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Opinions of The and the Court of Appeals To be used in
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Commonwealth v. DeMaria, 46 Mass.App.Ct.
114 (1999)
No. 97‑P‑0774.
Appeals Court of Massachusetts,
Argued
Decided
Peter M. Onek, Committee
for Public Counsel Services, for defendant.
Judith B. Stephenson, Assistant District Attorney,
for the Commonwealth.
Before KASS, GILLERMAN and RAPOZA, JJ.
KASS, Justice.
Of three
points that the defense has argued on appeal, we concentrate primarily on
whether the setting for a voice identification by the complaining witness was
so suggestive[46 Mass.App.Ct.
115]
as to deprive the defendant of a fair trial. We decide that the voice identification
procedure, although not without flaw, adhered sufficiently to the standards
prescribed in Commonwealth v. Marini, 375 Mass. 510, 517, 378 N.E.2d 51 (1978), and
was not impermissibly suggestive. We
also consider two other points raised by the defendant, one relating to the
denial of a continuance and the second to appellate inspection of mental health
records. The defendant was convicted of
aggravated rape. (FN1) We affirm the
convictions.
1. Facts.
There was evidence at trial from which the jury could find the
following. On
To the
police the victim gave a description of her attacker: he was white, with dark shoulder‑length
hair and a mustache. He smelled of
cigarettes. He was wearing a dark
flannel jacket with leather sleeves and something like "American
Legion" sewn on the back. His
underwear shorts were boxer type, white, and with a snap fly. He was shod in white sneakers, with a blue stripe
and some red trim. His watch was of an
electronic type; it had beeped during the
attack. On the basis of the victim's
description, a police artist drew a composite picture. A lieutenant of the Franklin police, who saw
the composite, thought the image resembled that of the defendant Paul DeMaria, and on the day after the attack, presented the
victim with a photo array that included a picture of DeMaria. She selected DeMaria
from [46 Mass.App.Ct.
116] the array, although expressing
concern that the person in the picture wore glasses, whereas her assailant had
not.
Nine days
after the incident, the police brought DeMaria and
nine other men in for a lineup identification.
By that time DeMaria had shaved off his
mustache and cut his hair. For the
lineup, the police planted above DeMaria's upper lip
a false mustache. When DeMaria stepped forward from the lineup, the victim visibly
trembled. She asked to hear his
voice. In the lineup DeMaria
wore a placard bearing the number four.
The phrase "number four" was intoned several times by the
police and the victim during this portion of the lineup.
At that
point the victim was excused while the police and representatives from the
district attorney's office arranged for a voice identification. The victim was readmitted into the room and
asked to stand with her back to the men in the lineup. Each man in the lineup was asked to read a
passage from a Boston Globe sports column:
"My goal is to play in the big leagues, with Boston or without
them. I just want to play in the big
leagues." The participants in the
lineup were asked to read out loud starting with participant number ten and
working back to number one. So, for
example, after number ten had spoken the passage a State trooper called out,
"Number nine, come forward, please."
Ultimately number four was called forward and read the passage. The victim made a response recorded in the
transcript of the identification proceeding as inaudible, but the response
caused one of the two troopers directing the proceeding to say, "Just
repeat, please." Number four, who
was the defendant, repeated, "I just want to play in the big
leagues," whereupon the victim, whom the stenographer described,
"witness visibly trembling and crying," said, "That's him‑‑that's
him. That's his voice." The victim then listened to numbers three,
two, and one, asked to hear number four again, and confirmed her
identification. She also asked to see
number four walk once more and confirmed her visual identification.
[1] 2. The voice identification. The claim of prejudice derives from the
consistent use of number four in relation to the defendant, both at the visual
identification and the voice identification.
The defendant argues that the victim, having first identified
number four visually, albeit with a touch of hesitation, was programmed to
react to number four when she was listening to the voices of the participants
in the lineup. The consequence, as the
defendant sees it, was that the victim was subjected to impermissible
suggestion by number.
[46 Mass.App.Ct.
117] Concern has been expressed in
reported cases about the danger of unfair prejudice to the suspect that inheres
in voice identification. Commonwealth v. Marini,
375 Mass. at 516‑517, 378 N.E.2d 51, and authorities there cited.
(FN2) That opinion cautioned that (1) a
witness who has a basis for making an identification by sight ought not to be
asked to make a voice identification unless the witness asks to hear the
voice; (2) a one‑on‑one
audition ought to be avoided, i.e., there should be an audition lineup; (3) the witness ought not to be viewing the
suspects as she listens to them; (4) the
words spoken by the suspects ought not be the same as those heard by the
witness at the scene; and (5) the voice
recognition test ought to be conducted close to the time of the crime. Id.
at 517, 378 N.E.2d 51. The Marini
decision, at 517, 378 N.E.2d 51, acknowledges that there will be occasions
where one or more of those criteria may be overlooked, as in an immediate postcrime showup
identification. Significantly, the
identification procedure in this case adhered to all of the precautionary
criteria set out in Marini. Compare
Commonwealth v. Gauthier, 21 Mass.App.Ct. 585,
587‑588, 488 N.E.2d 806 (1986).
