Heard: April 11, 2019.
found and returned in the Superior Court Department on
September 11, 2015.
case was tried before Heidi E. Brieger, J.
Christopher DeMayo for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Present: Agnes, Maldonado, & Sacks, JJ.
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
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,
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
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.
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.
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. 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.
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.
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.
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.
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
Street and did not know what had happened to the
woman after that.
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.
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." He explained that the photo showed him
placing a jacket on top of a dumpster. The photo, in
black and white, showed the defendant with short hair,
wearing a lighter-colored T-shirt and dark-colored shorts.
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.
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.
Video evidence at trial.
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.
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.
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, jogging toward the dumpsters; fifteen
seconds after he arrived, the victim emerged and ran toward
the alley entrance. After she entered the alley, a fourth
individual appeared from the same direction as the third.
Five seconds later, the compilation ...