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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
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Commonwealth v. Key, 19 Mass.App.Ct. 234 (1985)
Appeals Court of Massachusetts,
Argued
Decided
Further Appellate Review Denied
Barry P. Wilson,
Robert N. Tochka, Asst. Dist. Atty., for the
Commonwealth.
Before GREANEY, C.J., and CUTTER and WARNER, JJ.
[19 Mass.App.Ct. 235] WARNER, Justice.
[1][2]
After a jury trial in the Superior Court, the defendant was found guilty of
assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A) and
armed robbery (G.L. c. 265, § 17). He
was given concurrent sentences of eight to ten years. Prior to trial, the defendant filed a motion
to suppress evidence of the victim's identification of him made at a District
Court just prior to his arraignment.
(FN1) After hearing, a judge of
the Superior Court made oral findings and denied the motion. At trial the victim testified as to the
pretrial corporeal identification and also made an in‑court
identification of the defendant. The
defendant assigns as error: (1) the
denial of his motion to suppress the pretrial corporeal identification; (2) the exclusion of evidence that two other
men had committed the crimes in question;
and (3) the trial judge's failure to give a requested jury instruction
regarding the possibility of an honest but mistaken identification. (FN2)
We find no error and affirm the convictions.
1. The motion to suppress. The defendant argues that the victim's
identification of him in a District Court courtroom just prior to his
arraignment hearing was unreliable and resulted from impermissible police
procedures in violation of his rights under the Sixth and Fourteenth Amendments
to the Constitution. We recite those
facts which were found by the motion judge or which were warranted by the
evidence presented at [19
Mass.App.Ct. 236] the suppression
hearing.
During the
early evening of February 25, 1979, two black males assaulted and robbed the
victim while she was riding on an MBTA Orange Line train bound for Forest
Hills. The victim, a graduate student at
Harvard University, was reading a book when she became aware of two men
hovering over her. One of the
assailants, who was standing to the victim's right, flashed a knife and
demanded her wedding ring. The victim
responded that she could not get it off.
Thereupon, the other assailant, later identified by the victim as the
defendant, said "then we will cut that finger off," and proceeded to
attack her with a butcher knife. Both
assailants made several attempts to cut off the victim's ring finger. After these attacks had ceased, the defendant
struggled with the victim over her handbag.
During the struggle, which lasted between one and two minutes, the
victim
looked directly at the
defendant, who was no more than a foot away.
The train was well lighted and the victim had no difficulty seeing the
defendant. When the train arrived at the
Egleston Station the assailants fled with the victim's handbag. The victim got off at the Forest Hills
station, where she reported the crime to the MBTA police. She described the defendant as being in his
early twenties, 6'3"' tall with a short "afro" hairstyle, and
wearing a beige trenchcoat. (FN3)
The
following day the victim went to a Boston police station, where she examined
four books containing over two hundred photographs of black men in the same age
group as her assailants. After viewing
at least two books, the victim positively identified the defendant. Approximately one month later, the victim
again identified the defendant, from an array of eleven photographs.
On April
4, 1979, the victim signed a complaint naming the defendant as one of her
assailants. Subsequently, on April 6,
1979, the defendant was arrested and taken to the Roxbury District Court to be
arraigned. The defendant was
"ushered" [19 Mass.App.Ct.
237] into the dock area in one of
the courtrooms, where he waited for his proceeding to begin. There were a number of men, both black and
white, in various parts of the courtroom.
At about this time, the police officer who was in charge of the
investigation brought the victim to the court.
The officer asked the victim to enter the courtroom and look around to
see if she recognized anyone. When the
victim entered the courtroom, unaccompanied by the officer, the defendant was
alone in the dock. The defendant was not
handcuffed or restrained in any visible way.
After several minutes and after having observed approximately fifteen
people, (FN4) the victim left the courtroom and told the officer that the
assailant who had had the butcher knife was inside. Some time after the victim had made the
identification, the defendant's hearing commenced. During this hearing, counsel was appointed
for the defendant.
