Commonwealth v. MaharCommonwealth v. Mahar
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- Before:
- Greaney
About 5:15 p.m. on November 16, 1983, a woman (victim A) was attacked and raped on Westford Street
We first summarize the evidence in the Commonwealth’s case as to each incident as well as the evidence presented for the defense.
The victim A incident.
Victim A testified that on November 16, 1983, she left work in Lowell at 5:00 p.m. and boarded a bus. At approximately 5:15 p.m. , she got off the bus and began walking towards her apartment on Westford Street. A man, whom she later identified as the defendant, approached her from the rear and said hello. As she returned the greeting, she had a full face view of the man, who then asked whether she was “busy the next night.” She replied that she was. The man also told her that he lived in the area. The victim continued
The next day, Inspector Edward F. Davis of the Lowell police brought 100 photographs to victim A for examination. She selected the defendant’s photograph from the group, stating that she was “99 percent sure” that the photo depicted her assailant. On December 15, 1983, the victim was taken to the Lowell District Court to view seven individuals in a lineup. She testified that she had picked the defendant out of the lineup as her assailant, and that she was certain at that point of her identification.
On cross-examination, the defendant’s trial counsel elicited that the victim was unsure whether the man who attacked her wore a mustache. Defense counsel attempted, unsuccessfully, to get the victim to testify that the defendant’s eyes were not brown, as she had testified, but hazel. An admission was also obtained from the victim that she had identified the defendant as “number six” in the photograph taken of the lineup, but had identified man “number five” in the photograph as her assailant in her testimony before the grand jury.
The victim screamed again when she felt the knife and started struggling to get out of the man’s hold. She swung her left shoulder around, and her purse struck her assailant in the shoulder. This movement threw him slightly off balance as the victim rolled onto her back. She then kicked the man in his legs and his “privates.” As he “grunted and leaned forward,” the victim “scooted under his legs and ran.”
The victim further testified that the man’s eyes were “very glassy,” that he had a “very light mustache,” and that he was wearing a khaki colored green army jacket. After the incident, she was shown approximately 480 photographs by the police, but was unable to make an identification.
4
Shortly thereafter, she met with Inspector Davis, who showed her fifty additional
On cross-examination, the defendant’s trial counsel established that the color of the defendant’s eyes was hazel, and not brown, as the victim had originally reported. He also brought out that the victim had thought that the assailant’s hair had looked bushier on one side than the defendant’s hair appeared to be in the photograph she selected. The victim was also questioned by defense counsel about a photograph of the defendant printed in a local newspaper on November 21, 1983. She denied basing her initial identification of the defendant upon that photograph. She admitted, however, that the lineup identification had occurred after the photo appeared in the newspaper.
Testimony about the police investigation. Inspector Edward F. Davis of the Lowell police department testified that on November 17, 1983, he began an investigation of both assaults by obtaining a composite drawing of the attacker from victim B. Armed with the drawing and other information about the man ’ s appearance given by both victims, he went to the Cupples Square area of Lowell where the assaults had occurred. While Davis was meeting with the two police officers who patrolled in that area, he observed the defendant approximately twenty-five feet from the location where victim B had been assaulted earlier that evening, and approximately 100 yards from the point where victim A had been raped the evening before.
Inspector Davis testified that, when first observed, the defendant was wearing dungarees and a red, hooded sweatshirt. These articles of clothing were seized.
5
At about midnight on
Cross-examination of Davis by the defendant’s trial counsel brought out discrepancies in the victims’ descriptions and identifications.
The defense. The defendant, a sergeant in the United States Army, testified on his own behalf. He noted that his eyes are hazel-colored, not brown, as victim A had testified, and that on November 16, he had a mustache. As to the incident involving victim A, he offered an alibi. He stated that on that date he had attended a meeting from 4:30 to 5:15 p.m. at Fort Devens, where he was stationed. After the meeting, he left for his home in Lowell, arriving at approximately 5:30 p.m. He then left his home at approximately 6:00 p.m. to go to a local tavern, where he remained until midnight. His testimony was corroborated, in part, by two sergeants at Fort Devens. Both testified that the defendant had been with them in a meeting at the base until 5:15 p.m. One of the soldiers also indicated that the khaki rain slicker found in the defendant’s automobile was regular Army issue clothing of a type commonly worn by military personnel at Fort Devens.
