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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. Melvin, 399
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Patricia A. O'Neill, Committee for Public Counsel
Services,
Ellen Caulo, Asst. Dist. Atty.,
for Com.
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.
ABRAMS, Justice.
After
trial by jury, the defendant was convicted of breaking and entering a building
in the daytime with intent to commit a felony therein, G.L.
c. 266,§ 17 (1984 ed.), and larceny of property worth more than one hundred
dollars, G.L. c. 266, § 30 (1984 ed.). This court allowed the defendant's[399
On appeal, the only issue is the admission of
identification evidence. Prior to trial,
the defendant filed a motion to suppress pretrial identifications consisting of
(1) an identification by the victim as a result of a photographic array shown
to him a few hours after the incident;
(2) an identification by the victim as a result of a second photographic
array shown to him one day after the incident;
(3) an identification by the victim at a probable cause hearing in a
District Court; and (4) the anticipated
in‑court identification at trial.
After a hearing, the judge denied the defendant's motion to suppress in
its entirety, without express findings of fact.
The defendant was convicted, and he appealed. After oral argument, we remanded the case to
permit the judge to make findings of fact on the motion to suppress. The judge promptly made such findings. We conclude that the judge's ruling denying
the motion to suppress is correct.
We review
the facts found by the judge, supplemented where necessary by some uncontested
testimony at the hearing on the motion to suppress. On
The victim
observed that the intruder was a white male and was approximately six feet, one
or two inches tall. The intruder [399 Mass. 203] was wearing a T‑shirt, blue jeans, a black vest, and had
two wallets in his rear pockets hooked to his belt with chains. The victim leapt out of bed and uttered
something, at which point the intruder turned so that he and the victim stood
facing one another. The victim had no
difficulty seeing the intruder's face.
The victim noted that the intruder had medium brown hair and a
mustache. The two men stared at each
other for a few seconds and the intruder ran down the hall to a balcony. The victim followed the intruder down the
hall. The intruder jumped off the
balcony to the ground three stories below.
The victim saw the intruder land on his right shoulder, get up, and run
away. The victim called the police
shortly after the incident. The victim
gave the police a description of the intruder.
Because of
the possibility that the intruder had been injured as a result of his leap from
the balcony, the police began to check area medical facilities for individuals
fitting the description given by the victim.
Later the same day, an officer from the Hudson police department went to
a regional medical center and interviewed a patient fitting the victim's
description of the intruder. The patient
produced a Massachusetts General Hospital card as identification which bore the
name "Robert King." King gave
his address as Spruce Street in Marlborough.
King was being treated for an injury to his left shoulder. (FN3)
King said that he had injured his shoulder that morning emptying
rubbish. King's arm was placed in a
sling. The officer then requested King
to follow him in his own car to the police station. King complied with this request. King was photographed while he was wearing
the sling.
This
photograph of King with his arm in a sling was placed in an array of five other
photographs. Except for the sling, the
officer testified that all of the photographs in the array were similar,
depicting men of the same height, with facial hair. This array was taken to the victim's home and
given to the victim to see if he could identify any of the photographed
individuals. The victim selected King's
photograph. The judge found that the
victim selected the photograph of King, not
[399 Mass. 204] because of the
sling, but because of his vivid memory of the intruder. (FN4)
As a result of the victim's identification of
the defendant's photograph, the police went to the address King had given
them. There was no such address. After further investigation, the police
discovered that King was actually the defendant, Robert Melvin. (FN5)
The police obtained an arrest warrant and arrested him at his home in
Ashland the day after the incident.
After his
arrest, the defendant was photographed again without the sling. The police arranged a second array of
photographs which included a photograph of the defendant, the five photographs
from the first array and three additional photographs. The victim selected the photograph of the
defendant, stating that he was certain the individual in the photograph was the
intruder.
The victim
identified the defendant in court on three occasions‑‑at the
probable cause hearing, at the suppression hearing, and at the trial. At the suppression hearing, the judge
questioned the victim about the identification.
The victim told the judge that the sling played no part in his original
identification. The victim stated that
the identification was based solely on his observation from the morning of the
incident. The judge found that the
"identifications were certain and most reliable."
[1][2] In
reviewing a judge's findings in identification cases, we accept the judge's
subsidiary findings of fact in the absence of clear error. Commonwealth v. Correia, 381 Mass. 65, 76, 407 N.E.2d 1216 (1980). Moreover, the determination of the weight of
the evidence and the credibility of the witnesses is a function of the judge
who heard the evidence, and not of this court. Commonwealth v. Moon, 380
Mass. 751, 756, 405 N.E.2d 947 (1980).
But, because the judge's ultimate conclusions of law on identification
issues may be of constitutional dimensions, this court must undertake [399 Mass. 205] an independent review of the correctness of the judge's
application of constitutional principles to the facts found.
Moon, supra.