A. Right to counsel
[3] In Kirby v. Illinois, 406 U.S. 682, 92
S.Ct. 1877, 32 L.Ed.2d 411 (1972), a plurality of the Supreme Court held that
the Sixth Amendment right to counsel does not extend to pretrial corporeal
identification procedures that take place before the defendant has been
indicted or otherwise formally charged with a criminal offense. Id.
at 689‑690, 92 S.Ct. at 1882‑1883.
(FN5) Under Kirby, the constitutional right to counsel attaches "at or
after the initiation of adversary judicial criminal proceedings‑‑whether
by way of formal charge, preliminary hearing, indictment, information, or
arraignment." Id. at 689, 92 S.Ct. at 1882. See also
Moore v. Illinois, 434 U.S. 220, 226‑227, 98 S.Ct. 458, 463‑464,
54 L.Ed.2d 424 (1977). The Kirby Court reasoned that the
initiation of adversary judicial proceedings triggers the start of a
"criminal prosecution" to which the Sixth Amendment right to counsel
is limited. Kirby, supra, 406 U.S. at [19 Mass.App.Ct. 238] 689‑690, 92 S.Ct. at 1882‑1883. Moreover, the Supreme Court has emphasized
that Kirby is consistent with the
purpose behind the right to counsel guarantee, which is to "assure aid ...
when the accused is confronted with both the intricacies of the law and the
advocacy of the public prosecutor." United States v. Gouveia, 467 U.S. 180,
104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984).
[4] In
this case, we deal with the period after the complaint and arrest but before
arraignment. Interpreting Kirby, the Supreme Judicial Court has
held that the complaint and arrest warrant procedures in Massachusetts do not
constitute the initiation of adversary judicial criminal proceedings.
Commonwealth v. Smallwood, 379 Mass. 878, 884‑885, 401 N.E.2d
802 (1980). See also Commonwealth v. Mandeville, 386 Mass. 393, 401, 436 N.E.2d 912
(1982). The court in Smallwood pointed out that District Court clerks and assistant
clerks may receive complaints, administer oaths, and issue warrants in the name
of the court. Smallwood, supra, 379 Mass. at 885, 401
N.E.2d 802. Thus, recognizing the
informal and ex parte nature of the complaint and arrest warrant process, the
court concluded: "It would be anomalous
to hold that the right to counsel attaches at this stage when indeed a ...
suspect has no right to be heard in the proceeding." Id. Accordingly, under Kirby and Smallwood,
adversary judicial criminal proceedings are initiated when the defendant is
first brought before a magistrate or judge and has an opportunity to be heard.
This
conclusion is supported by Moore v.
Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), where a
witness testified as to an out‑of‑court identification that had
taken place at the defendant's preliminary hearing. After recognizing that the prosecution had
commenced, under Illinois law, when the victim's complaint was filed in court,
the Moore Court held that
"adversary judicial criminal proceedings" were initiated when the
ensuing preliminary hearing occurred. Id. at 228, 98 S.Ct. at 464. Similarly, even though a complaint had
issued in the instant case, the defendant's Sixth Amendment right to counsel
did not attach until his hearing in the Roxbury District Court had commenced. Accord
United States v. Duvall, 537 F.2d 15, 20‑22 (2d Cir.), cert. denied,
426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Since the challenged identification took [19 Mass.App.Ct. 239] place prior to the defendant's
hearing, (FN6) the defendant was not deprived of his Sixth Amendment right to
counsel.
B. Due process
[5][6] In Stovall v. Denno, 388 U.S. 293, 87
S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Supreme Court established a due process
right to exclude identifications resulting from procedures that were
"unnecessarily suggestive and conducive to irreparable mistaken
identification." Id. at 302, 87 S.Ct. at 1972. The due process clause, however, does not
require the per se exclusion of identification testimony where the
suggestiveness of the procedure has not rendered the identification unreliable.
