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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. Jones, 375
Supreme Judicial Court of Massachusetts,
Argued
Decided
Kevin M. Keating,
[375
Before [375
[375
The
defendant was indicted for murder in the first degree, armed robbery (two indictments),
and the unlawful carrying of a handgun.
After a jury trial, the defendant was found guilty of murder in the
second degree and guilty of the three remaining charges. He was sentenced to life imprisonment on the
murder charge as well as to three lesser terms on the other charges to run
concurrently with the life sentence. We
consider the defendant's appeal pursuant to G.L. c. 278, ss 33A‑33G.
The
principal issues in this case involve the identification of the defendant by
three witnesses. The defendant argues
first that the trial judge erred in denying a motion to suppress identification
evidence, and second that the judge erred in denying the defendant's requests
for jury instructions on the issue of identification. We consider the issues in that order after
relating the material facts. We conclude
that there was no error and that the judgments of conviction are to be
affirmed.
The murder
occurred about
[375 Mass. 351] Other relevant facts involve the process of identification that
led to the arrest of the defendant. For
our purposes, it will be helpful to divide the identification process into
three stages: (1) pre‑arrest identification by photographs; (2)
identification at a pre‑indictment probable cause hearing; and (3)
identification at trial. Each stage will
be discussed separately.
1. Pre‑arrest Identification by Photographs.
a. Rita McLellan. Two police detectives visited Mrs. McLellan
at her home on September 17, 1975, and handed her thirteen photographs. She picked out the photograph of the
defendant as the man with the gun. There
was no significant conversation with the police either before or after the
identification.
b. Deborah
McLellan. On or shortly after September
17, 1975, Deborah McLellan was called to the police station and was asked to
look at the same photographs. Prior to
looking at the photographs, she was questioned regarding the events at the
cafe. She became highly excited, or
hysterical, much as she had been on the night of the murder. According to the police, she was unable to
select any of the photographs due to her excited condition. Deborah testified, however, both at the
hearing on the motion to suppress and at the trial, that she did pick out the
defendant's photograph from the group of thirteen and had identified it as
being a photograph of one of the robbers.
c. Alma
Condo. The police detectives visited
Mrs. Condo in her home sometime in September and showed her the same thirteen
photographs. She was not able to make an
identification. Subsequently, Mrs. Condo
came to the police station on her own initiative, complaining that she was
being followed and that she was afraid.
The police presented to her the same thirteen photographs, from which,
according to the police, she picked the photograph of the defendant as the man
who had been following her. Mrs. Condo's
testimony on this point was somewhat confused, making it unclear
whether she remembered identifying the defendant's[375 Mass. 352] picture as being that of one of the robbers
or merely that of the man who had been following her.
d. The
judge's findings. With regard to the
photographic displays presented to Rita McLellan and Alma Condo, the judge
"accept(ed) as truthful and accurate" the testimony of the police
detectives at the voir dire hearing on the motion to suppress, and formally
adopted that testimony as his findings of fact.
That is, the judge adopted the police testimony that Rita McLellan
picked out the defendant's picture from the group of thirteen as being that of
one of the robbers, and that Alma Condo picked out the same picture as being
that of the man who had been following her.
The judge added that "(i)nsofar as the photographic identification
is concerned, there's been no showing whatsoever, in my view, that the
Commonwealth or the police authorities did anything that was in any way
suggestive which would have tainted that photographic identification
process." He therefore denied the
defendant's motion to suppress photographic identification with regard to Rita
McLellan and Alma Condo. He also denied
that motion with regard to Deborah McLellan after a voir dire, but without
making explicit findings of fact.
e. The
assignment of error. The defendant
assigns as error the judge's denial of the motion to suppress the photographic
identification by the three witnesses.