As to the November 17 incident involving victim B, the defendant gave additional alibi testimony. He had arrived home at about 3:30 p.m. and left home at about 6:15 or 6:30 p.m. He was driven by his brother, Donat, to a liquor store and then on to a friend’s house at 377 Westford Street. The defendant confirmed that the Cupples Square area was about one mile from his home (roughly a five-minute drive).
Later on the evening of November 17, the defendant left his friend’s house and was picked up by his brother and driven to a Sears and Roebuck store, where, according to his testimony, he looked at tools for five or ten minutes. His brother then gave him a ride to a liquor store. After purchasing some
The defendant’s stepbrother, William F. Moran, testified in corroboration of the alibis. He stated that, on November 16, the defendant had arrived home about 5:30 or 5:35 p.m. and that the defendant had stayed at home until about 6:00 P.M., when he left the house with a friend. The stepbrother further testified that when he arrived home on November 17 at 5:10 p.m. , the defendant was there and that the defendant did not leave the house that night until shortly after 6:00 p.m. 6
1. We first take up the defendant’s contention that his motion for a required finding of not guilty,
“The essential question in evaluating the denial of a motion for a required finding of not guilty is whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury ‘might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt. ’ Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933).” Commonwealth v. Clary, 388 Mass. 583,588-589 (1983). See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979); Commonwealth v. Amado, 387 Mass. 179, 186 (1982).
We think the Commonwealth’s evidence was sufficient to establish that the defendant intended to rape victim B when he assaulted her. In the absence of direct evidence on the issue, criminal intent can be inferred from the circumstances of the
Also of importance in this case is the absence of any other motive on the defendant’s part; a fact which could have led the jury to conclude that he harbored an intent to rape victim B. There was, for example, no grudge that existed between the defendant and victim B or any of her acquaintances. Cf.
Commonwealth
v.
Pendergrast,
385 Mass. 625, 635-638 (1982). Nor did the incident represent an irrational attack by a person suffering from a major mental illness. There is also an absence of evidence showing an intent to commit larceny. The defendant never attempted to steal victim B’s purse, even when he was struck by it, and a larcenous intent is inconsistent with the defendant’s having thrown victim B to the ground. Cf.
Commonwealth
v.
Rossi, supra
at 261;
Commonwealth
v.
Nickerson, supra
at 252 (an inference of an intent to commit rape was supported by the fact that “the victim’s purse was
We find the case, on the whole close to the circumstances in the Derby case where a conviction for assault with intent to commit rape was upheld. In Derby, the defendant approached a woman and, after commenting on the weather, lunged at her and threw her to the ground. He rejected an offer of her purse and held her until her cries attracted the attention of her neighbors, whereupon he ran off. The Supreme Judicial Court noted (263 Mass. at 44) that:
“While the stockings of the prosecutrix were somewhat tom at the knee because of her contact with the ground, there was no evidence that her clothing had been displaced or disarranged. It is plain there was evidence of an assault, and the criminal intent of the defendant was for the jury to determine in view of all the circumstances. [Citation omitted.] We cannot say as a matter of law that the evidence was so slight that it was the duty of the court to direct a verdict of not guilty.”
See also Commonwealth v. Corcoran, 332 Mass. 615 (1939). On all the evidence in the Commonwealth’s case, the issue whether the defendant had an intent to rape was for the jury. 8
The threshold problem with the defendant’s position is the failure of his trial counsel to file a motion to sever prior to the trial. Rule 9(d) (2) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 860 (1979), requires that a motion to sever “shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known.” There is no showing that the‘basis for possible severance was not known to the defendant’s trial counsel before trial. See
Commonwealth
v.
