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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Charles A. Clifford,
[407
Before [407
[407
After a
jury trial in the Superior Court, the defendant, Kevin J. Downey, was convicted
of armed robbery while masked, kidnapping, armed robbery, assault by means of a
dangerous weapon, assault and battery, and unauthorized use of a motor
vehicle. On appeal, he claims that (1)
the Superior Court judge supervising the grand jury erred in ordering the
defendant to comply with a grand jury order that he provide samples of his
blood, saliva, and hair; (2) that a
motion judge erred in denying his motion to suppress pretrial identifications
of his photograph by witnesses to the kidnapping; and (3) that the trial judge erred in denying
his motion to dismiss the indictments based on alleged improprieties in the
Commonwealth's presentation of evidence to the grand jury. We transferred the case to this court on our
own motion, and now affirm.
The jury
could have found the following facts. On
At noon on
the same day, approximately fifteen minutes after the bank robbery, two men
meeting the same general description as the bank robbers abducted Denis Renaghan in the parking lot of the Lahey
Clinic (clinic) in Burlington. The two
men threatened Renaghan with a gun, threw him into
the back seat of his automobile, and drove to Cambridge. The clinic is only a short distance from the
shopping mall where the getaway car was abandoned, and the police observed
fresh footprints heading away from the getaway car and toward the clinic.
[407 Mass. 474] 1. Blood, saliva, and hair
samples. On January 29, 1987, a
Middlesex County grand jury returned four indictments against the defendant,
charging him with armed robbery, assault by means of a dangerous weapon,
kidnapping, and unauthorized use of a motor vehicle. These indictments arose in connection with
the kidnapping of Renaghan.
On April
22, 1987, a second Middlesex County grand jury were convened to investigate the
December 4, 1986, bank robbery. The
first witness who testified was State Trooper Robert Cox. Cox stated that he had examined the places
where the crimes had occurred and reported that the location where the getaway
car was abandoned was geographically between the bank and the clinic, about one‑quarter
of a mile from the bank and 300 yards from the clinic. He reported that on the day of the crimes he
had observed fresh footprints heading away from the abandoned car and toward
the clinic. Cox testified that Renaghan had positively identified the defendant from a
photographic array as one of his kidnappers.
Cox also
reported that the investigation had revealed that, during the few days
following the bank robbery, the defendant had purchased an automobile for over
$14,000 and rented a new apartment by making an initial payment of $1,500. In each case, the defendant had paid entirely
in cash with bills of small denominations.
In addition, searches of the defendant's new apartment and his bedroom
in his parents' house had uncovered a gun, clothing, and caps similar to the
bank robbers' gun, clothing, and caps.
Cox also
testified that the mask found in the back seat of the abandoned getaway car had
been forwarded to the Federal Bureau of Investigation (F.B.I.)
for laboratory analysis. The laboratory
report, which was entered in evidence before the grand jury, indicated that
saliva and hair had been deposited in the mask.
The report indicated that the saliva had been deposited by a person with
type O blood. (FN1) The report [407 Mass. 475] also indicated that the saliva and hair retrieved from the mask
could be scientifically compared to blood, saliva, and hair samples taken from
suspects in the criminal investigation.
At the
conclusion of Cox's testimony the prosecutor requested that the grand jury vote
on whether there was "sufficient cause" to order the defendant to
provide blood, saliva, and hair samples. (FN2)
The grand jury voted and then issued such an order. (FN3) Subsequently, the prosecutor filed a motion
with the Superior Court judge supervising the grand jury to compel the
defendant to provide the samples.
Accompanying this motion were the grand jury's order, an affidavit from
Cox summarizing his testimony, the F.B.I. laboratory
report, and a memorandum of law in support of the motion. After a hearing during which both the
prosecutor and defense counsel were heard, the supervising judge granted the
order compelling the defendant to provide the samples. (FN4)
[1] [2] a. The blood sample. We address first the defendant's claim that
that portion of the order compelling him to provide a blood sample violated his
Federal constitutional rights because when the order issued, the defendant had
not been
arrested or indicted in
connection with the bank robbery, no finding of probable cause to arrest him
had been made, and no summons had been issued for his appearance before the
grand jury. (FN5)
[407 Mass. 476] [3] An order compelling the production of a blood sample is an
intrusion that implicates protections provided by the Fourth Amendment to the United
States Constitution. Schmerber v.
