Com. v. Walker

Citation441 N.E.2d 261,14 Mass.App.Ct. 544
Decision Date14 January 1983
CourtAppeals Court of Massachusetts

John J. Bonistalli, Boston, for defendant.

John D. Boyle, Asst. Dist. Atty., for the Commonwealth.


ROSE, Justice.

The defendant appeals from his convictions by a jury on two indictments for rape. He claims that he was denied a fair trial because (1) the Commonwealth lost evidence that may have been favorable to him, (2) the identification of him by the victims was unduly suggestive, and (3) the trial judge excluded evidence of crimes committed by someone else which were arguably similar in nature to those for which he was indicted.

In his brief the defendant also argued that he should have been found not guilty of the rape of one of the victims, but in oral argument he admitted that he could have been found guilty of that rape as a joint venturer.

The two female victims, Claire and Joette, ages sixteen and fifteen respectively, met the defendant and one Emett Perry (the codefendant) on the Boston Common and went with the men to a housing project to obtain drugs. On the way to the project the defendant purchased cans of beer, and the four were joined by a third male who bought and drank a bottle of beer. On a landing in the project the three men forced the two girls to submit to vaginal and oral sex. After hospital examination, the victims were taken to a police station in Boston and shown numerous photographs. Although the testimony was not without some ambiguity, the victims testified that they were unable to identify any of their assailants in the photographs but picked out photographs that they thought resembled the defendant. The evening of the day of the rapes the police went to the scene of the crimes and retrieved four beer cans and a beer bottle. The beer containers were left that night in the unattended crime laboratory for fingerprint analysis.

The next day the police arranged to have the victims walk through the Boston Common to look for their assailants. Claire identified the defendant and told Joette to "look to the right." Joette looked towards a bench where the defendant sat. Joette identified the codefendant on the same bench and gave a prearranged signal to the police. She then recognized the defendant. As the police came to arrest the defendant and the codefendant, Claire identified the codefendant.

Prior to trial, defense counsel asked for production of the beer containers taken by the police from the scene of the crime. The police could not locate the cans. There was no evidence to indicate that a fingerprint analysis had been made. Defense counsel also asked for the photographs which the victims had said resembled the defendant. These photographs had been returned to the police department's "mug book" and could not be identified. Defense counsel did not ask for access to the mug book.

At the trial, defense counsel sought to introduce evidence of three other crimes committed while the defendant was in custody. The trial judge excluded the evidence of one crime based on hearsay testimony and excluded theevidence of the other two as insufficiently connected in time and method of operation.

1. Lost Evidence.

It is a requirement of due process that the prosecution must, when appropriately requested, give defense counsel or the court any exculpatory evidence in its possession. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Commonwealth v. Ellison, 376 Mass. 1, 379 N.E.2d 560 (1978); Commonwealth v. Collins, 386 Mass. 1, 434 N.E.2d 964 (1982). Failure to present such evidence when it is appropriately requested, and when it is material to guilt or punishment, amounts to suppression of exculpatory evidence in violation of the rule in Brady, supra 373 U.S. at 87, 83 S.Ct. at 1196-1197. However, loss of evidence is not always equated with suppression. "[T]he Supreme Court differentiates between the suppression of evidence on the one hand and its loss on the other. The Court apparently does not consider evidence to have been suppressed in the Brady sense if the government satisfactorily explains why it is unable to produce the evidence." United States v. Arra, 630 F.2d 836, 848 (1st Cir. 1980). See United States v. Esposito, 523 F.2d 242, 248-249 (7th Cir. 1975), cert. denied, 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 768 (1976).

