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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. Leonardi, 413
Supreme Judicial Court of Massachusetts,
Argued
Decided
Frank C. Corso,
John E. Bradley, Asst. Dist. Atty., for the Com.
Before LIACOS, C.J., and NOLAN, LYNCH and GREANEY,
JJ.
[413
The
defendant appeals from his convictions, after trial by jury, of armed assault
in a dwelling house and assault and battery by means of a dangerous
weapon. (FN1) We transferred this case here on our own
motion. The defendant argues that the
trial judge erred in: (1) improperly
denying the defendant's motion to suppress an out‑of‑court
identification; (2) admitting evidence
of a court order directing the defendant to refrain from abusing his former
girl friend, Odelia DeMiranda; and (3) admitting evidence of the victim's
testimony regarding a telephone conversation with the defendant. There was no error and therefore we affirm
the convictions.
From the
evidence, the jury could have found the following facts. On the evening of
That night
he awoke to the sound of someone walking through the house. He observed a man standing in the bedroom
doorway with a baseball bat across his shoulder. The man moved from the doorway toward the
victim and asked, "What possessed you to come here?" as he swung the
bat and struck the victim at least four times.
The victim sustained blows to his head and arms. He attempted to shield further blows with a
chair. The defendant smashed the chair
and hit the victim in the legs and shins.
This caused the victim to fall to the floor where he was repeatedly hit
again.
The
defendant then left the room and the victim heard water running. The defendant told the victim to go into the [413 Mass. 759] bathroom; the victim was
unable to walk, so the defendant pulled him up.
Once in the bathroom, the defendant forced the victim into a tub of hot
water, where he proceeded to hit him again with the baseball bat and held his
face under water for brief periods. He
also struck the victim in the face with the bat and his fist. The victim testified that the defendant's
face was two to three inches from his.
During the assault, the lights were on in both rooms. Further, the defendant identified himself as
"Mark," and told the victim to explain his injuries as self‑inflicted. The entire ordeal lasted approximately twenty‑five
to thirty minutes. After the defendant
left the bathroom, the victim observed the defendant replacing a window pane
near the front door and, subsequently, fleeing the premises. The victim crawled from the bathroom into the
bedroom. Approximately thirty minutes
later, DeMiranda returned home. On finding the victim, she brought him to Tobey Hospital in Wareham.
While
being treated at the hospital, the victim was interviewed by Detective Norman
W. Sylvester of the Wareham police department.
The victim described his attacker as a white male, between six feet, one
inch, and six feet, three inches tall, 170 pounds, with a beard, mustache, and
medium‑length hair. The victim
told the detective that he could identify his assailant.
Detective
Sylvester then had a conversation with DeMiranda. As a result, he dispatched an officer to the
defendant's residence to request that he come to the police station for
questioning. By the time Detective
Sylvester arrived at the station the defendant had voluntarily presented
himself. Sylvester brought him to a room
where he informed the defendant of the investigation and read him his Miranda
rights. The defendant denied any
wrongdoing and volunteered to go to the hospital to see whether the victim
could recognize him. Detective Sylvester
again advised the defendant of his Miranda rights in the presence of Sergeant
George Randall. The defendant, who was
not under arrest, voluntarily accompanied Detective Sylvester and Sergeant
Randall to Tobey Hospital in an unmarked police
vehicle. On arrival, [413 Mass. 760]
Detective Sylvester entered the hospital X‑ray room and told the victim
that he had someone outside who matched the description the victim had
given. The detective turned on all the
lights in the room and brought in the defendant for viewing. The officers and the defendant stopped three
to four feet from the victim. Sylvester
testified that the victim stated, "That's the person who assaulted
me." Thereafter, the defendant was
led from the room, handcuffed, placed under arrest, and transported to the
police station for booking. At the
station the defendant stated his height to be six feet, three inches and his
weight as 170 pounds.