The defendant declares in a general, and rather unhelpful, way that the
photographic identification was "improper, unduly suggestive and
prejudicial." Compare G.L. c. 278,
s 33D, as amended by St.1974, c. 458, s 2: "The specific grounds upon
which any claim of error is based shall be set forth in a concise form." In his brief, the defendant contends that the
thirteen photographs "did not constitute a fair mix of photographs based
upon the descriptions which the police had obtained prior to selecting photographs." The defendant thus challenges the particular
array of thirteen photographs presented to the witnesses rather than
challenging the manner in which the photographs were presented by the police.
[375 Mass. 353] The judge did not benefit from the focus provided in the
defendant's brief. The failure of the
judge to make a specific reference in his findings to the propriety of the
particular array of photographs is thus attributable in substantial measure to
the defendant's failure clearly to present the issue. However, a reading of the transcript clearly
reveals that the questioning of the witnesses by counsel and by the judge
sufficiently illuminated the possible "suggestive" aspects of the
photographic identification procedures.
(FN1) The judge explicitly found, after hearing extensive testimony on
all the aspects of the photographic identifications by the three witnesses,
(FN2) that there was "no showing whatsoever . . . that the Commonwealth or the police
authorities did anything that was in any way suggestive . . . . As a matter of fact, as I view the situation,
those identifications occurred [375
Mass. 354] prior to the arrest of
the defendant Jones, and there is nothing to indicate that the police zeroed in
on Jones particularly."
[1] [2]
Where subsidiary findings of fact have been made by a trial judge on a motion
to suppress, they will be accepted by an appellate court absent clear
error. Commonwealth v. White, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNa), 371 N.E.2d 777
(1977); Commonwealth v. Sires, 370 Mass. ‑‑‑, ‑‑‑
n.1 (FNb), 350 N.E.2d 460 (1976) (appellate court will accept judge's
resolution of conflicting testimony and will not disturb subsidiary findings if
warranted by the evidence). Commonwealth
v. Hosey, 368 Mass. 571, 574‑575 n.1, 334 N.E.2d 44 (1975). The judge's ultimate legal conclusion in the
instant case that the photographic identification procedures were not
constitutionally invalid is entitled to substantial deference by this
court. White, supra; Commonwealth v.
Botelho, 369 Mass. ‑‑‑, ‑‑‑ (FNc), 343
N.E.2d 876 (1976). However, such an
ultimate legal conclusion, to be drawn from the facts developed at the
suppression hearing, is a matter for review by this court, particularly where
the conclusion is of constitutional dimensions.
Sires, supra; Hosey, supra.
With this
scope of review in mind, we consider the defendant's contention that the
photographic identification procedures were " 'so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification.' " Mobley,
supra, 369 Mass. at ‑‑‑ (FNd), 344 N.E.2d at 184, quoting
from Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247
(1968). The defendant, in his brief,
bases this contention solely on the ground that the array of thirteen
photographs consisting of the defendant's picture and those of twelve other
young black males was inherently suggestive because it did not represent a fair
mix of individuals who were reasonably like the defendant in appearance. See Commonwealth v. Gilday, 367 Mass. 474,
495, 327 N.E.2d 851 (1975). The only
support argued for this position is that some of the photographs were of light‑complexioned
black males while others were of dark‑complexioned black males, and that
this selection did not accord with the description given the police by the
witnesses. This argument is devoid of
merit.
[375 Mass. 355] [3] [4] Having examined the thirteen photographs, as did the
judge, we believe the judge's finding of lack of impermissible suggestion was
clearly correct. The photographs are of
men of varying degrees of lightness or darkness of complexion and there is
nothing to distinguish or draw attention to the defendant. The three witnesses gave the police no clear
indication that the robbers were either very light or very dark in
complexion. It therefore was not
unreasonable for the police to have included men of varying complexions, and
the array that was selected was not likely to draw the three witnesses toward
selection of the defendant's photograph.