Ellis,
12 Mass. App. Ct. 612, 621 (1981). Nor does there appear to have been any unexpected evidence submitted in the course of the trial that either gave rise to prejudice or triggered a possible obligation on the judge’s part to consider severance sua sponte.
Ibid.
The defendant’s trial counsel filed motions to suppress, to sequester witnesses, and for required findings of not guilty. This conduct suggests attentiveness to the defendant’s rights and perhaps a perception that a joint trial was not to the defendant’s disadvantage. The latter view could fall within the area of a trial strategy designed on the thought that the case would rise or fall on the prosecution’s ability to overcome the weaknesses in the victims’ identifications and the defendant’s claims of alibi. This strategy cannot be labelled manifestly unreasonable. A new trial is not required simply
Moreover, the question whether to sever, had it been raised, would have fallen within the sound discretion of the judge. See
Commonwealth
v.
Gallison,
383 Mass. 659, 671 (1981);
Commonwealth
v.
Sylvester,
388 Mass. 749, 754 (1983);
Commonwealth
v.
Todd,
394 Mass. 791, 794 (1985). Under
Last, weighing heavily against the success of a motion for severance would have been the rule that at the trial of either incident the evidence of the other incident could have been admissible to show that the defendant was acting pursuant to a common scheme, plan or method, see Commonwealth v. Gallison, 383 Mass. at 672; Commonwealth v. Williams, supra, or to prove the defendant’s intent, see Commonwealth v. Kenneally, 10 Mass. App. Ct. 162, 181 (1980), S.C., 383 Mass. 269 (1981);Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 431 (1985), or to identify the defendant, see Commonwealth v. Kines, 5 Mass. App. Ct. 632, 635 (1977); Commonwealth v. Madyun, 17 Mass. App. Ct. 965, 966 (1983). These considerations lead us to conclude that a denial of a motion to sever, had one been filed, would have been upheld on appeal. This conclusion precludes the relief now sought by the defendant.
3. The defendant finally contends that his trial counsel provided him with ineffective assistance in his summation to the jury (1) by failing to engage in any argument regarding the merits of the defendant’s case or the weaknesses in the prosecution’s case, and (2) by misstating the defendant’s stepbrother’s alibi testimony as to a critical time on November 17. 12
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed to the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.”
The first contention (no final argument about misidentification and alibi) is belied by the record. The defendant’s trial counsel argued to the jury all the deficiencies that had been brought out in the victims’ identifications, and he reviewed the testimony given by the defendant and the alibi witnesses. The closing argument stressed the factors suggesting weaknesses in the Commonwealth’s case and the strengths of the defendant’s evidence. There is no basis, therefore, to compare this case to one in which defense counsel engaged only in a semblance of argument and abandoned the defense. See and compare Commonwealth v. Westmoreland, 388 Mass. 269 (1983); Commonwealth v. Street, 388 Mass. 281 (1983).
The second contention (counsel’s assignment of a wrong time in connection with the alibi given by the defendant’s stepbrother for November 17) involves an obvious misstatement by counsel. In our view, several factors ameliorated the possible effect of the misstatement. It involved only one piece of evidence and not the whole of the alibis. The jury was specifically instructed by the judge that if any reference by counsel “to matters of evidence does not coincide with your
Viewing the summation of defense counsel as a whole, and in the context of counsel’s work during the entire trial, we conclude that the jury’s verdicts were the product of a fair trial. 13 See generally Commonwealth v. McGann, 20 Mass. App. Ct. 59, 61-62 (1985).
Judgments affirmed.
Notes
The incident involving victim A led to indictments charging the defendant with aggravated rape and assault and battery. The incident with victim B led to indictments charging the defendant with assault with intent to rape, assault and battery by means of a dangerous weapon, and assault and battery.
