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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. Mobley, 369
Supreme Judicial Court of Massachusetts,
Argued
Decided
Peter Larkowich, Quincy,
for defendant.
Richard A. Hannaway, Asst.
Dist. Atty.,
Before [369
HENNESSEY, Chief Justice.
The
defendant was convicted of the crime of armed robbery after a jury trial in the
Superior Court, and was sentenced to a term of six to fifteen years at the
Massachusetts Correctional Institution at
The facts
presented at the hearing on the motion to suppress the identification testimony
were as follows. At about 4:15 P.M.,
November 28, 1973, a black male, later identified as the defendant, walked into
the office area of the Burger King restaurant on Brighton Avenue in Allston,
where assistant, Jerry Russeau, were both sitting the
manger, Jeffrey M. Weston, and his at a desk working. The office area consisted of a small room,
approximately eight feet by twelve feet, situated at the rear of the dining
room area of the restaurant.
The robber
pointed a gun at Weston and Russeau and demanded
money. Weston replied that he did not
have any money in the office. The robber
then pushed Russeau's head down onto the desk and
held the gun at Russeau's neck. At that time, the robber was two to three
feet away from Weston.
Both men
protested that there was no money in the back office, but that it was in the
front room. The robbert
then threw a brown paper bag on the desk,
[369
Weston
removed all the money from the safe and the cash drawer in the front room. When he returned he found Russeau
lying face down on the floor outside the office area with the robber bending
over him. The robber remained bent over
throughout the entire episode, and was, again, approximately two to three feet
away from Weston. The latter handed the
money to the robber. The robber asked
whether that was all the money they had.
Weston told him there was some rolled coin left in the office if he
wanted it. The robber said he wanted it,
at which point the manager went into the rear office, returning with about $200
in rolled coin, which he handed over to the robber. Weston was then told to lie down on the
floor, and the robber fled through the rear door of the building.
The area
where the robbery occurred had overhead fluorescent lights and the lighting was
excellent. The robbery itself took
approximately six to nine minutes.
Weston testified that he clearly observed the robber for three to six
minutes.
Weston
described the robber to the police as a black male in his late teens or early
twenties, approximately five feet nine inches tall, wearing khaki or light‑colored
pants, a blue knit ski cap ('stocking cap') and a maroon nylon jacket with some
writing on it.
The next
morning, November 29, 1973, Officer Manfra telephoned
Weston and told him he wanted to show him some photographs to see whether the
robber was in the group. The officer,
along with other officers, came to the restaurant. He placed about six pictures on a table. Weston thumbed through them once or
twice. He selected only one picture,
that of the defendant, identifying him as the robber. Although this was the only picture in the
group of a male wearing a ski cap, the rest being bareheaded, Weston could not
recall which figure in the [369
Mass. 895] six pictures wore the ski
hat since he did not focus on that detail in particular.
The police
then gave Weston another group of pictures showing an unrelated armed robbery
being committed. Weston again selected a
picture of the defendant. None of the
officers present engaged in any conversation about the pictures shown during
this identification.
The
defendant at this time had not been arrested, questioned, or suspected by the
police of having committed this crime.
He was arrested shortly after the
identifications.
At a
probable cause hearing held at the Municipal Court of the Brighton District
three to four weeks after the robbery, Weston saw the defendant in the
dock. Weston positively identified the
defendant as the robber. No suggestions
about the identification of the defendant were made to Weston by anyone at this
hearing.
[1]
1. There was no error in the denial of
the defendant's motion to suppress the identification testimony (both in‑court
and out‑of‑court) of the witness Weston. It is clear from the judge's findings of fact
at the hearing on the motion to suppress evidence, all of which we conclude
were warranted on the evidence, that he correctly evaluated the photographic
identification procedures in light of the totality of circumstances in the
case. Simmons v. United States, 390 U.S.
377, 383‑‑384, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968). The judge concluded that
there was 'nothing whatsoever by way of tainted suggestiveness in the out‑of‑court
photographic identification.' This
determination in a practical sense was a ruling which disclosed an analysis
sufficient to meet the requirements of the Simmons case, viz. that photographic
identification procedures are constitutionally invalid if the procedures were
'so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification.' Id.
at 384, 88 S.Ct. at 971.
