COMMONWEALTH vs. RODRIGUEZ U. CHARLES.

LYNCH, J. After trial in Superior Court the defendant was convicted of various crimes [Note 1] arising from his forced entry into a Brighton apartment where he confined, raped, and robbed three women. On appeal, the defendant argues that the verdicts should be set aside because: (1) the judge improperly denied the defendant's motion to suppress evidence of certain out-of-court statements which identified the defendant; (2) certain evidence was admitted which violated the defendant's rights to due process and a fair trial; (3) the judge improperly charged the jury; (4) the judge erred in declining to conduct a voir dire or give curative instructions regarding the fact that jurors had accidently seen the defendant in shackles outside the courtroom; (5) prosecutorial misconduct prior to and at trial violated the defendant's constitutional rights, and (6) of ineffective assistance of counsel. We affirm the convictions.

There was evidence of the following facts. Three women, "Karen," "Shannon," and "Valerie," were roommates in Brighton. On December 8, 1980, as Karen left her apartment, she confronted in the well-lit hallway, a man, whom she later identified as the defendant, and described as a five feet nine inches tall, thin, black man with "scruffy" hair, a beard and wearing a tan trench coat.

The man forced Karen back into the apartment and held a screwdriver to her throat. He told her not to scream or he would kill her. Valerie testified that she saw a five feet nine or ten inches tall, thin, black man, with scruffy black hair, a beard and a moustache, wearing a tan trench coat and dark colored pants, push Karen into the apartment. After Valerie screamed the assailant told her to shut up and threatened to kill either Karen or both women. [Note 2] The third victim, Shannon, was awakened in her bedroom, then bound and threatened by the defendant. While in the apartment the defendant took

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jewelry from two of the victims, threatened the lives of all three victims, raped two of them vaginally, one anally as well, and one orally, and otherwise threatened, assaulted and abused them.

On December 9, 1980, the victims assembled at the District 4 police station and were asked, one by one, to view photographs. After reviewing approximately one hundred and fifty photographs of black males between the ages of twenty and thirty, Shannon selected a photograph of the defendant that she said she was "99 percent sure" was the assailant. [Note 3] Valerie was unable to select any photograph. After viewing about fifty photographs in a group of about two hundred, Karen stopped at the photograph Shannon had picked and said, "The side view looks like him." On Detective Keough's request, she continued looking and selected another photograph of the defendant and ran from the room, crying. When she returned she stated, "That's him. I'm positive." [Note 4]

The defendant was arrested on June 1, 1981. In the course of testifying at the probable cause hearing, Karen correctly stated that the defendant was not present in the courtroom (the judge had excused the defendant). At that hearing, Karen and Shannon testified that the assailant had a distinctive accent. [Note 5]

The defendant did not appear at his arraignment on September 2, 1981, and a default warrant was issued. He was arrested in 1983, and on November 3, 1983, nearly three years after the incident, the victims attended a lineup at the Boston police headquarters at which the defendant was represented by counsel. Neither Valerie nor Shannon was able to identify the

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assailant. [Note 6] Karen initially stated that she was unable to identify the defendant, because it had been too long since the incident. However, immediately after the lineup she stated to the prosecutor before he initiated any conversation with her, "I think it was No. 4 [the defendant], but it had been too long and I was scared to say anything." At trial Karen identified the defendant, who was seated among the spectators.

1. The motion to suppress identification evidence. The defendant filed a motion to suppress evidence of the out-of-court identification made by her. The judge denied the motion. The defendant argues that the out-of-court identification made after the lineup occurred was an extension of the lineup which resulted in a denial of the defendant's rights to assistance of counsel, confrontation of witnesses and due process. The defendant also asserts that the in-court identification was tainted by the out-of-court identification.

Under both United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), an accused is entitled to counsel at any pretrial corporeal identification conducted after indictment. See Moore v. Illinois, 434 U.S. 220, 224-227 (1977). Defense counsel is entitled to be present at a lineup to ensure that the procedure does not suggest who the prosecutor believes committed the crime. Moore v. Illinois, supra at 224-225. The question presented here is whether or not Karen's unelicited utterance identifying the defendant, made out of the presence of defense counsel, was part of the lineup and as such entitled the defendant to the presence of counsel.

Although several State courts have held that a defendant has a right to have counsel present at a post-lineup interview, People v. Williams, 3 Cal. 3d 853, 856-857 (1971); [Note 7] State v.

