|
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.
Appeals Court of Massachusetts,
Argued
Decided
Further
Appellate Review Denied
Further
Appellate Review Denied
[38 Mass.App.Ct. 396] Timothy M. Farris,
Louis P. Font,
Jill P. Furman, Asst. Dist. Atty., for Com.
Before PERRETTA, DREBEN and GILLERMAN, JJ.
PERRETTA, Justice.
On the
night of
1. The crimes. There was evidence to show that the victim
had gone to the home of her daughter and son‑in‑law because the
daughter was about to have a baby and was going to the hospital. The victim was to stay and care for her
fifteen month old granddaughter. After
the birth of his second child, the son‑in‑law returned home and
went to bed at about
Shortly
after turning out her light, the victim heard a noise in the kitchen. She got out of bed to investigate and saw a
man standing in the kitchen area of the apartment. The apartment was illuminated by the glow of
city lights coming through skylights in the kitchen area and near the pull‑out
couch. The victim saw that the man was
black, about six feet tall, and holding a knife. She also saw that he had very little hair; he was either bald, or he had shaved his
head. She later identified this man as
the defendant Rogers.
As Rogers
lunged and snarled that he would kill her if she did not get down on the couch,
the victim saw two other men. One was
black and the other lighter‑skinned.
Based upon her observations throughout her ordeal, she described the
darker and taller of these two men, the defendant Clemenson, as being youthful
in appearance, wearing sneakers and walking with a bouncy step. She described the third man, the defendant
Aguilar, as wearing a white tee shirt or jersey with letters and a cap or band
on his head. He was about five feet six
inches tall. The victim believed that,
because of this man's accent and mannerisms, he was Hispanic. (FN6)
[38 Mass.App.Ct. 398] Rogers again threatened to kill the
victim if she did not keep her eyes closed.
He demanded to know who was in the house and where any money was
kept. He sent Clemenson and Aguilar down
the hall and repeatedly threatened the victim.
When the men returned, Rogers told Aguilar, who also had a knife, to
watch the victim. The victim could hear
noise, drawers being opened and closed, coming from the upstairs level of the
apartment. When Rogers returned, he
ordered Aguilar out of the room.
Notwithstanding
Rogers's threats that he would stab the victim's eyes out if she made any
noise, the victim struggled for his knife and begged him not to harm her
granddaughter. Rogers scraped the tip of
the knife blade across the victim's abdomen, held her arms behind her back, and
raped her. While Rogers was atop her,
the victim saw Aguilar watching. She
pleaded for help, but Rogers ordered him away, completed the rape, taunted the
victim, and left the area. After Rogers,
it was Aguilar. The victim again pleaded
with him for help. He looked down the
hallway, approached the couch, and raped the victim.
While the
victim was being terrorized and assaulted, the son‑in‑law was being
held in his bedroom. He had been
awakened when two men entered the room, put a knife to his throat, and
threatened to kill him if he moved or made a sound. He described one of the men as tall, black,
and bald and the other as being "considerably shorter" and sounding
"Spanish." The men demanded
money and jewelry, but the son‑in‑law told them he had
neither. He directed them to his Bank of
New England ATM card in his wallet and told them the access code number.
After the
rapes, the victim was dragged into her son‑in‑law's room and
ordered to lie down on the bed next to him.
The victims remained where they were until the apartment became quiet,
about four to five minutes; then the son‑in‑law
called the police. When they arrived,
the victim told them that three men had broken into the apartment and that she [38 Mass.App.Ct. 399] had been raped by two of them. She described the three men as follows: a young, baldheaded, black man, about six
feet tall, and wearing a jersey; a black
man who "seemed young"; and a
light‑skinned Hispanic man who was the smallest of the three. As will be discussed below, when the
defendants were brought to the scene after their arrest, the victim was in an
ambulance with two attendants, her son‑in‑law, and her
granddaughter who was crying hysterically.
The victim was able to identify the men who raped her, Rogers and
Aguilar, but not the third man, Clemenson.
