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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Levasseur, 32 Mass.App.Ct. 629 (1992)
Appeals Court of Massachusetts, Middlesex.
No. 91‑P‑668.
Argued
Decided
Thomas J. Gleason,
Patricia M. Darrigo, Asst. Dist. Atty., for the Com.
Before PERRETTA, PORADA and GREENBERG, JJ.
PERRETTA, Justice.
On his
appeal from convictions by a jury on indictments charging rape and indecent
assault and battery, the defendant argues that his trial attorney was
ineffective. He contends that his
convictions must be reversed because of his attorney's failure to file a motion
to suppress the victim's one‑on‑one identification of him and to
object to certain evidence and the jury instructions. We conclude that the alleged [32 Mass.App.Ct. 630] shortcomings of counsel did not
deprive the defendant of an available defense and affirm the convictions.
1. The evidence. There was evidence, the victim's testimony,
to show that on the night of
Once
inside Chevy's, the victim and her friend became separated. Because she was without her wallet, the
victim decided that she would return to the Foxtail in the hope that there she
would meet up with her friend. It was
some time after
At first,
the victim thought that the driver went past the Foxtail to find a parking
space. Apprehension turned to alarm as
he drove down deserted streets and stopped behind a large building. The man grabbed the victim, forced her back
on the seat, and raped her. Still
restraining the victim, he began to drive away.
As he drove, she was struggling and fighting with him. He reached over, opened her door, and pushed
the victim out of the truck. She fell
out of the truck face first, landing in the street on her hands. The driver raced away.
Another
witness testified that he drove up behind the truck just as the victim was
being thrown onto the street. He
described the truck as a dark blue or black "4 X 4." He drove the victim, who was crying and in a
state of panic, to his nearby home so that his wife could help her. The victim would not allow anyone to touch
her, and she would not talk. It took the
witness's wife some effort to persuade the victim to write out her boyfriend's
telephone number. The witness called the
boyfriend and the police. Upon their
arrival, they [32 Mass.App.Ct. 631] found the victim curled up on the
floor in a corner of the bathroom. The
victim was taken to the hospital in an ambulance. Although the police followed and waited over
two hours, they could not get any helpful statement from the victim. She was still distraught when she later left
the hospital with her boyfriend.
About a
week later, on July 6 and 7, Inspector John Boutselis of the Lowell Police
Criminal Bureau was able to interview the victim. She described her assailant as being of
medium build with a thin face, high cheekbones, dark hair, dark eyelashes and a
small mustache. The victim viewed
approximately 6,000 photographs of white males.
There was a picture of the defendant, taken in 1983, among those
photographs. Although the victim noted
that several people looked similar to the man who had raped her, she was unable
to make an identification.
In the
course of their investigation of this matter, on July 13, Boutselis and his
partner, Inspector John Guilfoyle, were driving toward the defendant's house in
After
confirming the registration, the two officers stopped the defendant, and he
produced his license as requested. When
asked about the identity of the young girl to whom he had called out, the
defendant stated that she was his cousin and he had offered her a ride. The police asked for her name, but the
defendant did not answer. Boutselis told
the defendant that they were investigating an assault and asked whether he
would come to the police station for an interview. Boutselis described the defendant as
"very forward and aggressive in his eagerness to cooperate with us."
Upon his
arrival at the police station, the defendant was advised of his rights. He consented to being photographed and told
the police that he was employed at Avco, in
The victim
returned to the police station the next day, July 14, and Boutselis showed her
a group of sixty photographs. The
picture of the defendant, taken the day before, was included in this
array. The victim stopped her scrutiny
of the pictures at the defendant's photograph.
She exclaimed, "This looks like him! This could be him!" She asked whether there were any other
pictures of the man depicted in the photograph she had selected, and the police
gave her the picture of the defendant taken in 1983.
