|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Gagne, 27 Mass.App.Ct.
425 (1989)
Appeals Court of Massachusetts,
No. 88‑P‑186.
Argued
Decided
Further Appellate Review Denied
Jane Larmon White,
Committee for Public Counsel Services, for defendant.
Linda M. Fleming, Asst. Dist. Atty., for Com.
Before BROWN, DREBEN and
WARNER, JJ.
WARNER, Justice.
After a
jury trial in the Superior Court, the defendant was convicted of burglary and
assault on an occupant of a dwelling. On
appeal, he alleges error only in the denial of his motion to suppress in‑court
identifications by the victim and an inculpatory postarrest conversation between the defendant and his
mother.
[27 Mass.App.Ct.
426] We sketch the facts essential
to our decision from the evidence received at the suppression hearing. (FN1)
Some time in the late night of
The police
arrived within minutes, and the victim gave them a description of the
intruder. A Scituate
police officer on foot patrol in the area received a police radio broadcast
giving a description of the suspect as being about five feet, eight inches
tall, with brown wavy hair, and wearing dark pinstriped pants and a dark muscle
tee shirt. Thereafter, the officer
observed the defendant walking out of Otis Street, where the victim lived, and
about six or seven hundred feet from her home.
The officer radioed for backup assistance and followed the defendant
into the Clipper Ship restaurant, which the officer estimated to be three to
six hundred feet from Otis Street. The
defendant accompanied the officer outside and was advised of his Miranda rights; other police officers arrived on the scene.
Some time
after midnight, the police told the victim they had a suspect and would like to
see if she could identify him. [27 Mass.App.Ct.
427] The victim was taken in a
police cruiser to the Clipper Ship parking lot, where the defendant was being
detained by the police. While there, the
victim did not leave the cruiser. She
was shown a photographic identification card given to the police by the
defendant, but she could make no identification because the eyes in the photograph
were not clear; she could not make out
the color. The victim was in the parking
lot five to ten minutes. She observed a
man standing in the lot with three or four police officers around him. The victim was not, however, brought close
enough to the defendant so that she could attempt a
positive identification of him as the intruder.
(FN2)
While in
the cruiser in the parking lot, the victim gave police officers the description
of the "pinky" ring which she had observed on the right hand of the
intruder. Officers went to the defendant
and observed such a ring on the defendant's right hand. The defendant was then placed under
arrest. That evening, at the police
station, an officer overheard a conversation between the defendant and his
mother, in which the mother said:
"You're in trouble now‑‑why did you do it?"; and the defendant replied: "I don't know, I was drunk."
[1][2] 1.
The defendant argues that the events in the Clipper Ship parking lot were so
impermissibly suggestive of the defendant as to require suppression of any
subsequent in‑court identifications made by the victim, (FN3) absent a
showing by clear and convincing evidence of an independent source for, or the
reliability of, the later identifications.
See Commonwealth v. Venios, 378 Mass. 24, 30, 389 N.E.2d 395 (1979);
Commonwealth v. Hicks, 17 Mass.App.Ct.
574, 576‑578, 460 N.E.2d 1053 (1984).
A defendant has the burden of showing, by a preponderance of the
evidence, that procedures used at a particular photographic or in‑person
confrontation were "so unnecessarily suggestive and conducive to
irreparable mistaken identification" as to deny the defendant due process
of law.
Stovall v. Denno, 388 U.S. 293, 301‑302,
87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).
Commonwealth v. Venios, supra 378 Mass. at
29, 389 N.E.2d 395. Commonwealth [27 Mass.App.Ct. 428] v. Thornley, 400 Mass. 355, 363,
509 N.E.2d 908 (1987). Commonwealth v. Key, 19 Mass.App.Ct. 234, 239, 472 N.E.2d 1381 (1985). Such a showing must depend on the totality of
the circumstances of the challenged confrontation. See
Commonwealth v. Simmonds, 386 Mass. 234, 239, 434
N.E.2d 1270 (1982); Commonwealth v. Key, 19 Mass.App.Ct. at 239, 472 N.E.2d 1381. We hold that the defendant has not met his
burden in this case.