2. The motions to suppress. After six days of evidentiary hearings, the
motion judge denied all the motions to suppress without making written findings
of fact. As for the consequence of this
failure, see Commonwealth v. Lanoue,
392 Mass. 583, 586 n. 2, 467 N.E.2d 159 (1984).
a. The physical evidence. Boston police officer Kevin Rodday testified
that at 3:40 A.M., August 20, 1987, he was in his cruiser in front of the
police station on Berkley Street when information concerning the rape came over
his police radio. The dispatch included
the location of the crime and the fact that a Bank of New England ATM card had
been taken. Descriptions of the suspects
were also given. According to Rodday, he
was informed that the assailants were two black males, one being young, six
feet tall, medium build, shaved head, and wearing a jersey shirt. The second black male was said to be younger
than the first and wearing dark clothing.
Rodday also heard over his radio that an Hispanic male, smaller than the
other two men, was also involved. (FN7)
[38 Mass.App.Ct. 400] With these facts in mind, Rodday
drove to the Kenmore Square area to look for automatic teller machines. It was 3:55 A.M., when he arrived at the
intersection of Massachusetts Avenue and Boylston Street, which he knew to be
about eight blocks from the scene of the crime.
He saw an ATM in a building with a large, well‑lit, glass
foyer. There were three men in the
foyer: two black males, facing the
machine, and a short Hispanic, looking at him through the glass door. Rodday turned his cruiser around and pulled
along the curb in front of one of the glass doors. He could see that one of the black men was
about six feet tall and was wearing a striped jersey and a hat or cap. The second black man, who was wearing dark
clothing, appeared younger and thinner than the first.
Exiting
the foyer, the three men walked down Massachusetts Avenue and Rodday slowly
drove along directly behind them. After
they had gone about 100 feet, Rodday saw one of the men throw a shiny object to
the ground. After using his radio to
call for assistance, Rodday drove up onto the sidewalk in front of the
men. He got out of the cruiser and
ordered the men to stop. When additional
officers arrived, Rodday walked back to where the shiny object had been thrown
to the ground. He picked up the bank
card and verified that the name on the card was that of the son‑in‑law. The suspects were arrested, advised of their
Miranda rights, and searched. A red
kangol hat was taken from the defendant Rogers, (FN8) a silver calculator and
$300 in brand new twenty dollar bills with consecutive serial numbers were
taken from the defendant Clemenson, and a yellow AM/FM [38 Mass.App.Ct. 401]
Sony Walkman radio was removed from the defendant Aguilar's head. (FN9)
There is
no dispute that the victim and her son‑in‑law provided the
information heard by Rodday over his radio prior to the time he pulled up onto
the sidewalk and ordered the defendants to stop. See
Commonwealth v. Antobenedetto, 366 Mass. 51, 56, 315 N.E.2d 530 (1974);
Commonwealth v. Fraser, 410 Mass. 541, 545‑546, 573 N.E.2d 979
(1991). Notwithstanding the defendants'
insistence to the contrary, we deem it established that that information
included the facts that one of the assailants was Hispanic and that he was the
shortest of the three men. See note 7, supra.
For
purposes of decision, we accept the defendants' assertion that there was a
seizure the moment Rodday pulled up onto the sidewalk and ordered them to
stop. See Commonwealth v. Cao, 419 Mass. 383, 644 N.E.2d 1294 (1995). If at that moment Rodday was conducting a Terry stop, see Terry v. Ohio, 392 U.S. 1, 20‑22, 88 S.Ct. 1868, 1879‑1881,
20 L.Ed.2d 889 (1968), the stop was justified because he "had a reasonable
suspicion, based on specific, articulable facts and reasonable inferences, that
the defendant[s] had committed, w[ere] committing, or w[ere] about to commit a crime."
Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993),
and cases therein cited. The justified
stop was followed by the lawful retrieval of the discarded bank card. See
Commonwealth v. Battle, 365 Mass. 472, 475‑476, 313 N.E.2d 554
(1974);
Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 420, 433 N.E.2d 1234
(1982). After Rodday verified that the
card belonged to the son‑in‑law, there was probable cause to arrest
the defendants, see Commonwealth v.
Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992), and to search them
incident to the arrests. See Commonwealth v. Brillante, 399 Mass.
152, 154‑155 n. 5, 503 N.E.2d 459 (1987).
[1] Our
conclusion that the searches were lawful does not change even if the seizure is
deemed to constitute an arrest rather than a
Terry stop. See Commonwealth v. Willis, 415 Mass. at 819‑820, 616 N.E.2d
62. The only additional information
that Rodday learned subsequent to pulling up onto the sidewalk and [38 Mass.App.Ct. 402] ordering the men to stop was that the
shiny object thrown to the ground was in fact the son‑in‑law's bank
card. We conclude that Rodday had
probable cause to arrest the defendants even in the absence of knowledge of
that potent fact. Rodday knew that a
bank card had been taken by three men;
three men were at a bank machine at 4 A.M., a short time after the
crime; the bank was about eight blocks
from the crime scene; each of the three
men fit the descriptions of the assailants;
while in the bank foyer, one of the men saw Rodday watching them; when Rodday followed the suspects, one of
them threw a shiny object to the ground.
"Probable cause does not require a showing that the police resolved
all their doubts. 'What had to be shown
was more than a suspicion of criminal involvement, something definite and
substantial, but not a prima facie case of the commission of a crime, let alone
a case beyond a reasonable doubt.' Commonwealth v. Bond, 375 Mass. 201, 210
[375 N.E.2d 1214] (1978)." Commonwealth v. Hason, 387 Mass. 169,
175, 439 N.E.2d 251 (1982). See also Commonwealth v. Santaliz, 413 Mass. at
241, 596 N.E.2d 337. As there was
probable cause to arrest, the searches that followed were lawful. See
Commonwealth v. Brillante, 399 Mass. at 154‑155 n. 5, 503 N.E.2d 459.
b. The identifications. Once the victim and her son‑in‑law,
who was trying to quiet his crying daughter, were in the ambulance, the police
said that they had three suspects that they wanted the victim to see. When the police van arrived with the
defendants, it parked about twenty‑five feet ahead of the ambulance
facing in the opposite direction so that its rear doors faced those of the
ambulance. There were at least four
officers standing about the ambulance and the van. The three suspects were taken out of the van
and then each was separately brought to the rear windows of the ambulance. Some witnesses remembered the suspects being
in handcuffs, others did not.
None of
the several officers who testified at the hearing could remember the victim's
exact statements concerning her identification of the suspects. They all testified that she said words to the
effect that "I think that's them," "It looks like them,"
and "Could be, looks like him."
Two of the officers [38
Mass.App.Ct. 403] were more intent
upon listening to an inculpatory statement being made by the defendant Rogers,
as will be discussed below.
[2] It was
the victim's testimony, however, that although she could not remember exactly
what she told the police when she saw each of the three men, she could remember
that she recognized two of them, the two who had raped her, the defendants
Rogers and Aguilar. She testified that
when the men had told her to keep her eyes closed, she had looked at them
whenever she was flicked with a knife, during the rapes, and as she was being
dragged to her son‑in‑law's room.
She also testified that even though she told the police that she could
not identify the third man based upon what she saw of him in the apartment, she
was "pretty sure" about him.
She explained: "I would have
been positive, I think, if there hadn't been so much noise inside the ambulance
and my own state at that point."
When the
son‑in‑law, who was seated further back in the ambulance trying to
calm his hysterically crying daughter, was asked if he recognized any of the
men, he could not do so. Additionally,
because he was tending to his child and not listening to the
victim, he did not know what she told the police upon seeing each of the men.
