Com. v. Woods

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; KAPLAN
• Citation: Com. v. Woods, 413 N.E.2d 1099, 382 Mass. 1 (Mass. 1980)
• Decision Date: 20 November 1980
• Parties: COMMONWEALTH v. Michael WOODS.

Page 1099

413 N.E.2d 1099

382 Mass. 1

COMMONWEALTH v. Michael WOODS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 11, 1980.

Decided Nov. 20, 1980.

Willie J. Davis, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Sharon D. Meyers, Legal Asst. to the Dist. Atty., Boston, with him), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

The defendant Michael Woods was convicted after jury trial upon amended indictments ¹ charging him with two acts of rape on a female victim. ² The Appeals Court affirmed the convictions with rescript opinion. --- Mass.App. --- ^a, 397 N.E.2d 1302 (1980). We allowed the defendant's application for further appellate review to resolve a question of basic fairness turning on a claim of alibi.

We shall digest and analyze the evidence and in that light assess the defendant's motions for directed verdicts of acquittal and for a new trial. We reach the conclusion that in all the circumstances of the case a new trial should be ordered to avoid the reproach that justice may have miscarried.

To begin with the account given by the victim. At the time of the criminal event she was twenty-two years old, a college junior at Boston University. Testifying at trial in October, 1978, some three years after the event and attempting to give her current recollection, she could not do better than place the day of the rape as in the latter part of September, 1975. At 7. A. M. on the day, she arrived at the subway station (MBTA) in Government Center, Boston, after a trolley ride from her apartment in Allston. She was on her way to a new part-time job in the vicinity. As she was looking at a posted map to locate the address, she was accosted by a young black man who forced her down an escalator and into a corner space at its base, and, under threat of having a knife, compelled her to perform fellatio on him. He proceeded to steer her up the escalator, then out of the station and across the open plaza to a ramp which led to a low wall near the City Hall structure. There he forced intercourse on her. He picked up some money that had fallen from her wallet. After accompanying her part way back across the plaza, he hurried off. During the ten-minute episode the victim was too distraught or scared to cry out. She walked to the place of work at Batterymarch Street and told the men she met there that she had just been robbed but had not tried to inform the police. For the next two hours she was conducted on the route she would be working if she undertook the job. ³ Then she went home by trolley.

At her apartment she told her friends, whom we shall call Eve and Marion, that she had been raped. Urged by them to go to a hospital and tell the police, she felt she was not equal to doing either. She handwrote a letter to her mother and father in Kansas. A Xerox copy of the letter was admitted in evidence. ⁴ It was dated September 24 (a Wednesday), the figure "24" being dominant but apparently superscribed on a "23" or a "25." The letter was postmarked September 26. The victim wrote that she had been raped "yesterday morning," but was all right; that she had made an appointment to see a doctor; and that she hadn't reported to the police: "I realize I do not remember enough nor could I see him at the time." (She testified that her statements were intended to discourage importunities from her mother.)

The victim testified further that she went to the Beth Israel Hospital a week or more, and to the police (District 1) a month or so, after the rape. (Again she was reporting current memory.) To the police she gave a short description of the rapist as follows: black, young, under six feet, medium build, short Afro hair style. Shown two or three hundred pictures of young black males, she did not make an identification.

In March, 1977, the victim's apartment in Brighton, to which she had moved, was entered and robbed by a young black man whom the victim had a chance to observe. She reported the robbery to the police at District 14, was shown a large number of pictures of young black males, and made no selection. Then she had a conversation with the detective "about something other than the burglary" (inferably, the subject was the rape a year and a half earlier). At that point she said, she was given a book of pictures and spotted one of these as a picture of the rapist. In June, 1977, the victim was in a court room of the Boston Municipal Court intending to testify at the probable cause hearing. She identified the present defendant, presumably the subject of the picture, ⁵ as the rapist. He was alone behind an enclosure in the court room at the time.