When the
victim commented that the second (1983) photograph was more consistent with the
defendant's appearance on the night of the rape, Boutselis asked her whether she
was "comfortable" or "confident" enough to make a
"positive identification."
The victim responded that, because of the serious nature of the charges,
she wanted to be "sure." She
suggested that for her to be certain, she wanted "to see him."
On nine
separate occasions, from July through December, Boutselis and the victim drove
to Wilmington and North Chelmsford. The
victim observed thousands of vehicles and people. On five of those nine occasions, Boutselis
drove the victim to the plant in Wilmington where the defendant had stated he
was employed. Four trips, including the
last, were taken to North Chelmsford. On
the last occasion, December 16, at 2:00 P.M., Boutselis and the victim were
sitting in his parked car. Several cars
and trucks passed them. At about 3:20
P.M., Boutselis noticed that a blue, "4 X 4" [32 Mass.App.Ct. 633]
pickup truck was approaching. The truck
was about thirty yards away before the victim, without comment or prompting
from Boutselis, noticed it. She was
silent at first, leaning forward to peer out the window. As the truck came closer, she stated,
"Wow! This looks like
it!" The truck passed within six
feet of them, and Boutselis saw that the defendant was behind the wheel. The victim began to scream, "Its
him! Get me out of here right
now!" Boutselis asked who she was
talking about, and the victim stated that the driver of the truck was the man
whose picture she had selected, he was the man who had raped her. Boutselis drove back to the police
station. The victim was sobbing
uncontrollably and would not get out of the car.
Testifying
on his own behalf, the defendant related that on June 30, 1988, at about 9:00
P.M., he and his wife went for pizza on Broadway in Lowell, drove home, watched
television, and retired for the night.
He drove a truck, which he described as a 1986 Ford F250, "4 X
4", with a three‑inch lift kit, smoked glass, and extra heavy duty
suspension. He intimated that he thought
Boutselis might have a grudge against him.
He stated that he once cut Boutselis off in traffic. Boutselis made a check for outstanding
warrants against the defendant, asked him whether there were drugs in the
truck, and told him, "Next time I won't be so easy on you."
The
defendant explained that the girl Boutselis had seen him call to from his truck
on July 13 was his aunt's cousin. He had
gone swimming with his aunt and her cousin and had brought his aunt to her
house first. He had just dropped off the
cousin when Boutselis saw him. The
cousin was twenty‑seven or twenty‑eight years old and might be a
prostitute. The defendant no longer knew
where she lived. When the police asked
him if he would go to the station and answer questions and when they advised
him of his rights, they told him only that they were investigating unspecified
crimes. He told them that he worked at
Digital in Woburn and that he knew several prostitutes, who were friends of
his, in the Lowell area.
Explaining
why he interrupted his interview with the police on July 13, the defendant related
that he was in casual dress and felt out of place at the station. He went home to [32 Mass.App.Ct. 634]
change and met his wife. They went to
pick up his mother‑in‑law at a place where she was playing Bingo,
and they all returned to the station. Although
a police officer refused to talk with his mother‑in‑law about the
complaints, he had been willing to cooperate.
He offered to take a lie detector test or provide the police with a
sperm sample.
In support
of the defendant's alibi defense, his wife testified that on the night of the
rape, she and her husband had gone for pizza, returned home, watched
television, and then went to bed. She
also related that she was a heavier sleeper than her husband. He was a "sleepeater," and on
several occasions in the past, he had gotten up at night without awakening her,
to go to the refrigerator. When the
defendant came home on July 13, after his initial interview at the police
station, he told her that the police had accused him of raping a girl on or
about July 2, 3, or 4. He asked her
whether she could remember what they had done on those dates, and they had a
difficult time recalling anything other than the fact that they had gone for
pizza the night of June 30. She also did
not know the cousin's address, although she knew that the cousin lived in
Lowell and she knew how to get to her house.
The witness also stated that the only reason her husband would have for
being on School Street in Lowell would be if he were "cruising
around."
