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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. Mattias, 8 Mass.App.Ct.
786 (1979)
Argued
Decided
William M. Leonard,
Rosemary Ford, Asst. Dist. Atty., for the
Commonwealth.
Before ARMSTRONG, PERRETTA
and KASS, JJ.
KASS, Justice.
The
defendant was convicted of two instances of armed robbery, assault with intent
to rob while armed, armed assault in a dwelling house, and [8 Mass.App.Ct. 787] unlawful possession of a hypodermic syringe (the last conviction
was placed on file). On appeal, he
asserts five categories of error in the trial.
We
summarize the facts which the jury could have found from the evidence furnished
by the Commonwealth. At
Again
about
Later the
same night, William Leadbetter, another resident at
46 Spring Street, answered a knock on his door and he, too, found himself with
a knife at his belly and confronted with a demand for money. Leadbetter responded,
"There is fourteen cents on the table; take it." Whether from compassion or certain minimum
standards, the man at the door did not enter but turned and ran down the
stairs.
The
victims called the police, to whom they described the assailant as a black male
about twenty years old with a short afro haircut and wearing a dark red shirt, [8 Mass.App.Ct.
788] dungarees, and white
sneakers. Two days later, in the early
evening, Conroy, while going home from work, saw a man he recognized as the
intruder seated on a yellow bicycle.
Conroy at once telephoned Detective Wright of the Brockton Police, who
had begun an investigation of the rooming house affair. Wright responded by picking up Conroy and
Burke and the three of them set out in Wright's car to look for the suspect.
Conroy first spotted the man on the yellow bicycle, whom Wright placed
under arrest. Conroy confirmed his
identification and Burke also positively identified the defendant as his
assailant. We shall add other facts
appearing from the record in the context of our discussion of the points of law
raised by the defendant.
[1] 1. The
out‑of‑court identifications.
Before the jury were empanelled, the trial judge conducted extensive
hearings on several defense motions to suppress evidence, including the
pretrial identifications by the three victims, Conroy, Burke and Leadbetter. The
judge denied the motions without making any findings of fact. Once again, we emphasize that the absence of
findings by the trial judge handicaps the process of review and invites a
remand for findings on the issues raised by the motions. Commonwealth v. Gordon, 6 Mass.App.Ct.
‑‑‑, ‑‑‑ (FNA),
374 N.E.2d 1228 (1978). Commonwealth v. Cincotta, 6 Mass.App.Ct. ‑‑‑,
‑‑‑ n.1 (FNB), 384 N.E.2d 1244
further appellate review granted, ‑‑‑ Mass. ‑‑‑.
(FNC) In the
instant case, fortunately, the available grounds for suppression of pretrial
identification of the defendant are sufficiently well defined so that we are
able to infer from the record what the trial judge must have found and can test
the correctness of his actions on the motions.
[2] [3]
Since Conroy first recognized the defendant on a public street, called the
police, and then spotted him again, no suggestiveness of any kind attended
Conroy's identification. Identification
arising out of field confrontation raises no due process issue, and the judge
correctly declined to suppress Conroy's identification of the defendant. [8 Mass.App.Ct.
789]
Commonwealth v. Bumpus, 354 Mass. 494, 501,
238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct.
651, 21 L.Ed.2d 579 (1969). See
Commonwealth v. Jones,375 Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (FND), 377 N.E.2d 903 (1978),
and Commonwealth v. Cincotta, 6 Mass.App.Ct.
at ‑‑‑ (FNE), 384 N.E.2d 1244
(1979).
[4]
Burke's identification of the defendant followed Conroy's shouted
recognition. The defendant argues that
Burke's identification carried with it, to that degree, an element of
suggestiveness. The encounter, however,
was accidental and spontaneous and was, therefore, unlike a calculated
confrontation in the police station. See
Commonwealth v. D'Ambra, 357 Mass. 260, 262‑263,
258 N.E.2d 74 (1970); Commonwealth v. Barnett, 371 Mass. 87, 93, 354 N.E.2d 879
(1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50
L.Ed.2d 765 (1977). See also
Commonwealth v. Wheeler, 3 Mass.App.Ct. 387, 390‑392,
331 N.E.2d 815 (1975). It was, again, a
field confrontation of the kind described in the Bumpus
case.