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53
L.Ed.2d 140 (1977). Contrast Commonwealth v. Donovan, 392 Mass. 647,
467 N.E.2d 198 (1984) (per se exclusionary rule where Sixth Amendment right to
counsel violated). The Brathwaite Court emphasized that
"reliability is the linchpin in determining the admissibility of
identification testimony." 432 U.S.
at 114, 97 S.Ct. at 2253. The
reliability of the identification is to be judged according to the following
factors: "[1] the opportunity of
the witness to view the criminal at the time of the crime, [2] the witness'
degree of attention, [3] the accuracy of his prior description ..., [4] the
level of certainty demonstrated at the confrontation, and [5] the time between
the crime and the confrontation. Against
these factors is to be weighed the corrupting effect of the suggestive
identification itself." Id. Neil v. Biggers, 409 U.S. 188, 199‑200,
93 S.Ct. 375, 382‑383, 34 L.Ed.2d 401 (1972). For a thorough discussion and analysis of the
relevant principles and cases, see
Commonwealth v. Hicks, 17 Mass.App. 574, 576‑578, 460 N.E.2d 1053
(1984).
[7][8] At
the threshold, the defendant has the burden of showing, by a preponderance of the evidence, that impermissibly
suggestive procedures were used at the particular confrontation.
Commonwealth v. Simmonds, 386 Mass. 234, 239, 434 N.E.2d 1270
(1982). Such a showing must depend on
the totality of the circumstances of the challenged confrontation. Id. In the instant case, the challenged[19 Mass.App.Ct. 240]
identification took place while the defendant was alone in the
prisoner's dock awaiting the start of his hearing. "We recognize that a degree of
suggestiveness inheres in any identification of a suspect who is isolated in a
court room. Nevertheless, such isolation
does not, in itself, render the identification impermissibly suggestive."
Commonwealth v. Napolitano, 378 Mass. 599, 604, 393 N.E.2d 338
(1979). See Commonwealth v. Cincotta, 6 Mass.App. 812, 818, 384 N.E.2d 1244
(1979). Here, the motion judge concluded
that the courtroom confrontation was not "unduly suggestive." The judge based this conclusion on his
finding that at the time of the confrontation there were other black males in
the courtroom and, more important, on his findings that the victim was not
familiar with courtrooms and would not "necessarily" realize the dock
was a place reserved for prisoners.
Moreover, the judge implicitly found that the victim's identification
rested upon her memory of the crime and her view of the photographs. (FN7)
We think the evidence supports the judge's findings and conclusion.
[9] Even
if we were to hold that the identification procedure was impermissibly
suggestive, we would conclude that the identification was reliable under the Biggers‑Brathwaite test. The victim had a good opportunity to view her
assailant, whom she directly faced at close range in a well‑lighted area
for between one and two minutes.
(FN8) See Commonwealth v. Sampson, 7 Mass.App. 514, 519, 388 N.E.2d 1214
(1979). The victim testified that,
during the struggle over her handbag, she looked directly at the defendant and
no place else. See Commonwealth v. Redding, 382 Mass. 154, 158, 414 N.E.2d 347
(1980);
Commonwealth v. Sampson, supra, 7 Mass.App. at 519, 388 N.E.2d 1214;
Commonwealth v. Hicks, 17 Mass.App.Ct. at 578‑579, 460 N.E.2d
1053. Prior to the corporeal
identification, the victim at no time misidentified or failed to identify the
defendant. Contrast Commonwealth v. Botelho, 369 Mass. 860, 869, 343 N.E.2d 876
(1976). She identified the defendant in
two separate photographic[19
Mass.App.Ct. 241] arrays (FN9) and accurately described the
defendant's essential physical features.
The victim demonstrated no hesitancy at the time of the confrontation,
which took place approximately six weeks after the crime. This period of time is consistent with a
reliable identification, especially in view of the prompt recognition of the
defendant's photograph on the day following the assault and robbery. Upon review of the totality of the
circumstances, we conclude that the factors of reliability outweighed any
possible corrupting effect of suggestiveness in the identification
procedure. (FN10)
2. Evidence of other crimes
[10] A
Boston police officer, who was involved in investigating robberies on the MBTA
Orange Line during February and March of 1979, testified at a voir dire hearing
that he believed two other men had committed the crime in question. His testimony was based in part on the fact
that he had never known the defendant to be involved in violent crime.
(FN11) In addition, he testified
that another police officer had told him that the two men were suspects in
other crimes. The witness, however, was
not aware of any other robberies on the Orange Line that were similar in time
or method to the crime in this case.
