|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Miles, 420
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Mary F. Costello,
Judy Zeprun Kalman, Asst. Dist. Atty., for Com.
Before [420
LIACOS, Chief Justice.
After a
mistrial, the defendant was retried and convicted by a second jury on three
indictments charging rape and one indictment charging indecent assault and
battery.
On appeal,
the defendant raises five issues. First,
he argues that the trial judge abused his discretion in allowing the
Commonwealth's motion to limit the scope of cross‑examination of a police
witness. Second, the defendant asserts
that the judge erred in denying his motion to exclude the testimony of his
former girl friend about two incidents of harassment after the assaults. Third, the defendant contends that the judge
erred in denying his motion to suppress the photographic identification. Fourth, the defendant argues that trial
counsel's failure to object to a voice identification procedure and to the
absence of a hearing prior to the court‑ordered physical examination of
his body constituted ineffective assistance of counsel. Finally, the defendant alleges that the judge
erred in denying his motion for a continuance before [420
Facts.
We recite some of the facts that the jury could have found from the
evidence admitted, leaving other facts for our discussion of the specific
issues raised on appeal.
On
During and
following the attack, in order to "make him see me as a human being [and]
get away with my life," the victim engaged the assailant in
conversation. The assailant disclosed
that (1) he had had a girl friend for seven years, but they had ended the
relationship approximately one year before;
(2) that he had once weighed between 250 and 270
pounds; (3) that he smoked
marihuana; and (4) that he was between
twenty and twenty‑five years old.
The victim told the police that according to her assailant their
conversation lasted for ten minutes and that she was close enough to hear him
distinctly.
After the
attack, the assailant left the victim in the woods. She dressed, returned home, and later went to
the hospital accompanied by her mother.
Two days later, a rash had developed over her entire body. A dermatologist confirmed that the rash was
caused by poison ivy. Based on the
victim's complaint to the doctor that she had been sexually assaulted at the
reservoir, the doctor came to a medical opinion that the assailant likely would
have a similar poison ivy rash. The
victim reported her condition to the police, who determined that there were
dense poison ivy plants on the path into the area where the victim was raped
and at the site of the rape. The police
then advised the news media that the assailant [420 Mass. 70] had a
red mountain bicycle and possibly had poison ivy. As a result, the police received a telephone
call from a man who provided them with the defendant's name.
I. Limitation of Cross‑Examination.
During the
defendant's first trial, the trial judge allowed defense counsel to question
the police about their investigation of other suspects. Before the start of the second trial, the
Commonwealth moved to limit the scope of cross‑examination to preclude
any questioning about other suspects.
During voir dire on the motion, Sergeant Michael McMullan, the lead
investigating officer in the case, testified that, at one time, the police did
have other suspects. He stated that the
police removed one individual from the list of suspects on learning that this
individual had been incarcerated in a halfway house on the day of the
attack. The officer admitted that he
never determined whether the halfway house was a "locked‑down"
facility. McMullan testified that the
police excluded another suspect who had been in a jail on that day. In addition, McMullan stated that the police
eliminated a third suspect, who had been seen riding a red mountain bicycle at
the reservoir on the day of the attack, because he was Hispanic and did not
match the victim's description of the man she had seen at the reservoir prior
to the rape.
The
officer further testified that the police ruled out a fourth suspect identified
by an anonymous caller. This suspect had
poison ivy on his arms and legs. In
addition, the suspect had a questionable alibi.
He told police that he had been fishing with a friend at the Quabbin
Reservoir on the day in question. When
the police interviewed the friend on the same day, he told them that the
suspect had telephoned him and told him to tell police that they had been fishing
together on the day of the rape. The
friend told the police that he could not remember whether this was in fact
true. The police returned to the
suspect's home, and asked why he had made the telephone call. The suspect said that his friend was forgetful. When the police asked to see the suspect's
bicycle, he showed them a rusty ten‑speed bicycle with an attached baby
carrier.
[420 Mass. 71] The defendant pointed out to the court that the police never
obtained a warrant to search this suspect's home or body for poison ivy, nor
did they determine adequately whether he owned a red mountain bicycle. Over the defendant's objection, the judge
allowed the Commonwealth's motion to limit the scope of cross‑examination.
[1] The
defendant argues that the judge abused his discretion in allowing the
Commonwealth's motion. He alleges that,
by precluding cross‑examination about police investigation of other
suspects, the judge denied him the right to confront witnesses against him in
violation of art. 12 of the Massachusetts Declaration of Rights and the Sixth
Amendment to the United States Constitution.