[5] [6]
[7] Leadbetter's pretrial identification was made
from a group of seven or eight photographs.
That is a sufficient array. See
Commonwealth v. Finn, 362 Mass. 206, 208‑209, 285 N.E.2d 105 (1972). It is not a defect in the photo
identification procedure that the Commonwealth did not produce at trial every
photo used in the pretrial array.
Commonwealth v. Brown, 376 Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (FNF), 380 N.E.2d 113
(1978). Nor is there merit to the
defendant's contention that a line‑up should have been used. That a line‑up was possible does not
require automatic exclusion of other identification procedures. Commonwealth v. Storey, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNG),
391 N.E.2d 898 (1979).
[8] 2. The
in‑court identifications. All
three of the hold‑up victims made an in‑court identification of the
defendant. Since we have determined that
no suggestiveness of any kind surrounded any of the three identifications,
"no taint attached to the subsequent in‑court
identifications." Commonwealth v. Venios, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNH),
389 N.E.2d 395, 398 (1979). Moreover,
since the lights were turned on by the victims when they responded to the
defendant's knock on their respective doors, each was able to view the
defendant and had that independent and adequate basis [8 Mass.App.Ct. 790] for identification from which he could testify at trial. Commonwealth v. Botelho,
369 Mass. 860, 868, 343 N.E.2d 876 (1976).
[9] [10]
3. Failure to suppress certain pretrial statements and resulting evidence. The defendant does not deny that the police
advised him of his Miranda rights, but contends that his knowledge of English
and his educational level were so meager that he could not knowingly and
intelligently waive his right to remain silent.
Detective Wright gave the Miranda warning orally in English at the time
of arrest and again in the police station.
The police also called to the attention of the defendant a Miranda
warning written in Spanish, which was posted at the police station.
After he
gave the defendant the second Miranda warning, Wright asked him if he was
involved in any of the robberies which took place in 46 Spring Street (the
rooming house) two nights earlier. In
substance, the defendant replied that he didn't rob anybody in the building; he
only robbed somebody outside the building.
Wright then asked the defendant if he would show him the knife used in
the particular robbery. The response was
that the knife was at the defendant's house.
The defendant then led Wright and another police officer, Matta, to a house on Main Street, where the defendant
pulled a knife from "a dishwasher type thing." That knife, which by the Commonwealth's
admission was not the knife used in the assaults upon Conroy, Burke and Leadbetter, was admitted in evidence.
Again, our
review of this issue is complicated by the failure of the judge to state the
facts which led him to determine that the defendant knowingly waived his
Miranda rights. Since, however, only one
issue has been raised by the defendant, i. e., his
capacity to comprehend the warning and, therefore, waive his rights in an
understanding fashion, we are on safe ground in concluding that the judge found
that the defendant knew enough English to understand what he was doing. Basis for this exists in the record. Police testimony established that [8 Mass.App.Ct.
791] the defendant appeared to
understand English and answered in English.
Conroy, Burke and Leadbetter testified that
the defendant spoke English; and Conroy and Burke, of course, were present at
the defendant's apprehension when the business of the arrest was transacted in
English. Cross‑examination of the
defendant at the suppression hearing also brought out that this was not his
first arrest. Prior experience with
arrest procedures may be considered in assessing whether the defendant made a
knowing and intelligent waiver of his Miranda rights. Commonwealth v. Howard, 4 Mass.App.Ct.
476, 480, 350 N.E.2d 721 (1976). On a
review of the entire record and applying the principles set forth in
Commonwealth v. Hosey, 368 Mass. 571, 576, 334 N.E.2d
44 (1975), and Commonwealth v. Jackson, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNI), 386 N.E.2d 15 (1979), we
conclude that the judge could properly resolve the issue of credibility about
the defendant's comprehension in favor of the Commonwealth.
[11] 4.
Introduction in evidence of the knife not used in the crime. Our resolution of the Miranda issue disposes
of the defendant's contention that the knife introduced in evidence should have
been suppressed because it was obtained in violation of the defendant's
privilege against self‑incrimination.