[3][4][5][6]
We are guided in our evaluation of identification evidence by the principles
outlined in Commonwealth v. Botelho, 369 Mass. 860, 343 N.E.2d 876 (1976). Under the law of this Commonwealth, a
criminal defendant has the burden to prove, by a preponderance of the evidence,
that the procedures involved in the showing of the photographic arrays were
"so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification" and thus were offensive to due process.
Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct.
967, 971, 19 L.Ed.2d 1247 (1968). See,
e.g., Correia,
supra, 381 Mass. at 78, 407 N.E.2d 1216; Commonwealth v. Venios,
378 Mass. 24, 27, 389 N.E.2d 395 (1979); Botelho, supra,
369 Mass. at 866, 343 N.E.2d 876. In
determining whether an identification procedure is impermissibly suggestive, a
judge must assess the totality of the circumstances attending the identification. Id.
at 867, 343 N.E.2d 876. Stovall v. Denno,
388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d
1199 (1967). If the defendant succeeds
in showing that the identification resulted from an impermissibly suggestive
confrontation, the evidence must be excluded at the trial. If the Commonwealth seeks to introduce other
identification evidence, the burden shifts to the Commonwealth to prove by
clear and convincing evidence that the proffered identification has a source
independent from the suggestive confrontation.
(FN6) Correia,
supra; Botelho, supra, 369 Mass. at 868, 343 N.E.2d 876.
At the
time of the first photographic array, the victim had given the police a
sufficiently detailed description of the intruder and the incident so that the
police immediately were able to focus their investigation. On finding a person who fit the description
given by the victim, the police chose not to [399 Mass. 206] take
this individual in custody, (FN7) selecting the less intrusive alternative of
taking a photograph and preparing an array for purposes of identification. Moreover, the prompt action of the police in
arranging this identification allowed the victim to view the suspect while his
recollection was still fresh. See, e.g., Commonwealth v. Harris, 395 Mass. 296,
299, 479 N.E.2d 690 (1985); Commonwealth v. Howell, 394 Mass. 654,
660, 477 N.E.2d 126 (1985).
In
preparing the array, the police testified that they sought similar‑looking
individuals. The police, however, were
unable to find any other photographs of a person wearing a sling. (FN8)
Although it would have been better practice to have attempted to cover
or hide the sling, the presence of the sling alone does not render the
photograph unnecessarily suggestive as a matter of law.
[7] The
judge found that in showing the array to the victim, the police gave the
photographs to the victim and asked him if he recognized any of the individuals
pictured. The officer did not coach the
victim in any way nor did he suggest to the victim that the photograph of the
defendant was that of the suspect. (FN9) [399
Mass. 207] Compare Moon, supra, 380 Mass. at 758, 405
N.E.2d 947; State v. LeClair,
118 N.H. 214, 216‑217, 385 A.2d 831 (1978),
with Commonwealth v. Vasquez, 11 Mass.App.Ct. 261, 266, 415 N.E.2d 858 (1981). The victim examined each photograph with
care. Although the victim testified that
his attention was drawn to the photograph with the arm in a sling, he went
through the photographs twice to identify "the individual, not the
sling." (FN10) The victim further said that because the photographs were shown to him so soon
after the incident, he had a very vivid memory of the assailant. In accordance with this testimony, the judge
found that the victim identified the defendant based solely on his observations
at the time of the incident. Accord Commonwealth v. Clark, 378 Mass. 392,
401, 393 N.E.2d 296 (1979); Commonwealth v. Kostka,
370 Mass. 516, 524, 350 N.E.2d 444 (1976).
While this identification procedure may have had an element of suggestiveness,
we agree with the judge that this identification, in the totality of the
circumstances, was not so unnecessarily suggestive and conducive to
misidentification as to deny the defendant due process of law. See
Commonwealth v. Dickerson, 372 Mass. 783, 791, 364 N.E.2d 1052 (1977).
[399 Mass. 208] Any weakness in the identification did not rise to the level of a
substantial likelihood of misidentification.
Thus it was constitutionally permissible to admit evidence of the
identification. The degree of
suggestiveness present in this identification went to the weight, not the
admissibility, of this evidence and it is for the jury to assess the
infirmities of this identification. Commonwealth v. Rodriguez, 378 Mass. 296,
308, 391 N.E.2d 889 (1979). Commonwealth v. Bumpus,
362 Mass. 672, 290 N.E.2d 167 (1972), judgment vacated 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). Because this first pretrial
identification was not shown to be unnecessarily suggestive, no taint attached
to the subsequent out‑of‑court and in‑court identifications.
As to the
conviction of larceny of property worth more than one hundred dollars, the
judgment is affirmed. As to the
conviction of breaking and entering a building in the daytime, the verdict
shall stand but the matter is remanded to the Superior Court for resentencing. See
note 2, supra.
