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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Marks, 12 Mass.App.Ct.
511 (1981)
Appeals Court of Massachusetts, Hampden.
Argued
Decided
Further Appellate Review Denied
Roy H. Anderson,
Howard S. Sasson,
William T. Walsh, Jr., Asst. Dist. Atty., for the
Commonwealth.
Before HALE,
C. J., and GREANEY and SMITH, JJ.
SMITH, Justice.
Robert
Marks (Robert) and Josh Marks (Josh), brothers, were arrested and convicted by
a jury of assault and battery by means of a dangerous weapon and armed assault
in a dwelling house. They appeal from
their convictions, claiming error in the denials of their suppression motions
as to the identification procedures used by the police and the denials of their
motions for new trial. The motions for
new trial were based upon the loss of two photographic exhibits during the jury
deliberations. In addition, Robert
claims that he was denied the assistance of counsel at the time a lineup was
held. See Kirby v.
1. The
motions to suppress identifications. The
defendants filed suppression motions in regard to their identifications by the
victims. In the course of the
investigation, the police employed three different identification
procedures. They were (1) a
confrontation in a courtroom; (2) a photographic identification; and (3) a
lineup identification. The judge, after
a hearing on the suppression motions, made detailed findings of fact in support
of her ultimate conclusions that the identification procedures were not
"so unnecessarily suggestive and conducive to irreparable mistaken
identification[12 Mass.App.Ct. 513] that (the defendants were) denied due process
of law." Stovall v. Denno, 388
On October
3, 1977, about 3:45 A.M., members of the Czochara
family, consisting of Mr. and Mrs. Czochara and their
daughter, Michelle, age 14, were awakened by the noise of persons in their
home. Michelle saw two black men, one
near her bed and the other at the door a few feet from the foot of her
bed. The light in her room was not on,
but some visibility was possible because of light from street lights and
because the hall outside her room was lighted by an amber colored light. Mr. Czochara
awakened, got out of bed, looked into the hall and saw a man facing him. A struggle occurred during which Mr. Czochara was struck by another man and knocked
unconscious. When he revived, he saw a
man taller ([FN2]) than the one with whom he had been struggling standing above
him with his foot on Mr. Czochara's chest. The man said, "I'm not like my
brother." This man took his foot
off Mr. Czochara's chest and made him get up. He forced Mr. Czochara
into his bedroom. As Mr. Czochara entered the room, he turned on the light and saw
Mrs. Czochara in bed.
The taller intruder was in the bedroom for several minutes while the
light was on. Eventually, the intruders
left, and the police arrived in answer to a telephone call. The police took descriptions of the men and
later in the morning brought back a suspect, one James Watson, ([FN3]) who
seemed to fit the description of one of the intruders. The Czocharas
stated that he was not one of the men.
[12 Mass.App.Ct.
514] A. Courtroom
identification. About December 8 or 9,
1977, the police apparently had reason to suspect that the defendants were involved
in the Czochara break. Josh was to be arraigned on an unrelated
charge in a District Court, and the police expected that Robert would appear in
court with him. Mrs. Czochara
and Michelle were taken to the courthouse by the police on the morning of
December 12, 1977. On entering the first
floor corridor outside of the courtrooms, they were told by the police to look
around to see if they recognized anyone.
The corridor was crowded, with both black and white persons of varying
ages. They did not recognize
anyone. The police took them into a
courtroom where there were many young persons.
Again, they did not recognize anyone.
They were then taken into another courtroom where they first sat in the
rear of the room and then walked up the aisle to the front of the spectator
area. There were between twelve and
fifteen people, both black and white in the courtroom. On looking at the spectators Mrs. Czochara, in the presence of Michelle, identified Robert as
the intruder who had been in her bedroom.
Michelle then also identified Robert.
Josh was seated beside Robert but was not identified by Michelle. ([FN4])
[1][2][3]
Robert argues that the confrontation arranged by the police was of a nonemergency nature and that the police should have used a
lineup conducted in accordance with constitutional requirements. Commonwealth v. Chase, 372 Mass. 736, 742,
363 N.E.2d 1105 (1977). The Supreme
Judicial Court has sustained the use of informal prearrest
identification procedures "conducted in nonemergency
situations well after the commission of the crime and not involving just the
witness and the defendant."