Although we agree that the judge did err in allowing the Commonwealth's
motion to limit the scope of cross‑examination as to one suspect, we
conclude that the error was harmless beyond a reasonable doubt.
[2][3][4]
Both the Sixth Amendment and art. 12 guarantee a criminal defendant's right to
confront the witnesses against him through cross‑examination. See
Kentucky v. Stincer, 482 U.S. 730, 736‑737, 107 S.Ct. 2658, 2662‑2663, 96 L.Ed.2d 631 (1987); Commonwealth v. Fordham,
417 Mass. 10, 18, 627 N.E.2d 901 (1994); Commonwealth v. Tanso, 411 Mass. 640,
650, 583 N.E.2d 1247, cert. denied, 505 U.S. 1221, 112 S.Ct. 3033, 120 L.Ed.2d
902 (1992). The right to confrontation
guarantees that, in most circumstances, a criminal defendant as a matter of
right may cross‑examine the prosecution's witnesses. See
Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934
(1965);
Commonwealth v. Fuller, 399 Mass. 678, 684, 506 N.E.2d 852
(1987). Indeed, the right to
confrontation and cross‑examination "is an essential and fundamental
requirement for the kind of fair trial which is this country's constitutional
goal." Commonwealth v. Tanso, supra, quoting Pointer v. Texas, 380 U.S. 400, 405, 85
S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).
[5][6][7]
However, a criminal defendant's confrontation right is not absolute.
Commonwealth v. Barnes, 399 Mass. 385, 393, 504 N.E.2d 624
(1987). Although the defendant is
entitled to a reasonable cross‑examination of witnesses against him, the
scope of cross‑examination rests largely in the sound discretion of the
trial judge. Commonwealth v. Daye, 411 Mass. 719, 735,
587 N.E.2d 194[420 Mass. 72]
(1992). Commonwealth v. Weichel, 403 Mass. 103,
105, 526 N.E.2d 760 (1988). We shall not
overrule a trial judge's determination as to the proper scope of cross‑examination
unless the defendant demonstrates that the judge abused his discretion and that
the defendant was prejudiced thereby. Commonwealth v. Gagnon, 408 Mass. 185,
192, 557 N.E.2d 728 (1990). Commonwealth v. Fuller, supra 399 Mass.
at 685, 506 N.E.2d 852.
[8] In
determining whether a defendant's constitutional right to cross‑examine
and thus to confront a witness against him has been denied because of an
unreasonable limitation of cross‑examination, we weigh the materiality of
the witness's direct testimony and the degree of the restriction on cross‑examination.
Commonwealth v. Kirouac, 405 Mass. 557, 561, 542 N.E.2d 270
(1989). In this case, Sergeant
McMullan's testimony about the police investigation that led to the defendant's
arrest was critical to the Commonwealth's case, in particular because the
victim did not see her assailant's face at the time of the rape. Such testimony was highly material to one of
the most important issues at trial, the identification of the defendant as the
perpetrator of the crimes. Although
defense counsel did have an opportunity to cross‑examine McMullan, the
judge precluded him from asking any questions about other persons investigated
by the police. This was a substantial
restriction of cross‑examination, because misidentification was the crux
of the defense. The facts sought to be
raised on cross‑examination, namely that the police had investigated
other suspects, particularly one suspect who had poison ivy and a questionable
alibi, "went to the essence of the defense." Commonwealth v. Funches,
379 Mass. 283, 293, 397 N.E.2d 1097 (1979).
The defendant had a legitimate purpose in seeking to inquire about other
suspects because such evidence would tend to show that someone other than he
attacked the victim. See Commonwealth v. Daye, supra 411 Mass.
at 735, 587 N.E.2d 194 (defendants not entitled to the names or locations of
other people investigated by police absent demonstration that such evidence
"would tend to show that [someone] other than the defendant[ ]" had
committed the crime or that "the police had bungled the [420 Mass. 73] investigation or otherwise avoided pursuit of the
truth"). (FN1) We conclude, therefore, that the trial judge
erred in precluding cross‑examination of Sergeant McMullan about the
suspect with poison ivy and the questionable alibi. (FN2)
[9][10] Nevertheless, we conclude that the
judge's error does not require a reversal of the defendant's convictions. "[T]he denial of the opportunity to
cross‑examine an adverse witness does not fit within the limited category
of constitutional errors that are deemed prejudicial in every case."
Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1437, 89
L.Ed.2d 674 (1986). Commonwealth v. DiBenedetto, 414 Mass.