As a
result of the assault, the victim required hospitalization for one week,
received eighty‑seven stitches to his head, and sustained a broken elbow
and hand.
1. Motion to suppress pretrial identification. The defendant moved to suppress the
identification made at the hospital, maintaining that the pretrial
identification procedure was unnecessarily suggestive and had caused
irreparable mistaken identification and a denial of his due process
rights. The defendant denied that his presence
at the hospital was voluntary. Further,
the defendant asserted that there were no exigent circumstances militating in
favor of a one‑on‑one hospital identification, and that a fair
lineup could have been arranged.
Correspondingly, the defendant moved to have any subsequent in‑court
identifications by the victim suppressed.
After an evidentiary hearing the judge denied the defendant's motion to
suppress, ruling the totality of the circumstances indicated that the
identification procedure was not necessarily so suggestive as to deny the
defendant his due process rights. While
the judge agreed that "it would have been better if Detective Sylvester had
not volunteered" that he had someone who fit the description supplied by
the victim, it was not so suggestive as to taint the identification. The judge found that both the out‑of‑court
and in‑court identifications were admissible. A single justice of this court denied the
defendant's application for interlocutory appeal.
[1] In
order to suppress identification testimony the defendant must show that the
procedures employed, viewed in the totality[413
Mass. 761] of the circumstances, were so unnecessarily
suggestive and conducive to mistaken identification as to deny the defendant
due process of law. See Commonwealth v. Colon‑Cruz, 408
Mass. 533, 542, 562 N.E.2d 797 (1990); Commonwealth v. Santos, 402 Mass. 775,
781, 525 N.E.2d 388 (1988); Commonwealth v. Storey, 378 Mass. 312,
317, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct.
2924, 64 L.Ed.2d 813 (1980).
[2][3]
There was no error in the judge's ruling that the defendant did not meet the
burden of demonstrating that the identification procedure was unnecessarily
suggestive. The judge found that
identification arose from a straightforward showing to the victim of a person
that matched the description supplied by the victim. The judge correctly ruled that exigent
circumstances were not required. One‑on‑one
confrontations conducted promptly after the commission of a crime are not violative of due process rights despite the absence of
exigent or special circumstances. See Commonwealth v. Storey, supra 378 Mass.
at 317, 391 N.E.2d 898 (one‑on‑one identification not precluded
from admission solely because a lineup could have been easily arranged);
Commonwealth v. Barnett, 371 Mass. 87, 92, 354 N.E.2d 879 (1976),
cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d
765 (1977) (witness's life need not be in jeopardy). See also Commonwealth v. Williams, 399 Mass. 60,
67‑68, 503 N.E.2d 1 (1987); Commonwealth v. Bowden, 379 Mass. 472,
479, 399 N.E.2d 482 (1980); Commonwealth v. Bumpus,
354 Mass. 494, 497‑502, 238 N.E.2d 343 (1968), cert. denied, 393 U.S.
1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969);
Commonwealth v. Jones, 25 Mass.App.Ct. 55,
59‑60, 514 N.E.2d 1337 (1987).
Such identification procedures are justified by the need for prompt
criminal investigation while the victim's "recollection or mental image of
the offender is still fresh, before other images crowd in or his attempts to
verbalize his impressions can themselves distort the original picture,"
and it "provides the witness with good opportunity for an accurate
identification." Commonwealth v. Barnett, supra 371 Mass.
at 92, 354 N.E.2d 879.
Although
it would have been better if Detective Sylvester had not told the victim that
he was bringing in someone who fit the description given by the victim, we
agree with the judge's conclusion that the statement did not create any special
element of unfairness. See Commonwealth v. Williams, supra 399
Mass. at 67, 503 N.E.2d 1 (despite officer's statement that he thought he [413 Mass. 762] "got the guys," unequivocal identification shortly
after alleged crime not impermissibly suggestive); Commonwealth v. Harris, 395
Mass. 296, 299, 479 N.E.2d 690 (1985) (officer's statement that "they
would be bringing someone in who matched the description she had given"
did not make confrontation unfair); Commonwealth v. Bowden, supra 379 Mass.
at 479, 399 N.E.2d 482 (identification admissible where witness gave detailed
description of defendant and one‑on‑one confrontation occurred two
hours after murder); Commonwealth v. Napolitano, 378 Mass.