Any weaknesses in the photographic identification process, such as may
have been disclosed during the suppression hearing, did not rise to
constitutional level and therefore were properly left for consideration by the
jury relevant to the weight of the identifications. See Commonwealth v. Funderberg, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNe), 373 N.E.2d 963 (1978); Commonwealth v. Bumpus, 362 Mass. 672, 678‑679,
290 N.E.2d 167 (1972), judgment vacated and remanded on other
grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973), aff'd on
rehearing, 365 Mass. 66, 309 N.E.2d 491 (1974).
2. Identification at the Probable Cause Hearing.
a. Rita
McLellan. On October 24, 1975, a hearing
was held in the Municipal Court of the Roxbury District to determine if there
was probable cause to hold the defendant for trial in the Superior Court. Rita McLellan was seated in the court room
when the defendant entered and took his place, alone, in the prisoner's
dock. Mrs. McLellan was told by the
police that they had arrested a man for the crime, and was asked whether she
could identify that man as one of the robbers.
She indicated that the man in the dock, the defendant, was one of the
robbers.
b. Deborah
McLellan. Deborah McLellan was also
present at the probable cause hearing and observed the defendant standing in
the dock. She heard her mother testify
that the defendant was one of the robbers but she did not testify herself. Deborah McLellan left the court room in an
excited, or hysterical, condition and told the police that the defendant was
one of the robbers.
[375 Mass. 356] c. Alma Condo. Mrs. Condo
was seated in the court room and observed the defendant in the dock. She identified him as one of the
robbers. Mrs. Condo testified at the
suppression hearing that, just prior to her arrival at the probable cause
hearing, the police had told her that she was going to be present at a trial
and that the police had apprehended one of the men who had committed the
robbery.
d. The
judge's findings. The judge found
nothing improper or suggestive in the identification of the defendant at the
probable cause hearing by Rita McLellan or Alma Condo, (FN3) and therefore
denied the defendant's motion to suppress as it related to those two
witnesses. The judge subsequently denied,
without comment, the motion to suppress as it related to Deborah McLellan.
e. The
assignment of error. The defendant
assigns as error the judge's denial of the motion to suppress the
identification at the probable cause hearing, declaring that "the
identification procedures were improper, unduly suggestive and prejudicial to
defendant." In his affidavit in
support of the motion to suppress, the defendant had called the judge's
attention to the fact that he was alone in the prisoner's dock at the time of
the identifications.
All that
we have said regarding the particular responsibilities and prerogatives of the
trial judge in making findings on a motion to suppress photographic
identifications, see part (1)(e), supra, applies equally to the context of a
motion to suppress identifications at a probable cause hearing.
[375 Mass. 357] The defendant has characterized the identification procedure at
the probable cause hearing as a "showup" or one‑on‑one
confrontation, as distinguished from a "lineup" in which the
defendant is one of several people presented simultaneously to a witness.
It is the
Commonwealth's position that an identification which takes place in a court
room is different in kind than other forms of showups, and that it is to be
expected that in‑court showups will be suggestive. By this view, the Commonwealth may have
intended to suggest that due process identification considerations are not
applicable to the instant probable cause hearing in which the defendant was
identified by the three witnesses.
A decision of the Appeals Court, cited by the Commonwealth, provides
support for such an argument.
"(T)he . . . identification
at the probable cause hearing was an in‑court identification, and
testimony concerning it was no more subject to exclusion for impermissible
suggestiveness than an identification at the later trial. 'Undoubtedly any in‑court
identification confrontation, whether at a preliminary hearing or at trial, . .
. carries with it the stigma of the
inevitable suggestion that the state thinks the defendant has committed the
crime.' Baker v. Hocker, 496 F.2d 615,
617 (9th Cir. 1974)." Commonwealth
v. Wheeler, 3 Mass.App. ‑‑‑, ‑‑‑ (FNf), 331
N.E.2d 815, 817 (1975). Cf. Commonwealth
v. Evans, ‑‑‑ Mass.App. ‑‑‑ (FNg), 363
N.E.2d 1340 (1977).
The
importance and sensitivity of probable cause showups were recently emphasized
by the Supreme Court in the case of Moore v. Illinois, 434 U.S. 220, 98 S.Ct.