37, 39‑40, 605 N.E.2d 811 (1992).
See Arizona v. Fulminante, 499
U.S. 279, 306‑307, 111 S.Ct. 1246, 1262‑1264, 113 L.Ed.2d 302
(1991) (harmless error analysis may be applied to most constitutional
errors). The admission of testimony
obtained in violation of a defendant's confrontation rights will not amount to
reversible error "if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond a reasonable
doubt." Van Arsdall, supra 475 U.S. at 681, 106
S.Ct. at 1436. See Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827‑828,
17 L.Ed.2d 705 (1967).
In light
of the overwhelming evidence of the defendant's guilt, we may confidently
conclude that the improper limitation of the scope of cross‑examination
was harmless beyond a reasonable doubt.
The medical evidence of the condition of the defendant's body with
poison ivy on his left arm, lower abdomen, pubic region, right lower leg, left
lower leg, right foot, and scrotum strongly corroborated the identifications of
the defendant and his voice by the victim.
(FN3) The Commonwealth[420 Mass. 74] presented substantial
evidence to the jury that identified the defendant as the perpetrator of the
crimes, including the victim's firm identification of the defendant's voice as
that of the assailant, the victim's firm photographic and untainted in‑court
identification of the defendant as the man she had seen at the reservoir
immediately prior to the rape, (FN4) and the victim's identification of the
defendant's bicycle as that ridden by the defendant when she saw him at the
reservoir. Also, the defendant fit the
victim's detailed and accurate description of the man she had seen at the
reservoir, which was given to police shortly after the commission of the
crimes. Further, the evidence showed
that the defendant developed poison ivy on his entire body, as described, and
that dense poison ivy grew at the site of the crime and on the path leading to
the site. Additionally, the defendant's
former girl friend corroborated much of the information told to the victim by
the assailant at the scene of the crime immediately following the consummation
of the rape, including that the defendant's seven‑year relationship with
his former girl friend had ended one year before the rape, and that the
defendant had lost a significant amount of weight.
Furthermore,
the defendant's statements to police during the investigation contradicted
statements he had made to third persons.
For example, the defendant told police that he had contracted poison ivy
at work and that he had not used his mountain bicycle on Monday, May 20, 1991,
the day of the rape. However, he told
his work supervisor that he had contracted poison ivy while "riding his
mountain bicycle on Monday," May 20.
Similarly, the defendant told police that he had met a friend at the
reservoir on either the previous Thursday or Friday. The friend told police that this was not
true. In light of this overwhelming
evidence of the defendant's guilt, we conclude that the judge's error in
precluding cross‑examination about other suspects "was without
effect on the jury and did not contribute to the verdict." Commonwealth
v. Sinnott, 399 Mass. 863, 872, 507 N.E.2d 699 (1987), quoting Commonwealth[420 Mass. 75] v. Marini, 375 Mass. 510, 521, 378 N.E.2d
51 (1978). We hold that the error was
harmless beyond a reasonable doubt.
(FN5)
II.
Testimony of Defendant's Former Girl Friend.
[11] At
the defendant's second trial, he made a motion to exclude the testimony of his
former girl friend, Maureen Mahoney, about two incidents of harassment that
occurred after the rape. The judge
denied the motion and admitted the testimony as evidence of consciousness of
guilt. Mahoney then testified that the
defendant had harassed her in May, 1991, a few days after the rape, and again
in August, 1991. The defendant argues
that the judge erred in denying his motion to exclude Mahoney's testimony about
the harassment because such testimony constituted inadmissible evidence of
prior bad acts. We disagree.
[12][13]
The mere fact that Mahoney testified about certain prior bad acts does not
preclude her testimony from being admitted as otherwise relevant to show the
defendant's consciousness of guilt.
Evidence regarding threats of intimidation of key witnesses for the
prosecution is admissible to demonstrate consciousness of guilt.
Commonwealth v. Scanlon, 412 Mass. 664, 676, 592 N.E.2d 1279 (1992).
Commonwealth v. Porter, 384 Mass. 647, 653, 429 N.E.2d 14
(1981). The Commonwealth informed the
defendant of its intention to call Mahoney as a witness against him by August,
1991. (FN6) The August incident therefore occurred after
the defendant knew that Mahoney would be a witness for the Commonwealth. (FN7)
The judge properly admitted her [420
Mass. 76] testimony about the August
incident to demonstrate the defendant's consciousness of guilt. However, it is arguable the judge should have
excluded Mahoney's testimony about the May incident, since at that time there
was no showing that the defendant knew that Mahoney would be a witness in the
case. Nevertheless, assuming this to be
error, it was not substantially prejudicial. Commonwealth v. Woods, 419 Mass. 366,
375, 645 N.E.2d 1153 (1995). Commonwealth v. Flebotte, 417 Mass. 348,
353, 630 N.E.2d 265 (1994). In light of
the strength of the Commonwealth's case, and the fact that Mahoney's testimony
about the May incident was merely cumulative of her properly admitted testimony
about the August incident, we conclude that the error was not prejudicial.