The
defendant also called his mother‑in‑law as a witness. She testified that she went to the police
station with her daughter and the defendant on July 13. A police officer refused to answer any of her
questions about the investigation. The
defendant told the police, in her presence, that he worked at Digital.
Inspector
Guilfoyle of the Lowell Police Department was called in rebuttal by the
Commonwealth. Guilfoyle testified that
on July 13, he and Boutselis were stopped at a traffic light. Guilfoyle noticed a young girl, about sixteen
years of age, walking along School Street.
A dark blue pickup truck came along in the oncoming lane. The driver, the defendant, pulled over at an
angle to the curb, just in front of the young girl. Keeping his left hand on the steering wheel,
he leaned over the passenger seat and made motions to her with his right
hand. Moments later he drove away. The officers made [32 Mass.App.Ct. 635] a
U turn, drove up to the girl, identified themselves as police officers, and
asked her whether she knew the man in the truck. She said that she did not and that he had
offered her a ride. The officers then
caught up with and stopped the truck and asked the defendant if he would come
to the police station. Guilfoyle's
version of the events at the station that day was consistent with Boutselis's
testimony.
[1] 2. The
failure to seek suppression.
Because the defendant's argument is made in the context of an allegation
of incompetency of counsel, the question for resolution is "whether there
is a reasonable likelihood that, if a pretrial motion to suppress had been
filed, it would have been allowed. See Commonwealth v. Lykus, 406 Mass. 135,
140, 546 N.E.2d 159 (1989)." Commonwealth v. Lee, 32 Mass.App.Ct. 85,
86, 585 N.E.2d 759 (1992). We will assume
for purposes of our decision that "it is unlikely that any strategic
considerations prevented counsel from moving to suppress." Id.
at 85, 585 N.E.2d 759.
It is the
December identification which the defendant claims should have been made the
subject of the motion. Had defense
counsel filed a motion to suppress that identification, it would have been the
defendant's burden "to show, by a preponderance of the evidence, that,
considering the totality of the circumstances attending the particular identification,
the witness was subjected by the State to an identification so unnecessarily
suggestive and conducive to irreparable misidentification as to deny ... [him]
due process of law. Commonwealth v. Botelho, 369 Mass. 860,
865‑868, 343 N.E.2d 876 (1976), citing
Stovall v. Denno, 388 U.S. 293, 301‑302, 87 S.Ct. 1967, 1972, 18
L.Ed.2d 1199 (1967)." Commonwealth v. Holland, 410 Mass. 248,
253, 571 N.E.2d 625 (1991).
[2] It is
important to note at the outset that although Boutselis arranged for the victim
to be in a place where he thought the defendant might show up, this procedure
was not employed to avoid an identification at a lineup. The police cannot be said to have acted
unreasonably on July 13, in refraining from arresting the defendant. The victim had declined to make a positive
identification, because of the serious nature of the charge, without first
seeing the defendant, who had indicated on July 13 that he would no longer
speak [32 Mass.App.Ct. 636] to or cooperate with the police. See
Commonwealth v. Chase, 372 Mass. 736, 743, 363 N.E.2d 1105 (1977).
Much is
made by the defendant of the fact that the disputed confrontation did not take
place soon after the crime. Many cases
have discussed the reason why showups should occur promptly after the
crime. As stated in one of them, Commonwealth v. Barnett, 371 Mass. 87,
92, 354 N.E.2d 879 (1976): "To have
the witness view the suspect while his recollection or mental image of the
offender is still fresh, before other images crowd in or his attempts to
verbalize his impressions can themselves distort the original picture, provides
the witness with good opportunity for an accurate identification." There is, however, no requirement that the
identification be suppressed on the sole basis that there has been a time lapse
between the crime and the showup.
Rather, the delay is but one factor to be considered in determining
whether, in the totality of the circumstances, the identification was
inherently or unnecessarily suggestive.
