Opinion
15-P-37
06-02-2017
COMMONWEALTH v. Kenneth POIRIER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Kenneth Poirier, was convicted of aggravated rape. On appeal, he argues that (1) the evidence was insufficient to support the conviction, (2) the trial judge improperly excluded evidence of the victim's pending criminal charges, (3) the motion judge erred in denying his motion to suppress an overly suggestive photographic array, and (4) the trial judge erred in allowing an in-court identification of the defendant. We affirm.
1. Sufficiency of the evidence. The defendant contends that the police officer who first encountered the victim did not observe any marks, bruises, or blood on her. Thus, he claims, a not guilty verdict should have entered because her testimony was contradictory and not credible within reason. We disagree.
The defendant's contention essentially concerns the weight and credibility of the evidence, "a matter wholly within the province of the jury." Commonwealth v. Martino, 412 Mass. 267, 272 (1992). The victim described the aggravated rape in great detail and testified that the defendant pointed a gun at her, threatened to kill her, pulled her head down, and forced her to perform oral sex. This testimony alone was sufficient to withstand a motion for a required finding of not guilty.
Although not necessary to survive a required finding of not guilty, the Commonwealth presented additional supporting evidence. First, the victim's testimony was corroborated by a police officer who saw her, after the incident, "trying to stop cars passing by, trying to get somebody to stop for her." She "appeared disheveled and somewhat distraught," and told him that she had been held in a car and raped. A detective further described her as being "very upset and angry." Additionally, the police found a condom wrapper and cigarette used by the defendant in the area where the incident occurred. Forensic analysis demonstrated that the deoxyribonucleic acid (DNA) on the cigarette "matched" that of the defendant. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The victim told the officers, and later testified, that the defendant had used a condom during a portion of the incident.
2. Exclusion of victim's pending criminal charges. The trial judge did not abuse her discretion in refusing to admit evidence of the victim's pending drug trafficking charges. The defendant argues that the judge (1) erred in failing to conduct a voir dire to explore whether the victim's trial testimony was "motivated by a partiality for the government," and (2) erroneously "made inconsistency between the testimony [of the victim] and prior statements a precondition to admittance" of the victim's drug-related charges. The arguments are unpersuasive. First, at the time the judge reviewed the defendant's motion in limine to admit evidence of the pending charges, trial counsel did not seek a voir dire of the victim to explore the bias issue. Second, he did not object to the judge holding the issue in abeyance until the victim testified, and he acknowledges on appeal that inconsistency in a witness's testimony is a factor a judge may consider in exercising her discretion to admit or exclude evidence of alleged bias. See Commonwealth v. Haywood, 377 Mass. 755, 763 (1979). Indeed, trial counsel agreed with the judge that this was a "Haywood issue" and that evidence of the pending charges would be admissible only in the event the victim changed her story at trial. Id. at 762. When trial counsel renewed the request at trial to introduce the victim's recent arrest record, the judge specifically found that the victim's testimony had not changed in any material way, and that the proffered evidence was "collateral at best." The record demonstrates that trial counsel's cross-examination of the victim failed to adduce any change in her account of the rape, and that the judge made a thorough "appraisal of the materiality of the testimony sought in light of [the defendant's] right to show specific bias or motive to prevaricate on the part of the government witness." Id. at 761 (quotation omitted). Accordingly, the judge did not abuse her discretion. To the contrary, she carefully considered the issue and was "entitled to balance the conflicting interests and to conclude, as a matter of judicial discretion, that subsequent arrest records might be kept from the jury." Id. at 763.
The defendant does not claim that the Commonwealth made any overtures or promises of leniency to the victim in return for her testimony. Had that been the case, "[t]he Commonwealth would have been required to reveal any such 'understanding or agreement' and the defendant would have been entitled to introduce it at trial." Commonwealth v. Haywood, 377 Mass. 755, 759 n.4 (1979), quoting from Giglio v. United States, 405 U.S. 150, 154-155 (1972).
The cross-examination in this case served the same function as the voir dire in Haywood, supra. In that case, the court agreed with the trial judge that where "the voir dire failed to show bias or any change" in the witness's account, his subsequent arrest record "need not be admitted." Id. at 763.
3. Photographic array and in-court identification. The defendant also contends that the motion judge should have allowed his motion to suppress an overly suggestive photographic array, and that the victim's subsequent in-court identification of the defendant was inadmissible. We disagree. The motion judge properly determined that the photographs are identical in presentation; that the dates on the photographs are neither significant nor unduly suggestive; and that the array as a whole is not unnecessarily or impermissibly suggestive and conducive to irreparable misidentification. See Commonwealth v. Montez, 450 Mass. 736, 756 (2008). Furthermore, the trial judge determined that the victim's identification of the defendant was based on a source independent of the array—her own contemporaneous observations of the defendant. The trial judge credited the victim's testimony, in a pretrial voir dire, that she had been with the defendant "for hours," the street was brightly lit, and the motor vehicle in which the incident occurred was well lit. See Commonwealth v. Botelho, 369 Mass. 860, 869 (1976). Therefore, the denial of the motion to suppress and the allowance of the in-court identification were warranted.
The defendant also argues that the in-court identification must be suppressed because the photograph used in the array was the product of an illegal stop. We disagree. Suppression would be warranted if "either the physical presence of the witness in court or the witness's basis of knowledge for the identification were procured in violation of the defendant's Fourth Amendment [to the United States Constitution] rights." Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 621 (2011). Here, the victim had ample opportunity to form a contemporaneous impression of the defendant and the trial judge concluded that her recollection, not the photograph, was the basis for the in-court identification. We discern no error in the judge's conclusion.
We note that the Commonwealth presented expert testimony that the defendant's DNA matched the DNA on the cigarette retrieved from the crime scene. In addition, the defendant ultimately did not dispute at trial that he and the victim were in the motor vehicle together. Rather, the defense contended that the encounter was a business deal gone wrong and that the victim levied the accusation against the defendant to "extract ... revenge." The defendant testified at trial consistently with this theme.
To the extent we do not discuss other arguments made by the defendant, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.