|
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. Gee, 36 Mass.App.Ct.
154 (1994)
Appeals Court of Massachusetts,
No. 92‑P‑1855.
Argued
Decided
Joseph J. Balliro,
Robert C. Thompson, Asst. Dist. Atty., for the Com.
Before PERRETTA, KASS and PORADA, JJ.
PERRETTA, Justice.
Two
employees of Weylu's Restaurant in
1. The robbery. There was evidence to show that at about
Michael
Benjamin, the restaurant security officer, was sitting in the lobby when Cheung
and the robbers entered. The robber
holding the gun to Cheung's back, subsequently identified as the defendant,
came from behind Cheung, went directly to Benjamin, and put a .45 caliber
handgun to his forehead between his eyebrows.
He warned Benjamin not to move or "he'd blow ... [his] brains
out." In the space of about three
to five seconds, the defendant marched Benjamin to the rear of the restaurant
where he removed Benjamin's revolver.
The defendant next ordered Benjamin, the gun still to his back, to the
kitchen where his hands were cuffed and his eyes taped. Cheung and the night manager, Ivan Ngan, (FN1) were also forced to the kitchen, handcuffed and
blindfolded with tape.
When
Benjamin no longer heard voices or sounds of activity, he worked to free
himself of his handcuffs, and he called the Brockton police. That night, he described his assailant, the
defendant, as Asian, about five feet, six or seven inches tall and of medium
build, about one hundred and seventy pounds.
[36 Mass.App.Ct.
156] 2. The photographs. John
Martel testified that he was a detective with the Boston police department
assigned, at the time of the robbery, to the "Asian task force." When the Brockton police department notified
him of the robbery, he compiled a photographic array of twenty‑two
pictures of young Asian males. He
brought the array to Benjamin and then to Cheung, each of whom selected the
defendant's photograph. (FN2) When shown a photograph and asked whether he
recognized it, Martel replied that he recognized the photograph because he knew
the defendant, and he identified it as being the one selected by Benjamin and
Cheung. He also stated that, although
the male depicted in the photograph was not wearing glasses, "Brian wears
glasses." He arrested the
defendant who is five feet, eleven inches tall and weighed about one hundred
and twenty pounds at the time of his arrest which was about three weeks after
the robbery and after Benjamin and Cheung had been shown the array.
All the
photographs were admitted in evidence over the defendant's objection. Each photograph, including that of the
defendant, is a double‑pose picture of an Asian male standing against a
height chart. Each has a placard with an
inscription, "POLICE DEPT., BOSTON, MASS," an identification number,
and the date the photograph was taken.
The height chart and placard appear in both poses of the photographs. At the time the photographs were admitted in
evidence, defense counsel did not request a limiting instruction. (FN3)
3. Identification of the defendant. Benjamin testified that, during the three to
five seconds he was in the lobby, he had the opportunity to see the
defendant. Although there were discrepancies
between the defendant's actual appearance and Benjamin's description of his
assailant to the Brockton police, Benjamin did select the defendant's picture
from the array. [36 Mass.App.Ct.
157]
He identified the defendant at hearings in the Brockton District Court
as well as at trial. Benjamin observed
that the only difference between the defendant's appearance in his picture and
at all the court proceedings was that his photograph did not depict him wearing
glasses.
Cheung's
field of clear vision without his glasses is limited to about seven feet. He testified that although he had his glasses
on when he was ordered from his car, he never got a good look at his assailant
who thereafter remained behind him. He
also stated that after the robbery, Martel showed him a large number of
photographs of "criminals" (FN4) and told him "to pick out
anyone that might look like who was in that incident, pick one out." Cheung picked out the picture of the
defendant, who he was unable to identify at the District Court
proceedings. At trial, he did not say
that the defendant was not the robber, but he could not tell the jury that he
was. Additionally, Cheung believed his
assailant had a facial birthmark whereas the defendant did not.
On this
evidence, the judge told the jury, in his final instructions, "One or more
of the exhibits in this case involves photographs that were in the possession
of a police department. That is of no
significance. Any police department may
have lots of photographs for miscellaneous purposes. License issuance, for example. That has no significance and I instruct you
to attach no significance to a police department's possession of a photograph
of Mr. Gee in this case." Defense
counsel objected to the instruction and requested that the jury be instructed
in the language used in Commonwealth v. Blaney, 387 Mass. 628, 636 & n. 7, 442 N.E.2d 389
(1982), but the judge denied the request.
