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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. Moon, 380
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Carol S. Ball, Asst. Dist. Atty., for the
Commonwealth.
Richard J. Hayes,
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER,
KAPLAN and LIACOS, JJ.
QUIRICO,
Justice.
The
defendant was indicted for two crimes, assault by means of a dangerous weapon
and stealing property of the value of more than one hundred dollars. Prior to
[380
On
A single
justice of this court granted the Commonwealth's application under G.L. c. 278,
s 28E, ([FN1]) for an interlocutory appeal and transferred the appeal to the
Each party
then filed an application for further review by this court of the holdings of
the Appeals Court. The Commonwealth
sought further review of the judge's order suppressing the identifications,
which the Appeals Court had affirmed, and the defendant sought further review
of the judge's ruling suppressing the material seized from the defendant's car,
which the Appeals Court had reversed. We [380 Mass. 753] allowed both applications.
G.L. c. 211A, s 11. We affirm the
orders by the judge allowing both motions.
[1] Before
considering the judge's orders on the two motions, we address two procedural
questions raised by the defendant. The
first is a contention that the prosecutor did not save an exception when the
judge allowed the two motions in open court.
If, as of the date of the orders, March 29, 1978, the prosecution was
required to save an exception as a condition to its right to obtain appellate
review (a point which this court has not yet decided, see Commonwealth v.
Taylor, 374 Mass. 426, ‑‑‑ ‑ ‑‑‑
([FNB]), 374 N.E.2d 81 (1978), our decision of this case does not require us to
decide that question here. The second is
a claim that the Commonwealth did not diligently prosecute its interlocutory
appeal under G.L. c. 278, s 28E. The
record before us shows only that the orders allowing the motions to suppress
were made on March 29, 1978; that the application for interlocutory appeal was
argued before the single justice on December 6, 1978, and allowed on December
22, 1978; and that the appeal was argued before the Appeals Court on June 13, 1979,
and decided on September 27, 1979. There
is nothing in the record to explain the reason for the time elapsed between the
several steps in the processing of the appeal.
The dates and time lapses without more do not permit us to conclude that
the Commonwealth did not diligently prosecute its appeal.
We turn
now to the principal issue raised by the Commonwealth in this appeal, that is,
whether the judge erred in allowing the defendant's two motions to suppress one
relating to the items taken by the police officers from the defendant's car,
and the other relating to the victim's identification of the defendant.
We have
noted earlier in this opinion that at the close of the evidence received at the
hearing on the motions the judge made some statements in open court before
allowing the motions. Some of those
statements may have been sufficient to indicate or to imply factual conclusions
which he had apparently reached. However,
on the following day [380
Mass. 754] the judge filed a formal
document entitled "Findings of Fact and Conclusions Thereon" which we
assume was intended by him to be the complete formal statement of the factual
basis for his action. He made the
written findings at the request of the prosecutor who stated that the purpose
of the request was to provide a record for a possible appeal from the allowance
of the motions. ([FN2]) It is also appropriate to note that both
parties to this appeal, in stating the facts of the case in their briefs, do so
by repeating the written findings of the judge almost verbatim.
The
written findings made by the judge are the following:
"This
matter came on for hearing before me in the Superior Court sitting in Middlesex
on the 29th day of March 1978 upon defendant's Motions to Suppress. One motion sought to suppress a photograph
and any subsequent in‑court identification, and the other motion sought
to suppress items seized in the automobile of the defendant.
"After
hearing the evidence and reviewing the arguments of counsel for the defendant
and the Commonwealth I find the relevant facts to be as follows:
"On
June 27, 1977 one Charles Mosesian viewed an individual acting in a suspicious
fashion outside the building in which he lived.
As a result of that observation Mr. Mosesian left his apartment and went
to the garage of that building. At that
time he encountered an individual between two automobiles. He confronted the individual at a distance of
ten feet for a period of ten to twenty seconds.
At that time Mr. Mosesian observed a knife in the possession of the
person whom he encountered in the garage.
Subsequent to the ten‑to‑twenty‑second observation the
individual turned and ran from the witness.
The above‑mentioned [380
Mass. 755] observations occurred
during the nighttime in an area which was lighted by 50‑watt bulbs placed
at intervals of approximately fifteen feet.
"Watertown
Police arrived at the scene and the witness provided a description of the
person with the knife as being approximately one inch taller than the witness,
weighing approximately 160 pounds and having dark hair. At that point a Watertown policeman commented
to his partner in the presence of witness Mosesian, 'That sounds like Andy
Moon.' Witness Mosesian testified that
he heard that comment. The witness then
pointed out an automobile which he felt belonged to the person with the knife
although he had never seen him within the vehicle. A police check of the registration number of
that motor vehicle revealed that it was registered to the defendant Andrew
Moon. The police went to that
automobile, opened the unlocked door and searched the same. Among other things taken therefrom was a
wallet containing the photograph of the defendant. The photograph was exhibited to witness
Mosesian who identified the person depicted therein as being the same man that
he observed with the knife in the garage.