599, 603 n. 6, 393 N.E.2d 338 (1979) (officer's statement that police had
"someone here who fits" description not unnecessarily suggestive but
merely states purpose of showing photographs to witness); Commonwealth v. Alicea, 376 Mass. 506, 509, 514‑515, 381 N.E.2d
144 (1978) (one‑on‑one identification admissible where witness
identified defendant who was voluntarily present one and one‑half hours
after shooting); Commonwealth v. Chotain,
31 Mass.App.Ct. 336, 341, 577 N.E.2d 629 (1991)
(officers' statements prior to hospital showup that
victim would see a man with a gash close to where victim described striking
intruder not unnecessarily suggestive, because victim had opportunity to
observe assailant during incident and unequivocally recognized defendant). Compare
Commonwealth v. Moon, 380 Mass. 751, 757, 405 N.E.2d 947 (1980)
(identification of defendant by victim, assaulted and gave "rather
general" description of assailant, tainted by unnecessary suggestiveness
of officer's saying it "sound[ed] like" defendant and showing victim
single photograph).
We
conclude that the judge properly denied the defendant's motion to suppress the
out‑of‑court identification.
Since we conclude that the out‑of‑court identification is
admissible, there is no basis to challenge the in‑court identification.
Commonwealth v. Paszko, 391 Mass. 164,
172, 461 N.E.2d 222 (1984). Commonwealth v. Clifford, 374 Mass. 293,
304, 372 N.E.2d 1267 (1978).
2. Evidence of prior behavior. The defendant also contends that the
admission in evidence of an order issued pursuant to G.L.
c. 209A (1990 ed.) (209A order),
portrayed him as a violent individual, capable of committing the type of crimes
charged, and thereby deprived him of a fair trial. At trial,
[413 Mass. 763] defense counsel
did not object to the admission of this evidence. We examine the evidence to ascertain whether
there has been a substantial risk of a miscarriage of justice. See
Commonwealth v. Elam, 412 Mass. 583, 585, 591 N.E.2d 186 (1992);
Commonwealth v. Wood, 380 Mass. 545, 547, 404 N.E.2d 1223 (1980);
Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967).
The
prosecutor presented evidence that the 209A order, directing the defendant to
refrain from abusing DeMiranda, had been served five
months prior to the assault and battery.
Sergeant Randall testified that, over a two‑month period prior to
the issuance of the 209A order, he was called to the house shared at that time
by DeMiranda and the defendant, from one to two times
a week for domestic unrest. Sergeant
Randall described his observations of DeMiranda and
the defendant's relationship as "stormy," requiring one of the two to
leave the house in order to restore the peace.
Officer Robert Jesus of the Wareham police department testified that he
served the 209A order on the defendant on October 21, 1985. The defendant argues that any potential
relevance this evidence possessed is outweighed by the prejudicial effect it
had on the jury.
[4][5]
While the Commonwealth is prohibited from introducing evidence of a defendant's
criminal or wrongful behavior to show a tendency of bad character or propensity
to commit the crime charged, such evidence is admissible for other relevant
probative purposes. See Commonwealth v. Helfant,
398 Mass. 214, 224, 496 N.E.2d 433 (1986); Commonwealth v. Chalifoux,
362 Mass. 811, 815‑816, 291 N.E.2d 635 (1973). "Furthermore, '[t]he admission of such
evidence generally is "a matter on which the opinion of the trial judge
will be accepted on review except for palpable error." ...' " Commonwealth v. Martino, 412 Mass. 267,
280, 588 N.E.2d 651 (1992), quoting
Commonwealth v. Young, 382 Mass. 448, 462‑463, 416 N.E.2d 944
(1981). See Commonwealth v. Cordle, 404 Mass. 733,
744, 537 N.E.2d 130 (1989), S.C., 412
Mass. 172, 587 N.E.2d 1372 (1992).