See Commonwealth v. Dickerson,
372 Mass. 783, 790, 364 N.E.2d 1052 (1977); Commonwealth v. Holland, 410 Mass. at
253, 571 N.E.2d 625.
Turning to
the undisputed evidence of those circumstances, we begin with the fact that the
victim requested the showup. Moreover,
she did so after she had described her assailant to the police and after she
had selected his photograph. Her request
was based upon an appreciation of the seriousness of what she was doing and not
upon any uncertainty about the picture she had selected. There was no delay by the police in
attempting to accommodate her request to see the defendant in person before
making a "positive" identification, and they made no comments to her
concerning the man whose picture she had selected. See
Commonwealth v. Libby, 21 Mass.App.Ct. 650, 655, 489 N.E.2d 702
(1986). Compare Commonwealth v. Correia, 381 Mass. 65, 71, 407 N.E.2d 1216 (1980);
Commonwealth v. Riley, 26 Mass.App.Ct. 550, 552, 530 N.E.2d 181
(1988).
The
victim's identification was made after eight unsuccessful trips to the general
vicinity of those places, employment and residence, where the police thought
the defendant might appear. Upon
sighting the truck matching the description that she had given the police soon after
the rape, she said only, "This looks like it!" Staring out the window, the victim [32 Mass.App.Ct. 637] watched as the vehicle came
closer. She did not make an
identification until she saw the driver of the truck as he passed within six
feet of her. It was upon seeing the
driver, not the truck, that the victim became upset, demanded that she be taken
away, and began to sob uncontrollably.
See Commonwealth v. Melvin,
399 Mass. 201, 206‑207 & n. 9, 503 N.E.2d 649 (1987).
Even if
there was an element of suggestiveness in the showup, we nonetheless would
conclude that, in the totality of the circumstances, the victim's
identification "was not so unnecessarily suggestive and conducive to
misidentification as to deny the defendant due process of law." Id.
at 207, 503 N.E.2d 649. (FN1) As any motion to suppress would have to have
been denied, the defendant has not shown that the failure to file such a motion
deprived him of the effective assistance of counsel at his trial. See
Commonwealth v. Lykus, 406 Mass. at 142‑143, 546 N.E.2d 159; Commonwealth v. Lee, 32 Mass.App.Ct. at 90‑91,
585 N.E.2d 759.
[3] 3. The
failure to object to certain evidence.
We do not think that a successful objection could have been taken either
to the officers' testimony concerning their observations of the defendant with
the girl he claimed to be his cousin or to Guilfoyle's testimony relating what
the girl had told the officers. The only
question at trial was whether the defendant was the man who offered the victim
a ride and then raped her. The defense was
misidentification. The fact that the
defendant, two weeks after the crime, was seen offering a young girl a ride had
relevant purposes and was admissible to show modus operandi. See
Commonwealth v. Campbell, 371 Mass. 40, 42‑43, 353 N.E.2d 740 (1976);
Commonwealth v. Otsuki, 411 Mass. 218, 235‑236, 581 N.E.2d 999
(1991);
Commonwealth v. Deschamps, 1 Mass.App.Ct. 1, 2‑3, 294 N.E.2d
426 (1972), quoting from Harper v. United
States, 239 F.2d 945, 946 (D.C.Cir.1956).
Contrast Commonwealth[32 Mass.App.Ct. 638]
v. Yelle, 19 Mass.App.Ct. 465, 471, 475 N.E.2d 427 (1985), where the
question was consent and the court concluded that evidence of modus operandi
was irrelevant and should have been excluded.
The defendant was not entitled to the exclusion of this evidence.
[4][5]
Guilfoyle's testimony, that the girl told him that the defendant had offered
her a ride, was not improper. Boutselis
testified that he heard the defendant call to her, "Come on," or
words to that effect. The defendant told
the officers that he had offered the girl, his cousin, a ride, and he did not
answer when they asked him where she lived.
