvia in having sexual intercourse with her.

There is no dispute that the details provided by the victim just prior to trial were inconsistent with reports initially provided to defense counsel and that the information should have been furnished to the defendants under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), andUnited States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342(1976).⁵The defendants, however, first learned of these details through the victim's direct testimony, whereupon they moved for a mistrial or, in the alternative, a continuance.The motions for mistrial were denied, but the defendants ultimately were granted a weekend-long continuance.

A defendant is deprived of due process if he was prejudiced by the prosecution's failure timely to disclose requested exculpatory and material evidence.There is no real dispute that the statement was exculpatory, and, therefore, subject to disclosure under Brady and its progeny.Although the evidence was more incriminating than the earlier statements, it was exculpatory in the sense that the variance with the previous statements permitted "challenge[ ][to] the credibility of a key prosecution witness."Commonwealth v. Ellison, 376 Mass. 1, 22, 379 N.E.2d 560(1978).

The more difficult issues here concern the closely related questions of materiality and prejudice."Undisclosed exculpatory evidence is 'material' if, 'evaluated in the context of the entire record,' it 'creates a reasonable doubt that did not otherwise exist.' "Commonwealth v. Gregory, 401 Mass. 437, 442, 517 N.E.2d 454(1988), quotingUnited States v. Agurs, supra at 112, 96 S.Ct. at 2402.SeeCommonwealth v. Gallarelli, 399 Mass. 17, 502 N.E.2d 516(1987).For purposes of judicial review, where, as here, there was a specific request, in order to be deemed material the evidence need only provide "a substantial basis for claiming materiality exists."Commonwealth v. Wilson, 381 Mass. 90, 109, 407 N.E.2d 1229(1980), quotingAgurs, supra at 106, 96 S.Ct. at 2399.As elaborated more fully in Commonwealth v. Ellison, supra at 23-26, 379 N.E.2d 560, the question of materiality involves an examination of various factors which have bearing on "the consequences of the delay ...[W]e ask whether the prosecution's disclosure was sufficiently timely to allow the defendant'to make effective use of the evidence in preparing and presenting his case.' "Commonwealth v. Wilson, supra at 114, 407 N.E.2d 1229, quotingCommonwealth v. Adrey, 376 Mass. 747, 755, 383 N.E.2d 1110(1978).⁶Here, the asserted materiality and prejudice revolve around issues of effective impeachment of witnesses, trial strategy, and preparation.The defendants argue that they were prejudiced (1) by being denied adequate time to investigate possible causes of the variances in the victim's statements and to prepare for cross-examination, and (2) by the fact that the theories of their respective defenses were undermined by testimony significantly different from that anticipated on the basis of earlier statements.Additionally, Vieira argues that his decision not to object to being joined for trial with Silvia was premised upon a careful appraisal of the evidence obtained prior to trial.His agreement to joinder is asserted to have been determined by the congruence of Vieira's defense strategy with Silvia's defense of consent and intention to testify in his own behalf.He contends that, had he properly been apprised of the February 7, 1984, statement, he would not have agreed to such joinder.We agree with the ruling of the judge that there was no prejudice.SeeCommonwealth v. Baldwin, 385 Mass. 165, 176-177, 431 N.E.2d 194(1982).

First, whether or not additional time might have enhanced the defendants' preparedness for cross-examination of the victim, the defendants' cross-examination of this key witness "was not only extended but searching, and we do not think it would have been materially improved by earlier warning about the witness's departure from the written statement."Commonwealth v. Gilbert, 377 Mass. 887, 895, 388 N.E.2d 1190(1979).Counsel for the defendants vigorously attempted to impeach the victim's trial testimony with her prior statements to the police and others.Where the victim repeatedly denied ability to remember her earlier statements, such an impediment to direct impeachment would not be remedied by additional preparation time.There was also thorough cross-examination on the influence of exposure to media accounts, and of conversations with the police, the office of the district attorney, and the attorney handling her civil suit arising out of the incident.Since there was thorough cross-examination on these matters, no prejudice resulted from the judge's denial of voir dire, an alternative form of relief requested in the defendants' motion for dismissal with prejudice.

Next, we consider the defendants'...