[1] 4.
Discussion. "Admission of
a defendant's mug shots in evidence, laden, as it is, with potential for
characterizing the defendant as a careerist in crime, is inhibited by three
criteria: (1) the prosecution must show
some need to introduce the mug shots;
(2) the mug shots, to the extent possible, [36 Mass.App.Ct. 158] should not indicate a prior record; and (3) the mug shots should not call
attention to their origins and implications." Commonwealth v. Smith, 29 Mass.App.Ct. 449, 451, 561 N.E.2d 520 (1990). See also
Commonwealth v. Payton, 35 Mass.App.Ct. 586, 591‑596,
623 N.E.2d 1127 (1993). Where the sole
issue at trial was the identification of the defendant, there can be little
doubt as to the Commonwealth's need to use the photographs.
There also
can be little doubt, however, because of the placards appearing in the
photographs, that the police were in possession of the defendant's picture at a
time, January 2, 1988, prior to the date of the offense, February 29, 1988, for
which he was being tried. Moreover,
Martel testified that the defendant was arrested after he had been identified
from the array. See Commonwealth v. Lockley, 381 Mass. 156,
166, 408 N.E.2d 834 (1980); Commonwealth v. Blaney,
387 Mass. at 639, 442 N.E.2d 389.
Compare Commonwealth v. Payton,
35 Mass.App.Ct. at 594‑595, 623 N.E.2d 1127.
The
Commonwealth does not dispute the fact that, as stated in its brief, the
"jury was exposed to evidence from which they could infer that the
defendant had prior involvement with the Boston police." Instead, it argues that, because defense
counsel limited his objection to the fact that the photographs were unsevered and voiced no complaint about their unsanitized condition, we should conclude that the unsanitized photographs did not create a substantial risk
of a miscarriage of justice.
[2] In
objecting to the photographs, including that of the defendant, defense counsel
stated: "They are front and side
mug shot photos with some kind of shield under the face of each of the men
depicted in the photos. So I am going to
object to the photos or rather the form or having them be shown to the
jury." When the judge asked
whether the objection was based upon the police insignia, defense counsel
responded, "Both as to the front and sides of the mug shots." Without inviting a reply from the
Commonwealth or further discussion, the judge overruled the objection and
instructed the prosecutor to "proceed."
[36 Mass.App.Ct.
159] If not a model of clarity, the
objection was nonetheless adequate to alert the judge to the potential error so
that it could have been avoided. See Commonwealth v. Cancel, 394 Mass. 567,
571‑572, 476 N.E.2d 610 (1985), quoting from Cady v. Norton, 14 Pick. 236, 237 (1833). Compare
Commonwealth v. Payton, 35 Mass.App.Ct. at 591‑592
n. 3, 623 N.E.2d 1127, where, for "tactical reasons," no objection to
the admission of the mug shots was lodged.
We think the basis of the objection was sufficiently stated, especially
when considered with the appearance of the photographs themselves and the
misidentification theory of the defense, cf.
Commonwealth v. Cancel, 394 Mass. at 573, 476 N.E.2d 610, quoting from
McCormick, Evidence § 52, at 115 (2d ed. 1972), to entitle the defendant to the
less stringent standard of review of the error.
We come then to the real issue on appeal, that is, whether the error
requires reversal of the defendant's conviction.
[3] There
was basis to question the adequacy of the opportunity provided Benjamin and
Cheung to observe their assailant during the robbery. Benjamin's description of his assailant,
given the same day as the crime, did not match the defendant's height or
weight. Cheung, who thought his
assailant had a facial birthmark, could not make an in‑court
identification of the defendant. In his
final instructions, the judge essentially tracked the language in Commonwealth v. Rodriguez, 378 Mass.
296, 310‑311, 391 N.E.2d 889 (1979), which includes consideration of the
fact that "an identification made by picking the defendant out of a group
of similar individuals is generally more reliable than one which results from
the presentation of the defendant alone to the witness." Id.
at 311, 391 N.E.2d 889. The strongest
evidence against the defendant was the fact that both Benjamin and Cheung
selected his picture from the same array of photographs, a point brought home
by the prosecutor when, in her closing argument she asked the jury to ponder
the "odds on that."