This testimony was admissible.
Guilfoyle did not take the witness stand until after the defendant had
testified that the girl was his aunt's cousin, that she was about twenty‑seven
or twenty‑eight years old, that she just had gotten out of the truck when
the officers saw him, that he had not seen her in over a year, and that he did
not know where she lived. Even assuming
that Guilfoyle's testimony concerning his conversation with the girl would have
been excluded upon objection, but see
Commonwealth v. Sullivan, 410 Mass. 521, 526‑527, 574 N.E.2d 966
(1991), we would conclude that, in light of the testimony about this occurrence
given by Boutselis, the defendant, and the defendant's wife, defense counsel's
failure to object did not contribute to the verdict or otherwise deprive the
defendant of a substantial ground of defense.
See Commonwealth v. Saferian,
366 Mass. 89, 96‑99, 315 N.E.2d 878 (1974). (FN2)
[6] 4. The
jury instructions. There was no
basis for objections to those two portions of the jury instructions which the
defendant claims to be erroneous. In his
closing argument to the jury, defense counsel presented a litany of deficiencies
in the police investigation, including the officers' purported failure to call
the victim to the station to identify the defendantin person on July 13. See
Commonwealth v. Rodriguez, 378 [32
Mass.App.Ct. 639] Mass. 296, 308,
391 N.E.2d 889 (1979). In this case,
however, the police could not have taken such action. See
Commonwealth v. Chase, 372 Mass. at 742, 363 N.E.2d 1105. It was open to the trial judge to correct
any probable misunderstanding of the law by the jury in his instructions to
them.
[7] It is
not incumbent upon a trial judge to give all the suggested instructions set out
in Commonwealth v. Rodriguez, 378
Mass. at 310‑311, 391 N.E.2d 889.
"[T]hey may be modified or embellished as the evidence and
allegations at trial require." Id. at 310 n. 1, 391 N.E.2d 889. See also
Commonwealth v. McMaster, 21 Mass.App.Ct. 722, 727, 490 N.E.2d 464
(1986). Based upon the evidence, we see
no error in the trial judge's decision to omit from his charge the Rodriguez instructions set out in the
margin. (FN3)
Judgments affirmed.
Order denying motion for new trial affirmed.
(FN1.) The victim had ample opportunity (from
the time she accepted the ride until she was thrown out of the truck) to
observe the defendant. Her description
to the police provided details as to his physical features, clothing, and
truck. Notwithstanding the fact that she
was shown over 6,000 pictures of white males, she never selected a photograph
of someone other than the defendant. Her
refusal to make a positive identification from a photograph was not due to
uncertainty. Rather, she appreciated the
consequences of her selection. See Commonwealth v. Riley, 26 Mass.App.Ct.
at 553‑554, 530 N.E.2d 181.
(FN2.)
Our reasoning on this issue is also dispositive of the defendant's claim
concerning his conflicting statements to the police about his relationships
with prostitutes who worked in the general vicinity of the area where the rape
occurred. As for the numerous other
alleged examples of defense counsel's shortcomings, we do not consider
them. See Penta v. Concord Auto Auction, Inc., 24 Mass.App.Ct. 635, 642, 511
N.E.2d 642 (1987); Mass.R.A.P. 16(a)(4),
as amended, 367 Mass. 921 (1975).
(FN3.)
"You may also take into account that an identification made by picking the
defendant out of a group of similar individuals is generally more reliable than
one which results from the presentation of the defendant alone to the witness.
"You
may take into account any occasions in which the witness failed to make an
identification of [the] defendant, or made an identification that was
inconsistent with his identification at trial." 378 Mass. at 311, 391 N.E.2d 889.
Although
the victim did not select the 1983 photograph of the defendant, she did
identify him in the second, more recent picture. All her identifications were consistent with
each other as well as with the description she gave to the police at the
outset.