Commonwealth v. Suarez

95 Mass.App.Ct. 562

129 N.E.3d 297

COMMONWEALTH

v.Kevin SUAREZ.

No. 18-P-966

Appeals Court of Massachusetts, Middlesex..

Argued April 11, 2019

Decided July 3, 2019

Christopher DeMayo for the defendant.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Maldonado, & Sacks, JJ.

SACKS, J.

The defendant appeals from his convictions, after a jury trial, of assault with intent to rape, kidnapping, indecent assault and battery on a person fourteen years of age or older, and assault and battery. On appeal, he asserts that errors in the admission of evidence that he was the attacker, and in the jury instructions on eyewitness identification, created a substantial risk of a miscarriage of justice. We conclude, in light of the overwhelming evidence from video recordings of the attack and from the testimony of the victim and other witnesses, that there is no reason to disturb the jury verdicts. The defendant also asserts that the judge relied on improper factors in imposing a sentence of from twelve to eighteen years in State prison on the assault with intent to rape charge. We agree that the judge's comments at sentencing risked creating at least the appearance that she sentenced him for having committed either rape (a crime of which he was not convicted) or assault with intent to commit aggravated rape (conduct not recognized as a crime under the laws of the Commonwealth). We therefore find it necessary to vacate the sentences and remand for resentencing before a different judge.

Background. 1. The attack. The jury could have found the following facts. The attack occurred in the early morning hours of August 23, 2015, in the city of Lowell. The victim left a friend's house to walk home at about 3:25 A.M. As she approached an overpass,¹ a man made several remarks to her, but she ignored him and kept walking. She saw a fire truck drive by. She walked off the overpass and up Middlesex Street. Just as she reached a store known as Pailin City, where Branch Street forks off from Middlesex Street, she "felt like someone was coming up behind" her. She started to turn around, but a man was already grabbing her hair with one hand and covering her mouth with the other. She struggled to escape, but he pulled her closer and told her to "shut up." As they continued to struggle and she screamed for help, he said, "I'm not going to kill you. I just want to have sex with you."

She began trying to look at her attacker, so that "if [she] survived this, [she] could at least identify this person." He was a stranger, and she could not tell if he was the man from the overpass. But now they were under a "big street light" and she could see him "[e]nough so ... [she] could remember what the man looked like." He was "[a] lot larger" than the victim, who was five feet, two inches tall and weighed 124 pounds. He was white, with short hair, and wore a red shirt and black shorts. He wore black and gray socks, but no shoes, which struck the victim as odd; it was raining that night.

He hit her and dragged her toward an alley that ran from Branch Street, alongside Pailin City, to an area containing parking spaces and some dumpsters, bordered by another street. He dragged her through the alley and behind the dumpsters; as she screamed for help, he tore off her clothes. As she was on the ground, with her "knees and [her] face ... in the dirt," he was behind her and she could feel his penis touching her "butt" and her vaginal area.

At that moment, "[r]ight before it actually went to go penetrate [her], someone came around the corner." It was an Asian man; he came closer and drew the attacker's attention, allowing the victim to escape, gather some of her clothes, and run back up the alley onto Branch Street.² She ran over to a nearby fire station, where a firefighter brought her inside and called police and an ambulance. While she was talking to ambulance personnel, the Asian man arrived. Other than him and her attacker, she had not seen anyone else walking on the street that night.

Coincidentally, the firefighter, Captain Robert Beane, had been in the fire truck that had driven near the overpass earlier. He had seen a man, about five feet, ten inches tall, with "[l]ighter skin, short hair, ... [and] a red shirt on." A short distance away, he had seen a woman walking on the sidewalk. When the victim later came to the fire station, he recognized her as the same woman.

The Asian man, Richard Chea, had been at a friend's house near the parking area behind Pailin City when he heard a woman screaming for help. He followed the sound over to an area behind the dumpsters, where he saw the victim and a man "taking advantage of her." The attacker wore a red T-shirt and black shorts. He told the attacker to stop and suggested that the victim go to the fire station. As she did so, the attacker ran off in the opposite direction.