Moreover, the booking sheets of the two men revealed no similar crimes
or any joint criminal ventures. (FN12) The trial judge correctly ruled that the
proffered testimony about the two men was inadmissible.
[11] A
defendant is entitled to introduce evidence of other crimes so similar in time
and method of operation to the ones for which he was indicted as to cast doubt
on his identification. [19 Mass.App.Ct. 242] See Commonwealth v. Keizer,
377 Mass. 264, 266‑268, 385 N.E.2d 1001 (1979); Commonwealth v. Jewett, 392
Mass. 558, 562‑563, 467 N.E.2d 155 (1984); Commonwealth v. Walker, 14
Mass.App. 544, 552, 441 N.E.2d 261 (1982).
In Keizer, for example, there
were "substantial connecting links" between the offense charged and
the subsequent crime‑‑both involved a crime of the same type,
committed by similar methods and by men of similar description.
Keizer, supra, 377 Mass. at 267, 385 N.E.2d 1001. In this case, however, the proffered
evidence did not relate to similar crimes or similar methods. Rather, it amounted, as the trial judge
observed, to an opinion, of a Boston police officer who knew the defendant, on
the innocence of the defendant.
3. Jury instructions
[12] In Commonwealth v. Rodriguez, 378 Mass.
296, 302, 310‑311, 391 N.E.2d 889 (1979), the Supreme Judicial Court set
forth model instructions, suggested by
United States v. Telfaire, 469 F.2d 552, 558‑559 (D.C.Cir.1972), to
assist a jury in their assessment of identification testimony. Prior to closing arguments, defense counsel
made a timely request for the Rodriguez
instructions and for an additional instruction, set out in the margin, (FN13)
on the possibility of an honest mistake in the victim's identification. The judge gave the Rodriguez instructions in full with specific references to the
testimony in the case. The defendant
claims error in the failure of the judge to include the requested "honest
mistake" instruction in the charge.
[13] This
case was tried prior to Commonwealth v.
Pressley, 390 Mass. 617, 457 N.E.2d 1119 (1983), in which the Supreme
Judicial Court held that fairness to a criminal defendant "compels the
trial judge to give an instruction on the possibility of an honest but mistaken
identification when the facts permit it and when the defendant requests
it."
Id. at 620, 457 N.E.2d 1119. Pressley was of course decided in a
context in which the judge had instructed the jury that identification
testimony was to be considered solely on
[19 Mass.App.Ct. 243] the issue
of credibility, thus eroding the
Rodriguez charge he had previously given. Id. at 619‑620, 457
N.E.2d 1119. Contrast Commonwealth v. Breese, 381 Mass. 13,
18, 406 N.E.2d 1292 (1980). It is well
settled that a judge need not grant a particular instruction so long as the
charge, as a whole, adequately covers the issue. See
Commonwealth v. Sherry, 386 Mass. 682, 696, 437 N.E.2d 224 (1982);
Commonwealth v. Albert, 391 Mass. 853, 857‑858, 466 N.E.2d 78
(1984);
Commonwealth v. MacDougall, 2 Mass.App. 896, 319 N.E.2d 739
(1974). We are concerned "with the
impressions ... [the instructions] conveyed to a reasonable juror."
Commonwealth v. Simmons, 11 Mass.App. 156, 163, 414 N.E.2d 623
(1981). See Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196
(1982).
Here, the
trial judge sensitized the jury to the possibility of a mistaken identification
by referring to the actual testimony in the case. Specifically, he explained that there was a
conflict in the testimony by referring to the alibi evidence. Accordingly, the judge instructed the jury to
consider "the opportunity or lack of opportunity of the [identifying]
witness to see and to know the facts concerning which he or she is testifying." In addition, the Rodriguez charge itself (announced in response to a claim of error
in the failure to instruct on the possibility of mistaken identification)
directs the jury's attention to the question of a possible mistaken
identification. Rodriguez, supra, 378 Mass. at 301‑302,
391 N.E.2d 889. Following the Rodriguez charge, the judge repeated
that the jurors should consider any occasion in which the victim failed to make
an identification or made an "inconsistent identification." He urged the jury to consider the "reliability"
and the "accuracy" of the identifications. In short, the judge "avoided the vice of
linking the reliability of the identification to the victim's veracity."
