Commonwealth v. Rogers

647 N.E.2d 1228, 38 Mass. App. Ct. 395, 1995 Mass. App. LEXIS 255
CourtMassachusetts Appeals Court
DecidedApril 13, 1995
DocketNo. 92-P-1445
StatusPublished
Cited by4 cases

This text of 647 N.E.2d 1228 (Commonwealth v. Rogers) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Rogers, 647 N.E.2d 1228, 38 Mass. App. Ct. 395, 1995 Mass. App. LEXIS 255 (Mass. Ct. App. 1995).

Opinion

Perretta, J.

On the night of August 19, 1987, three men broke into an apartment on Marlborough Street in Boston and raped a sixty-seven year old woman while her son-in-law was held in his bedroom, face down on a pillow, with a knife to his neck. The assailants demanded his jewelry and money, but he had neither. He did, however, offer his automatic teller machine (ATM) bank card and told the assailants his access code number. After the three men fled with various items, including the bank card, the son-in-law called the police. Descriptions of the men were soon dispatched by the police. A short time later, an officer saw three men at an ATM about eight blocks from the crime scene. The officer believed the men to be a close match to the descriptions he had heard on his radio. He arrested the men and brought them to Marlborough Street where they were shown to the victims2 who were about to be brought to the hospital. After a trial on the numerous indictments that ensued,3 the jury found the defendants Rogers and Aguilar guilty.4 On appeal, both defendants argue that their motions to suppress (physical evidence, identifications, and statements) should have been allowed. The defendant Rogers also claims error in the denial [397]*397of his motion to sever his trial from that of the codefendants.5 We affirm the convictions.

1. The crimes. There was evidence to show that the victim had gone to the home of her daughter and son-in-law because the daughter was about to have a baby and was going to the hospital. The victim was to stay and care for her fifteen month old granddaughter. After the birth of his second child, the son-in-law returned home and went to bed at about 11:30 p.m. The granddaughter was asleep in her room. The victim read until about 2:30 A.M., and then went to bed on a pull-out couch just outside her granddaughter’s room.

Shortly after turning out her light, the victim heard a noise in the kitchen. She got out of bed to investigate and saw a man standing in the kitchen area of the apartment. The apartment was illuminated by the glow of city lights coming through skylights in the kitchen area and near the pull-out couch. The victim saw that the man was black, about six feet tall, and holding a knife. She also saw that he had very little hair; he was either bald, or he had shaved his head. She later identified this man as the defendant Rogers.

As Rogers lunged and snarled that he would kill her if she did not get down On the couch, the victim saw two other men. One was black and the other lighter-skinned. Based upon her observations throughout her ordeal, she described the darker and taller of these two men, the defendant Clemenson, as being youthful in appearance, wearing sneakers and walking with a bouncy step. She described the third man, the defendant Aguilar, as wearing a white tee shirt or jersey with letters and a cap or band on his head. He was about five feet six inches tall. The victim believed that, because of this man’s accent and mannerisms, he was Hispanic.6

[398]*398Rogers again threatened to kill the victim if she did not keep her eyes closed. He demanded to know who was in the house and where any money was kept. He sent Clemenson and Aguilar down the hall and repeatedly threatened the victim. When the men returned, Rogers told Aguilar, who also had a knife, to watch the victim. The victim could hear noise, drawers being opened and closed, coming from the upstairs level of the apartment. When Rogers returned, he ordered Aguilar out of the room.

Notwithstanding Rogers’s threats that he would stab the victim’s eyes out if she made any noise, the victim struggled for his knife and begged him not to harm her granddaughter. Rogers scraped the tip of the knife blade across the victim’s abdomen, held her arms behind her back, and raped her. While Rogers was atop her, the victim saw Aguilar watching. She pleaded for help, but Rogers ordered him away, completed the rape, taunted the victim, and left the area. After Rogers, it was Aguilar. The victim again pleaded with him for help. He looked down the hallway, approached the couch, and raped the victim.

While the victim was being terrorized and assaulted, the son-in-law was being held in his bedroom. He had been awakened when two men entered the room, put a knife to his throat, and threatened to kill him if he moved or made a sound. He described one of the men as tall, black, and bald and the other as being “considerably shorter” and sounding “Spanish.” The men demanded money and jewelry, but the son-in-law told them he had neither. He directed them to his Bank of New England ATM card in his wallet and told them the access code number.

After the rapes, the victim was dragged into her son-in-law’s room and ordered to lie down on the bed next to him. The victims remained where they were until the apartment became quiet, about four to five minutes; then the son-in-law called the police. When they arrived, the victim told them that three men had broken into the apartment and that she [399]*399had been raped by two of them. She described the three men as follows: a young, bald-headed, black man, about six feet tall, and wearing a jersey; a black man who “seemed young”; and a light-skinned Hispanic man who was the smallest of the three. As will be discussed below, when the defendants were brought to the scene after their arrest, the victim was in an ambulance with two attendants, her son-in-law, and her granddaughter who was crying hysterically. The victim was able to identify the men who raped her, Rogers and Aguilar, but not the third man, Clemenson.

2. The motions to suppress. After six days of evidentiary hearings, the motion judge denied all the motions to suppress without making written findings of fact. As for the consequence of this failure, see Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984).

a. The physical evidence. Boston police officer Kevin Rod-day testified that at 3:40 a.m., August 20, 1987, he was in his cruiser in front of the police station on Berkley Street when information concerning the rape came over his police radio. The dispatch included the location of the crime and the fact that a Bank of New England ATM card had been taken. Descriptions of the suspects were also given. According to Rodday, he was informed that the assailants were two black males, one being young, six feet tall, medium build, shaved head, and wearing a jersey shirt. The second black male was said to be younger than the first and wearing dark clothing. Rodday also heard over his radio that an Hispanic male, smaller than the other two men, was also involved.7

[400]*400With these facts in mind, Rodday drove to the Kenmore Square area to look for automatic teller machines. It was 3:55 a.m., when he arrived at the intersection of Massachusetts Avenue and Boylston Street, which he knew to be about eight blocks from the scene of the crime. He saw an ATM in a building with a large, well-lit, glass foyer. There were three men in the foyer: two black males, facing the machine, and a short Hispanic, looking at him through the glass door. Rod-day turned his cruiser around and pulled along the curb in front of one of the glass doors. He could see that one of the black men was about six feet tall and was wearing a striped jersey and a hat or cap.

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Bluebook (online)
647 N.E.2d 1228, 38 Mass. App. Ct. 395, 1995 Mass. App. LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rogers-massappct-1995.