At the conclusion of all the evidence, the judge allowed the defendant’s motion for a required finding of not guilty on so much of the indictment charging rape of victim A as alleged “aggravation”. After the jury’s return of guilty verdicts on all the charges before them, the judge dismissed the indictments which charged assault and battery on each victim on the basis that they constituted lesser-included offenses of the more serious crimes.
For the rape of victim A, the defendant was sentenced to twelve to twenty years at MCI, Walpole; for the assaults on victim B, he was sentenced to eight to ten years to be served on and after the victim A sentence.
There was no evidence that indicated that the defendant’s photograph had been among the pictures examined by the victim.
Evidence that the defendant was arrested by Davis at this time for possession of marijuana was kept from the jury’s attention by the judge.
We omit a summary of the Commonwealth’s rebuttal evidence, noting only that the evidence tended to undermine the defendant’s alibi.
The defendant actually argues that his rule 25(a) motion should have been allowed as to the entire indictment, but it is clear that the evidence in the Commonwealth’s case was more than sufficient to establish that the defendant had assaulted victim B.
The defendant renewed his motion for a required finding of not guilty on the charge at the close of all the evidence. The Commonwealth’s case did not deteriorate between the time the motion for required finding was first denied and the close of all the evidence. The renewed motion was properly denied.
In reaching our conclusion, we have not taken into account the Commonwealth’s evidence in the case of victim A. We conclude, in part 2 of this opinion, that no prejudicial joinder of charges has been shown. We do not imply that the Commonwealth’s evidence in the case of victim A could not have been considered by the jury in weighing the sufficiency of the proof of the defendant’s intent at the time of his assault on victim B. “In general, evidence tending to show that a defendant committed crimes unrelated to the offense with which he is charged is competent where such evidence has a tendency to show a common scheme, a pattern of operation, absence of accident or mistake, identity, intent and motive.” Commonwealth v. Schoening, 379 Mass. 234, 242 (1979), and cases cited. We merely hold that the Commonwealth’s evidence in the case of victim B was, apart from the evidence in the case involving victim A, sufficient to send the charge of assault with intent to rape to the jury.
The alibi assertions had some force, being supported, as to the first incident, by two military men who put the defendant at a meeting at Fort Devens at the important time, and as to both incidents, by the testimony of the defendant’s stepbrother.
The identifications of the victims were also called into question by their failure to notice the hazel color of his eyes, their various observations of a mustache, misidentification by victim A of the defendant’s number in the photograph of the lineup, the inability of victim B to make an initial identification, and the suggestion that victim B’s identification of the defendant was prompted by a picture in a local newspaper.
The Commonwealth’s evidence at trial showed that the defendant was engaged in a pair of violent sexual assaults upon young women in the Cupples Square area of Lowell. On two consecutive days, at approximately the same time, he stalked his victims after they got off a bus near Westford Street. As each woman walked to her home, the defendant engaged her in a casual conversation, and then grabbed each from behind. Thrust to the ground, the victim screamed and a struggle ensued as the defendant straddled her. One woman was raped; the other escaped after her thrashing legs caught him in the genitals. The attacks on November 16 and November 17 occurred within 100 yards of each other.
The fact that the attacks occurred on the separate days did not, under the circumstances, preclude joinder. See Commonwealth v. Drew, 4 Mass. App. Ct. 30, 33 (1976); Commonwealth v. Doyle, 5 Mass. App. Ct. 544, 547 (1977).
The defendant’s trial counsel told the jury that the defendant’s stepbrother had testified that he was with the defendant on November 17, from 5:30 p.m. until 6:00 p.m., although the stepbrother had in fact testified that they had been together at home from 5:10 p.m. until 6:00 p.m. The misstatement could have led to a conclusion that the defendant had the opportunity to commit the assault on victim B and still get home by 5:30 p.m.
We would be of the same opinion upon an application of the State standard for judging ineffective assistance of counsel, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and would conclude under that standard that counsel’s representation was adequate and that nothing was done which would deprive the defendant of a defense.