Did calling out the suspect in the two phases of identification by
"number four" inject a fatally suggestive mistake?
[2] In
answering that question, what the victim said at the suppression hearing and
what the motion judge found as fact take on great importance. The prosecutor asked the victim:
"Now, ... had you burned
in your mind any particular numbers of any participants when you returned to
the [lineup] area?"
The
witness answered, "No." She
said in answer to the next question that she did not know whether the exact
same people were in the voice lineup as the face lineup. She reacted and made her identification on
the basis of what she heard. The
victim's testimony warranted the motion judge's finding‑‑she after
all had the advantage of observing the witness‑‑that, "I
credit the testimony of the victim that she focused on the voices, and not on
the numbers being called." We do
not disturb a motion judge's subsidiary finding of fact if it is supported by
the evidence. Commonwealth v. Mahnke,
368 Mass. 662, 689, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). Commonwealth v. [46 Mass.App.Ct.
118] Gutierrez, 26 Mass.App.Ct. 42, 45, 522
N.E.2d 1002 (1988). In Commonwealth v. Melvin, 399 Mass. 201,
207, 503 N.E.2d 649 (1987), for example, an identifying witness had seen an
intruder leap from a third‑floor balcony and land on his shoulder. There was an element of suggestiveness,
therefore, in a picture of the defendant with his arm in a sling. The trial judge in the Melvin case accepted the testimony of the witness that he had a
vivid memory of the assailant and was identifying the "individual, not the
sling." Id. at 207, 503 N.E.2d 649.
Obviously,
it would have been better had the authorities not called the defendant by the
same number in both the visual and the voice lineups. The question, however, is not whether that
was suggestive‑‑we may assume it was‑‑but whether it
was so suggestive as to have deprived the defendant of due process of law. See
Commonwealth v. Dickerson, 372 Mass. 783, 789, 364 N.E.2d 1052 (1977). We think not when looking at the total
picture, the parts of which included the preceding visual identification of the
defendant, the strong emphasis by the witness on voice quality, and her
disavowal of reaction to a number label.
Compare Commonwealth v. Miles,
420 Mass. 67, 78‑80 & n. 15, 648 N.E.2d 719 (1995). (FN3) It was open to the defense to argue to the jury that the
suggestiveness that had infiltrated the voice identification rendered it
unreliable and, indeed, defense counsel did just that. See
Commonwealth v. Melvin, 399 Mass. at 208, 503 N.E.2d 649.
[3]
3. Denial of continuance. On the first day of the trial both the
defense and prosecution learned for the first time that the victim had tested
positive for chlamydia, a sexually transmitted
disease. Defense counsel proposed to
introduce evidence of that fact (through hospital records) and argue to the
jury that, because the disease is highly contagious and has a two to five week
incubation period, the absence from the prosecution's case of evidence that DeMaria had contracted the disease tended to show he was
not the rapist. On the fourth day of
trial, the defense brought out the fact of the positive chlamydia
test while cross‑examining the victim's treating physician. The prosecution responded with an expert who
testified that there was a likelihood that the test was a false positive. Sometime during [46 Mass.App.Ct. 119] the morning session of the previous trial day, i.e., the third,
the Commonwealth's expert, a physician from the State Department of Public Health,
had been subjected to a voir dire examination. At that time, defense counsel moved
successfully for funds to consult with an expert. The trial judge also adjourned the trial at
about 1 P.M. that day so that defense counsel might work on obtaining responsive
medical testimony.
The
next morning, a Friday, defense counsel reported that she had identified and
reached an expert but that he was on vacation.
Counsel asked for a continuance.
The judge denied it, giving defense counsel the weekend to reel in her
designated expert or any expert. On
Monday, the expert was still not available and defense counsel moved for a
three‑day continuance to the following Thursday. The judge denied the motion.
[4]
[5] Whether a motion for a continuance should be allowed lies within the sound
discretion of the trial judge. Commonwealth v. Watkins, 375 Mass. 472,
490, 379 N.E.2d 1040 (1978). Hunnewell v. Hunnewell, 15 Mass.App.Ct.
358, 363, 445 N.E.2d 1080 (1983). When
the ground for a continuance involves late disclosure of evidence without any
showing of bad faith or carelessness by the prosecution, "a defendant is
required to show material prejudice from the disclosure before a new trial can
be considered." Commonwealth v. Hamilton, 426 Mass. 67,
70, 686 N.E.2d 975 (1997). It is not a
minor matter to suspend a jury trial for three days. There is no material prejudice here. The chlamydia
information was less than dynamite. The
best the defense could do with it was to pound the absence of evidence that DeMaria had caught chlamydia and
defense counsel did just that rather adroitly when she made her closing
argument to the jury. (FN4) The trial
judge did not abuse her discretion in refusing a continuance.