[3] Even
in those cases where one‑on‑one photographic or in‑person
confrontations have yielded positive identifications, "[w]e have
repeatedly held that due process rights are not violated when police arrange
[the] ... confrontation between the victim and [the] suspect promptly after a
criminal event occurs." Commonwealth v. Harris, 395 Mass. 296,
299, 479 N.E.2d 690 (1985). Here, the
victim was brought to the parking lot reasonably promptly after the crime, but
she did not make a positive identification
because she was unable sufficiently to view the defendant either in the
photograph or in person. The police were
under no obligation to arrange a one‑on‑one in‑person
confrontation. Indeed, while
constitutionally permissible, such encounters continue to be
"disfavored." Commonwealth v. Santos, 402 Mass. 775,
781, 525 N.E.2d 388 (1988). There were
no special elements of unfairness during the events. See
Commonwealth v. Barnett, 371 Mass. 87, 93, 354 N.E.2d 879 (1976), cert.
denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765
(1977);
Commonwealth v. Coy, 10 Mass.App.Ct. 367,
372, 407 N.E.2d 1310 (1980). (FN4) "The [victim knew] [s]he would not be
asked to make an identification unless the police had reason to suspect the
detainee's involvement." Commonwealth v. Hicks, 17 Mass.App.Ct. at 583, 460 N.E.2d 1053. Commonwealth v. Harris, supra.
As we have
concluded that the parking lot incidents were not unduly suggestive of the
defendant, there is no occasion to consider the question whether the victim's
subsequent in‑court identifications had an independent source or were
otherwise reliable. See Commonwealth v. Cincotta,
379 Mass. 391, 397, 398 N.E.2d 478 (1979); Commonwealth v. Harris, supra 395 Mass.
at 300,
479 N.E.2d 690; Commonwealth[27 Mass.App.Ct. 429] v. Coy, supra 10 Mass.App.Ct. at 376, 407 N.E.2d 1310. It was for the jury to decide the weight to
be given to the victim's in‑court identifications in all of the
circumstances which were thoroughly explored at trial. See
Commonwealth v. Cincotta, supra; Commonwealth v. Coy,
supra 10 Mass.App.Ct. at 375, 407 N.E.2d
1310. The jury were fully and correctly
instructed in this respect.
2. The
defendant argues that the conversation at the police station with his mother
should have been suppressed because it was the fruit of an illegal arrest. Since there was no in‑person one‑on‑one
confrontation and the victim was unable to identify the defendant from the
photographic identification card or otherwise, the defendant contends that his
arrest was without probable cause.
[4] As we
have said, the police were not obligated to arrange a one‑on‑one in‑person
confrontation. Probable cause to arrest
may, of course, rest on other grounds.
Cf. Commonwealth v. Coy, supra
at 375, 407 N.E.2d 1310. "[P]robable cause [to arrest] exists where, at the moment of
the arrest, the facts and circumstances within the knowledge of the police are
enough to warrant a prudent person in believing that the individual arrested
has committed or was committing an offense." Commonwealth v. Storey, 378
Mass. 312, 321, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). Commonwealth v. Carrington,
20 Mass.App.Ct. 525, 527, 481 N.E.2d 224 (1985). See
Commonwealth v. Howell, 394 Mass. 654, 658, 477 N.E.2d 126 (1985). Here, a police officer spotted the defendant
walking away from the scene of the crime and a short distance therefrom. The
description the officer had been given substantially matched the
defendant's. Just before the arrest, the
victim had described the ring the intruder had on and its location. Both matched a ring worn by the
defendant. There was probable cause to
arrest, and thus there was no error in the denial of the motion to suppress the
conversation. (FN5) See Commonwealth
v. Carrington, supra 20 Mass.App.Ct. at 528‑529,
481 N.E.2d 224.
Judgment affirmed.
(FN1.) The judge's subsidiary findings are
inadequate. "[T]he omission is not
fatal here where the ultimate conclusion is clearly evident from the record. The judge's denial of the defendant's motion
implies resolution of factual issues in favor of the
Commonwealth...." (Citations
omitted.)
Commonwealth v. Lanoue, 392 Mass. 583, 586
n. 2, 467 N.E.2d 159 (1984).
(FN2.)
The victim first identified the defendant at a probable cause hearing. She also made identifications at the
suppression hearing and at trial.
(FN3.)
No other identification procedures were employed.
(FN4.)
There is some conflict in the testimony with regard to the intent of the police
in bringing the victim to the parking lot.
It is enough to say that we are concerned only with the effect, in terms
of suggestiveness, of what the police did.
(FN5.)
Following the arrest, the police lieutenant in charge of the investigation
noticed white paint in the defendant's hair;
the victim had previously stated that the intruder had white streaks in
his hair. The lieutenant also observed
white powder on the defendant's left shoe.
In examining the victim's bedroom the lieutenant saw a footprint in
white powder on newspapers beneath the window.