[6][7]
"Without the challenged evidence" the assault and battery "could
have appeared to the jury as an essentially inexplicable act of violence."
Commonwealth v. Bradshaw, 385 Mass. 244, 269, 431 N.E.2d 880
(1982). In this situation where a man is
assaulted [413 Mass. 764] in the house of a female friend by
her estranged boy friend, admitting evidence of such prior events enables the
prosecutor to present a full picture of
the incident. Commonwealth v. Chalifoux,
supra 362 Mass. at 816, 291 N.E.2d 635.
Since this evidence related to motive, intent, or state of mind, its
admission was within the sound discretion of the judge. Commonwealth v. Weichell, 390 Mass. 62, 73, 453 N.E.2d 1038 (1983),
cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79
L.Ed.2d 698 (1984) (relevant evidence that indicates motive generally
admissible). There was no error, much
less a substantial risk of a miscarriage of justice. Contrary to the defendant's claim advanced
here for the first time, the law does not require a judge to give limiting jury
instructions regarding the purpose for which evidence is offered unless so
requested by the defendant. See Commonwealth v. Bradshaw, supra 385
Mass. at 270, 431 N.E.2d 880; Commonwealth v. Monsen,
377 Mass. 245, 252, 385 N.E.2d 984 (1979).
3. Evidence of telephone conversation. Defense counsel moved for a mistrial after
the Commonwealth's opening statement, because the prosecutor alluded to a
telephone conversation between the defendant and the victim. (FN2)
The judge denied the motion.
After a voir dire the victim was permitted to
testify that, while convalescing, he received a telephone call as described in
the prosecutor's opening statement.
Defense counsel objected to the testimony on the ground that the
Commonwealth failed to establish the victim's ability to identify the voice of
the defendant.
[8] The
evidence was admitted properly. Commonwealth v. Perez, 411 Mass. 249,
262, 581 N.E.2d 1010 (1991). Chartrand v.
Registrar of Motor Vehicles, 345 Mass. 321, 325, 187 N.E.2d 135
(1963). Here the victim would have had
the opportunity to listen to the defendant's voice in the course of the thirty‑minute
assault and battery, [413 Mass. 765] which occurred about two weeks before
the telephone conversation. The victim
testified that, during the conversation, he recognized the voice as being the
same voice he heard the night of the assault and battery. Not only did the evidence meet the test of
admissibility under Commonwealth v.
Perez, supra, and Chartrand
v. Registrar of Motor Vehicles, supra, but the caller even identified
himself to the victim as "Mark," as he had done the night of the
assault and battery. To contend that the
evidence was not admissible borders on the frivolous.
Judgments affirmed.
(FN1.) The defendant was sentenced to the
Massachusetts Correctional Institution at Cedar Junction from fifteen to twenty
years on the conviction of armed assault in a dwelling house, and from nine to
ten years on the conviction of assault and battery by means of a dangerous
weapon. The sentences are to be served
concurrently. The defendant was found
not guilty on a third indictment charging assault with intent to murder, G.L. c. 265, § 15 (1990 ed.).
(FN2.) Defense
counsel objected to the following portion of the prosecutor's opening
statement: "You will hear that at
one point ... there was a phone call....
[T]he voice on the other end identified himself as being Joey.... [T]here was some brief conversation, and this
Joey on the other end says, 'Are you going to testify against that guy in
court?' At this point [the victim]
started to recognize the voice and says, 'Who is this?' The voice ... says, 'This is Mark. Wherever you are, I'm going to find you and
I'm going to do it to you again.' "