Judgments affirmed.
(FN1.) On October 30, 1986, the matter was
remanded to the Superior Court for findings by the trial judge. The judge filed his findings on November 28,
1986.
(FN2.)
On the conviction of the breaking and entering a building in the daytime, the
defendant was sentenced to a term of twelve years at M.C.I.,
Concord. General Laws c. 266 § 17,
provides that the punishment for the crime shall be "imprisonment in the
State prison for not more than ten years." The Commonwealth concedes the sentence is
illegal and agrees that we must remand the matter to the trial judge for resentencing. There
is no explanation as to why the parties did not ask the judge to correct the
sentence as soon as the illegality of the sentence became known rather than
await the appeal.
(FN3.)
The victim testified that the intruder landed on his right side.
(FN4.)
The defendant asserts that the victim's testimony concerning this
identification is "unconvincing."
Credibility, however, is for the trial judge, not this court.
Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980).
(FN5.)
The defendant allegedly stated that he used a false name because he sought to
secure some drugs for his wife.
(FN6.)
Because the case falls within the requirements of Botelho, we leave open the question
whether, in the future, we shall follow
Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which permits the use of
identification evidence resulting from suggestive confrontations if certain
indicia of reliability are present. See,
e.g., Commonwealth v. Howell, 394
Mass. 654, 660, 477 N.E.2d 126 (1985); Commonwealth v. Venios,
378 Mass. 24, 27, 389 N.E.2d 395 (1979); Moon, supra, 380 Mass. at 759, 405 N.E.2d
947.
(FN7.)
In a long line of cases, this court frequently has held that there is no per se
violation of due process rights when the police promptly after a crime arrange
a one‑on‑one show up between the witness and the suspect. See, e.g.,
Commonwealth v. Harris, 395 Mass. 296, 299, 479 N.E.2d 690 (1985);
Commonwealth v. Howell, 394 Mass. 654, 660, 477 N.E.2d 126 (1985);
Commonwealth v. Bowden, 379 Mass. 472, 478‑479, 399 N.E.2d 482
(1980);
Commonwealth v. Storey, 378 Mass. 312, 316‑318, 391 N.E.2d 898
(1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924,
64 L.Ed.2d 813 (1980); Commonwealth v. Barnett, 371 Mass. 87,
354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct.
760, 50 L.Ed.2d 765 (1977); Commonwealth v. Bumpus,
354 Mass. 494, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969). If the police had arranged a show‑up
here, instead of the photographic array, assuming there were no special
elements of unfairness, the show‑up probably would have fallen within
these cases and would have been permissible. Storey, supra.
(FN8.) This photograph with the defendant's
arm in a sling has been lost. Neither
the trial court nor this court had the benefit of the photograph. We have reviewed the other photographs shown
to the victim in both arrays and we conclude that the arrays were fairly
constructed. All the photographs show
mustached men of approximately the same height, build, and hair color.
(FN9.) The evidence was conflicting as to
whether the officer stated that the police had a suspect at the time the victim
was shown the first photographic array.
The victim stated that the officer simply asked him to look through the
photographs to see if he recognized anyone.
The officer, on the other hand, testified that he advised the victim
that the police had a suspect prior to giving the victim the photographs. The judge made no findings on this
issue. Even if we assume that the
officer did advise the victim that they had a suspect, that does not make any
subsequent identifications unduly suggestive.
The police are simply stating the obvious purpose of showing the array
of photographs to the witness. See Commonwealth v. Napolitano, 378 Mass.
599, 603 n. 6, 393 N.E.2d 338 (1979); Commonwealth v. Coy, 10 Mass.App.Ct. 367, 373, 407 N.E.2d 1310 (1980).
(FN10.) The presence of the sling in the
photograph seems to have had no effect on the identification. First, as was noted at oral argument,
according to the hospital records, the sling and the injured shoulder appear to
have been on the left side, but the victim testified that the intruder fell on
his right side. Moreover, the victim
testified that he reviewed the photographs twice carefully‑‑to make
sure he made the identification "facially." Although we disapprove of an array of
photographs which distinguishes one suspect from all the others on the basis of
some physical characteristic, we have sustained numerous such identifications
when it is clear that the victim did not select the photograph on that
basis. See Commonwealth v. Clark, 378 Mass. 392, 399‑400, 393 N.E.2d
296 (1979); Commonwealth v. Napolitano, supra, 378
Mass. at 602, 393 N.E.2d 338; Commonwealth v. Kostka,
370 Mass. 516, 524 (1976); Commonwealth v. Mobley, 369 Mass. 892,
896, 344 N.E.2d 181 (1976). "The
fact that the defendant's photograph may have differed in some respects from
others ... is not sufficient to establish that the array was suggestive."
Commonwealth v. Worlds, 9 Mass.App.Ct.
162, 167, 399 N.E.2d 1121 (1980).