|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Marini, 375
Supreme Judicial Court of Massachusetts,
Argued
Decided
Dyanne Klein Polatin,
Michael J. Traft, Sp. Asst. Dist. Atty., for the
Com.
Before HENNESSEY, C. J., and QUIRICO, KAPLAN,
WILKINS and ABRAMS, JJ.
KAPLAN, Justice.
After a
trial centering on the question of identification, a jury found the defendant
guilty on three indictments for rape by unnatural sexual intercourse (G.L. c.
265, s 22), and indictments for assault with a dangerous weapon (c. 265, s 15B)
and for armed robbery (c. 265, s 17), all arising out of a criminal event on
the evening of Wednesday, August 13, 1975.
As will be seen, there was substantial evidence pointing to the
defendant as the culprit. But as the
trial drew to a close the prosecutor was permitted[375
We
describe the trial in some detail and then deal with the claimed error. (FN1)
As its case in chief the Commonwealth brought
out the following through testimony of the complaining witness (whom we shall
refer to as the victim) regarding the details of the crime, and through
testimony of the victim and police officers regarding the efforts at
identification. On the date mentioned
the victim, aged twenty‑three, and her girl friend were sitting on a
bench on the platform of the elevated station in
Next
morning the victim went to a station house of the Metropolitan District
Commission and told her story to Officer[375
Mass. 512] Flynn.
(FN2) She was then taken to another office where she and Officer Morris
produced cooperatively (by the "Ident‑a‑kit" method) a
composite picture of the assailant as she recalled him. A week later Officer DeGuilio of the police
department of the Massachusetts Bay Transit Authority called at the victim's
apartment and asked her to look through some sixty‑six "mug"
photographs of white males around twenty years old. (FN3) On the first run through she selected a
picture, then paused at another, but soon rejected it, and on a second
examination of the deck rather firmly identified the picture she first
chose. This was a picture of the
defendant. It showed a clean‑shaven
young man whereas the composite was with moustache and goatee, but otherwise
the facial resemblance was close. The
defendant was arrested a few days after this identification. There was no lineup or showup. At the probable cause hearing held at the
Municipal Court of the City of Boston the victim, so she testified at trial,
recognized the defendant at sight, but it is fair to say he was so placed in
the court room that any onlooker would probably have perceived he was the
subject of the hearing. The victim
identified the defendant at trial which occurred in May, 1976.
The verbal
descriptions of the assailant given by the victim to the three officers, and at
a voir dire hearing, (FN4) and at [375
Mass. 513] trial, were consistent in
depicting a "very thin," or "very, very thin" white male in
his late teens or early twenties with a narrow face, unkempt dark blond or
light brown hair, blue eyes, and moustache and goatee. (FN5) Some differences, however, did
appear. As to height: Officer Flynn said
the victim gave the assailant's height as six feet two inches. (FN6) On the composite, height was stated as
six feet. Officer DeGuilio said the
victim had estimated five feet ten inches to six feet. (FN7) At trial, the victim put the
assailant's height at approximately six feet, figuring that he seemed about
four inches taller than her own height of five feet seven inches. As to weight: The composite gave weight as
165 pounds, but the victim testified that she believed she had given estimates
from 150 to 165 pounds to Officers Flynn and DeGuilio. (FN8) This was the Commonwealth's case in
chief.
The
defense called Mrs. Jean Ratliff. She
testified that on the evening of August 13, around 8 P.M., she was visiting
with the defendant and his mother at their home. As supervisor of the mailing department of
Winthrop Printing Company, she had gotten a job for the defendant and he was to
report the next day. There was
discussion of the nature of the job and possibilities of advancement because
the defendant had a driver's license.
The defendant was "going back and forth" getting dressed
during the conversation, and left the house about 9 P.M. On cross‑examination Mrs. Ratliff said
the defendant started work the next morning (a Thursday) and did some day work
(i. e., work on call) the next few days.
Pressed as to when she learned of the importance of the defendant's
whereabouts at 8 P.M., she said she learned
[375 Mass. 514] of his arrest
through a newspaper report on Monday, August 25, but that did not mention when
the crime occurred. She did not recall
when she became informed of this. She
said she had been a friend of the defendant's mother for sixteen years. On redirect, the witness said she was first
in touch with defense counsel in January, 1976.