California, 384 U.S. 757, 767, 86 S.Ct. 1826,
1833, 16 L.Ed.2d 908 (1966). Commonwealth v. Trigones,
397 Mass. 633, 640, 492 N.E.2d 1146 (1986). (FN6) In Schmerber, the Supreme Court held that, when a person
was lawfully arrested in circumstances clearly suggestive of driving while
under the influence of intoxicating liquor, the subsequent seizure of a blood
sample was reasonable in light of the exigent circumstances present‑‑the
fact that his blood alcohol percentage could begin to decline rapidly. Id.
at 770‑771, 86 S.Ct. at 1835‑36. In reaching this conclusion the Schmerber
Court made clear that a government order compelling a person to produce
corporeal evidence involves potential violations of the Fourth Amendment to the
United States Constitution at two different levels: "the 'seizure' of the 'person' necessary
to bring him into contact with government agents ... and the subsequent search
for and seizure of the evidence." United States v. Dionisio,
410 U.S. 1, 8, 93 S.Ct. 764, 769, 35 L.Ed.2d 67
(1973).
The
defendant does not challenge the constitutionality of the bodily intrusion
necessary to "search for" and "seize" the blood
sample. He apparently concedes that the
grand jury could have constitutionally ordered the intrusion necessary to
obtain his blood sample if their directive that he be detained had been
proper. See Matter of an Investigation into
the Death of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982)
(upholding court order that a suspect in a homicide investigation produce a
blood sample). Cf. Commonwealth v. Trigones, supra
(upholding a postindictment order to produce a blood
sample). The defendant's claim is that
his detention for the purpose of a blood test in connection with the bank
robbery investigation was unconstitutional because he had not first been
indicted, arrested, subjected to a probable cause determination, or even
summonsed to appear before the grand jury.
[407 Mass. 477] Given the facts before us, we do not find this claim
compelling. If the evidence before the
grand jury would have supported the arrest or indictment of the defendant, he
was not harmed by the fact that the order issued in the absence of either. We find that the evidence before the grand
jury was adequate to meet this test.
Cox's testimony before the grand jury concerning the defendant's cash
purchases, as well as the gun, clothing, and caps recovered by the police from
the defendant's apartment and his parents' house, suggested a direct link
between the defendant and the bank robbery.
In addition, Cox's testimony disclosed evidence linking the defendant to
the kidnapping (Renaghan's positive identification of
the defendant) and also linking the kidnappers to the bank robbery (location of
the getaway car, the footprints, and the description of the robbers). This testimony provided ample support for the
grand jury to have indicted the defendant.
Moreover,
the defendant did receive a hearing before the supervising judge in which he
was afforded the opportunity to oppose the grand jury order and to contest the
constitutionality of his detention for the purpose of a blood test.
For these
reasons, we hold that that portion of the order requiring that the defendant be detained for the purpose of a blood
test did not constitute a violation of his rights under the Fourth Amendment.
b. The saliva and hair samples. With regard to that portion of the order
requiring that the defendant appear to provide saliva and hair samples, the
Commonwealth claims that, there having been no intrusion below the skin, a less
stringent analysis applies. See In re Grand Jury Proceedings, 686 F.2d
135, 138‑139 (3rd Cir.), cert. denied, 459 U.S. 1020, 103 S.Ct. 386, 74 L.Ed.2d 517 (1982). Because the defendant again concedes that the
"seizure" of the samples was constitutional so long as he was
properly detained, we need not reach the question whether a lower standard
applies to saliva and hair samples. We
uphold that portion of the order compelling the production of saliva and hair
samples.
[407 Mass. 478] [4] 2. The photographic
identifications. The police
interviewed the kidnapping victim and two eyewitnesses to the kidnapping on the
day of the incident. All three were able
to describe the assailant. One week
after the incident, the victim and the eyewitnesses were shown photographic
arrays consisting of nine black and white photographs and were asked whether
they could identify the assailant. One
of the eyewitnesses selected two photographs, one of which was that of the
defendant, and reported that, although she thought that the assailant was one
of the two men pictured, she could not distinguish between the two. The victim and the other eyewitnesses
identified the defendant.