"In
order to suppress identification testimony the defendant[s] must show that the
procedures employed, viewed in the totality of the circumstances, were so
unnecessarily suggestive and conducive to mistaken identification as to deny
the defendant[s] due process of law." Commonwealth v. Leonardi, 413 Mass. 757,
760‑761, 604 N.E.2d 23 (1992). The
one‑on‑one confrontation was conducted promptly, see Commonwealth v. Barnett, 371 Mass. 87,
92‑93, 354 N.E.2d 879 (1976), and without suggestive statements by the
police. Even had the victim been
informed that the men were suspects (she testified that the police said only
that they wanted to determine whether she could identify three people), she
would have been hard put not to realize that the men were suspects. See
Commonwealth v. Hicks, 17 Mass.App.Ct. 574, 583, 460 N.E.2d 1053 (1984) (
"The witness knows he would not be asked to make an identification unless
the police[38 Mass.App.Ct. 404]
had reason to suspect the detainee's involvement"). Compare
Commonwealth v. Harris, 395 Mass. 296, 299, 479 N.E.2d 690 (1985)
("Some elements of suggestiveness are inherent in all such
confrontations. The police officer's
statement to the victim that they would be bringing someone in who matched the
description she had given was not so suggestive as to make the confrontation
unfair.").
Moreover,
even if the police presented the suspects wearing handcuffs (the victim
testified that she did not remember seeing any), we would not deem that
procedure, in light of the totality of the circumstances, so unnecessarily
suggestive as to require suppression of the identification. See
Commonwealth v. Bowden, 379 Mass. 472, 479, 399 N.E.2d 482 (1980), where no
special element of unfairness was found in the identification of the defendant
as he sat in a police station detention cell.
Nor do we think it impermissibly suggestive to have shown the victim the
three suspects "together." It
is clear from the victim's testimony in its entirety, that even if at some
point she saw the suspects standing "together," she nonetheless
looked at each individually, irrespective of whether they were brought forward
as a group or, as the officers testified, one by one. (FN10)
Notwithstanding
the possibility of some inherent suggestiveness in the victim's one‑on‑one
confrontation of the defendants, there are numerous factors which attest to the
reliability of her identification of them.
There was sufficient opportunity for the victim to observe two of the
three men during the very commission of the rapes, and the lighting was
adequate. See Neil v. Biggers, 409 U.S. 188, 200‑201, 93 S.Ct. 375, 382‑383,
34 L.Ed.2d 401 (1972); Commonwealth v. Hicks, 17 Mass.App.Ct. at
578‑579, 460 N.E.2d 1053, and cases therein cited. Prior to the show‑up, she had given a
general description of the assailant she had the least opportunity to observe
and whom she declined to identify. On
the other hand, the victim had provided the police with [38 Mass.App.Ct. 405]
greater details concerning the two men who raped her and who she stated she
recognized at the confrontation. See Commonwealth v. Moon, 380 Mass. 751,
756‑757, 405 N.E.2d 947 (1980).
When the suspects were apprehended on the basis of her descriptions,
they were in possession of items taken from the son‑in‑law. See
Commonwealth v. Hicks, 17 Mass.App.Ct. at 581‑582, 460 N.E.2d
1053. On these considerations, we
conclude that there was no error in the denial of the motions to suppress the
victim's extrajudicial identifications.
c. Rogers's statement. When the police arrested the defendant
outside the bank, they gave him his Miranda warnings. While at the show‑up on Marlborough
Street, he indicated he wanted to make a statement. Miranda warnings were again given before the
defendant stated: "I did the B and
E but I didn't do the rape. The other
two did the rape. I was in the room with
... [the son‑in‑law]."
After making this statement, which, as will be seen below, the
Commonwealth did not offer in evidence at trial, the defendant was brought to
the police station and again, given his Miranda
warnings. He said that he wanted to talk
with the officers and essentially repeated his earlier admission.
[3] Almost
ten hours after his arrest, the defendant was brought to another part of the
police station, the identification unit, for fingerprinting. Although the defendant had been fingerprinted
at the time of his booking, this second process was more extensive and included
palm and hand prints. In the course of
this additional process, the defendant asked the identification unit officer,
"Why all these fingerprints?"
The officer responded that the police "might have some prints at
the apartment pertaining to the case evidently and we want to see if we can
match any other prints to your prints."
Then came the statement here in issue:
"What for? They already
know that I was in the apartment."
The defendant advances several grounds for his claim that the statement
should have been suppressed.
