Opinion
No. 09–P–2315.
08-10-2016
COMMONWEALTH v. Andre Mark PACE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Andre Mark Pace, appeals from multiple convictions of rape, assault with intent to rape, and indecent assault and battery, and from the denial of his motion for new trial. We affirm.
1. The victims' treatment records. The defendant argues that the trial judge erred when he excluded treatment records and expert testimony interpreting the records. The defendant had moved in limine to admit the evidence in an effort to impeach the victims. In a thorough memorandum, the judge explained that the material was not admissible because the records did not show that the victims suffered from any mental illness or cognitive deficits that would interfere with their ability to perceive, recollect, or report the attacks. There was also no expert opinion offered suggesting such difficulties. The judge properly excluded the records and testimony. See the judge's memorandum of decision on the defendant's motion in limine at pages six through ten and the reasoning and authorities cited therein. Moreover, as noted in the Commonwealth's brief at page nineteen, defense counsel was able to impeach the victims during cross-examination by exploiting inconsistencies in their testimony.
2. The defendant's decision not to testify. The defendant argues that he faced an improper “ultimatum” because he was compelled by the judge to testify before the conclusion of his case or forgo testifying. The interchanges that the defendant now describes as an ultimatum were, in fact, scheduling discussions. During the discussions the defendant informed defense counsel that he wanted to testify that day. Defense counsel told the judge that the problem had “resolved itself.” The defendant raised this issue in his motion for new trial. The motion judge, who was also the trial judge, analyzed the defendant's decision to testify and whether he was prejudiced because he testified before his final witness, an expert, had testified. The judge specifically discredited the defendant's affidavit in which he stated that he would have chosen not to testify had he been allowed to defer his decision until after his expert had testified. For substantially the reasons set forth in the judge's memorandum of decision on the defendant's motion for new trial at pages fourteen through sixteen, we conclude that the defendant was not faced with an ultimatum, as described by the United States Supreme Court in Brooks v. Tennessee, 406 U.S. 605, 606 (1972). It is also apparent from the record, as the Commonwealth argues, that the defendant had decided to testify early in the proceedings. Finally, the defendant understood what the scope of his expert's testimony would be before he testified.
3. Alleged loss of a defense. The defendant argues that one of the detectives improperly contacted a defense witness, James Adams, and that as a result the defense lost important testimony from Adams. The detective spoke to Adams on the day he was scheduled to testify. Adams was being held at the time in the District Court lock-up waiting for proceedings in his own case. Adams told defense counsel that the detective had attempted to intimidate him by telling him that his testimony would negatively affect his own case. The defendant argues that the judge should have conducted a voir dire of Adams before he testified so that any harmful effect from the detective's interview of Adams could be addressed. The defendant points to Adams's refusal during his testimony to identify the last names of the members of the crack cocaine-using community in Pittsfield. As a result of this refusal, the judge struck the testimony of Adams about one of the victim's reputation for dishonesty in the crack cocaine-using community. The defendant raised this issue in his motion for new trial. The judge observed that although he had denied the request for a voir dire, he had offered the defendant numerous other options to resolve the question of the detective's influence on Adams. Defense counsel indicated that the options were “excellent” and decided to present the issue to the jury through Adams's testimony.
a. The visit to the lock-up. In his discussion of the motion for new trial, the judge observed that the detective's visit to Adams in the lock-up had no effect on Adams's testimony and that, in fact, Adams's testimony about the detective's approach provided defense counsel with a chance to discredit the detective. We conclude, for substantially the reasons set forth in the judge's memorandum of decision on the motion for new trial at pages sixteen through nineteen, that the motion was properly denied on this basis. See also the Commonwealth's brief at pages twenty-seven through thirty-one and the arguments and authorities cited therein.
b. Striking testimony about the victim's reputation in the community. Adams testified in general about the crack cocaine-using community in Pittsfield and testified that he had spoken to ten to twelve people in that community and that one of the victims had a reputation for dishonesty. During cross-examination, Adams refused to identify the people by name because he thought the Commonwealth would round up the users and bring them in. We conclude, for substantially the reasons set forth in the judge's memorandum of decision at pages nineteen through twenty-one, that the judge properly denied the motion for new trial on this basis. See also the Commonwealth's brief at pages thirty-one through thirty-seven and the arguments and authorities cited therein.