III. Photographic Identification.
Just
before the attack, the victim observed a man on three different occasions. As she jogged along the canal, she first saw
the man in the distance, sunning himself.
She viewed him from two to four minutes as she jogged toward him, and
passed within three or four feet of him.
She passed the man again when she ran back along the other side of the
canal. They passed within one foot of
each other. He was riding a red mountain
bicycle. During this encounter, the
victim observed him close up for at least another ten seconds. The victim saw the man a third time when she
observed him riding his bicycle over the dike she had just run across. She took note of him because he rode very
quickly, despite the warm weather.
When she
gave her statement to the police, the victim included a detailed description of
the man she had seen at the reservoir. She told the police that she had seen a white
male, approximately five feet, nine inches tall, 180 pounds, between twenty‑two
and thirty‑four years old, with a mustache, short wavy brown hair, brown
eyes, and that he had been riding a new red mountain bicycle.
On May 21,
1991, the victim looked through a photographic array containing approximately
1,000 black and white photographs. She
did not select the defendant's photograph.[420
Mass. 77] (FN8)
Several days later, the police presented the victim with an array of
nine color photographs. She picked the
defendant's photograph as that of the man she had seen at the reservoir. Prior to the first trial, the defendant made
a motion to suppress the photographic identification on the ground that the
array was impermissibly suggestive.
After a hearing, the first trial judge denied the motion, finding that
the array was "reasonable and proper," and that it represented a
"fair cross section" of "generally similar people."
[14] The
defendant asserts that the judge erred in denying his motion to suppress the
photographic identification because the photographic array was impermissibly
suggestive so as to give rise to a substantial risk of irreparable
misidentification. Specifically, the
defendant contends that the photographic array was suggestive because his
photograph depicted someone significantly younger than the other men
pictured. The defendant also argues that
the victim's in‑court identification of the defendant did not have a
sufficiently independent basis and thus was impermissible.
[15] In
order to suppress a photographic identification, the defendant must show by a
preponderance of the evidence that, in light of the totality of the
circumstances, the procedures employed were so unnecessarily suggestive and
conducive to irreparable misidentification as to deny the defendant due process
of law.
Commonwealth v. Wallace, 417 Mass. 126, 129, 627 N.E.2d 935 (1994).
Commonwealth v. Holland, 410 Mass. 248, 253, 571 N.E.2d 625 (1991).
Commonwealth v. Colon‑Cruz, 408 Mass. 533, 541, 562 N.E.2d 797
(1990). We have viewed the nine
photographs included in the array, and conclude that the array did not
distinguish the defendant on the basis of his age, nor was the array in any other
way unnecessarily suggestive or conducive to misidentification. [420
Mass. 78] The judge was warranted in denying the
defendant's motion to suppress the photographic identification. (FN9)
IV. Ineffective Assistance of Counsel.
a. Voice Identification.
On June
10, 1991, pursuant to a court order obtained after a hearing at which defense
counsel was present, the police conducted a voice identification
procedure. (FN10) The victim heard five individuals read the
same passages from a fifth‑grade reader.
The victim sat in one room, while the readers sat in a separate,
adjoining room. The victim could not see
the readers, nor could they see her.
Defense counsel attended the voice identification and, although
consulted by the police about the proposed procedure, did not object to
it. The victim twice identified the
defendant's voice as that of her assailant.
Prior to the first trial, the defendant made a motion to suppress the
voice identification because it was the product of an impermissibly suggestive
procedure. After a hearing, the judge
denied the motion, finding that the voice identification test was not
impermissibly suggestive and that it met the standards set out by this court in Commonwealth v. Marini, 375 Mass. 510,
517, 378 N.E.2d 51 (1978). (FN11)
[16] The defendant
argues that the failure of counsel to object to the voice identification
procedure deprived him of effective assistance of counsel under the Sixth and
Fourteenth Amendments to the United States Constitution and art. 12. He also contends that the judge erred in
denying his motion to suppress the results of the voice identification
procedure because the procedure was impermissibly suggestive. Specifically,[420 Mass. 79] he argues that the procedure impermissibly
directed attention to him because he was younger than the other readers and because
the other readers were law enforcement officers.