"CONCLUSIONS. I find that the witness' opportunity to
observe the defendant and the description given to the police officers were
such that the naming of the defendant on the scene, and the exhibiting to the
witness a single photograph of the defendant, were so suggestive as to
materially taint any subsequent identification of the defendant either in the
photo as exhibited or in court at the time of trial.
"I
further find no probable cause for the search of defendant's motor vehicle and
the seizure of the items found therein, particularly in light of the fact that
the officers were aware of the identity of the registered owner of the vehicle
and had no reason to believe that there was any contraband located therein.
"Motions
to suppress allowed."
[2][3] 1. Standard of review. The evidence before the judge at the hearing
on the motions to suppress consisted entirely of [380 Mass. 756] oral
testimony. The determination of the
weight and credibility of the testimony is the function and responsibility of
the judge who saw and heard the witnesses, and not of this court. In such a situation, where subsidiary
findings of fact have been made by the trial judge, they will be accepted by
this court, and we do not substitute our judgment for his, absent clear
error. Commonwealth v. Murphy, 362 Mass.
542, 547, 289 N.E.2d 571 (1972); Commonwealth v. Harmond, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNC]), 382 N.E.2d 203 (1978); Commonwealth v. Jones, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FND]), 377 N.E.2d 903 (1978); Commonwealth v. Taylor, 374 Mass. 426, ‑‑‑
([FNE]), 374 N.E.2d 81 (1978). There is
no error, much less clear error, in the judge's subsidiary findings of fact,
and it is not contended that the evidence was not sufficient to support the
findings.
[4][5]
"We cannot properly be asked to revise a judge's subsidiary findings of
fact, where they are warranted by the evidence, or to review the weight (or
credibility) of the evidence related to the findings. . . .
Nevertheless, it is important to add that the ultimate findings and
rulings of a judge may give rise to a meaningful appeal, even in a case where
his subsidiary findings are beyond practical challenge. This is true because the ultimate conclusions
of a judge on identification (or search and seizure) issues may be of
constitutional proportions. This court
must, where justice requires, substitute its judgment for that of a trial judge
at the final stage." (Commonwealth
v. Murphy, supra 362 Mass. at 550‑551, 289 N.E.2d at 577 (Hennessey, J.,
concurring). Commonwealth v. Sires, 370
Mass. 541, 544 n. 1, 350 N.E.2d 460 (1976).
Commonwealth v. Harmond, supra 376 Mass. at ‑‑‑ ‑
‑‑‑ [FNf], 382 N.E.2d 203.
2. Motion
to suppress identification. We point to
those of the judge's findings which bear particularly on his suppression of the
identification of the defendant by the victim.
The first opportunity the victim had to see the person who is charged
with assaulting him was in a garage at the place where the victim lived, and it
lasted for a period of ten to twenty seconds.
The judge made findings as to the lighting conditions at that time and
place, and also as to the description which the victim gave to the police. The description [380 Mass. 757] was
rather general. The judge apparently
concluded that up to the time the victim finished giving his description to the
police officers he would not have been able to identify his assailant. It was then that one police officer said to
the other in the victim's presence: "That sounds like Andy
Moon." It was not until after the
victim was shown a single picture, that of the defendant, that the victim
identified the defendant as his assailant.
The judge found that the police action in naming the defendant and then
showing the victim the single photograph of the defendant was "so
suggestive as to materially taint any subsequent identification of the
defendant either in the photo as exhibited or in court at the time of
trial."
The
subsidiary findings by the judge to the effect that the police suggested the
name of the defendant to the victim, and that they showed the victim a
photograph taken from the defendant's car are supported by the evidence, and
they are not disputed. All of the
findings support the conclusion by the judge that those acts were unnecessarily
suggestive and that they tainted the victim's identification of the defendant's
photograph as that of his assailant.
While we are not bound by that conclusion, it is deserving of reasonable
deference. Commonwealth v. Cincotta, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNG]), 398 N.E.2d 478
(1979).
The
Commonwealth argues that the showing of the defendant's photograph to the
victim at the scene is the equivalent of the one‑on‑one show‑up of a
defendant which took place, and was approved by this court in 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), and Commonwealth v. Bumpus, 354 Mass. 494,
500‑501, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct.
651, 21 L.Ed.2d 579 (1969). We do not
agree.
There was
no showing of any exigency which required the police officers to suggest the
defendant's name, or to show his photograph, to the victim. There was no reason why they could not have
awaited an opportunity to show the victim an array of photographs. Nor is there any explanation why they did not
wait until the defendant was [380
Mass. 758] arrested and then permit
the victim to try to identify him from a lineup.