Contrary
to the defendant's assertion,
Commonwealth v. Mahnke, 368 Mass. 662, 686, 335 N.E.2d 660 (1975), cert.
denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976), does not require
suppression of that statement. [38 Mass.App.Ct. 406] There the court explained:
"The cat‑out‑of‑the‑bag line of analysis
requires the exclusion of a statement if, in giving the statement, the
defendant was motivated by the belief that, after a prior coerced statement, his effort to withhold further information
would be futile and he had nothing to lose by repetition or amplification of
the earlier statements. Such a statement
would be inadmissible as the direct product of the earlier coerced statement."
(Emphasis supplied.) See also Commonwealth v. Smith, 412 Mass. 823,
593 N.E.2d 1288 (1992). The defendant
does not and cannot argue that his earlier statements, "I did the B and E
but I didn't do the rape," were coerced or otherwise illegally
obtained. We see no logic in the
defendant's claim that the cat‑out‑of‑the‑bag line of
analysis is nonetheless applicable to the subsequent statement because the
Commonwealth failed to offer the earlier voluntary admissions in evidence.
Even were
we to assume that the thrice‑given warnings of less than ten hours past
were not sufficient to advise the defendant of his rights at the time of the
extensive fingerprinting process, compare
Commonwealth v. Silva, 388 Mass. 495, 502‑503, 447 N.E.2d 646 (1983),
we would have no basis for concluding that the statement should be
suppressed. "The defendant's
statements made directly to a police officer were not solicited and, therefore,
were admissible. See Commonwealth v. Lanoue, 392 Mass.
[at 588, 467 N.E.2d 159]; Commonwealth v. Doucette, 391 Mass. 443,
449 [462 N.E.2d 1084] (1984)." Commonwealth v. Trigones, 397 Mass. 633,
643, 492 N.E.2d 1146 (1986).
Nor do we
see anything in the second and more extensive fingerprinting process or in the
officer's response to the defendant's inquiry about that process which would
lead us to conclude that the defendant was subjected to the "functional
equivalent" of express questioning.
See Rhode Island v. Innis, 446
U.S. 291, 300‑301, 100 S.Ct. 1682, 1689‑1690, 64 L.Ed.2d 297
(1980). Although there is fleeting
reference in the transcript to the fact that additional prints were taken
pursuant to a court order, there is nothing that explains when, how, or why the
order was obtained. The process did not
become interrogation simply by reason of the order. See
Commonwealth v. D'Entremont, 36 Mass.App.Ct.[38 Mass.App.Ct. 407] 474, 479, 632 N.E.2d 1239 (1994) (officer's
statement of availability should the defendant want to talk was "neither
confrontational nor inquisitional").
Compare Commonwealth v. Rubio,
27 Mass.App.Ct. 506, 511‑514, 540 N.E.2d 189 (1989) (showing of cocaine
found in the defendant's apartment to him while he sat in kitchen chair
surrounded by police was the equivalent of asking him whether it was his).
During
trial, the defendant argued that he was entitled to another hearing concerning
the voluntariness of the statement, and testimony substantially similar to that
presented at the suppression hearing was presented. In claiming that his statement was not
voluntarily made, the defendant pointed to the facts that he was booked at 5
A.M., interrogated, and then, at about 1:30 P.M., subjected to an unusual
fingerprinting process. At the
conclusion of that hearing, the trial judge specifically found that the
statement was "totally unsolicited," that it was not the product
of police "coercion or overreaching," and that it was made "by
an adult person in apparent full possession of his faculties." Simply put, we see no basis in the evidence
which would have permitted the conclusion that the defendant's statement was
involuntary.
3. Rogers's motion to sever. (FN11)
After their arrests, both Rogers and Aguilar made statements inculpating
themselves and each other. As earlier
noted, Rogers said, "I did the B & E but I didn't do the rape. The other two did the rape." Aguilar first told the police that Rogers
and Clemenson forced him to rape the victim but later asserted that the victim
had consented to intercourse with him.
When the Commonwealth represented that it did not intend to use these
statements, the trial judge denied the defendants' motion to sever. See
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968).