[17] The
defendant's ineffective assistance of counsel claim lacks merit. In testing whether counsel was ineffective,
we consider "whether there has been serious incompetency, inefficiency, or
inattention of counsel‑‑behavior of counsel falling measurably
below that which might be expected from an ordinary fallible lawyer."
Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878
(1974). (FN12) The defendant has failed to show that defense
counsel's failure to object to the voice identification procedure likely
deprived him of an otherwise available, substantial ground of defense. See id. Although defense counsel was present at the
voice identification and failed to object to the procedure, that failure to
object did not amount to ineffective assistance of counsel. The record indicates that defense counsel
argued against the voice identification in a hearing held prior to the
procedure. (FN13) In addition, defense counsel filed a pretrial
motion to suppress on the ground that the procedure used was impermissibly
suggestive. The judge denied this motion
after a hearing. In the circumstances,
defense counsel exhausted those avenues of relief open to the defendant. The defendant has failed to show that
"better work might have accomplished something material for the
defense." Commonwealth v. Satterfield, 373 Mass.
109, 115, 364 N.E.2d 1260 (1977). Hence,
we decline to conclude that defense counsel's conduct amounted to ineffective
assistance of counsel.
[18] We
also conclude that the judge appropriately denied the defendant's motion to
suppress the voice identification because the procedure used was not
impermissibly suggestive. [420 Mass. 80] This court noted that the "[i]dentification by voice alone
has long been thought to involve 'grave dangers of prejudice to the suspect.'
"
Commonwealth v. Marini, 375 Mass. 510, 516, 378 N.E.2d 51 (1978),
quoting Palmer v. Peyton, 359 F.2d
199, 201 (4th Cir.1966). Hence, we
cautioned that, "[a]t all events, police and prosecutors [should] take
particular pains to avoid suggestive conditions in making arrangements for out‑of‑court tests where a
witness tries to match live voices with [her] recollections of a voice heard in
the usually stressful original setting" (emphasis in original).
Commonwealth v. Marini, supra 375 Mass. at 517, 378 N.E.2d 51. We then suggested certain procedures which
police and prosecutors should follow when conducting voice identifications. For example, we advised against one‑on‑one
confrontations between witness and suspect.
We suggested that precautions should be taken to avoid directing undue
attention to any participant, and that the witness should not view the
participants. We further noted that the
words chosen for repetition should not be those heard by the witness at the
crime scene. Finally, we advised that
voice identification procedures should be conducted soon after the crime in order
to avoid any decrease of reliability that might result from delay. Id.
The
defendant concedes that "many of the guideline[s] set out in Marini were followed at the voice
exemplar," but argues that nevertheless the procedure was impermissibly
suggestive because it directed undue attention to the defendant's voice. We disagree.
After consulting with the office of the district attorney, the police
used a voice identification procedure that adequately protected the defendant's
rights. There was no one‑on‑one
confrontation between the victim and the defendant. The victim could not see the participants
during the procedure, nor could they see her.
The defendant selected the order in which he would read. The participants read the same innocuous
passage from a fifth‑grade reader.
Defense counsel attended the procedure and, although consulted, never
objected to it. In addition, we have
viewed a videotape of the voice identification procedure, and conclude that the
procedure was not impermissibly suggestive. The defendant's [420 Mass. 81] voice
did not stand out because of his age, nor did any other aspect of the procedure
direct undue attention to the defendant's voice. (FN14)
Hence, we conclude that the judge properly denied the defendant's motion
to suppress the voice identification. (FN15)
b. Body Examination.
On May 29,
1991, the Commonwealth obtained an ex parte court order compelling the
defendant to submit to a physical examination by nonintrusive methods for the
presence of poison ivy on his body. At
the ex parte hearing, the Commonwealth submitted an affidavit that averred
that: (1) the defendant became a suspect
when the victim identified him as the person she had seen immediately before
the assault; (2) statements made to the
police by the defendant compared favorably to certain information that the
assailant told to the victim during and after the rape; (3) the victim developed poison ivy shortly
after the attack; (4) the scene of the
rape was covered with poison ivy; (5)
the defendant had a rash that appeared to be poison ivy; and (6) the defendant had told police that he
had been in Springfield at the time of the rape, but his personal vehicle was
seen parked at his home at that time.