At that time she told counsel she had visited at the defendant's home on
August 13. (FN9)
The
defendant took the stand in his own behalf and on direct examination testified
consistently with Mrs. Ratliff as to the visit on August 13 around 8 P.M.
The
Commonwealth opened cross‑examination by eliciting from the defendant
that he was nineteen years old and five feet eight inches tall (as indicated,
he said, on his driver's license). He
said he left the house on August 13 about 9 P.M. but he could not say where he
went that night; nor could he identify the job he claimed he was doing earlier
that day as a helper to his father, an electrician. He said he was at work at Winthrop's the next
morning and worked perhaps two days before he was arrested, apparently on
Saturday, August 23. Some time after the
arrest, it occurred to him to have his mother look into his employment at
Winthrop's in order to help fix his actions on August 13.
About this
stage of the cross‑examination the prosecutor at a bench conference asked
the judge to admit the victim to the court room thus modifying his previous
order sequestering witnesses and to direct the defendant to stand so that
the victim could undertake a further identification of [375 Mass. 515] the
defendant with particular reference to his height. The judge refused the request.
On the
opening of court the following morning, the prosecutor at a further bench
conference proposed to the judge that the victim be admitted to hear the
defendant speak. He thought the
defendant's voice had a guttural quality.
He had spoken with the victim and she thought she might be able to
recognize the voice. Over objection, the
judge granted the request.
After some
continuation of the substantive cross‑examination, the prosecutor, over
further objection, had the defendant repeat after him in conversational tones,
"Don't scream or I'll kill you"; the vulgar words which need not be
set out here commanding fellatio (twice repeated); and, "I don't want to
see your immigration papers. I don't
care if you are a foreigner" (the response made by the assailant when the
victim, apparently by way of appeal to him, said the girl friend was a
foreigner).
On short
redirect, the defense introduced Winthrop's voucher stubs showing that during
the week ending August 16 (a Saturday) the defendant had worked fifteen hours;
and during the week ending August 23, nineteen hours. But, as the prosecutor pointed out, these
records did not establish that the defendant had started work, or worked, on
August 14. Here the defense rested.
For
rebuttal, the Commonwealth recalled Officer DeGuilio. Earlier the defendant, on cross‑examination,
when asked whether he had not told DeGuilio in September, 1975, that he was on
Cape Cod on August 13, had replied that he did not recall whether that date had
been mentioned. DeGuilio now testified
that the defendant had made the statement.
Cross‑examined, DeGuilio indicated that he had been actually
questioning the defendant about three dates, and that he had made no notes of
the conversation with the defendant.
The last
rebuttal witness was the victim, recalled.
She said the voice she heard in the court room was the assailant's,
"(t)he voice of the man who held my girlfriend [375 Mass. 516] and I
at gunpoint." On cross‑examination
defense brought out that there had been a lapse of some nine months since the
victim heard the voice to be identified.
Thus the trial proper ended.
In the
closing arguments to the jury, counsel on both sides referred to the voice
identification. Defense counsel said
that when the victim testified initially about the voice she said it was
undistinguished, not unusual; hearing the voice after nine months, she now
claimed to recognize it; the jury were to judge whether there was anything in
the voice that would make it "stick out." We must interpolate here that, in testifying
before the jury, the victim had not said anything about the assailant's
voice. She had, however, testified to it
at voir dire in the absence of a jury: COUNSEL FOR THE DEFENDANT: "Could
you describe his voice?" THE
WITNESS: "Well, there was nothing really distinctive about it. It was not low, it was not high, no
noticeable accent."
The
prosecutor, in his closing argument, followed defense counsel's apparent
mistake or confusion in misplacing the victim's original testimony. He said the victim had testified on direct
and cross‑examination that there was "nothing special about the
voice." But, said the prosecutor,
"there is a certain sort of guttural quality" about it, hard to
describe, and he left it to the jury whether one would be able to remember it
on hearing it a second time. The judge
in his charge to the jury referred to the voice identification but did not give
it particular prominence.
[1] 1. We
have no hesitation in saying that the prosecutor was wrong to attempt to stage
the voice identification as he did, and that it was error of constitutional
dimension for the judge to permit it. We
notice the error even though the defendant might have been clearer in
describing the exact grounds of his objections.