"Under
our decisions a criminal defendant has the burden to prove, by a preponderance
of the evidence, that [a] witness was subjected by the State to a pretrial
[photographic] confrontation ... 'so unnecessarily suggestive and conducive to
irreparable mistaken identification' as to deny the defendant due process of
law." Commonwealth v. Venios,
378 Mass. 24, 26‑27, 389 N.E.2d 395 (1979). Applying this standard, we find that the
motion judge did not err in denying the defendant's motion to suppress the
photographic identifications. Deliberate
inclusion of a suspect's picture in an array would only be improper, in and of
itself, if the array were too small. An
array of nine photographs, however, is not too small. See
Commonwealth v. Mobley, 369 Mass. 892, 897, 344 N.E.2d 181 (1976), citing Simmons v. United States, 390 U.S. 377,
88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In addition, while it would have been
preferable for the police to have utilized a more current photograph of the
defendant, the use of an old photograph is not impermissibly suggestive. Indeed, to the extent that a suspect's
appearance may have changed over time, use of an old photograph can only
benefit him. As to the other photographs
included, the motion judge found that all of them depicted "white males in
their late teens or early twenties with light complexions and no facial hair or
other distinguishing characteristics noticeable." She further found that all the men,
"except perhaps two," had "medium to light" hair. In view of these facts, we conclude that the motion
judge's denial of the motion did not constitute error.
[407 Mass. 479] [5] Defense counsel supports the claim that the photographic
arrays were unnecessarily suggestive by arguing on appeal, for the first time,
that the second photograph selected by the first witness was subsequently
excluded from the arrays shown to the second witness and the kidnapping
victim. The Commonwealth concedes that
the "look‑alike" photograph was in fact removed.
Because
the defendant did not advance this argument below, we review the removal of the
"look‑alike" photograph to determine whether it gave rise to a
substantial risk of a miscarriage of justice. Commonwealth v. Freeman,
352 Mass. 556, 564, 227 N.E.2d 3 (1967).
We rule that it did not. The
motion judge ruled that the victim had had "an excellent opportunity to
view the perpetrator," and had given an accurate description of the
defendant on the day of the incident. In
addition, the victim positively identified the defendant in court at
trial. There was no substantial risk of
a miscarriage of justice. Id.
[6] 3. Alleged improprieties before the grand
jury. The defendant claims that the
judge supervising the grand jury erred in denying his pretrial motion to
dismiss the indictments based on alleged improprieties in the Commonwealth's
presentation of evidence before the grand jury.
The defendant's motion rested on a number of factual allegations that
the Commonwealth's presentation of evidence was biased and inaccurate. In particular, the defendant points to
Trooper Cox's testimony that the police had apprehended the defendant after
receiving information about him from members of "the criminal
element," and that the defendant had purchased his automobile with
"new found wealth." The
defendant also objected to Cox's assertion that, on the day of the incident, Renaghan had described the defendant "[e]xactly."
"To
sustain a claim that the integrity of the grand jury has been impaired, not
only must the evidence have been given with knowledge that it was false or
deceptive, but the false or deceptive evidence must probably have been
significant in the view of the grand jury and must have been presented with the
intention of obtaining an indictment." Commonwealth v. Mayfield, 398 Mass. 615,
621, 500 N.E.2d 774 (1986). [407 Mass. 480] The defendant's allegations of impropriety before the grand jury
do not amount to a showing that false or deceptive evidence was
introduced. All the statements were
substantially true. Describing the
defendant's notable supply of cash in small denominations as "new found
wealth," or the description of the Renaghan
identification as exact does not make the evidence of the cash or
identification false or deceptive. The
supervising judge did not err in denying the defendant's motion.
Judgments affirmed.
FN1. During
the trial, there was expert testimony that most people secrete small amounts of
blood into other bodily fluids, such as saliva.
FN2. Having been indicted and arrested for
the offenses connected with the abduction of Renaghan,
the defendant was already being held on bail and, therefore, readily available
to provide the samples.
FN3. Contrary to defense counsel's assertion
at oral argument, nothing turns on the fact that the grand jury's request for
the samples was termed an "order" rather than a "subpoena."
FN4. The defendant's brief raises a question
as to whether a blood sample was actually taken. In view of subsequent testimony as to the
test results, however, there can be little doubt that a blood sample was taken.
FN5. Although the defendant's brief does make
one reference to art. 14 of the Massachusetts Declaration of Rights, the
defendant does not develop an argument that the State Constitution provides
greater protection in this context than does the Federal Constitution. We therefore confine our analysis to the
protection provided the defendant by the Federal Constitution.
FN6. Such an order does not implicate protections
guaranteed by the Fifth Amendment to the United States Constitution because a
blood sample is nontestimonial evidence. Schmerber v. California, 384 U.S. 757, 760‑765,
86 S.Ct. 1826, 1830‑32, 16 L.Ed.2d 908 (1966).