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McGhee, 350 So. 2d 370, 373 (La. 1977); Richardson v. State, 600 P.2d 361, 364-365 (Okla. Crim. App. 1979), the Federal Circuit Courts which have addressed this issue have held that a defendant does not have such a right, as have several State courts. See Hallmark v. Cartwright, 742 F.2d 584, 585 (10th Cir. 1984); United States v. White, 617 F.2d 1131, 1134-1135 (5th Cir. 1980); United States v. Bierey, 588 F.2d 620, 624-625 (8th Cir. 1978), cert. denied, 440 U.S. 927 (1979); United States v. Tolliver, 569 F.2d 724, 727-728 (2d Cir. 1978); United States v. Parker, 549 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 971 (1977); United States v. Cunningham, 423 F.2d 1269, 1274-1275 (4th Cir. 1970); Graham v. United States, 377 A.2d 1138, 1139-1140 (App. D.C. 1977); State v. Cherry, 298 N.C. 86, 106-108, cert. denied, 446 U.S. 941 (1979); State v. Favro, 5 Wash. App. 311, 313-315 (1971), cert. denied, 405 U.S. 1040 (1972). Compare United States v. Ash, 413 U.S. 300 (1973) (photographic identification does not require presence of counsel). Although the cases holding that defense counsel does not have a right to be present at a post-lineup interview would appear to represent the better reasoned view, it is unnecessary for us to decide the issue. None of the cases suggests that defense counsel has a right to be present at every interview of the victims by the prosecutor after a lineup has taken place, or that the prosecutor must anticipate unsolicited post-lineup remarks by victims identifying the defendant. Here Karen said she was unable to identify the defendant during the lineup and was then taken to a separate room. She testified, however, that when the prosecutor walked into that room she immediately identified the defendant. Under this version of the incident there was no chance for the prosecutor to suggest or influence her statement. The defendant does not contest this testimony nor did he offer any evidence to show that the identification after the lineup was suggested by or came about as a result of continued questioning or urging by the prosecutor. Thus, to the extent the policies underlying United States v. Wade, supra, and Gilbert v. California, supra, would apply to a post-lineup identification interview (and we do not reach that issue here), those policies have no applicability

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where the viewer made a sudden and unelicited statement which could not have been suggested or influenced by the prosecutor. [Note 8] The admission of Karen's out-of-court statements was proper, and therefore did not taint her in-court identification.

2. Evidentiary matters.

a. Prior inconsistent statements. Robin Howell, the defendant's friend and Commonwealth's witness, testified that she had never seen the defendant play the guitar and she was not aware that he had ever played the guitar. [Note 9] Detective MacKinnon testified, however, that Howell had stated earlier that the defendant played the electric bass guitar and that she had seen him play several times in her apartment. The defendant objected to MacKinnon's statement on the ground that the Commonwealth was precluded from impeaching its own witness. There was no error since that objection was without merit. G. L. c. 233, Section 23 (1984 ed.). Although no limiting instruction was requested or given, the evidence was not used substantively since both counsel in their closing arguments only referred to the statement for its impeachment value.

b. Consciousness of guilt. When the detectives who arrested the defendant revealed their identity to him he said, "----, man, I knew you were ---- cops." The prosecution offered the evidence to show the defendant's consciousness of guilt, in that it implied that he knew the police were looking for him. The defendant argues that the evidence was irrelevant, and, for the first time on appeal, that this testimony somehow informs the jury of prior criminal activity, in violation of Commonwealth v. Welcome, 348 Mass. 68, 70-71 (1964), and Commonwealth v. Stone, 321 Mass. 471, 472-473 (1947). Although it is unnecessary for us to consider that later argument

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since it is raised for the first time on appeal, Commonwealth v. Howell, 386 Mass. 738, 739 (1982), cert. denied, 459 U.S. 1112 (1983), there would appear to be no merit to either contention. The evidence does have some tendency to show that the defendant knew the police were looking for him. It does therefore have some slight relevance to consciousness of guilt. The suggestion that the statement showed prior criminal activity is tenuous at best, but clearly missing is evidence of specific criminal activity found in Welcome and Stone. Since little or no prejudice arises from the admission of this testimony it was within the bounds of the judge's discretion to admit it.