Focus on
the defendant's photograph invites attention to his prior involvement with the
Boston police. It is the Commonwealth's
position that the judge's "cautionary remarks," that the jury was to
attach no significance to the fact that
[36 Mass.App.Ct. 160] the defendant's photograph was in the possession of the police,
"mirror in every significant respect those approved by the Court" in Commonwealth v. Blaney,
387 Mass. at 636 n. 7, 442 N.E.2d 389:
"You cannot draw any inference against [the defendant] ... if you
infer then that the police ... at that time had a photograph of [the
defendant]. You can't draw any
inferences against him simply because the police had his photograph. The police departments have pictures of
people for many different reasons, and you cannot speculate on the fact, if you
came to believe it was a fact, that they had a picture of [the defendant]." See also
Commonwealth v. Banks, 27 Mass.App.Ct. 1193,
1194, 543 N.E.2d 433 (1989); Commonwealth v. Payton, 35 Mass.App.Ct. at 595, 623 N.E.2d 1127.
In both Blaney and Banks, the instructions given concerned
photographs that had been sanitized prior to their admission in evidence. (FN5)
The point of those instructions was that, because the police have
pictures of people for a variety of reasons, the adverse inference that the
photos are mug shots from a prior criminal episode was not to be drawn. In the present case, Martel's testimony
dispelled any unrealistic notion that the defendant's unsanitized,
double‑pose photograph could have been taken for an innocuous
reason. The instruction lacked the force
necessary to reach its mark, and we are left to wonder whether the jury
understood that they could draw no inference adverse to
the defendant from the apparent fact that the photographs are mug shots taken
prior to his arrest for the offense for which he was on trial.
We are
unable to conclude that the condition of the photographs "did not
influence the jury, or had but very slight effect." Commonwealth v. Gilday, 382 Mass. 166, 178, 415 N.E.2d 797 (1980), [36 Mass.App.Ct.
161] quoting from United States v. Agurs,
427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342
(1976). See also Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445‑446, 446 N.E.2d 117 (1983),
quoting from Kotteakos
v. United States, 328 U.S. 750, 764‑765, 66 S.Ct.
1239, 1247‑1248, 90 L.Ed. 1557 (1946). On the Commonwealth's evidence, any
reasonable doubt by the jury about the ability of Benjamin and Cheung to
identify the defendant as one of their assailants might have been resolved upon
the basis of his prior involvement with the Boston police. We leave to the discretion of the trial judge
at retrial whether, in addition to being sanitized, the photographs should be
severed. (FN6)
Judgment reversed.
Verdict set aside.
(FN1.) Ngan did not
testify as he was out of the country at the time of trial.
(FN2.)
Defense counsel's objection to and motion to strike Martel's testimony
concerning Cheung's selection of the defendant's photograph did not meet with
success. After the Commonwealth rested
without having called Cheung to testify, defense counsel again moved to strike
Martel's testimony concerning Cheung's selection of the defendant's
picture. The judge allowed the
Commonwealth to reopen its case and call Cheung to testify.
(FN3.)
Appellate counsel was not trial counsel.
(FN4.)
It is clear from the transcript that the Commonwealth neither intentionally
solicited nor anticipated Cheung's characterization of the men in the pictures.
(FN5.)
In Commonwealth v. Payton, 35 Mass.App.Ct. at 592, 623 N.E.2d 1127, no objection was
taken to the photographs because, as earlier noted, it was "trial
counsel's strategy ... to attack the photographic identifications by showing
that the array was so suggestive as to lead the identifying witnesses to make
faulty identifications." Nonetheless,
the judge instructed the jury "not to draw any inference against this
defendant because the police have his photograph" and that "[t]he
fact that the police may have this defendant's picture does not mean the
defendant committed this or any crime." Id. 35 Mass.App.Ct.
at 595, 623 N.E.2d 1127.
(FN6.)
We do not agree with the defendant's remaining claim that the prosecutor
inflamed the jury with her closing remarks concerning Benjamin's terror when
the gun was put to his forehead. Those
statements were directed to the defendant's argument that Benjamin was so
frightened and his attention so riveted on the gun that he had no true ability
to observe his assailant.