The
identifications in Barnett and Bumpus involved an in‑person
identification of a recently apprehended suspect by a witness shortly after the
crime had occurred. The advantages of
such an identification "in the immediate aftermath of crime" have
been held, like other exigent circumstances, to justify the use of a one‑on‑one
confrontation procedure which is otherwise the subject of disapproval. Barnett, supra, 371 Mass. at 92, 354 N.E.2d
879; Commonwealth v. Jackson, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNH]), 386 N.E.2d 15, 23 (1979). ("(P)hotographs of only one person
should not be shown to witnesses in the absence of exigent
circumstances"), and cases cited.
As noted above, no such exigencies justified the photographic
confrontation in the present case.
Moreover, further suggestiveness arose from the occurrences surrounding
the showing of the picture. The witness
believed that the car belonged to the person with the knife. He then watched as the police entered the car
and removed a picture from a wallet, and showed him the picture for his
identification. Prior to this the police
had mentioned to the witness the name of a person whom they believed to be the
criminal, and had learned by radio that the car belonged to the person whom
they had named. These factors, unnecessary
to the showing of the photograph, constitute "special elements of
unfairness" which further remove the present identification from the class
of cases in which a confrontation without a lineup may be permitted. Cf.
Commonwealth v. Bowden, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNI]), 399 N.E.2d 482 (1980); Barnett, supra 371 Mass.
at 93, 354 N.E.2d 879.
[6][7][8]
The test of whether a single person identification is constitutionally
sufficient under the due process clause is whether the confrontation is
unnecessarily suggestive of the defendant, Commonwealth v. Storey, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNJ]), 391 N.E.2d 898 (1979), so as to give rise to a very substantial
likelihood of a mistaken identification.
Commonwealth v. Venios, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNK]), 389 N.E.2d 395
(1979); Commonwealth v. Moynihan, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNL]), 381 N.E.2d 575 (1978), and cases cited. Upon such a showing by a defendant by a
preponderance of the evidence, the [380
Mass. 759] burden falls on the
Commonwealth to show that the identification rests on a source independent of
the suggestive confrontation. Venios,
supra. We hold that the judge was
correct in ruling that the procedures employed in this case were "so
suggestive as to materially taint any subsequent identification of the
defendant." The motion to suppress
the identification was therefore properly allowed.
[9] The
Commonwealth urges us to apply the "reliability" test of Manson v.
Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), to
uphold the identification despite the unnecessary suggestiveness inherent in
it. While the Appeals Court has applied
this test in a number of cases (see Commonwealth v. Bernard, ‑‑‑ mass.app. ‑‑‑,
‑‑‑ ‑ ‑‑‑ [fnm], 378 n.e.2D 696
(1978); Commonwealth v. Gordon, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNN]), 374 N.E.2d 1228
(1978), and cases cited), this court has heretofore declined to apply it. See Commonwealth v. Cincotta, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNO]), 398 N.E.2d 478
(1979); Commonwealth v. Rodriguez, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNP]), 391 N.E.2d 889 (1979); Commonwealth v. Venios, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNQ]), 389 N.E.2d 395 (1979). We
decline to adopt the "reliability" test under the circumstances of
the present case, although we reiterate that it is well for judges deciding
issues such as the present one to make findings which relate to the factors to
be considered under the test. It is fair
to note that the findings of the judge here strongly indicate that the
circumstances surrounding Mosesian's identification of the defendant were such
as to render the identification unreliable even under the Manson test.
Finally,
we leave open for further discussion below the question, not argued by counsel
or addressed by the judge, whether the manner in which the police obtained the
photograph itself indicates that the identification which was achieved through
its use should be excluded as the fruit of an illegal search and seizure.
3. The
Search and Seizure.
[10][11]
Since the search of the defendant's automobile was conducted without a warrant,
the burden was on the Commonwealth to show that it was reasonable under the
Fourth [380 Mass. 760] Amendment to the United States
Constitution. Commonwealth v.
Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). We uphold the conclusion of the judge, based
on his findings, that the Commonwealth was required, but failed, to prove that
the search was based on probable cause.
See Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221‑222, 88
S.Ct. 1472, 1475‑1476, 20 L.Ed.2d 538 (1968). His findings of fact show that there was no
"nexus" between the car and the criminal activity of the person
sought. See Cardwell v. Lewis, 417 U.S.
583, 592, 94 S.Ct. 2464, 2470, 41 L.Ed.2d 325 (1974); Commonwealth v.
Rodriguez, ‑‑‑ Mass. ‑‑‑, ‑‑‑
([FNR]), 391 N.E.2d 889 (1979). The fact
that the person with the knife may have arrived in the neighborhood in the car
did not by itself provide probable cause for the police to search the car in
the hope of finding some material which might tend to identify or incriminate
him.