It is
Rogers's contention that resolution of the
Bruton issue did not obviate the need for severance. He argues that because there was evidence to
show that the victim was raped by two of three men, each defendant necessarily
had to say that the other defendants were the rapists. See
Commonwealth[38 Mass.App.Ct. 408]
v. Moran, 387 Mass. 644, 659, 442 N.E.2d 399 (1982), holding that
severance should have been granted under Mass.R.Crim.P. 9(d)(1), 378 Mass. 859
(1979), where the "only realistic escape for either defendant was to blame
the other." The defendant further
claims that although severance should have been granted at the outset, his
right to a separate trial became all the greater after the defendant Clemenson
pleaded guilty in the middle of trial.
There was, however, no renewal of the motion to sever by the defendant,
and the sole question before us is whether at the time of the ruling on the
motion, the necessity for severance had been firmly established.
Commonwealth v. Moran, 387 Mass. at 659‑660, 442 N.E.2d 399.
[4] We
begin by noting that it is not accurate to state that the Commonwealth's theory
of guilt was simply that the victim had been raped by two of the three
defendants. Rather, the Commonwealth's
position from the outset was that the victim had been raped by, specifically,
Rogers and Aguilar and that Clemenson's liability was as a joint venturer. Although the victim's ability and opportunity
to identify the men in the apartment was challenged on cross‑examination,
she was particular and steadfast in her testimony that she was raped first by
the defendant Rogers and then by the defendant Aguilar and that it was the very
rapes which provided her with a greater opportunity to observe them than the
defendant Clemenson. Compare Commonwealth v. Moran, 387 Mass. at
659, 442 N.E.2d 399, where the evidence showed that "at least one
defendant, but not necessarily both of them, robbed and killed" the
victim. The evidence in the instant case
cannot be viewed as "creating 'a danger that the jury will feel compelled to
choose between defendants rather than to assess the proof against each
defendant separately.' " Commonwealth v. Cordeiro, 401 Mass. 843,
853, 519 N.E.2d 1328 (1988), quoting from
Commonwealth v. Moran, 387 Mass. at 659, 442 N.E.2d 399. See also
Commonwealth v. Mahoney, 406 Mass. 843, 849, 550 N.E.2d 1380 (1990). (FN12)
[38 Mass.App.Ct. 409] As an additional claim of prejudice,
Rogers argues that the joint trial deprived him of the benefit of his
statement, "I did the B & E but I didn't do the rape ... [t]he other
two did," which, he argues, would have explained his subsequent
inculpatory remark, "They already know that I was in the
apartment." This claim, however,
was never raised by Rogers in arguing his motion for severance. Rather, he moved for severance on the grounds
of antagonistic defenses, see
Commonwealth v. Moran, supra, and the inculpatory statements made by the
defendant Aguilar, see Bruton v. United
States, supra. "In such
circumstances the test is whether there was an error that created a substantial
likelihood of a miscarriage of justice.
See Commonwealth v. Dias, 405
Mass.
131, 137 [539 N.E.2d 59]
(1989)." Commonwealth v. Viriyahiranpaiboon, 412
Mass. 224, 230, 588 N.E.2d 643 (1992).
Use of
this statement at trial would have been inconsistent with Rogers's trial
strategy. In his opening statement which
immediately followed that made by the Commonwealth, counsel for Rogers
announced his theory of defense to the jury:
there was no evidence connecting him to any of the crimes and the case
was one of mistaken identification.
Cross‑examination of the Commonwealth's witnesses was devoted to
the victim's ability and opportunity to observe her assailants, the accuracy of
the transmission of her descriptions of them to the arresting officers, and her
identification of them at the show‑up.
The defendant's inculpatory statement at the time of his second
fingerprinting, "They already know that I was in the apartment," was
characterized and construed in closing argument as a normal response of someone
who had been mistakenly identified and wrongfully arrested, that is to say, if
the police were so smart and knew that he was in the apartment, then why did
they need all the fingerprints?