Still unresolved, however, is the contention that the knife had no
relevance to the crime committed and that its admission was highly prejudicial
to the defendant. The knife to which the
defendant led the police first surfaced at the trial through a tactic of the
defense: during cross‑examination of Conroy, defense counsel displayed
the knife in question and asked him if it was his. Conroy said that it was not; that his
knife was smaller. Later in the trial,
the Commonwealth, over the objection of the defense, offered the larger knife
as an exhibit. The trial judge admitted
the knife in evidence "for whatever probative value it may
serve." The knife was not wholly
unlike that which the victims described and was marginally probative of the
fact that the defendant robbed the victims at knifepoint. It is the
[8 Mass.App.Ct. 792] contention of the defendant that the knife had the capacity to
inflame the jury. In balancing probative
value against dangers, courts afford considerable leeway to the discretion of
the trial judge. Commonwealth v. Bys,
370 Mass. 350, 360‑361, 348 N.E.2d 431 (1976), citing Davis v. Boston
Elevated Ry., 235 Mass. 482, 502, 126 N.E. 841
(1920). McCormick, Evidence 440‑441
(2d ed. 1972). Since the jury were
advised of the circumstances in which the knife was found, we do not perceive
any mischief likely to result from its admission, especially since the defense
displayed the knife to the jury in the first instance. Commonwealth v. Williams, 7 Mass.App.Ct. ‑‑‑, ‑‑‑ (FNJ), 393 N.E.2d 937 (1979). Commonwealth v. Andrade, 7 Mass.App.Ct. ‑‑‑, ‑‑‑ (FNK), 396 N.E.2d 713 (1979). See Commonwealth v. Gouveia,
371 Mass. 566, 570, 358 N.E.2d 1001 (1976).
[12] 5.
Claims of error in the admission of answers to questions to Detective
Wright. In order to attack the credibility
of Conroy's identification, defense counsel asked Conroy if he knew whether the
defendant was Puerto Rican or black.
Conroy said he could not tell on visual examination alone. The Commonwealth later put fundamentally the
same question to Wright, i. e., whether he could tell
whether a person was black or Puerto Rican just by looking at him; Wright said
that he could not. In context, we find
nothing prejudicial in the question or the answer.
[13]
Finally, the defense objects to the Commonwealth's question to Wright on
redirect examination inquiring where he received information that the intruder
was bearded. Wright gave the name of one
Flanders, another resident of 46 Spring Street, who had not appeared as a
witness. Evidence as to what Flanders
said was properly excluded. The
identification of Flanders as the source of information that the intruder was
bearded came in without objection.
Follow‑up questions as to where Flanders lived were objected to;
Wright was allowed to answer. In view of
the unequivocal identifications of the defendant as the intruder, (especially
those made by Conroy, who recognized his assailant independent of [8 Mass.App.Ct.
793] police initiation) even had
error occurred, it would have been harmless beyond a reasonable doubt. Commonwealth v. Andujar,
‑‑‑ Mass.App.Ct. ‑‑‑,
‑‑‑ (FNL), 390 N.E.2d 276 (1979).
Judgments
affirmed.
FNa. Mass.App.Ct.Adv.Sh.
(1978) 384, 398.
FNb. Mass.App.Ct.Adv.Sh. (1979) 73, 77 n.1.
FNc. Mass.Adv.Sh. (1979) 1143.
FNd. Mass.Adv.Sh. (1978), 1467, 1473‑1474.
FNe. Mass.App.Ct.Adv.Sh. (1979) at 79.
FNf. Mass.Adv.Sh. (1978) 2266, 2273‑2274.
FNg. Mass.Adv.Sh. (1979) 1546, 1552.
FNh. Mass.Adv.Sh. (1979) 1184, 1192.
FNi. Mass.Adv.Sh. (1979) 401, 408.
FNj. Mass.Ct.Adv.Sh. (1979) 1730, 1738.
FNk. Mass.App.Ct.Adv.Sh. (1979) 2243, 2247.
FNl. Mass.App.Ct.Adv.Sh. (1979) 1245, 1248.