458, 54 L.Ed.2d 424 (1977). In Moore,
the court held that a defendant's Sixth and Fourteenth Amendment rights were violated
by a corporeal identification conducted at a pre‑indictment probable
cause hearing in the absence of counsel.
Although Moore was decided on right to counsel grounds, it also speaks
to the due process fairness of probable cause showups. The Court first noted that "a one‑on‑one
confrontation generally is thought to present greater risks of mistaken
identification than a lineup." Id.
at 229, 98 S.Ct. at 465. The Court then
added: "If the (Court of Appeals) believed that petitioner did not have a
right to counsel at this identification[375
Mass. 358] procedure because it was conducted in the
course of a judicial proceeding, we do not agree. The reasons supporting Wade's (United States
v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) holding that a
corporeal identification is a critical stage of a criminal prosecution for
Sixth Amendment purposes apply with equal force to this identification. It is difficult to imagine a more suggestive
manner in which to present a suspect to a witness for their critical first
confrontation than was employed in this case.
The victim, who had seen her assailant for only 10 to 15 seconds, was
asked to make her identification after she was told that she was going to view
a suspect, after she was told his name and heard it called as he was led before
the bench, and after she heard the prosecutor recite the evidence believed to
implicate petitioner. Had petitioner
been represented by counsel, some or all of this suggestiveness could have been
avoided" (footnote omitted). Id.
In this
case, the record shows that the defendant was represented by counsel at the
probable cause hearing. The defendant
failed to call such counsel to show any impropriety in the procedures in the
Municipal Court, nor has he claimed any in his brief. (FN4) In Commonwelth v. Jones, 362 Mass. 497,
500‑501, 287 N.E.2d 599, 602 (1972), we said, "While there is
clearly an element of suggestion in the relative isolation of the defendant at
the defence table or in the dock (citation omitted), counsel is present to
'ferret out (any) suggestive influences' which he perceives in in‑court
identification procedures. Cf. United
States v. Wade, 388 U.S. 218, 234‑237, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967). . . . If counsel moves for an in‑court lineup
or to seat the defendant in the court room audience, we think it is within the
sound discretion of the trial judge whether to grant the request." See, e. g., Commonwealth v. Pearsall, 370
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNh), 348 N.E.2d 428 (1976); Commonwealth v. Core, [375 Mass. 359] 370
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNi), 348 N.E.2d 777 (1976); Commonwealth v. Bumpus, 362 Mass. 672, 680, 290
N.E.2d 167 (1972).
[5] The
instant case involves crucial and sensitive initial face‑to‑face
encounters between the witnesses to the crime and the defendant in the context
not of a trial but of a hearing to determine probable cause. However, the defendant failed to show that
counsel at the probable cause hearing sought to alter the identification
procedures therein. Had such a showing
been made, and had it been further shown that a request of the type outlined in
Jones improperly had been denied, a different case than that now before us
might have been presented. There was no
error in the judge's denial of the motion to suppress the probable cause
hearing identifications.
3. Identification at Trial.
[6] All
three witnesses identified the defendant at trial as one of the robbers. In light of our view that the judge correctly
found no violation of any constitutional right, we need not reach the issue of
whether such in‑court identifications were the product of, or
"tainted" by, prior impermissibly suggestive confrontations, or
whether the trial identifications were grounded on independent
observations. Cf. Botelho, 369 Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNj), 343 N.E.2d 876
(1976). There was no error on this
account.
4. Requests for Jury Instructions.
[7] The
defendant assigns as error the judge's refusal to charge the jury on the issue
of identification in conformance with certain instructions requested by the
defendant. Having reviewed the
instructions given by the judge, as well as the requested instructions, we are
of the opinion that the judge's charge provided accurate and fair coverage of
the issue and afforded the jury appropriate guidelines for decision. See Commonwealth v. De Christoforo, 360 Mass.