Commonwealth v. Simmons, 11 Mass.App.Ct. at 162, 414 N.E.2d
623. See Commonwealth v. Napolitano, 378 Mass. at 609‑610, 393 N.E.2d
338;
Commonwealth v. Pressley, 390 Mass. at 620, 457 N.E.2d 1119. The charge as a whole left the jury with the
option to find that the victim was honestly mistaken in identifying the
defendant.
Judgments affirmed.
(FN1.) The victim had previously identified
the defendant as her assailant in two photographic arrays. The defendant did not press the suppression
of the photographic identifications before the motion judge or on appeal.
(FN2.)
The defendant also claims that prosecutorial misconduct in deliberately
withholding the photograph of the defendant which the victim identified
requires a new trial. Before the hearing
on the motion to suppress the defendant made a specific request for this
photograph. When the photograph was
introduced at trial by the Commonwealth, the defendant did not raise the issue
of the prosecutor's failure to produce the photograph. Thus, the defendant has no right of appellate
review of this question. Commonwealth v. Redding, 382 Mass. 154, 155,
414 N.E.2d 347 (1980). Since the
photograph was not exculpatory and defense counsel attempted to point out
inconsistencies in the victim's testimony, the delayed disclosure did not
create a substantial risk of a miscarriage of justice. See id.
at 156, 414 N.E.2d 347; Commonwealth v. Cundriff, 382 Mass. 137,
151, 415 N.E.2d 172 (1980); Commonwealth v. Lam Hue To, 391 Mass.
301, 309, 461 N.E.2d 776 (1984).
(FN3.)
She described the other assailant as being approximately 5'10"' tall and
wearing a short leather or vinyl jacket.
The victim testified, however, that she did not see this man long enough
to make an identification of him.
(FN4.)
The victim testified that she was "totally unfamiliar" with
courtrooms and that, at the time, she was "just aware there were a lot of
people in [the courtroom]." The
motion judge found that the dock would "not necessarily" strike the
victim as a place reserved for prisoners.
(FN5.)
Previously, in United States v. Wade,
388 U.S. 218, 236‑237, 87 S.Ct. 1926, 1937‑1938, 18 L.Ed.2d 1149
(1967), the Supreme Court had held that the Sixth Amendment right to counsel
attaches at postindictment lineups. The Wade Court characterized the
postindictment lineup as a "critical stage" at which "the
presence of ... counsel is necessary to preserve the defendant's basic right to
a fair trial...." Id. at 227, 87 S.Ct. at 1932.
(FN6.)
Contrast Martin v. Donnelly, 391
F.Supp. 1241, 1247‑1248 (D.Mass.1974) (identification occurred during the
defendant's arraignment); Commonwealth v. Donovan, 392 Mass. 647,
467 N.E.2d 198 (1984) (identification took place on police request, and after
the defendant had been arraigned and counsel had been appointed to represent
him).
(FN7.)
The judge characterized the victim as the "sort of woman who would resolve
a personal doubt in favor of an accused, rather than against an accused,"
and "who would acknowledge a mistake if she made one."
(FN8.)
The motion judge found that the victim testified in this respect "clearly,
convincingly and credibly."
(FN9.)
In the circumstances, the fact that the photograph of the defendant was the
same in both arrays is of no consequence.
See Commonwealth v. LaPierre,
10 Mass.App.Ct. 641, 644, 411 N.E.2d 1314 (1980), and cases cited.
(FN10.) Our decision should not be construed
to encourage an identification procedure which is, as the motion judge
observed, fraught with danger.
(FN11.) The officer testified that he was a
friend of the defendant and had used him in the past as an informant.
(FN12.) Two days before trial, the victim
selected the defendant's photograph from an array of twelve photographs. This array included photographs of the two
men.
(FN13.) "You must not only determine the
credibility of the witnesses, but, taking it a step beyond this, you must
appraise the witnesses' testimony in the light of their testimony possibly
being totally credible, totally sincere, and yet totally incorrect, on the
issue of whether or not the defendant was in fact the perpetrator of the crimes
alleged."