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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. Rancourt, 399
Supreme Judicial Court of Massachusetts,
Argued
Decided
Kenneth G. Littman,
Dana A. Curhan, Asst.
Dist. Atty., for Com.
Before [399
ABRAMS, Justice.
After
trial by jury, the defendant, Michael A. Rancourt,
was convicted of aggravated rape, G.L. c. 265, §
22(a) (1984 ed.); kidnapping, G.L. c. 265, § 26 (1984 ed.); and assault by means of a dangerous weapon, G.L. c. 265, § 15B (1984 ed.). The defendant appealed his convictions to the
Appeals Court, asserting that (1) the judge erred in denying his motion to suppress
evidence obtained from him by a fellow inmate, while he was incarcerated for
failure to post bail; (2) the judge
erred in admitting evidence of a previous incident involving the
defendant; (3) the judge erred in
submitting to the jury prior to presentation of the defendant's case a letter
written by the defendant; and (4) the
judge erred in denying defense counsel's request for a presentence
report. We transferred the case to this
court on our own motion. We affirm.
We
summarize the evidence. (FN1) On
Approximately
a half hour later, the victim left the highway at the same place. As she waited at the red light, the defendant
jumped into her automobile. The victim
saw something slim and metal in the defendant's hand. The defendant told her that it was a knife.
[399
The
defendant then forced the victim to perform oral sex on him. He then performed oral sex on the
victim. In addition, he tried to force
the victim to sit on the stick shift of the automobile. The defendant ordered the victim to lie
across the seat, and he attempted to rape her.
The defendant told the victim to get out of the automobile. Once outside, the defendant raped the victim.
The victim
noticed a light turning on and off in the house behind the hedges. After the rape, as she began to get dressed,
she asked the defendant to look under the automobile seat for her sneaker. While he looked, she ran toward the
house. The owner of the house let her in
and called the police.
The
defendant, testifying on his own behalf, stated that after a night out in
Providence, his automobile would not start.
Trying to find a ride home to Fall River, he walked to West Exchange
Street. He watched some automobiles go
by, and he then approached one, with two women inside, to ask for
cigarettes. The women pulled away.
The
defendant later approached a second automobile, that of the victim. The defendant's testimony from this point
corroborated much of the victim's testimony:
he testified that he entered the automobile in Providence; that he told the woman to take Route
195; and that he told her to leave it at
Westport, and to turn onto the dimly lit street. He also confirmed that they engaged in oral sex
and sexual intercourse. However, he
contended that the victim consented to the sexual activity.
[1] 1. Motion to suppress evidence obtained from
fellow inmate. After his arrest, the
defendant was incarcerated in lieu of bail.
While incarcerated, he wrote a letter describing the incident to a
fellow prisoner at the request of that prisoner. The defendant moved to suppress the
letter. After making oral findings, [399 Mass. 272] the judge denied the motion.
The defendant argues it was error to deny his motion. He asserts that the letter was obtained from
him "without [his] knowledge or consent by an inmate, acting as an agent
of the Commonwealth." Such conduct,
he asserts, violates his Fifth and Sixth Amendment rights.
The
judge's oral findings are as follows.
The defendant was placed in the New Bedford house of correction on
August 3, 1984. A day or two later, he
met another inmate, George Thompson.
Thompson asked the defendant why he was there, and the defendant spoke
freely with Thompson about his cases.
(FN2) The defendant told Thompson
that he raped the victim.
After
these conversations, Thompson telephoned Massachusetts State Trooper Kenneth Candias, whom Thompson had known for seven to eight
years. Thompson had provided Trooper Candias information from time to time. Thompson spoke to the trooper, and the
trooper told him he would arrange a meeting between Thompson and the assistant
district attorney handling the case against the defendant. The assistant district attorney arranged for
Officer Russell Hauge of the Fall River police
department and Officer John Gifford of the Westport police department to meet
with Thompson at the house of correction.
(FN3) Thompson told Officer Hauge what the defendant had said about the Westport case. Officer Hauge told
Thompson [399 Mass. 273] that if he obtained any other
information and wanted to relay that information, he should telephone or write
to the district attorney's office.