[6]
4. Appellate review of the victim's
mental health records. There were
two in camera examinations of the victim's mental health records. First a judge of the Superior Court, several
months before trial, examined the records under the defense's [46 Mass.App.Ct.
120] Bishop (FN5) motion and found that the "medical records of
the complaining witness ... are all privileged and of very doubtful
relevancy." At trial, the defense
made a particularized motion for an in camera review of the victim's medical
records, see Commonwealth v. Bishop,
416 Mass. at 184, 617 N.E.2d 990, to look for evidence of bad eyesight, motive
to fabricate, or any information concerning her chlamydia
that may have been of an exculpatory nature.
The trial judge allowed the motion and examined the records,
which she described as records of a psychologist and a psychiatrist with whom
the victim had consulted during a period running from January, 1990, to August,
1991.
[7]
The judge, after examining those records, reported that "there are no
entries and there is no record of any relevance to the subject matters
expressed in your Bishop submission."
This occurred on the fourth day of trial, by which time the judge would
have acquired an understanding of what the defense case was about and a more
than ordinary sense of what was relevant to that case. The defense now asks us to make our own
determination whether anything relevant to the defense and exculpatory in
nature lodges in those records, even though a judge's determination of what is
relevant is subject to a deferential abuse of discretion standard.
Commonwealth v. Pare, 43 Mass.App.Ct. 566,
572, 686 N.E.2d 1025 (1997), S. C.,
427 Mass. 427, 693 N.E.2d 1002 (1998).
As
to the three issues that the defense had raised, it is most implausible that
records of mental health consultations conducted three and four years before
the incident in question would have anything to disclose that would be
useful. Mental health therapists are
unlikely to have dwelled on the acuity of the victim's eyesight, her chlamydia, which appears to have come to light three or
four years later, or reasons for bias against a defendant whom she had not then
met. We do not read Commonwealth v. Fuller, 423 Mass. 216, 667 N.E.2d 847 (1996), or Commonwealth v. Pare, supra, as
automatically requiring appellate reexamination of the privileged records on a
de novo basis because a defendant requests it.
The Fuller opinion, at 224,
667 N.E.2d 847, dealing with records protected by an absolute privilege under
G.L. c. 233, § 20J, rejects "virtually automatic in camera inspection"
of private and sensitive materials of the kind here involved and requires, at
226, 667 N.E.2d 847, "a good faith, specific, and reasonable basis for
believing that the records will contain exculpatory evidence [46 Mass.App.Ct.
121] which is relevant and material
to the issue of the defendant's guilt."
An in camera review, while less intrusive than public disclosure or
disclosure to a defendant's attorney, "is nonetheless a substantial
invasion of the privacy of a complaining witness." Commonwealth v. Fuller, supra
at 225, 667 N.E.2d 847. We resist
subjecting the victim's conditionally privileged records (G.L. c. 233, § 20B)
to inspection by three additional sets of prying eyes without some plausible
hypothesis of relevance‑‑as there certainly was in the Pare case. There the records in question went directly
to the core issue to be resolved, the reliability of the juvenile witness
reporting events that had occurred some years before and in circumstances where
he may have had motives to fabricate. Commonwealth v. Pare, 427 Mass. at 431,
693 N.E.2d 1002. There were also
questions about whether the young complaining witness had been subjected to
suggestive questioning. There is no such
inherent relevance in the material the defendant wants reviewed in this case.
Judgments affirmed.
FN1.
The defendant was also convicted of indecent assault and battery on a person
over fourteen years of age and breaking and entering in the nighttime to commit
a felony.
FN2. As to the use of
visual analysis of spectrograms, commonly called "voiceprints," see Commonwealth v. Lykus,
367 Mass. 191, 327 N.E.2d 671 (1975).
FN3. It is of at least
parenthetical interest that the police, when they searched the defendant's
apartment‑‑pursuant to a warrant‑‑found items that the
victim had described to them after the attack, namely, a leather‑sleeved
flannel jacket with lettering on the back, snap‑fly boxer shorts, white
sneakers with a blue stripe, cigarettes, and an electronic watch. At trial, the victim identified each item of
clothing as similar to what her attacker wore.
FN4. Defense counsel said
to the jury: "Then, they brought in
some expert from Harvard [sic] to
tell us all that maybe [the victim] had chlamydia,
but maybe the test wasn't very good. I
suggest to you, folks, that if this man had chlamydia,
that test would be touted as the greatest invention since penicillin. If this man had chlamydia,
I suggest you would have an 8' X 10' glossy right here of the organism showing
it. I suggest to you folks that he doesn't
have it. How does she explain
that?"
FN5. Commonwealth v. Bishop, 416 Mass. 169,
617 N.E.2d 990 (1993).