[2]
Identification by voice alone has long been thought to involve "grave
dangers of prejudice to the suspect."
Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir.
1966). It has indeed been suggested
that, at least where a witness has a basis for an identification of the culprit
by sight, he should not be [375
Mass. 517] asked to make a voice
identification unless he himself suggests it.
Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on
the Abuse of Pre‑Trial Criminal Identification Methods, 38 Brooklyn
L.Rev. 261, 305 (1971). At all events,
police and prosecutors are warned to take particular pains to avoid suggestive
conditions in making arrangements for out‑of‑court tests where a
witness tries to match live voices with his recollections of a voice heard in
the usually stressful original setting.
One‑on‑one auditions ought certainly to be avoided (see
Commonwealth v. Torres, 367 Mass. 737, 740, 327 N.E.2d 871 (1975)); there
should be the best approach to a "lineup" with precautions against
directing undue attention to any participant.
See ALI, Model Code of Pre‑Arraignment Procedure s 160.2(3),
Commentary at 444‑445 (1975). Preferably
the witness should not be viewing the participants as he listens to the words
spoken by them in turn. Sobel,
supra. Because emotion confuses
discernment and discrimination, the words chosen for repetition by the lineup
should not be those heard by the witness at the scene. Note, 45 Miss.L.J. 489, 502‑503 (1974);
Note, 55 Minn.L.Rev. 779, 819 (1971); Murray, The Criminal Lineup at Home and
Abroad, 1966 Utah L.Rev. 610, 628. As
reliability is negatively affected not only by the degree of suggestiveness of
the conditions of the test but also by natural loss of memory over time, the
earlier the test, the better, with recognition that there is likely to be a
greater rate of loss of memory in the hours immediately following the original
perception than afterwards. Marshall,
J., dissenting, in Manson v. Brathwaite, 432 U.S. 98, 118, 131, 97 S.Ct. 2243,
53 L.Ed.2d 140 (1977). (To avoid
misunderstanding, we should say here that, as with sight identifications, there
will be occasions when standard precautions may well be overlooked, for
example, when a suspect is apprehended very soon after the criminal event and
is brought promptly to the victim for direct voice identification, as in Wise
v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390
U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). Cf. Commonwealth v. Torres, supra; Roper v.
Beto, 454 F.2d 499 (5th Cir. 1972); ALI supra at 444.)
[375 Mass. 518] Now it will be observed that the in‑court voice test in the
present case was conducted in breach of the procedures just mentioned. It was one‑on‑one, with the
defendant in full sight of the victim.
The "damning words" (Palmer v. Peyton, supra at 201), not
neutral expressions, were utilized. High
suggestiveness was injected not only by the circumstance that the speaker was
the very accused on trial, but also by the fact that the person attempting the
voice identification had already committed herself by having made separate
positive identifications: these would be put in question or nullified by a
negative identification as to voice, and perhaps shaken even by an avowed
inability to make a voice identification.
(FN10) Hearing the precise words uttered by a man the victim had already
identified could be expected to renew in her the horror and disgust of the
heinous original encounter, and all this under the pressure and excitement of
actual trial. If emotion can distort
recollection we seem to have here a setting definitely favorable to such a
reaction. The final point to be noted is
that there was no need to indulge in an attempt at voice identification which
contained all these suggestive elements and was to be carried out before the jury. (FN11) If a need was felt for a voice test,
it could have been conducted under standard lineup conditions out‑of‑court
or at a voir dire hearing, and then testified to at trial.
[375 Mass. 519] [3] The law has not taken the position that a jury can always be
relied on to discount the value of an identification by a proper appraisal of
the unsatisfactory circumstances in which it may have been made. On the contrary, this court, like others, has
read the Constitution to require that where the conditions are shown to have
been highly and unnecessarily suggestive, the identification should not be
brought to the attention of the jury.
See, e. g., Commonwealth v. Kazonis, 356 Mass. 649, 255 N.E.2d 333
(1970); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968). It is true that in Manson
v. Brathwaite, supra, referred to in Commonwealth v. Nolin, ‑‑‑
Mass. ‑‑‑, ‑‑‑, (FNb) 364 N.E.2d 1224
(1977), it is suggested that there are situations in which evidence of an
identification may be admitted although the identification was carried out
under needlessly suggestive conditions.
