Massachusetts Appeals Court Affirms Sex Convictions Despite Trial Being Riddled With Errors

The Massachusetts Appeals Court today upheld a man’s convictions for multiple sex crimes while acknowledging the prosecutor and trial judge committed repeated errors at the trial.  However, the case was sent back to superior court for re-sentencing by another judge after the Appeals Court concluded the trial judge made improper comments before imposing sentence.  The name of the case is Commonwealth v. Suarez.

The facts of the crime are chilling.  During the early morning hours of August 23, 2015, the victim was walking home through Lowell.  A man, later identified as the defendant made comments to her as she passed him, but she ignored him.  As she continued to walk, the defendant approached her from behind, grabbed her, and covered her mouth.  The defendant told the victim to “shut up” and said he wanted to have sex with her.  He dragged her toward an alley and ripped off her clothes.  In the moment before the defendant was about to rape the victim, a pedestrian came around the corner and distracted the defendant, which allowed the victim to escape.  She ran to a nearby fire station and the police were summonsed.  The attempted rape was reported the next day in the newspaper, and the defendant went to the police station and said he had spoken to the victim (immediately before she was attacked).  The cops showed the defendant surveillance video depicting him walking after the victim and the defendant admitted it was him (but denied he had subsequently attacked the victim).  A Lowell Superior Court jury convicted the defendant of assault with intent to rape, indecent assault and battery, kidnapping, and assault and battery.

The Appeals Court agreed with the defendant that multiple errors had been committed at his trial.  After the attack, the victim and an independent witness had identified the defendant in photo arrays.  Those arrays were admitted at the defendant’s trial and the prosecutor told the judge her witnesses would testify it was the defendant’s photograph that was selected.  However, the Commonwealth failed to introduce evidence that the selected photos were of the defendant (or that his photo was included at all).  However, the Appeals Court concluded even if the photo arrays had not been presented to the jury, the defendant’s guilt was overwhelming and therefore the error had been harmless.  Next, the Appeals Court ruled that while it was improper for a police officer to have offered his opinion that the defendant was the person shown in the video surveillance immediately before the attack, that error didn’t make a difference either.  A witness is ordinarily not permitted to offer his opinion that a person in video footage is the defendant because the jurors can watch the video for themselves and draw their own conclusions.  Nevertheless, based on the strength of the Commonwealth’s case, this error was also harmless according to the Appeals Court.  Finally, the Appeals Court criticized the prosecutor’s use of the word “suspect” in a written timeline that described the defendant as he was shown in the surveillance video.  But once again, the prosecutor’s mistake was excused by the Appeals Court because evidence of the defendant’s guilt was so compelling.

Following his conviction, the trial judge sentenced the defendant to serve 12-18 years in state prison.  While the sentence itself was permitted by law, the Appeals Court expressed concern about the judge’s comments before she imposed sentence.  The judge told the defendant she was convinced he would have raped the victim if the independent witness had not stumbled upon them at the last minute.  The judge said the defendant should not get the benefit of having had the crime interrupted, and she gave him a sentence that was consistent with having committed rape (instead of assault with intent to rape).  The problem with the judge’s comments is they suggested the defendant should be punished for a crime he did not commit.  Because the “appearance of fairness” was compromised, the Appeals Court ordered the defendant to be re-sentenced by a different judge.