3. The charge.

a. The defendant objects to the judge's failure to include in the charge the substance of his request regarding race and identification. [Note 10] This court has set out in detail the charge we consider "appropriate to cases in which identification is in issue." Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 & n.1 (1979). See Commonwealth v. Pressley, 390 Mass. 617, 618-619 (1983). The defendant does not argue that the judge's charge failed in any essential way to meet the standard of Rodriguez. In any case, it was not established that particular problems arise when the witness and the defendant are of different races. See United States v. Telfaire, 469 F.2d 552. 561-562 (D.C. Cir. 1972) (Leventhal, J., concurring). [Note 11] Here the judge was well within his discretion in denying the requested charge.

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b. While discussing the presumption of innocence in his charge to the jury the judge stated that "apart from the statute [G. L. c. 233, Section 20 (1984 ed.)], in Massachusetts a defendant has a constitutional right not to incriminate himself." The defendant claims this was error, but did not object to this charge, nor request that no charge be given on his right to remain silent. See Commonwealth v. Buiel, 391 Mass. 744, 747 (1984).

We have repeatedly held that "[t]he risks inherent in the phrase `self-incrimination' should be avoided . . . . This can easily be done by substituting the phrase, where appropriate, `the right to remain silent.' See Commonwealth v. Buiel, 391 Mass. 744, 747 n.4 [1984]." Commonwealth v. Costello, 392 Mass. 393, 401 n.4 (1984). Commonwealth v. Sneed, 376 Mass. 867, 871 & n.1 (1978). Judges could easily avoid potential reversible error by this simple method in most cases. Where judges overlook our directive, however, the use of phrase "self-incrimination" "[b]y itself . . . does not merit reversal." Commonwealth v. Costello, supra at 400. Commonwealth v. Morrissey, 351 Mass. 505, 515 & n.5 (1967). Commonwealth v. Powers, 9 Mass. App. Ct. 771, 773 (1980). But, "[e]ven an unintended suggestion that might induce the jury to draw an unfavorable inference is error . . . Instructions which adhere to the letter, but not the spirit, of these protections, are cause for reversal" (citations omitted). Commonwealth v. Sneed, supra at 871.

In this case, the instructions, taken in context, effectively neutralized the otherwise pejorative connotations of the phrase "self-incrimination." In charging on the presumption of innocence and the right to silence, the judge elected to elucidate the applicable legal norms via the statutory and constitutional sources from which they derive. First, the judge quoted the statutory source of the right to silence and analyzed it for the jurors: "The defendant, again, did not testify at this trial. We have a statute which says that a defendant . . . `shall at his own request but not otherwise be allowed to testify, but his neglect or refusal to testify shall not be [sic] create any presumption against him.' What is presumption? It is a rule of law.. . . . [A] defendant's failure or neglect to take a [sic] stand shall

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not create any rule of law, any presumption, against him." The judge immediately moved from statute to Constitution. "Apart from the statute in Massachusetts a defendant has a constitutional right not to incriminate himself. The defendant in a criminal case cannot be compelled to testify at his trial. He may testify if he so elects; but if he doesn't chose to, he may not testify. If he exercises that right not to testify, as this defendant has done, no inference -- permissible deduction -- no inference unfavorable to the defendant can be drawn by you as jurors by reason of his failure to testify." Earlier, the judge had charged the jury to accept the law as he stated it.

While we do not retreat from what we said in Commonwealth v. Sneed, supra, we conclude that in this case the judge stated the letter of the law and managed to restate it such that the spirit of the law was preserved.

c. The defendant assigns error to the fact that while charging the jury on the substantive issues in the case the judge repeatedly referred to "the defendant," not "the assailant" (or some other neutral term). Early in the charge, the judge gave lengthy instructions on identification based upon Commonwealth v. Rodriguez, 378 Mass. 296 (1979), making clear that the jury had to find at the outset that the defendant was the intruder who entered the victims' apartment. Second, after the defendant objected to the charge on this ground, the judge gave an appropriate curative instruction informing the jury that any references to a defendant, or the defendant, were meant in a general sense, and did not refer to Charles. No further objection to the charge was taken. Third, when the prosecutor referred to the assailant as the defendant in his examination of Valerie, the judge gave an appropriate curative instruction at defense counsel's request. A review of the charge as a whole leaves no room for doubt that the jury first had to find that Rodriguez Charles was the assailant before they could turn to the substantive issues. There was no reversible error.