After the court issued the ex parte order, the defendant did not request
a hearing on the matter. Instead, he
voluntarily submitted to a physical examination by a physician of his entire
body, including his genitals. The
defendant's attorney, his father, and a police officer were present at the
examination.
[19][20][21]
Prior to the first trial, the defendant filed a motion to suppress the results
of the body examination on the ground that he should have been afforded a
hearing before the examination in order to determine whether there existed
probable cause to justify the examination.
The defendant's motion to [420
Mass. 82] suppress was denied. The issue is presented to us in this appeal
solely on the claim that his counsel's failure to object to the court‑ordered
body examination amounted to ineffective assistance of counsel because the
procedure was an illegal search and seizure authorized without probable cause
or a hearing, and that the examination therefore violated his rights under the
Fourth and Fifth Amendments to the United States Constitution and art. 14 of
the Declaration of Rights. (FN16)
We
recently addressed a similar issue in
Matter of Lavigne, 418 Mass. 831, 641 N.E.2d 1328 (1994). (FN17)
Assuming, without deciding, the principles stated there to be applicable
to this claim of ineffective assistance, we offer the following comments. In
Matter of Lavigne, we held that "the compelled extraction of a
person's blood for the purpose of testing its immutable characteristics ...
without first affording him notice and an opportunity to be heard violates his
rights." Id. at 832, 641 N.E.2d 1328. We also required that the Commonwealth
establish probable cause to believe that Lavigne had committed a murder and
that the identity of the blood found at the murder scene would
aid the Commonwealth's investigation. Id. at 835‑836, 641 N.E.2d
1328. Although Matter of Lavigne, like the instant case, involved a preindictment
order compelling the suspect to provide physical[420 Mass. 83] evidence, we believe that this case is
distinguishable from the Lavigne
case.
First, the
ex parte order in this case compelled the defendant to go to the hospital to be
examined for poison ivy, not to have blood drawn from his body. The search at issue in this case, therefore,
was considerably less intrusive than that in
Lavigne. Indeed, the examination of
the defendant's skin for poison ivy is akin to a test for occult blood on a
defendant's skin. See Commonwealth v. Beldotti, 409 Mass.
553, 559, 567 N.E.2d 1219 (1991). As
with a test for occult blood, the intrusion in this case was "minimal,
simply a test of the defendant's [skin] for objective evidence of [poison
ivy]." Id.
Furthermore, the nonintrusive examination occurred pursuant to a court
order, and was conducted by a physician in a hospital emergency room.
Second,
the defendant was ordered to submit to a physical examination for the presence
of poison ivy, a condition which was temporary.
Therefore, time was of the essence in order to preserve the evidence. In contrast, the compelled blood testing in Lavigne was for the purposes of testing
its "immutable" characteristics.
Because these characteristics were neither fleeting nor changeable,
there were no exigent circumstances that required immediate action to preserve
the evidence. Hence, there was
sufficient time to afford the defendant notice and an opportunity to be heard
before the blood extraction procedure.
We believe that the exigent circumstances in this case warranted
examining the defendant's body for poison ivy without a prior hearing.
[22] Even
if we did decide that the defendant's due process rights entitled him to a
hearing prior to the body examination, we conclude that the defendant waived
his right to such a hearing. He
voluntarily went to the hospital for the examination. (FN18)
His father and his attorney were present during the examination, and
neither they nor the defendant objected to
[420 Mass. 84] the procedure at
that time. Indeed, the defendant did not
object to the body examination until more than eight months had passed, when he
filed a motion to suppress before his first trial. In contrast, Lavigne filed a motion to have
the blood sample returned to him immediately after the blood extraction.
Matter of Lavigne, supra 418 Mass. at 833, 641 N.E.2d 1328.
[23][24]
The defendant's ineffective assistance of counsel claim must fail. As we noted above, in order to prevail on
this claim, a defendant must show that his counsel's conduct "[fell]
measurably below that which might be expected from an ordinary fallible
lawyer," and likely deprived him of an otherwise available, substantial
ground of defense. Commonwealth v. Saferian, supra 366 Mass.
at 96, 315 N.E.2d 878. In this case,
defense counsel filed a motion to suppress the results of the body examination
and thus focused the judge's attention on this issue. The judge denied the motion. Counsel's failure to object at the time of
the body examination did not prejudice the defendant in any way. In addition, because we conclude that no
hearing was required before the body examination and that the examination did
not violate the defendant's Federal or State constitutional rights, the
defendant has failed to show that "better work might have accomplished
something material for the defense." Commonwealth v. Satterfield, supra 373
Mass. at 115, 364 N.E.2d 1260.