After his
discussion with Officer Hauge, Thompson sent a letter
to the defendant via a system, devised by the two men, of bedsheets
tied together which extended from Thompson's cell to the defendant's cell. In his letter, Thompson suggested to the
defendant that he tell Thompson the details of the early morning of August 2 so
that Thompson could assist him in contriving an alibi. The judge found that Thompson was trying to
deceive the defendant into providing information. The defendant wrote a letter to Thompson
detailing the incident. Later the
defendant asked Thompson to return the letter, but Thompson told him that he
had flushed it down the toilet. In fact,
Thompson had forwarded the letter to the trooper.
Based on
these facts, the judge found that, although Thompson hoped to gain favorable
treatment for his information, he was not an agent of any law enforcement
official. He further found that the
defendant was not coerced into writing the letter. (FN4)
The defendant argues that Thompson was an agent of the government when
he requested and received the letter from the defendant.
The
determination as to the relationship between the law enforcement officials and
Thompson is a factual one, but "beyond this factual determination ... is
[the] legal question ... whether the relationship or understanding as found by
the [judge] is such that the informant's questioning has to be considered
governmental interrogation for constitutional examination."
United States v. Surridge, 687 F.2d 250,
252
(8th Cir.), cert. denied,
459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 614
(1982). While we give substantial
deference to the judge's ultimate findings, "we make our own [399 Mass. 274] independent determination on the correctness of the judge's
'application of constitutional principles to the facts as found....' "
Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977),
quoting Brewer v. Williams, 430 U.S.
387, 403, 97 S.Ct. 1232, 1241, 51 L.Ed.2d 424 (1977).
Thompson's
sentence was revised. He was released
two and one half months prior to the date originally scheduled for his
release. (FN5) However, there is no evidence of any promises
made to Thompson by law enforcement officials prior to Thompson's written
communication with the defendant.
(FN6) An individual's actions
will not be attributed to the State if no promises are made for that
individual's help and if nothing was offered to or asked of that
individual. See Thomas v. Cox, 708 F.2d 132, 133 (4th Cir.), cert. denied, 464
U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983);
United States v. Franklin, 704 F.2d 1183, 1190 (10th Cir.), cert.
denied, 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137
(1983). See also United States v. Surridge, supra at 254;
United States v. Van Scoy, 654 F.2d 257,
261 (3d Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct.
977, 71 L.Ed.2d 114 (1981). Simply
because Thompson provided the letter "from an unencouraged
hope to curry favor" does not characterize him as an agent of the
government. Thomas v. Cox, supra at 136. The fact that Thompson later received a
benefit from law enforcement officials "has little, if any, relevance to
the question whether [he] was a government agent at the times he and the
defendant [communicated]." Commonwealth v. Rodwell,
394 Mass. 694, 698, 477 N.E.2d 385 (1985).
We conclude that the judge's findings in this case [399 Mass. 275] are
supported by the evidence and that the judge's ruling that Thompson was not an
agent therefore is not erroneous. (FN7)
2. Evidence of the defendant's prior act. The defendant asserts that the trial judge
erred in admitting the testimony of his prior misconduct. He bases his argument on two grounds: (a) the evidence of the prior act was
improperly admitted as character evidence showing the propensity of the
defendant to commit criminal acts; and
(b) the testimony of the witnesses who described the prior act contained
improper identification evidence.
[2] a. The propensity theory. The defendant did not object to the
testimony of Donna Ceseretti, the first of the two
women to testify about the incident that occurred approximately a half hour
before the defendant entered the victim's car.
(FN8)
Evidence
of prior bad acts, while inadmissible for the purpose of proving bad character
or a propensity to commit crimes, is admissible if relevant for some other
purpose. See Commonwealth v. Bradshaw, 385 Mass. 244, 269, 431 N.E.2d 880
(1982);
Commonwealth v. Imbruglia, 377 Mass. 682,
695, 387 N.E.2d 559 (1979); P.J. Liacos, Massachusetts
Evidence 420‑421 (5th ed. 1981).
If "evidence is not too remote in time, or is connected with the
facts of the case, it may be admitted to establish 'knowledge, intent, motive,
method, material to proof of the crime charged.' " Commonwealth v. Imbruglia, supra at 695, 387 N.E.2d 559, quoting Commonwealth v. Murphy, 282 Mass. 593,
598, 185 N.E. 486 (1933). Evidence that
the defendant attempted forcibly to enter an automobile in which [399 Mass. 276] two women were riding shortly before he entered the victim's
automobile tends to prove that at the time the defendant entered the victim's
car, he did so by force. It also is
relevant on the critical issues of intent, motive, and consent. There was no error. See
Commonwealth v. Harvey, 397 Mass. 803, 809‑810, 494 N.E.2d 382
(1986);
Commonwealth v. Schoening, 379 Mass. 234,
242, 396 N.E.2d 1004 (1979). (FN9)
[3] b. The identification testimony. At trial the defendant made an opening
immediately after the Commonwealth's opening.