It was demonstrated from the records of the Beth Israel Hospital that the date of her appearance there was in fact October 1, 1975, and from the police records that the date of her appearance at District 1 was November 8. It was shown from the same records that on each occasion she gave the date of the rape as September 23 (a Tuesday). She testified to the same date at the probable cause hearing and before the grand jury. She also remarked at the probable cause hearing that the rape was on a Tuesday, the day after a "holiday."

To turn to other witnesses called by the Commonwealth, the detective at District 14 testified that after the conversation with the victim he handed her, not a book of pictures, but a two-page spread of ten pictures from which she promptly selected one. In the course of questioning by the prosecution, this witness mentioned that the picture bore a date in February, 1976, when evidently it was taken.

According to Eve (also speaking from current memory), the conversation in the apartment took place on a day in the latter part of September. The visit to the hospital could have occurred more than a week or about two weeks afterward (Eve's testimony); about two weeks afterward (Marion). Marion testified that the victim told her, within a week of the conversation in the apartment, that she had written or was writing her mother. As to holidays, Labor Day in 1975 fell on September 1 (a Monday); Yom Kippur, a Jewish holiday, on September 15 (a Monday). Attendance in classes at Boston University on Jewish holidays was considered optional with students, whether or not Jewish. (The victim was not Jewish.) Interrogating Eve, the prosecutor asked whether the conversation with the victim when she first described the rape might not have taken place a few days after Yom Kippur and she answered (dubiously), "Yes."

The defense called one witness, a keeper of the records at the Suffolk County House of Correction at Deer Island, where the defendant was admitted on December 19, 1974, and discharged on October 9, 1975, by decision of the parole board. The furlough records showed that the defendant left and returned to the institution during the month of September as follows:

Left Returned

---- --------

September 2, 10:10 A.M. Same day, 8:40 P.M.

---- ----

September 5, 10 A.M. September 6, 8:55 P.M.

---- ----

September 13, 9:55 A.M. September 14, 9:35 A.M.

---- ----

September 18, noon September 19, 10:30 A.M.

----

September 26, 3:30 P.M. September 27, 3:30 P.M.

---- ----

September 30, 11:45 A.M. October 1, 5:30 P.M.

---- ----

According to the records, these were the defendant's only absences from Deer Island during the period covered, as there was no record that he had escaped, been discharged, or placed on parole or on work release. It appeared from the application for the September 30 furlough that the defendant stated his intended mode of transportation-presumably from the institution into the city-was the MBTA. (It may be noted that the September 30 furlough, like that of September 26, was beyond any possible critical date, since the victim's letter to her parents was postmarked September 26.)

When all the evidence was in, it could be said with high probability on the record made that the defendant was not present in the subway station to commit the rape if it occurred on September 23, or, indeed, on September 22 or 24 (giving effect to the semi-obliterated "23" or "25" in the dateline of the letter). If the rape was placed on the day after the only legal holiday, Labor Day, that is, it if occurred on September 2-this despite the repeated assertions that it occurred in the latter part of September-the defendant was excluded, as his September 2 furlough started at 10 A. M. that day. If the rape was placed on September 16, the day following Yom Kippur, the defendant was also excluded, for he was not on furlough until September 18.

Thus the prosecution was forced to the expedient of suggesting that the rape happened on the morning of September 19 when the defendant was at large (he returned to the institution that day at 10:30 A. M.). But September 19 would not be the day after the Yom Kippur holiday or any other holiday (and, falling on a Friday, would not be a plausible day for starting a job). ⁶ The prosecution could suggest that date only by dint of trying to capitalize on the very uncertainties in witnesses' recollections at the time of trial, ⁷ which allowed as much as two weeks before the hospital admission of October 1 as the date of the rape, and also allowed the witness Eve to answer yes to the tendentious question whether the conversation with the victim at the apartment could have occurred a few days after Yom Kippur. But this patchwork was opposed by the victim's letter and her recorded statements at the hospital and at District 1 pointing to the date September 23, not to speak of Marion's testimony about the victim's report of writing to her mother.

The record-supported alibi clashed with the victim's identification. Although the victim was prompt in her identification, it was weakened by her initial bland and relatively uninforming description of the assailant; the lapse of time from the occurrence to her selection of a picture, itself drawn...