531, 539‑540, 277 N.E.2d 100 (1971).
5. Conclusion.
Pursuant
to G.L. c. 278, s 33E, we have reviewed the entire case for consideration of
the law and the evidence. We find no
reason to order a new trial or to direct a verdict of a lesser degree of guilt.
Judgments
affirmed.
FN1.
Commonwealth v. Mobley, 369 Mass. ‑‑‑, ‑‑‑
(Mass.Adv.Sh. (1976) 717, 722), 344
N.E.2d 181, 184 (1976), provides five criteria to aid in the analysis of such
procedures. The judge should consider:
"(1) the extent of the witness's opportunity to view the robber; (2) the
general description given by the witness of the robber; (3) the absence of any
error in either failing to identify the defendant as the robber or in
identifying some other person as the robber; (4) the lack of evidence that the
police had made any suggestions to the witness concerning identification of the
defendant; and (5) the relatively short period of time which elapsed between the
commission of the crime and the identification of the photographs"
(footnote omitted). See United States v.
Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), where several
of these criteria were suggested as aids in determining whether an in‑court
identification was impermissibly tainted by a prior lineup identification
conducted in violation of the defendant's right to counsel. See also Commonwealth v. Botelho, 369 Mass. ‑‑‑,
‑‑‑ (Mass.Adv.Sh.
(1976) 652, 663, 343 N.E.2d 876 (1976)) (similar criteria applied to
question whether out‑of‑court identifications were independent of
taint from prior suggestive confrontation).
FN2. The illness of one of the witnesses,
Deborah McLellan, resulted in a one‑day postponement of the judge's
ruling on the motion to suppress as it related to that witness. On hearing the testimony of Deborah McLellan,
the judge denied the motion to suppress as it related to her, but without
making any findings. However, the
sequence of events, as disclosed in the transcript, indicates that the judge's
explicit findings with regard to the suggestiveness of the photographic
identification procedures were intended to apply to Deborah McLellan as well as
to the first two witnesses to testify at the suppression hearing. We also note that the defendant has not based
an assignment of error on the absence of a finding with regard to the
photographic identification by Deborah McLellan. See Commonwealth v. Flaherty, 1 Mass.App.
282, 287, 295 N.E.2d 698 (1973).
FNa. Mass.Adv.Sh. (1977) 2805, 2811.
FNb. Mass.Adv.Sh. (1976) 1645, 1648 n.1.
FNc. Mass.Adv.Sh. (1976) 652, 662.
FNd. Mass.Adv.Sh. (1976) at 721.
FNe. Mass.Adv.Sh. (1978) 601, 606‑607.
FN3. The judge's findings, or comments,
regarding the motion to suppress based on the probable cause identification are
as follows: "In respect of the proceedings in the probable cause hearing
in the lower court, those are not contrived situations, and this was not a
contrived situation in which the police were attempting to buttress an
identification. As I have mentioned
earlier, of necessity there will be these viewings in the course of probable
cause hearings, and I find nothing improper and suggestive in what was done in
this case, and therefore, insofar as any in‑court identification, as it
relates to the probable cause hearing relating to Mrs. Condo and Mrs. McLellan,
I'm going to deny the defendant's motion to suppress and save his
exception."
FNf.
Mass.App.Ct.Adv.Sh. (1975) 951, 954.
FNg.
Mass.App.Ct.Adv.Sh. (1977) 763.
FN4. The Supreme Court
commented in a footnote in Moore accompanying the quoted passage that, had the
petitioner been represented, counsel could have requested that a lineup be
arranged, that the petitioner be seated in the audience, or that the victim be excused
from the court room while the charges were read and the evidence recited. 434 U.S. at 230 n.5, 98 S.Ct. at 465 n.5.
FNh. Mass.Adv.Sh. (1976) 1454, 1456‑1457.
FNi. Mass.Adv.Sh. (1976) 1387, 1391‑1392.
FNj. Mass.Adv.Sh. (1976) 652, 659‑660.