Further,
the record does not support the defendant's assertion that the statement was
exculpatory. There was an abundance of
evidence to show that Rogers was one of the three assailants. In addition to the previously recited evidence,
there was testimony from a resident of a building adjacent to [38 Mass.App.Ct. 410] the Marlborough Street apartment that
at about 3:30 A.M., on the morning in question, he saw a black male wearing a
red hat, see note 8, supra and
accompanying text, jump over his back wall and run across his courtyard. Even accepting Rogers's assertion that the
victim's identification of him as one of the two rapists was weak or mistaken,
his statement admitting to his presence in the apartment but denying his rape
of the victim could not be helpful to his defense under any circumstances. When that statement is considered with the
evidence in its entirety, it inculpates him as a joint venturer in the
rape. We conclude that, even though the
joint trial precluded Rogers from putting his statement to any use, the trial
judge's denial of the motion to sever did not create a substantial risk of a
miscarriage of justice. See Commonwealth v. Best, 381 Mass. 472,
488‑489, 411 N.E.2d 442 (1980); Commonwealth v. Smith, 418 Mass. 120, 634
N.E.2d 1380 (1994).
Judgments affirmed.
(FN1.) Four are against Steven T. Rogers; five are against Magno A. Aguilar.
(FN2.)
In order to avoid confusion, we refer to the second victim as the son‑in‑law.
(FN3.)
Breaking and entering a dwelling house in the nighttime with the intent to
commit a felony and therein arming himself with a dangerous weapon, aggravated
rape, armed assault on a person sixty‑five years or older with the intent
to rob, assault and battery by means of a dangerous weapon on a person sixty‑five
years or older, and armed robbery.
(FN4.)
The third defendant, Andrew Clemenson, pleaded guilty in the course of the
trial.
(FN5.)
Although we have considered numerous other claims raised by the defendant
Aguilar, those issues warrant no discussion beyond that set out in the
Commonwealth's brief.
(FN6.)
At some point before this man raped the victim, he told her that he would not
hurt her. That statement led the victim
to believe the man was Spanish because:
"I was hoping from his manner that he had sort of an inherent
respect for age that I associate with the Spanish. And when he had said that he would not hurt
me‑‑it was just the way he said it and I felt this."
(FN7.)
In that portion of their briefs dedicated to the motions to suppress, the
defendants argue that the radio dispatcher at the police turret relayed
information concerning two black males only and made no reference to an
Hispanic. That argument is based upon
the contents of the turret tapes.
Although it appears from the transcripts of the hearing on the motions
that the tapes, or portions of them, were played at the hearing, there is no
transcription of the contents. Even
assuming that the turret tape recording of the radio dispatch was silent on the
issue of whether an Hispanic male was involved in the crimes, Rodday testified at
the hearing that he could hear on his radio information being relayed to the
dispatcher at the turret by the officers who were at Marlborough Street. See
Commonwealth v. Lanoue, 392 Mass. at 588, 467 N.E.2d 159 ("In the
absence of subsidiary findings, we assume that the judge's determination of
credibility was adverse to the losing party, the defendant"). Moreover, one of the officers at Marlborough
Street testified at both the hearing and the trial that he used his walkie‑talkie
and "broadcasted over the air," that is, to "all the cars out on
the street, as well as the dispatcher," the victim's description of her
assailants, which included reference to an Hispanic male who was the smallest
of the three men. The motion judge's
ruling implies that she accepted the testimony of the officers. See
Commonwealth v. Lanoue, 392 Mass. at 586 n. 2, 467 N.E.2d 159.
(FN8.)
Rodday explained that a kangol cap is a "cloth, almost like a felt‑type
soft cap that has a brim that comes down."
(FN9.) After the crimes, the son‑in‑law
discovered that, in addition to his bank card, his calculator and Sony Walkman
radio had been taken.
(FN10.) Additionally, the son‑in‑law
testified that, although he was busy with his daughter while the men were being
shown to the victim, he "assum [ed]" that they were shown to her in
the same manner as to him, that is, "separately."
(FN11.) Although Aguilar also sought
severance, he does not argue this issue on appeal. See Mass.R.A.P. 16(a)(4), as amended, 367
Mass. 921 (1975).
(FN12.) It follows from this conclusion that
the result would be no different even had the defendant Rogers renewed his
motion for severance at the time of the defendant Clemenson's plea.