Commonwealth v. Chase, supra at 743, 363 N.E.2d 1105. Commonwealth v. Napolitano, 378 Mass. 599, ‑‑‑,
‑‑‑, Mass.Adv.Sh. (1979) 1955, 1963‑1964, 393 N.E.2d
338. In this case, there had been no
prior identification of Robert.
([FN5]) The police at the time of
the confrontation[12 Mass.App.Ct. 515] did not have probable cause to arrest Robert,
nor could they detain him for "investigatory purposes." Commonwealth v. Napolitano, supra. Under such circumstances, the police are
allowed to conduct an investigation procedure similar to the one used in this
case. Commonwealth v. Chase, supra. Commonwealth v. Napolitano, supra. However, our inquiry does not stop at this
point because in this type of prearrest
confrontation, there still must be a showing by the Commonwealth that the
procedure used was not so suggestive as to constitute a denial of due
process. Commonwealth v. Chase, supra at
744. The setting of the identification
procedure was not suggestive. Robert was
not isolated in a holding area but was seated among spectators. There were several persons, including blacks in
the courtroom. Therefore, the
identification was not the result of a one‑on‑one
confrontation. However, the police
permitted Mrs. Czochara and Michelle to view the
suspects jointly, with the result that Mrs. Czochara
identified Robert in the presence of Michelle, who in turn identified him. ([FN6])
The fact that identifications are made by witnesses in the presence of
each other does not, by itself, render the procedure impermissibly
suggestive. Commonwealth v. Moynihan,
376 Mass. 468, 476, 381 N.E.2d 575 (1978).
Commonwealth v. Cincotta, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1979) 2671, 2674, 398 N.E.2d 478. There are obvious pitfalls in using this
procedure. See Commonwealth v. Moynihan,
supra at 476, 381 N.E.2d 575; Commonwealth v. Cofield,
1 Mass.App. 660, 667, 305 N.E.2d 858 (1974). Because of the pitfalls, the court in Moynihan
placed particular emphasis on the conditions under which the second identifying
witness viewed the criminal at the time of the crime and the interval of time
between the [12 Mass.App.Ct.
516] crime and the
identification. Commonwealth v. Moynihan,
supra at 476, 381 N.E.2d 575. Because
the courtroom identification in this case took place two months after the
crime, the circumstances surrounding the observations of the intruder by
Michelle are of considerable importance.
The judge found that the procedure was not suggestive and therefore
failed to examine the circumstances.
That finding we do not question; the suggestiveness is found in the
mother's making the identification in the presence of the daughter. The judge, therefore, should have made findings
as to whether, irrespective of the suggestiveness in the procedure, the
proposed in‑court identification had an independent source, Commonwealth
v. Botelho, 369 Mass. 860, 868, 343 N.E.2d 876
(1976), or was otherwise reliable. Neil
v. Biggers, 409 U.S. 188, 93 S.Ct.
375, 34 L.Ed.2d 401 (1972). Since we
hold that there must be a new trial, (see part 2 of this opinion), we believe
that a new hearing should be held on the suppression motion relative to the
identifications of Robert by Michelle.
The judge presiding at the new trial should make complete findings
relative to the totality of circumstances surrounding Michelle's
identification, including the effect on her, if any, of her mother's prior
identification. Separate findings should
also be made as to the "independent source" and the
"reliability" tests. See
Commonwealth v. Venios, 378 Mass. 24, ‑‑‑,
Mass.Adv.Sh.
(1979) 1184, 1190, 389 N.E.2d 395, and Commonwealth v. Moon, Mass.Adv.Sh. (1980)
1337, 1345, 405 N.E.2d 947. If the judge
concludes that Michelle's identification should be suppressed, further
consideration should be given to the effect of the suppressed identification
upon the photographic identification of Robert by Michelle discussed in part B
of this opinion.
[4] B. The
photographic identification. On the same
day as the courtroom identification, Mrs. Czochara
and Michelle were brought to the police station and were separately shown an
array of twelve mugshots of black males. ([FN7])
The [12 Mass.App.Ct.