In his opening, he conceded the correctness of the defendant's
identification and told the jurors that the defense was consent. (FN10)
On appeal, the defendant makes an elaborate argument as to the
identification of the defendant by the two witnesses whose automobile he first
tried to enter. This he cannot do. "The theory of law on which by assent a
case is tried cannot be disregarded when the case comes before an appellate
court for review...." Commonwealth v. Fernette,
398 Mass. 658, 667, 500 N.E.2d 1290 (1986), quoting Santa Maria v. Trotto, 297 Mass. 442,
447, 9 N.E.2d 540 (1937). See Commonwealth v. Lewis, 346 Mass. 373,
383, 191 N.E.2d 753 (1963), cert. denied, 376 U.S. 933, 84 S.Ct.
704, 11 L.Ed.2d 653 (1964).
[399 Mass. 277] [4] 3. The timing of the
submission to the jury of the defendant's letter. The defendant asserts that the submission of
his letter to the jury prior to the presentation of his case placed undue
emphasis on the exhibit and thus was an abuse of discretion by the judge. (FN11)
We do not agree.
"The
order of the presentation of evidence is within the sound discretion of the
trial judge." Boyd v. Lawrence Redevelopment Auth., 348
Mass. 83, 84, 202 N.E.2d 297 (1964). See Commonwealth v. Flynn, 362 Mass. 455,
468, 287 N.E.2d 420 (1972). A
"judge has broad discretion in determining the method by which evidence is
brought to the jury's attention." Commonwealth v. Amazeen,
375 Mass. 73, 84, 375 N.E.2d 693 (1978). The judge reasonably could conclude that the
most efficient use of courtroom time was to submit the letter to the jurors as
he did. There was no error.
[5] 4. The denial of defense counsel's request for
a presentence report. The defendant asserts that the denial of his
request for a presentence report violated Mass.R.Crim.P. 28 (b
), (d ) (2), 378 Mass. 898 (1979),
and his due process rights.
After the
jury returned its verdicts, the prosecutor moved for sentencing. Defense counsel requested that the case be
continued to allow time for the probation department to prepare a presentence report.
The judge denied this request but gave defense counsel an opportunity to
present mitigating factors orally, which defense counsel did. Defense counsel argued that the defendant
graduated from high school, had worked for the five years prior to his arrest
at a furniture store in Fall River, had never served any time in prison, and is
the father of a baby boy.
Massachusetts
Rule of Criminal Procedure 28 (b )
provides that "[b]efore imposing sentence the
court shall afford the defendant or his counsel an opportunity to speak on
behalf of the defendant and to present any information in mitigation of
punishment." The judge in this
case did adhere to the rule, allowing defense counsel to present mitigating
factors. The [399 Mass. 278]
defendant's lack of a prison record was made clear. Thus, there was no violation of the rule or
its underlying policy. Moreover, because
counsel had the opportunity to speak on behalf of the defendant, the
defendant's right of allocution‑‑the right to present mitigating
factors prior to sentencing‑‑was not violated by the denial of a
continuance for preparation of a presentence
report. See Commonwealth v. Rosadilla‑Gonzalez,
20 Mass.App.Ct. 407, 414, 480 N.E.2d 1051
(1985). See generally, Hill v. United States, 368 U.S. 424,
428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); Ashe
v. North Carolina, 586 F.2d 334 (4th Cir.1978), cert. denied, 441 U.S. 966,
99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979);
United States v. Leavitt, 478 F.2d 1101, 1104 (1st Cir.1973).
Judgments affirmed.
(FN1.) We relate additional facts in our
discussion of the specific claims of error.
(FN2.)
The defendant also talked to Thompson about another rape case against him.