4. Voir dire. At trial the prosecutor, in accordance with duties imposed upon him by Commonwealth v. Wilson, 381 Mass. 90, 108-109 (1980), and Commonwealth v. MacDonald, 368 Mass. 403, 409-410 (1975), informed the judge that the

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defendant believed he had been observed in shackles by one of the jurors outside the courtroom. This was confirmed by transportation Officer Charles Goodman. Defense counsel then related a similar incident in which the defendant believed he had been viewed in shackles by a juror outside the courtroom. Both prosecutor and defense counsel suggested that a voir dire of the jury be conducted. However, defense counsel later acceded to the suggestion of the judge that no voir dire be conducted. [Note 12] The judge did not conduct a voir dire, and no curative instructions were given.

In Commonwealth v. MacDonald, supra, we found that there was no abuse of discretion when a judge denied a motion to poll the jury after the defendant had been seen in handcuffs by one juror and in the presence of several guards: "Where only one juror by chance may have seen the defendant handcuffed, drawing any attention to the circumstances, by a poll of the jury or by instructions, might have been inadvisable." Id. at 409. See Commonwealth v. Curry, 368 Mass. 195, 201 (1975); Commonwealth v. Ferguson, 365 Mass. 1, 12-13 (1974); Commonwealth v. Brown, 364 Mass. 471, 477 (1973). Further, "great care should be taken to avoid any encounter between a defendant and any juror outside the court room. If it occurs, some appropriate cautionary instruction often is preferable to silence, if an instruction is requested or not objected to by the defendant" (emphasis added). Commonwealth v. MacDonald, supra at 409-410. Here, where at most two jurors saw the defendant in handcuffs and where the defendant did not pursue his motion for voir dire, but assented to the court's solution, we find no error. As we indicated in Commonwealth v. MacDonald, silence is a permissible option for the judge to pursue, particularly when the defendant ratifies that course of conduct.

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5. Prosecutorial misconduct.

a. Misstatements of facts and law. The defendant argues that the prosecutor misstated law and fact at several points in his closing argument to the jury.

i. First the defendant challenges the prosecutor's remark that "ultimately it is each of you who must decide in your own mind the guilt of the defendant Rodriguez Charles." Allegedly that remark imposed a duty on the jurors to find the defendant guilty. It is perfectly clear that the prosecutor meant that the jurors were to decide whether or not the defendant was guilty -- no reasonable juror could have thought otherwise. See Donnelly v. DeChristoforo, 416 U.S. 637, 646-647 (1974).

ii. The prosecutor, in discussing the credibility of a defense witness, Wanda Fisher, asserted that the temperature on the date of the incident was not "freezing cold" that day but in fact was fifty degrees. There was no evidence introduced that substantiated the prosecutor's assertion. The prosecutor was relying on a weather report of December 8, 1980, which he used in cross-examining the witness, but which he neglected to offer in evidence. [Note 13] The judge gave no specific curative instruction (and none was sought), but after denying a motion for mistrial charged the jury at some length on the fact that the jury's recollection of the facts controls, and that closing argument is not evidence. The defendant took no exception to the curative instructions.

We have scrutinized with care cases which involve intentional misstatements. Commonwealth v. Francis, 391 Mass. 369, 373 (1984). See Commonwealth v. DeChristoforo, 360 Mass. 531, 536-537 (1971), aff'd sub nom. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). It is well within the discretion of the trial judge to deny a mistrial and rely on appropriate curative instructions to erase error even in a case of intentional misstatement. See Donnelly v. DeChristoforo, supra at 644; Commonwealth v. Francis, supra at 373-374. See also Commonwealth v. DeChristoforo, supra at 537. Cf.

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Commonwealth v. Bellino, 320 Mass. 635, 642-645, cert. denied, 330 U.S. 832 (1947). Here, where the prosecutorial error appears unintentional and where curative (albeit general) instructions were given to which the defendant did not object, the judge was justified in denying a motion for mistrial.

iii. In final argument the prosecution noted that the rapes occurred on December 8, 1980, and stated that the defendant "didn't work one job until May of 1981." A stipulation read to the jury by defense counsel established that the defendant worked between May 3, 1981, and July 30, 1981, and stated, "[T]hat is all in 1981." The defendant argues that the prosecution misstated the facts.