4. The defendant's postarrest statements. The defendant argues that all custodial statements made to law enforcement officials after the six-hour safe harbor time period should be suppressed under the Rosario rule, and that the motion judge erred by denying the motion to suppress. See Commonwealth v. Rosario, 422 Mass. 48, 56–57 (1996). The Commonwealth argues that the statements the defendant seeks to suppress were not the product of interrogation but were volunteered spontaneously. The motion judge found that the defendant had stated “without prompting” that the victims were mad at him because he would not give them drugs.
In Commonwealth v. Fortunato, 466 Mass. 500 (2013), decided after the motion to suppress and the motion for new trial in this case, the Supreme Judicial Court rejected the Commonwealth's argument that a statement was a spontaneous unsolicited remark that fell outside of the six-hour “safe harbor” period. The Supreme Judicial Court concluded that the defendant's statement six hours after his arrest that he wished to speak with an investigator “was an integral part of a single episode of police questioning.” Id. at 506. The Supreme Judicial Court reserved the question whether unsolicited or volunteered remarks are subject to the safe-harbor rule and subsequently concluded, in Commonwealth v. McWilliams, 473 Mass. 606, 613 (2016), that remarks not made in response to police questioning do not require suppression. In the present matter, although at the time the motion judge decided the defendant's motion to suppress he did not have the benefit of the later opinions interpreting the Rosario rule, the Supreme Judicial Court's holdings in Fortunato and McWilliams control in this case and serve to confirm the correctness of the motion judge's ruling.
5. The scope of first complaint. The defendant argues that the Commonwealth violated the first complaint doctrine by piling on multiple witnesses who repeated the victims' reports of being sexually assaulted, by the introduction of statements made by a victim (CR) to a nurse who collected evidence from CR's body for subsequent laboratory analysis, and by reference to a “bite mark” on CR's chest without testimony from CR that she suffered any such injury. The standard of review for the appellate courts when examining the trial judge's application of the first complaint doctrine is whether the judge committed an abuse of discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). In conducting that review, we are urged to see the first complaint doctrine as a “body of governing principles” to guide the trial judge, who is in the best position to determine the scope of admissible evidence. Id. at 72–73.
The defendant did not object to the testimony of which he now complains. In fact, defense counsel made good use of any discrepancies between the victims' testimony and the witnesses and records. The judge did not abuse his discretion in permitting the testimony; nor could its admission have created a substantial risk of a miscarriage of justice. See the Commonwealth's brief at pages forty-two through forty-four and the arguments and authorities cited therein.
6. Identification evidence. The defendant argues that the motion judge committed error by ruling that one of the victim's pretrial identifications was not impermissibly suggestive. The defendant argues that the motion judge overlooked the fact that the victim had viewed the defendant immediately after the police responded to her 911 call but that she did not identify him as her assailant. The day after the attack, she selected the defendant's photograph from an array of eight photographs and she identified the defendant in court. According to the defendant, showing the victim a photograph array the day after she had not selected the defendant as the perpetrator was unnecessarily suggestive because it caused her to confuse the defendant with the perpetrator.
The motion judge found that the victim did not identify the defendant outside Ida Hemingway's apartment immediately after the attack because he wore different clothing. At the hearing on the defendant's motion to dismiss, conducted April 9, 2007, the victim testified that she told the police that the man was not her assailant because the man who raped her wore a black cap but the man on the porch wore a red cap. She testified that she previously told the police that had she been closer to the man, she would have been more certain whether he was the rapist. Officer Mazzeo testified that he did not request identification from the man on the porch or document the encounter at the time of the initial response. At trial, the victim testified that she did not see the face of the man on the porch.
The defendant relies on Foster v. California, 394 U.S. 440 (1969), to support his argument that the failure to identify the defendant on the porch tainted the victim's subsequent identification. We agree with the Commonwealth, substantially for the reasons set forth in the Commonwealth's brief at pages forty-seven through forty-nine, that Foster is of no assistance to the defendant. Even assuming that the police should have properly documented the first identification encounter, the judge properly denied the motion to suppress the victim's identification of the defendant's photograph.
Judgments affirmed.
Order denying motion for new trial affirmed.