517] array included photographs of Robert and Josh and also James
Watson and one Kenneth Marks.
([FN8]) Michelle selected the
photographs of both Robert and Josh, and Mrs. Czochara
picked out a photograph of Robert. Later
that day Mr. Czochara was called to the police station
and shown the same array. He also
selected the photographs of both Robert and Josh. We agree with the trial judge's conclusion
that neither the photographic array nor the procedure used was suggestive in
any way. In regard to Michelle's
identification of Robert, see part A of this opinion.
[5][6][7]
C. The lineup identification and lack of counsel claim. After he was identified at the District
Court, Robert was arrested on an outstanding warrant for a motor vehicle
violation and was taken to the police station.
When Robert was informed that he had been identified as one of the
persons involved in the break into the Czochara home,
he stated that the identification was a mistake and that he was often confused
with his cousin, Kenneth Marks. He requested
a lineup which was held the following day.
The lineup consisted of five persons, all black, and it included Kenneth
Marks. Mr. and Mrs. Czochara
viewed the lineup separately and identified Robert as the intruder. We agree with the trial judge that the lineup
was not suggestive. At the time of the
lineup, Robert was not the subject of a complaint or indictment as to these
offenses. The right to counsel attaches
only when there has been a "formal charge, preliminary hearing,
indictment, (or) information" (Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882) with respect to the particular crime as to
which the suspect is being identified.
Boyd v. Henderson, 555 F.2d 56, 61 (2d Cir.), cert. denied, 434 U.S.
927, 98 S.Ct. 410, 54 L.Ed.2d 286 (1977). Commonwealth v. Napolitano, 378 Mass. 599, ‑‑‑,
Mass.Adv.Sh.
(1979) 1955, 1963, 393 N.E.2d 338.
[12 Mass.App.Ct.
518] 2. Denial of motions for new
trial. Both defendants claim error in
regard to the denial by the judge of their motions for new trial. The defendants argue that the unexplained
disappearance of two exhibits during a portion of the jury's deliberations
constituted a denial of due process. The
judge heard arguments, reviewed the record, and filed findings of fact which we
summarize.
The
primary issue at trial was one of identification. Both defendants attempted to establish that
they had been mistakenly identified by the victims throughout the series of
identification procedures. In support of
their claims, the defendants produced evidence that each had a "look‑alike",
a person for whom he had been or could be mistaken. In the case of Robert, the "look‑alike"
was one Kenneth Marks, a cousin of both defendants. In the case of Josh, the person was James
Watson. Photographs of Kenneth Marks and
Watson were introduced in evidence and were two of the seven exhibits which
went to the jury room with the jury.
([FN9]) On November 20, 1979,
after the closing instructions by the judge and after an inventory of the
exhibits by all counsel, the jury retired for deliberations at 12:20 P.M. An envelope containing all the exhibits was
delivered to the foreman, together with copies of the indictments and blank
verdict slips. At 4:14 P.M., the jury
were brought back into the courtroom and after instructions by the judge, were
dismissed for the day. See Mass.R.Crim.P. 20(e)(3), 378 Mass. ‑‑‑
(1979). The foreman gave the exhibits to
the session clerk who took the envelope to the clerk's office where [12 Mass.App.Ct.
519] it was held in a safe overnight. ([FN10])
On November 21, 1979, the clerk took the envelope from the safe, brought
it to the courtroom, and gave it to the foreman. The jury withdrew to continue deliberations
at 10:01 A.M. At approximately 10:45
A.M., the jury sent a question to the court inquiring whether their
deliberations were limited to the issue of identification or if they could
consider whether or not a gun was involved.
At 11:05 A.M. the jury were brought into the courtroom, further
instructed by the judge, and withdrew to continue deliberations. About noon, the judge instructed the court
officer to take lunch orders from the jurors.