2. The investigation. That same day, Lowell Police Detective Todd Fenlon canvassed the area and learned of numerous surveillance cameras on buildings along Middlesex Street where the victim had walked, from Crowe and Sons Electrical Corp. (Crowe Electrical) near the overpass, past the Boys and Girls Club, to Pailin City. He obtained copies of video recordings made by those cameras during the relevant time period.

At about 6 A.M. on the following day (August 24), the defendant appeared at the Lowell Police Station and told Detective Fenlon and another detective that he had information about a sexual assault that had been reported in the newspaper. The newspaper article concerned the assault on the victim; the defendant stated that he believed he had seen a woman connected with the incident. He said that at about 3 A.M. , while outside a 7-Eleven store near the overpass, he had seen a small young woman. He had made several remarks to her (the content of which matched the victim's account), but she had "ignored him." The defendant asserted that he had walked off of the overpass onto Middlesex Street³ and did not know what had happened to the woman after that.

The defendant also told the detectives that his feet had been hurting that night and that, because it was raining and his shoes and feet were wet, he had taken off his shoes near the overpass and was walking in his socks. The defendant showed the detectives his feet, which appeared swollen. He explained in detail what he had been doing before 3 A.M. and after 8 A.M. , but when asked what he had done between those two times, he said that he did not know, or he replied by repeating what he had done after 8 A.M.

The detectives showed the defendant a still photograph (photo), taken from the Boys and Girls Club video, that depicted a man on Middlesex Street. The defendant said, "That's me."⁴ He explained that the photo showed him placing a jacket on top of a dumpster.⁵ The photo, in black and white, showed the defendant with short hair, wearing a lighter-colored T-shirt and dark-colored shorts.

The defendant was then shown some of the actual Boys and Girls Club video, which depicted the man walking up Middlesex Street, from the direction of the overpass, past the dumpster, where he placed the jacket. The defendant again identified himself as the man shown. The defendant maintained, however, that he had not seen any woman in front of him. He was also shown video from Crowe Electrical that showed a man walking off of the overpass on Middlesex Street; the defendant identified the man as himself. After being shown a longer video clip that showed both the victim and the defendant walking behind her, the defendant again stated that he had not seen any woman walking in front of him.

3. Photographic arrays. Police showed the victim a photographic array (photo array), and she selected a photo that she recognized as the man in the red shirt. Asked if she was "sure," she said she was; asked how sure, she replied that on a scale of one to ten she would "give it an 8." At trial she testified that she did so "[b]ecause no one ever says 10 out of 10," but that that did not mean she was not "sure." Police also showed Captain Beane a photo array, and he recognized a photo as showing the man with the red shirt that he had seen from the fire truck. Chea was shown a photo array but was unable to recognize the attacker among the photos.

4. Video evidence at trial. At trial, copies of the videos were admitted in evidence, and parts of them were played for the jury. The Commonwealth also offered in evidence a one-page "[t]imeline" of the videos, listing and describing what it viewed as the relevant footage and where that footage could be found on the individual videos. The Commonwealth also created an approximately six-minute compilation video (compilation), which showed clips from some of the individual videos listed on the timeline, arranged in chronological order. The compilation was admitted in evidence and played for the jury.

The compilation began with Crowe Electrical footage of the victim walking off the overpass on Middlesex Street, followed thirty-five seconds later by the man the defendant identified as himself, walking and occasionally trotting in a distinctive manner. Next came footage from the Boys and Girls Club (further up Middlesex Street) showing the victim and the defendant, now fifteen seconds behind her and still trotting intermittently. The compilation then showed Pailin City footage in which, just as the victim reached the front of Pailin City, a man caught up to her, grabbed her, struggled with her, and dragged her toward the alley entrance. The man appeared to be dressed identically to the defendant in the previous videos and was trotting in the same manner.

The compilation next showed footage from a camera on the rear of Pailin City: a man dragged a woman out of the rear of the alley and into the dumpster area, where they continued to struggle with each other for about two minutes. The footage was too dark to see the man's clothing. Then a third individual appeared,...