V. Denial of Motion for Continuance.
[25] Prior
to the commencement of the defendant's second trial, newly appointed defense
counsel moved for a continuance so that he could obtain a transcript of the
first trial and accompanying pretrial hearings.
Defense counsel also stated that he needed additional time to
investigate the testimony of an expert who would testify for the Commonwealth,
and to retain his own expert to contradict the Commonwealth's expert. The judge denied the motion. On appeal, the defendant argues that the
judge's denial of his motion for a continuance deprived him of his Sixth
Amendment right to counsel and [420
Mass. 85] his due process rights
under the Fifth and Fourteenth Amendments and art. 12.
[26][27][28][29]
The decision whether to grant a motion to continue lies within the sound
discretion of the trial judge. Commonwealth v. Haley, 413 Mass. 770,
775, 604 N.E.2d 682 (1992). Commonwealth v. Habarek, 402 Mass. 105,
108, 520 N.E.2d 1303 (1988). A denial of
a continuance will not constitute error absent an abuse of that discretion.
Commonwealth v. Mamay, 407 Mass. 412, 419, 553 N.E.2d 945 (1990).
Commonwealth v. Bryer, 398 Mass. 9, 15, 494 N.E.2d 1335 (1986). However, a trial judge may not exercise his
discretion in such a way as to impair a defendant's "constitutional right
to have counsel who has had reasonable opportunity to prepare a defense."
Commonwealth v. Souza, 397 Mass. 236, 240, 490 N.E.2d 1173 (1986),
quoting Commonwealth v. Cavanaugh,
371 Mass. 46, 51, 353 N.E.2d 732 (1976).
In determining whether a trial judge's denial of a continuance has
violated a defendant's right to effective assistance of counsel and to due
process of law, we must examine the "circumstances present in [the] case,
'particularly [those] reasons presented to the trial judge.' "
Commonwealth v. Cavanaugh, supra, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11
L.Ed.2d 921 (1967).
[30] In
this case, the defendant has failed to show that the trial judge abused his
discretion in denying the motion for a continuance, and that this denial
substantially impaired defense counsel's ability to prepare and to present a
full and fair defense at the second trial.
First, the defendant's asserted reasons for needing a continuance, that
he wished to obtain a transcript of the prior trial and to investigate a
potential expert witness, did not demonstrate that a delay would measurably
contribute to the resolution of the case.
See Commonwealth v. Gilchrest,
364 Mass. 272, 276‑277, 303 N.E.2d 331 (1973). On appeal, the defendant argues that he
required a transcript of the prior proceedings in order to determine whether
"different or further" arguments existed that would warrant a
rehearing of his suppression motions filed and denied before the first
trial. However, the defendant did not
raise this argument in his motion for a continuance, nor did he state that any
"different or further" arguments existed when he refiled [420 Mass. 86] the suppression motions at the second trial. (FN19)
Although we have held that a motion judge may conduct another hearing on
a pretrial motion that has been heard and denied, the judge has no obligation
to conduct such a hearing "so long as no new issues are raised and the
relevant law has not changed." Commonwealth v. Parker, 412 Mass. 353,
356, 589 N.E.2d 306 (1992). Because the
defendant failed to raise new issues or to show any change in the relevant law,
the judge properly denied the defendant's motion for a continuance.
Second,
the defendant has not demonstrated that defense counsel at his second trial did
not have a reasonable opportunity to prepare a defense. See
Commonwealth v. Souza, supra 397 Mass. at 240, 490 N.E.2d 1173;
Commonwealth v. Cavanaugh, supra.
The defendant's second trial occurred nearly two months after the first
trial and nearly a year after the crime.
Even if defense counsel at the second trial did not have a transcript of
the first trial and accompanying pretrial hearings, he did have two months in
which to examine the memoranda filed in support of the defendant's pretrial
motions, as well as to inquire of his predecessor counsel as to the disposition
of those motions. His failure to do so
is not sufficient reason to conclude that the judge abused his discretion in
denying the defendant's motion for a continuance.
Judgments affirmed.
(FN1.) Indeed, we question whether any
criminal defendant effectively could assert a misidentification defense if good
faith inquiries on cross‑examination about police investigation of other
suspects are completely precluded, as they were in this case.
(FN2.)
There is no indication in the record before us as to why the judge granted the
Commonwealth's motion to limit the scope of cross‑examination. It appears from the Commonwealth's brief that
the basis of the motion was that evidence of other suspects lacked sufficient
probative value and would not support an inference that someone other than the
defendant was the perpetrator.