Although the Brady rule does not apply directly to a satisfactorily explained loss of evidence by the prosecution, other rules may apply. Many jurisdictions follow United States v. Bryant, 439 F.2d 642, appeal after remand, 448 F.2d 1182 (D.C.Cir.1971), in applying a "pragmatic balancing" test, 448 F.2d at 1184. See, e.g., United States v. Picariello, 568 F.2d 222 (1st Cir. 1978); United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980); United States v. Wilks, 629 F.2d 669 (10th Cir. 1980); United States v. Arra, supra; United States v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980); People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 1361 (1974); State v. Wright, 87 Wash.2d 783, 557 P.2d 1 (1976). To some extent, the prosecution's duty to preserve evidence that is material and potentially exculpatory must follow from its duty to present such evidence upon appropriate request to defense counsel. As stated in United States v. Bryant, 439 F.2d at 651, "the duty of disclosure attached in some form once the government has first gathered and taken possession of the evidence in question. Otherwise, disclosure might be avoided by destroying vital evidence before prosecution begins or before defendants hear of its existence. Hence we hold that before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation." Also see People v. Hitch, supra 12 Cal.3d at 650, 117 Cal.Rptr. 9, 527 P.2d 361, and State v. Wright, supra 87 Wash.2d at 789-791, 557 P.2d 1.

An underlying purpose of this duty is "to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government." United States v. Bryant, 439 F.2d at 648. State v. Wright, supra, 87 Wash.2d at 788, 557 P.2d 1.

When exculpatory evidence is suppressed, the good or bad faith of the prosecution is not relevant. Brady, supra 373 U.S. at 87, 83 S.Ct. at 1196-1197. When potentially exculpatory evidence is lost or destroyed, the culpability of the government will be weighed along with the materiality of the evidence and the potential prejudice to the defendant. United States v. Bryant, 439 F.2d at 653; Picariello, 568 F.2d at 227; Wilks, 629 F.2d at 674; Arra, 630 F.2d at 849. Grammatikos, 633 F.2d at 1019-1020. See People v. Hitch, 12 Cal.3d at 652-655, 117 Cal.Rptr. 9, 527 P.2d 361, and State v. Wright, 87 Wash.2d at 792, 557 P.2d 1.

Here, in losing the beer containers, the police were negligent. There is, however, no evidence of intentional or bad faith destruction of evidence which may have been favorable to the accused. Since no fingerprint analysis had been made, the police could not have known whether the defendant's fingerprints were on any of the containers. Whether the conviction should be reversed, therefore, depends on the remaining two factors to be weighed: the materiality of the lost evidence and the potential for prejudice to the defendant.

In a case similar to the one here, United States v. Wilks, supra, the government negligently but without bad faith lost a lemonade can containing narcotics purportedly belonging to the defendant. The defendant claimed that the lack of his fingerprints on the can was the only piece of evidence which would have shown his innocence. The court found that "[e]vidence of fingerprints or the lack thereof on the lemonade can is clearly material in the ordinary legal sense." 629 F.2d at 674. The remaining question then was to what extent that loss of material evidence prejudiced the defendant. On the facts of that case, "[t]he absence of Wilks' fingerprints on the can, if shown, would not prove his innocence ...," (629 F.2d at 674) though the absence could have given greater weight to the testimony of another witness who stated that he put the narcotics in the can without the defendant's knowledge. Since there were independent grounds for discrediting that testimony, the court concluded that "insufficient prejudice was demonstrated to constitute reversible error." Id. at 675.

The relevant facts of the case here are quite similar to those in Wilks and support a similar conclusion. The absence of the defendant's fingerprints on the cans would not have proved his innocence, especially in view of the fact that any fingerprints may have been destroyed by the handling of others during the several hours which elapsed between the time the defendant purportedly handled one of the cans and the time the police retrieved what appeared to be the same cans. The defendant's conviction was not based on circumstantial evidence but was based on his identification by the two victims. Any prejudice to the defendant which might have resulted from the loss of the cans was too insubstantial and uncertain to warrant reversal. See United States v. Arra, supra.

2. The Photographs.

The defendant argues that the victims picked out a photograph which they incorrectly identified as one of their assailants. The prosecution failed to produce the photograph when requested. The photograph was not lost or destroyed but was returned to the "mug books" and not identified. The defendant did not ask to see the mug books but claims error in the failure of the prosecution to produce the particular photograph selected by the victims.

The testimony...

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