The
defendant's motion requested that the letter be suppressed. At the hearing, defense counsel reasserted
that he contested only the admissibility of the letter. After the judge's ruling on the motion to
suppress defense counsel contested the admissibility of the oral
statements. The judge found beyond a
reasonable doubt that the statements were made voluntarily. Thompson clearly was not an agent when the
defendant originally spoke to him, because Thompson had not yet spoken with law
enforcement officials. There is no
record support for a finding of involuntariness of the oral statements other
than the defendant's claim of Thompson's status as a government agent. There was no error in admitting the oral
statements. See, e.g., Commonwealth v. Allen, 395 Mass. 448,
453‑455, 480 N.E.2d 630 (1985); Commonwealth v. Paszko,
391 Mass. 164, 176, 461 N.E.2d 222 (1984).
(FN3.) Only Officer Hauge
was admitted to the house of correction, apparently because the rules of the
house of correction do not permit officers in uniform to speak with
prisoners. Officer Gifford was in
uniform.
(FN4.) The defendant at both the hearing and
the trial claimed that Thompson coerced him by threatening to harm the
defendant's pregnant girlfriend. The
defendant claimed that, as a result of the threats and coercion, he had no
choice but to supply Thompson with the information. The judge disbelieved this testimony. The trial judge, not this court, has the
function of determining the credibility of testimony. See
Commonwealth v. Fernette, 398 Mass. 658, 663 n.
9, 500 N.E.2d 1290 (1986).
(FN5.) The record indicates that Thompson's
parole eligibility was contingent on a warrant lodged against him for damage to
a jail cell being nol prossed. The charge was nol prossed and the warrant withdrawn. The law enforcement officials said that they
were not aware of the outstanding warrant until after Thompson turned the
letter over to them. The judge's
findings indicate that he believed the officers on this point because he found
no promises were made to Thompson by any law enforcement official.
(FN6.)
Thompson testified at the hearing that he told the trooper that he was afraid
to testify at the defendant's trial if he were still in prison. It appears from the record that Thompson told
the trooper this after he had turned over the letter written by the
defendant. Furthermore, the trooper did
not respond at that point by offering to try to arrange an early release for
Thompson. The record indicates that the
release was arranged after the evidence was obtained and was intended to
minimize the risks of having Thompson testify against a fellow inmate.
(FN7.) The letter written by the defendant to
Thompson is similar to the defendant's testimony in that it describes the
victim's conduct as consensual. The only
prejudicial portion of the letter is in the last page, where the defendant
wrote, "I'm gonna tell the jury that when I got
into the car that she asked me if I had money and I'm gonna
tell them that she said later on to pay her if I didn't she would get me in
trouble."
(FN8.) Nor did the defendant object to the
testimony of Rhonda Nardolillo, the second woman to
testify as to the incident, on the ground that the testimony contained
impermissible character evidence. He
only moved to strike her testimony based on the fact that the identification
was unreliable. See note 10 infra.
The objecting party should "make[ ] known to the court the action
which he desires the court to take or his objection to the action of the
court." Mass.R.Crim.P.
22, 378 Mass. 892 (1979).
(FN9.) The defendant relies on Commonwealth v. Yelle,
19 Mass.App.Ct. 465, 475 N.E.2d 427 (1985). In that case, the Appeals Court held that the
admission of evidence that the defendant in a rape case had offered a ride to a
young girl, who refused the ride, approximately twenty minutes before he
offered a ride to the victim was error.
In that case, the prior act provided no evidence of force. The defendant's attempt to enter forcibly the
two women's automobile a half hour prior to the incident in the instant case
bears on the issues of intent, the defendant's state of mind, and consent.
(FN10.) Consistent with this trial strategy,
the defendant did not object to the introduction of the photographic array that
had been shown to the two women or to the identification of the defendant by
one of the two women. Defense counsel
moved to strike the identification of the second woman because she lacked an
adequate opportunity to observe the defendant for identification purposes. The defendant's cross‑examination of
that witness exposed the defects in her opportunity to observe.
We
note that the issue in identification cases is not whether "the witness
was or might be mistaken but whether any possible mistake was or would be the
product of improper suggestions made by the police." Commonwealth v. Paszko, 391 Mass. 164, 172, 461 N.E.2d 222 (1984),
quoting Commonwealth v. Gordon, 6 Mass.App.Ct. 230, 237, 374 N.E.2d 1228 (1978). There is no evidence of improper suggestions
made by police in this record.
(FN11.) The judge carefully instructed the
jurors in substance that he did not want them to feel "pressured"
while reading the letter and that they should not attach any significance to
the manner in which this exhibit was presented to them.