(FN3.)
The victim developed poison ivy on her entire body‑‑chest, stomach,
genitals, back, buttocks, and backs of her legs.
(FN4.) See discussion of this identification, infra.
(FN5.) We note also that it appears reasonable
for the judge to conclude that three of the four alleged suspects were not likely
assailants for the reason that two had been incarcerated on the day in question
and the third (an Hispanic) in no way matched any description of the
assailant. Thus, the error of the judge
in precluding cross‑examination was only as to the fourth suspect who had
some signs of a poison ivy rash when interviewed by the police.
(FN6.) During the hearing on this motion, the
prosecutor stated that "by August [the defendant] would have known
[Mahoney] was a witness, because the police statements were provided to counsel
in June." Defense counsel did not
contradict this statement. Hence, we
accept it as true.
(FN7.) In addition, the judge at the
defendant's June 14, 1991, bail hearing had ordered the defendant to stay away
from witnesses in the case.
(FN8.) The photograph had been taken three
years earlier. At the time, the
defendant had longer hair and weighed significantly more than he did at the
time of the attack.
(FN9.) Because we conclude that the array was
proper, we need not address the defendant's argument that the victim's in‑court
identification did not have an independent basis and thus was impermissible.
(FN10.) The voice identification procedure
occurred before the defendant's arrest, as a result of a grand jury
request. At the voir dire hearing on the
motion to suppress the voice identification, Captain Richard Page of the
Holyoke police department testified that he had consulted the office of the
district attorney about how to conduct the voice identification procedure in
accord with constitutional mandates.
(FN11.) The judge also noted that defense
counsel "was present [at the procedure] and made no complaint."
(FN12.) "The standard that this court has
used for testing the ineffectiveness of counsel, in a constitutional sense, is
at least as favorable to a defendant as is the Federal standard...."
Commonwealth v. Curtis, 417 Mass. 619, 625 n. 4, 632 N.E.2d 821
(1994), citing Commonwealth v. Fuller,
394 Mass. 251, 256 n. 3, 475 N.E.2d 381 (1985).
See Commonwealth v. Howell, 394
Mass. 654, 657, 477 N.E.2d 126 (1985).
(FN13.) In light of this hearing, we question
the defendant's assertion that defense counsel failed to object to the
procedure.
(FN14.) The defendant also asserts that his
voice stood out as more nervous and distinct than the voices of the other
participants, all four of whom were law enforcement officers. We disagree.
(FN15.) We also note that the victim's
identification of the defendant was not "by voice alone." Cf.
Commonwealth v. Marini, 375 Mass. 510, 516, 378 N.E.2d 51 (1978).
(FN16.) We note at the outset that the
defendant's Fifth Amendment claim is without merit. The Fifth Amendment privilege against self‑incrimination
applies only to "testimonial" or "communicative" evidence
that reveals an individual's subjective knowledge or thought processes. See
Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830‑1831,
16 L.Ed.2d 908 (1966). The results of
the body examination, in contrast, constituted physical evidence which is not
protected by the Fifth Amendment. See Gilbert v. California, 388 U.S. 263,
266‑267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) ("mere
handwriting exemplar ... like the voice or body itself, is an identifying
physical characteristic outside [the Fifth Amendment's] protection");
United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1930, 18
L.Ed.2d 1149 (1967) ("compelling the accused merely to exhibit his person
for observation ... involves no compulsion of the accused to give evidence
having testimonial significance"); Schmerber, supra 384 U.S. at 764, 86
S.Ct. at 1832 ("that compulsion which makes a suspect or accused the
source of 'real or physical evidence' does not violate [Fifth Amendment
privilege against self‑incrimination]").
(FN17.) Matter of Lavigne, 418 Mass. 831, 641
N.E.2d 1328 (1994), was decided after the second trial.
(FN18.) The defendant makes no argument that
his consent was involuntary. Hence, we
need not address whether his consent was "unfettered by coercion, express
or implied." Commonwealth v. Robinson, 399 Mass. 209,
217, 503 N.E.2d 654 (1987), quoting
Commonwealth v. Harmond, 376 Mass. 557, 561, 382 N.E.2d 203 (1978). See
Commonwealth v. Walker, 370 Mass. 548, 555, 350 N.E.2d 678, cert. denied,
429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976).
(FN19.) We further note that on appeal the
defendant has provided no indication what "different or further"
arguments could have been made regarding the pretrial motions had he obtained
the transcript.