[2] In his
findings the judge placed appropriate emphasis on several particulars, and in
doing so applied analysis of the facts as recommended in United States v. Wade,
388 [369 Mass. 896] U.S. 218, 241, 87 S.Ct.
1926, 18 L.Ed.2d 1149 (1967), as follows: (1) the extent of the witness's
opportunity to view the robber; (2) the general description given by the
witness of the robber; (FN1) (3) the absence of any error in either failing to
identify the defendant as the robber or in identifying some other person as the
robber; (4) the lack of evidence that the police had made any suggestions to
the witness concerning identification of the defendant; and (5) the relatively
short period of time which elapsed between the commission of the crime and the
identification of the photographs. It is
clear that analysis of the facts by theses criteria was supportive of the
judge's ruling. The extent of the
opportunity to see the robber at the time of the crime, which has been called
the most important factor (Commonwealth v. Ross, 361 Mass. 665, 371, 282 N.E.2d
70 (1972)), was properly emphasized by the judge in his findings. The judge also considered in his
determination the fact that the defendant had not been under arrest at the time
of Weston's identification.
[3] The
defendant points to certain of the facts as establishing unconstitutionally
suggestive pre‑trial procedures.
For example, he cites the fact that the group of pictures viewed by the
witness showed only the defendant wearing a ski cap, and the additional fact
that the robber wore a ski cap. None of
the other subjects wore a hat. However,
whatever support these facts might afford to the defendant's argument is
considerably neutralized by the witness's unequivocal testimony at the pretrial
hearing that (in substance) he was not looking for a hat when he examined the
pictures.
[4] The
showing of pictures of the defendant participating in an unrelated armed
robbery, while undoubtedly prejudicial in some circumstances, occurred here
only after the [369 Mass. 897] witness had made an unequivocal
identification of the defendant from a selection of six pictures of reasonably
similar men. Again, this sequence of
events makes the police procedures here fall far short of the impermissibly suggestive procedures
proscribed by the Simmons case.
[5] Since
the judge found, and we conclude warrantably, that
the pre‑trial identification procedures were not constitutionally
invalid, there was no necessity for him to consider, as the defendant now
argues, whether the in‑court identification was, by clear and convincing
evidence, (FN2) based on observations of the suspect independent from the
challenged pre‑trial procedures.
[6]
2. There was no error in exclusion by
the judge of a question propounded by defense counsel as to whether the witness
Weston had more or less difficulty distinguishing between black males than
between white males. The witness had
just previously answered another question, in substance, that he had no
difficulty distinguishing between black males.
The exclusion of the question was in the judge's discretion. See Commonwealth v. Carroll, 360 Mass. 580,
589, 276 N.E.2d 705 (1971).
[7]
3. There was no error in the refusal of
the judge to dismiss the indictment on the ground that there was discrimination
against women in the manner in which the grand jury were selected. The indictment here was returned before
Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42
L.Ed.2d 690 (1975), was decided and the rule of that case need not be applied
retroactively. Daniel v. Louisiana, 420
U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). See COMMONWEALTH V. DAGGETT, ‑‑‑
MASS. ‑‑‑, 343 N.E.2D
409 (1976)(FND), wherein we declined to apply the
Taylor principle [369 Mass. 898] retroactively on facts substantially
the same as presented in this case.
Judgment
affirmed.
FN1. The defendant fitted this description, so far
as the record shows, except that he described himself at the trial as a little
over six feet one inch tall, whereas Weston had originally described him as
approximately five feet nine inches tall.
FN2.
As in Commonwealth v. Botelho, ‑‑‑
Mass. ‑‑‑ (Mass.Adv.Sh. (1976)
652), 343 N.E.2d 876, the parties here have assumed that a burden rests on the
Commonwealth to prove an independent basis for the identification by clear and
convincing evidence whenever impermissibly suggestive pre‑trial
procedures are shown. We do not reach
this issue here, and need not consider the implication of Neil v. Biggers, 409 U.S. 188, 93 S.Ct.
375, 34 L.Ed.2d 401 (1972), and other cases.
See the discussion of the opposing points of view in the Botelho opinion.
FNd. Mass.Adv.Sh. (1976) 552.