Manson would allow this to be done when special factors attending the
identification show it to be reliable.
Here, however, the indicia of reliability set out by the Supreme Court
in Manson, 432 U.S. at 114, 97 S.Ct. 2243 were lacking; indeed, there was a
distance of nine months between the criminal incident and the voice
identification and a seeming discordance between the identification and the
victim's prior testimony at voir dire.
[4] 2. We
have next to say whether the error in permitting the in‑court
identification can be passed over as "harmless." The question is not simple, and is a matter
of close judgment. As we said at the
outset, the case against the defendant, apart from the voice identification,
was substantial. There was opportunity
to observe the assailant, and a pretty definite verbal description of him,
followed by the making of the composite and the selection out of many
photographs of one which conformed to the composite. The testimony of Mrs. Ratliff was by no means
certain, and her credibility was subject to doubt. Similarly the defendant's testimony was
infirm, as his insistance on the August 13 alibi was not matched by a solid
recollection of what else he had done that night, and the documentary evidence
of his employment[375 Mass. 520]
at Winthrop's was not conclusive as to the day on which he started work
there.
On the
other hand, there remains some probability that the victim's verbal description
and consequent graphic reconstruction were inaccurate. The better test of a live lineup for sight
identification (P. Wall, Eye‑Witness Identification in Criminal Cases 70
(1965); Marshall, J., dissenting, in Manson v. Brathwaite, supra at 118, 132‑133,
97 S.Ct. 2243) was not employed. Whereas
the divergences in the statements of height and weight were not strikingly
great, the repeated characterizations of the assailant as "very thin"
were of dubious compatibility with a youth who might be five feet eight inches
in height even if his weight was as low as 150 pounds. The testimony of Mrs. Ratliff and the
defendant cannot be wholly disregarded for the present purpose, and Officer
DeGuilio's recollections in his rebuttal testimony about the defendant's statements
to him do not inspire complete confidence.
We have
had earlier occasion to remark on the "somewhat variant definitions of the
concept (of harmless error) propounded by the Supreme Court." Commonwealth v. LeBlanc, 364 Mass. 1, 10, 299
N.E.2d 719, 724 (1973). See Commonwealth
v. Graves, 363 Mass. 863, 865‑866, 299 N.E.2d 711 (1973). The Court has been swinging from one to
another polar position which may be represented, respectively, by Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Milton v. Wainwright, 407
U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).
Under Chapman, "the beneficiary of a constitutional error (is
required) to prove beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained."
Id. 386 U.S. at 24, 87 S.Ct. at 828.
Under Milton, harmlessness must still be established beyond a reasonable
doubt, but the demonstration may be made by pointing to "overwhelming
evidence" (407 U.S. at 373, 92 S.Ct. 2174) of guilt, distinct from the
tainted evidence which for this purpose is to be disregarded.
By the
light of Chapman, it would be hard to say that the in‑court voice
identification, amounting almost to a compelled reenactment of the crime, was
without effect on the jury and did not contribute to the verdict. It is true that the [375 Mass. 521] closing
arguments of counsel called attention to the fact that the victim had stated
earlier that there was nothing exceptional about the voice. This (although muddled by the mistake shared
by both counsel) could have minimized the importance of the voice
identification in the minds of the jury, or possibly suggested to them that the
identification meant merely that the quality of the voice in the court room was
not inconsistent with that recalled by the victim from the actual event. Still a significant doubt remains whether the
jury were not actuated to some material degree by the display before them at
the close of trial. If the Milton test
is applied, a similar doubt remains, for while the evidence apart from the
voice test would certainly have been enough to warrant a guilty verdict, it
cannot be said to have been "overwhelming," at least if we take the
facts of the Milton case itself as indicative of the meaning of that word. (FN12) (We need not consider in detail whether
the Milton standard itself can survive fine analysis. (FN13))
We note
that the evidence improperly received in the present case was not addressed to
a collateral issue in the case but ran to the center, the question of
identification. We are mindful, too,
that if the concept of harmless error is loosely applied, it can serve too
readily as a bridge for a procession of mistakes and injustices.
On full
consideration, we feel obliged to set aside the judgments of conviction. A new trial will be in order. We [375
Mass. 522] can but express our
regret at the waste of time and resources invested in the trial, as well as at
the delay in reaching a final disposition of the charges, whatever that may be,
all occasioned by a procedure that we hold to have been prejudicial.