The foreman told the court officer that two exhibits were missing
exhibit 5 (sanitized mugshot of Watson) and exhibit 7
(sanitized mugshot of Kenneth Marks). The officer immediately told the judge who,
in turn, directed an officer to instruct the foreman and jurors to check
through their papers carefully. The officer
returned and stated that the missing exhibits had not been found. At about 12:15 P.M. the court was not in
session, but the judge was in the courtroom talking to the court reporter and
clerk about the missing exhibits. The
lawyer for Robert was present in the courtroom and was told about the missing
exhibits, but neither the assistant district attorney nor the attorney for Josh
was present, and the judge made no attempt to reach them. There was no communication from the judge to
the jury in regard to the exhibits. The
jury continued to deliberate and shortly after 2:30 P.M. returned verdicts of
guilty on all charges. After the
verdicts, the judge informed the lawyers and the defendants about the missing
exhibits. The foreman was asked to
remain and was briefly questioned by the judge about the missing exhibits. The questioning took place in the presence of
the attorneys and the defendants. The
foreman stated that the jury first noticed that the two exhibits [12 Mass.App.Ct.
520] were missing just before the
lunch orders were taken. The foreman
also stated that the jury had "dealt with" the exhibits on the
previous day during its deliberations.
The judge in denying the motions considered these factors: (1) the
nature of the irregularity; (2) the chronological point during the jury's
deliberation period at which the irregularity occurred; and (3) the amount of
time, both quantitatively and as a percentage of total deliberating time, that
the jury could possibly have been influenced by the irregularity. The judge held that the irregularity in this
case was not inherently offensive misconduct, such as jury tampering, and that
the jurors first realized that the exhibits were missing after they had
deliberated for approximately six hours.
Further, the judge noted that the jury deliberated for a total time of
approximately eight hours, of which time it appears they were aware of the
missing exhibits for a total of no more than two and one‑half hours.
[8][9]
Generally, the disposition of a motion for new trial is a matter reserved to
the sound discretion of the judge.
Commonwealth v. Dascalakis, 246 Mass. 12, 25,
32, 140 N.E. 470 (1923). Earl v.
Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498 (1969). Commonwealth v. Cook, ‑‑‑
Mass. ‑‑‑, ‑‑‑Mass.Adv.Sh. (1980) 885, 891, 403 N.E.2d 363. Commonwealth v. Markham, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑
‑ ‑‑‑ Mass.App.Adv.Sh. (1980) 1939, 1942‑1943, 411 N.E.2d
494. However, if the original trial was
infected with prejudicial constitutional error, the trial judge has no
discretion to deny the motions. Lannon v. Commonwealth, ‑‑‑ Mass. ‑‑‑,
‑‑‑ Mass.Adv.Sh. (1980) 415, 416, 400 N.E.2d 862. The judge was faced with a problem that had
never arisen before in the Commonwealth and, indeed, had occurred but rarely in
the nation in any reported case.
([FN11]) The constitutional right
to
a fair trial includes the right to a fair final decision. To [12
Mass.App.Ct. 521]
insure this, the jury are usually told that each juror must decide the case for
himself, but only after an impartial consideration of all the evidence, that a
juror should not hesitate to reexamine his or her own views, and to change his
or her opinion, if convinced it is erroneous, and that an honest opinion as to
the weight or effect of evidence should not be surrendered solely because it
conflicts with the opinions of other jurors. The central issue here common to both
indictments was the issue of identification.
It must be assumed, in the absence of a compelling showing to the
contrary, that this issue remained open and that the jury were conscientiously
discussing it, under the above standards, up until the time the verdicts were
returned. On that assumption, the loss
of the exhibits could have effectively precluded the jury from fulfilling their
obligations and from settling any doubts they might have had as to the
sufficiency of the Commonwealth's proof of identification. The missing exhibits were critical to the
defendants, as their entire defense was based upon the contention that the
defendants were mistakenly identified for others. Neither "look‑alike" was seen
by the jury and the only way they could have compared the features of the
defendants with the two persons the defendants claim had committed the crime
was by the use of the two missing exhibits.