The judge
distinguished this case from one requiring the mere identification of an
abandoned motor vehicle, noting that the police officers "were aware of
the identity of the registered owners of the vehicle and had no reason to believe
that there was any contraband located therein." There was nothing to indicate that the
defendant had entered the motor vehicle subsequent to the alleged assault;
Mosesian had never seen his assailant enter the vehicle.
The
present case is distinguished from Commonwealth v. Cavanaugh, 366 Mass. 277,
282, 317 N.E.2d 480 (1974), in that here there was no "limited sight
intrusion" which provided justification for further investigation prior to
the search. The exigent circumstances
present in that case, i. e., the apprehension of a driver after initial illegal
conduct by him and then a high speed chase through city streets, also were not
present here. The present case also
differs from Commonwealth v. Haefeli, 361 Mass. 271, 280‑281, 279 N.E.2d
915 (1972), habeas corpus granted sub nom. Haefeli v. Chernoff, 394 F.Supp.
1079 (D.Mass.), rev'd 526 F.2d 1314 (1st Cir. 1975), and Commonwealth v.
Navarro, 2 Mass.App. 214, 217‑220, 310 N.E.2d 372 (1974), because, as the
trial judge found, there was no need to take further action to identify the
owner of the vehicle and there was no indication that the car might have been [380 Mass. 761] used by another; to the contrary, the police had strong reason to believe the owner had been using it
himself.
[12] There
is no foundation in the findings of the judge or in the record for the
Commonwealth's argument that the vehicle, had been impounded or otherwise taken
into police custody prior to the search.
Cf. South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 3100, 49
L.Ed.2d 1000 (1976); Cady v. Dombrowski, 413 U.S. 433, 449, 93 S.Ct. 2523,
2531, 37 L.Ed.2d 706 (1973). Nor is
there any foundation for the Commonwealth's repeated assertion that the wallet
was in plain view on the car seat, or that it was seen by the officer prior to
his entering the car. Cf. Commonwealth
v. Cavanaugh, supra.
Finally,
we note in light of the invalidity of the search and seizure of the wallet, the
strong possibility that the identification which was achieved by use of the
driver's license, which included his photograph, taken from the illegally
seized wallet may have been inadmissible as the fruit of an illegal police
procedure. See Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Forde,
367 Mass. 798, 807‑808, 329 N.E.2d 717 (1975); Commonwealth v. Spofford,
343 Mass. 703, 707‑708, 180 N.E.2d 673 (1962). As this question was not raised and is not
necessary to our decision, however, we do not decide it.
The orders
allowing both motions to suppress are affirmed.
So
ordered.
(FN1.) This occurred on December 26,
1978. For statute and rules governing
interlocutory appeals in criminal cases after July 1, 1979, see: G.L. c. 278, s
28E, as amended by St.1979, c. 344, s 45, and Mass.R.Crim.P. 15, ‑‑‑
Mass. ‑‑‑ (1979).
(FNA.)
Mass.App.Ct.Adv.Sh. (1979) 1870.
(FNB.)
Mass.Adv.Sh. (1978) 394, 399‑400.
(FN2.)
The request by the prosecutor for written findings was as follows: "In
that line I have to ask if you would be willing to draft findings and rulings
in the near future if that would be possible, sir. I'm not sure what the situation is with the
Appellate Division (of the office of the District Attorney). They said to ask you. I don't know whether your findings on the
record (the transcript) are sufficient."
(FNC.)
Mass.Adv.Sh. (1978) 2773, 2776‑2777.
(FND.)
Mass.Adv.Sh. (1978) 1467, 1472‑1473.
(FNE.)
Mass.Adv.Sh. (1978) 394, 400.
FNf.
Mass.Adv.Sh. (1978) at 2776‑2777.
(FNG.)
Mass.Adv.Sh. (1979) 2671, 2672.
(FNH.)
Mass.Adv.Sh. (1979) 401, 418.
(FNI.)
Mass.Adv.Sh. (1980) 75, 82.
(FNJ.)
Mass.Adv.Sh. (1979) 1546, 1552‑1553.
(FNK.)
Mass.Adv.Sh. (1979) 1184, 1188‑1190.
(FNL.)
Mass.Adv.Sh. (1978) 2654, 2663.
FNm.
Mass.App.Ct.Adv.Sh. (1978) 784, 791‑793.
(FNN.)
Mass.App.Ct.Adv.Sh. (1978) 384, 391‑399.
(FNO.)
Mass.Adv.Sh. (1979) 2671, 2677.
(FNP.)
Mass.Adv.Sh. (1979) 1527, 1537.
(FNQ.)
Mass.Adv.Sh. (1979) 1184, 1188‑1190.
(FNR.)
Mass.Adv.Sh. (1979) 1527, 1535.