Judgments
of the Superior Court reversed.
Verdicts
set aside.
FNa.
Mass.App.Ct.Adv.Sh. (1977) 645.
FN1. Another claimed error is dealt with at
n. 9 below.
FN2. The girl friend, visiting here from
Belgium, declined to go to the police, returned to her country, and did not
appear at any stage of the proceedings.
At first, to save the girl friend from embarrassment, the victim did not
mention her in speaking to the police.
FN3. The victim testified on direct
examination, without objection, that the photographs were mug shots, as was
indeed obvious. They were received in
evidence and passed to the jury with all but the pictures masked by tape. See the remarks of Tuttle, J. (sitting by designation), on the handling of
mug shots in United States v. Fosher, 568 F.2d 207 (1st Cir. 1978).
FN4. At voir dire (which immediately preceded
the trial proper) the judge suppressed one identification. Some days after the photographic
identification at the victim's apartment, perhaps on the day of the probable
cause hearing, Officer DeGuilio showed the victim the photograph she had
identified but with a moustache and goatee pencilled in. She recognized this doctored picture as that
of the assailant. The judge ruled this
identification to be suggestive. He did
not so rule the identification at the probable cause hearing.
FN5. Other elements: The assailant, according
to the victim, wore sunglasses with gold colored rims (he removed these glasses
on reaching the utility room), faded jeans with holes at the knees, sneakers,
and on the ring finger of one hand a gold ring with a dark stone.
FN6. The victim thought she had said six
feet, or five feet ten inches to six feet.
FN7. The victim thought she had said five
feet ten inches to six feet one inch.
FN8. At voir dire the victim seemed to put
the assailant's height at six feet or up to six feet two inches, and his weight
at 145 to 150 pounds.
FN9. However, the judge on his own motion
excluded a further question on redirect asking "exactly what you told him
(counsel)." Exception was taken to
the exclusion. The defense argues that
the Commonwealth in cross‑examining Mrs. Ratliff had attacked her
testimony about the meeting of August 13 on grounds amounting to bias and
recent contrivance, and that the defense was therefore entitled to prove she
had made prior consistent statements to counsel (see Commonwealth v. Zukoski, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(Mass.Adv.Sh. (1976) 846, 850‑852),
345 N.E.2d 690), and should have been allowed to make the proof in greater
detail. Even on the defendant's
assumption as to the thrust of the cross‑examination, we are not prepared
to say that the judge was wrong to draw in the reins on the redirect as he did.
FN10.
We can only speculate how much suggestiveness was involved in the prosecutor's
approach to the victim about getting her relieved of the sequestration order
and having her listen to the defendant.
The judge, be it noted, had not considered what, if any, submission to the
jury the prosecutor might be required to make if, after hearing the defendant,
the victim told the prosecutor she was unable to make a voice identification or
was actually prepared to say this was not the voice she remembered. Incidentally, the prosecutor, in applying to
the judge to lift the sequestration order, did not state that he intended to
ask the defendant to repeat the "damning words."
FN11. Compelling the
defendant to repeat the exact words (including the vulgar ones) before the jury
may be thought of, independently, as an abuse of the judge's discretion.
FNb. Mass.Adv.Sh. (1977) 1503, 1510.
FN12. In the Milton case
the Court remarked that "(t)he jury, in addition to hearing the challenged
testimony, was presented with overwhelming evidence of petitioner's guilt,
including no less than three full confessions that were made by petitioner
prior to his indictment." 407 U.S.
at 372‑373, 92 S.Ct. at 2175.
FN13. A meticulous
examination and critique of the Court's decisions on harmless error lead
Professor Martha A. Field to a demonstration of the inadequacies of the Milton
formula and to espousal of a rule which would allow a finding of harmlessness
under either the Chapman formula or a "cumulative evidence" test; she
finds support for the latter in some cases, especially Harrington v.
California, 395 U.S. 250, 89 S.Ct. 1276, 23 L.Ed.2d 284 (1969). We think the error in the present case would
not be termed harmless under the "cumulative evidence" analysis. Field, Assessing the Harmlessness of Federal
Constitutional Error A Process in Need of a Rationale, 125 U.Pa.L.Rev. 15
(1976).