We cannot accept the opaque finding that the jury had "dealt
with" the exhibits the previous day as dispelling the assumption that the
identification issue was still open or as satisfying the constitutional fair
trial guarantee. This is particularly so
in view of (1) the failure of the judge to communicate with the jury after
being informed of the missing exhibits, a failure which could have had the
effect of relegating the exhibits, in the jurors' minds, to a minor status; (2)
the concern manifested by the jury's question propounded earlier in the day;
and (3) the time spent by the jury in deliberating after the exhibits were
reported missing. Nor can we accept, on
this record, the denial of a new trial based on a reduction of the deliberative
process to a fraction represented by the number of hours the jury spent without
the exhibits and the [12 Mass.App.Ct. 522]
number of hours they spent with them.
Therefore, we hold that, under the circumstances of this case, the
defendants were denied due process. We
do not hold that in every case where exhibits are lost during jury deliberations
the judge must either declare a mistrial or order a new trial. In many cases, exhibits are introduced in
evidence that are not material to the issue of innocence or guilt. For example, a certificate introduced as an
exhibit under G.L. c. 111, s 13, is relevant but not
material in a case where the defendant does not contest the nature of the
narcotic but denies that he sold the drug.
At times, exhibits are cumulative of oral testimony. In this case, the exhibits were not merely
cumulative but rather were the means by which the jury could test the
defendants' contentions. We do not
attempt to establish guidelines in this case as to procedures to be followed
where exhibits are lost during jury deliberations. We do suggest, however, that where jurors are
separated after deliberations have commenced, an inventory of the exhibits be
made before they separate and then again before they resume deliberations.
The orders
denying the motions for new trial are reversed, and orders are to enter allowing
the motions.
So
ordered.
(FN1.) One against Robert Marks and two
against Josh Marks.
(FN2.)
Later, Mr. Czochara identified the taller man as
Robert Marks.
(FN3.)
At trial, Josh claimed that Watson looked like him and that he was mistakenly
identified for Watson.
(FN4.)
Mrs. Czochara never saw the second intruder in her
home.
(FN5.)
The fact that there had been no prior identification distinguishes this case
from Martin v. Donnelly, 391 F.Supp. 1241
(D.Mass.1974). In Donnelly, the
courtroom identification was suppressed because the procedure was being used by
the government to renew and improve the identifying witness's memory.
(FN6.)
As the courtroom identification took place prior to the decision in
Commonwealth v. Napolitano, 378 Mass. 599, 393 N.E.2d 338, the police cannot be
faulted for failing to follow the suggestions outlined in Napolitano for the
correct procedures to be used in seeking an identification of a suspect in a
courtroom. See Commonwealth v.
Napolitano, 378 Mass. at ‑‑‑, Mass.Adv.Sh. (1979) at 1966, 393 N.E.2d 338.
(FN7.)
A few days after the crime, Mr. Czochara and Michelle
viewed apparently two hundred photographs at the police station. Michelle selected one photograph as either
the intruder or a "look alike."
The photograph was not of either of the defendants, and there was no
evidence that the photograph of either was included in the array. Later, Mrs. Czochara
viewed a group of photographs but did not select any photograph, and there was
no evidence that either defendant's photograph was included in the array.
(FN8.)
At trial, Robert claimed that Kenneth Marks resembled him and that he was
mistakenly identified for Kenneth Marks.
(FN9.)
The list of all the exhibits which were introduced at trial by the Commonwealth
included the following:
1. Photo of 5‑person lineup, including
Robert Marks and Kenneth Marks.
2.
Photo of Robert Marks and Kenneth Marks.
3.
Police "911 Report".
4.
Sanitized mugshot of Josh Marks.
5.
Sanitized mugshot of James Watson.
6.
Sanitized mugshot of Robert Marks.
7.
Sanitized mugshot of Kenneth Marks.
(FN10.) The transcript does not indicate, and
the judge's findings are silent, as to whether the exhibits were inventoried at
the time the jury separated for the day or at the time the jury regained
possession of them the next morning.
(FN11.) Counsel for both parties were unable
to cite any case in their briefs that involved the problem of missing
exhibits during jury deliberations. Our
research disclosed one case in the nation that involved the problem. In People v. Lee, 38 Cal.App.3d 749, 113 Cal.Rptr. 641 (1974), an overzealous custodian threw out
exhibits during the jury deliberations.
The court upheld the denial of a new trial on the ground that no showing
was made that the evidence would have helped the defendant in any way.