It is clear that a prosecutor "has the right to argue inferences from the evidence favorable to his case, and the precise form should not control unless it tends to lead the jury to an improper inference not from the evidence but from the apparent personal knowledge of the attorney." Commonwealth v. Francis, supra at 372, quoting Commonwealth v. Nordstrom, 364 Mass. 310, 315 (1973). Here the somewhat ambiguous stipulation gave the prosecution the latitude to infer that between January 1, 1981, and May 3, 1981, the defendant did not work: but nothing in the record supports the inference that he did not work in December, 1980. It is unclear what harm to the defendant results from this statement. The defendant argues that the remark implied "willful unemployment at the time of the incident and consequential motivation to commit the crimes alleged." It is hard to imagine how the fact of unemployment proves that one bears a guilty conscience, or demonstrates a desire or propensity to commit aggravated rape. Assuming that some harm resulted from this statement, there was no error since the judge gave proper curative instructions.

b. At trial defense counsel objected to the loss of a tape recording which contained a December 9, 1980, interview with Karen. The tape had been held by Detective Rufo who died shortly after receiving it. Detective Keough was unable to locate the tape or any transcript. We have repeatedly stressed the need for prosecutors and police to do their utmost to preserve and present "exculpatory evidence which is available to the

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prosecution." Commonwealth v. Redding, 382 Mass. 154, 157 (1980). See Brady v. Maryland, 373 U.S. 83 (1963); Commonwealth v. Lam Hue To, 391 Mass. 301, 307-310 (1984). The loss of evidence presents special problems. See United States v. Arra, 630 F.2d 836, 848 (1st Cir. 1980). When potentially exculpatory evidence is lost or destroyed, the culpability of the government will be weighed along with the materiality of the evidence and the potential prejudice to the defendant. See United States v. Bryant, 439 F.2d 642, 653 (D.C. Cir. 1971). See also United States v. Arra, supra at 849.

In this case, there is no suggestion that the loss of the tape was intentional or due to bad faith. While the evidence may have been material, there is no demonstration of how it would have been exculpatory. Where as here, the defendant relies on mere conjecture and surmise, contradicted by evidence in the record, that lost evidence would have been exulpatory and where the evidence was lost not because of bad faith but under extraordinary circumstances which mitigate the culpability for the loss, there is no ground for reversal. Here the prejudice to the defendant was "too insubstantial and uncertain to warrant reversal." Commonwealth v. Walker, 14 Mass. App. Ct. 544, 549 (1982).

6. Ineffective assistance of counsel. In his pro se reply brief the defendant argues that he was denied the effective assistance of counsel without specific reliance on either State or Federal constitutional grounds. But we have held that if the behavior of counsel meets the test specified by Massachusetts law, then "the Federal test is necessarily met as well." Commonwealth v. Howell, 394 Mass. 654, 657 (1985), quoting Commonwealth v. Fuller, 394 Mass. 251, 256 n.3 (1985). Commonwealth v. Florentino, 396 Mass. 689, 690 n.1 (1986). See Strickland v. Washington, 466 U.S. 668, 687-696 (1984). Thus we need only consider the defendant's claim under Massaschusetts law, leaving open, once again, any differences between the two standards. Commonwealth v. Howell, supra at 657. Commonwealth v. Fuller, supra at 256 n.3. Commonwealth v. Florentino, supra. We look to see if there has been "behavior of counsel falling measurably below that which might be expected

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from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Howell, supra at 657. There was no "serious incompetency, inefficiency, or inattention of counsel" in this case such that the Saferian test was not met.

First, the defendant argues trial counsel failed to make a timely motion to suppress identifications and represents that the motion was made after jeopardy attached, and four days into trial. That contention has no basis in the record since the motion to suppress was first filed by prior counsel on October 3, 1983, four months before the jury were sworn, and was then pursued as a substituted motion after the jury were sworn, but before testimony was taken.

Second, the defendant argues that trial counsel improperly agreed that the December 9, 1980, photographic identification procedure was proper. When defense counsel chose not to pursue a challenge to the photographic identification session, he had adequate knowledge of the circumstances of the identification procedure. It was well within his discretion to drop that issue, especially where, as here, there was every probability that further investigation would not have helped the defendant's case. Moreover, the circumstances of that identification were before the jury and defense counsel never waived the right to challenge the weight and reliability of that identification evidence at trial. The defendant does not argue that counsel failed adequately to treat these issues at trial: we cannot fault defense counsel for his reasonable judgment that there was no basis to pursue the suppression of that evidence. See Commonwealth v. Drayton, 386 Mass. 39, 42 (1982).

We have reviewed the other objections of the defendant not discussed in detail above and find them to be so insubstantial as not to require comment.

Judgments affirmed.