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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
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Commonwealth v. Mulero, 38 Mass.App.Ct. 963 (1995)
Supreme Judicial Court of Massachusetts,
Argued
Decided
Maurice F. Ford,
[376
Before [376
LIACOS, Justice.
The
defendant was found guilty of armed robbery, G.L. c. 265, s 17, by a jury,
following a trial made subject to the provisions of G.L. c. 278, ss 33A‑33G.
He appealed to the
The defendant's
numerous assignments of error pertain to two basic issues: (1) whether the
judge erred in denying the defendant's motion to suppress certain evidence; and
(2) whether the judge erred in his rulings regarding the admissibility of
polygraph evidence that was favorable to the defendant. Within these broad categories, we will
address each assignment of error that has been adequately argued.
1.
Defendant's motion to suppress. The
defendant moved to suppress: (a) evidence in the form of clothing taken by
police from a car in which the defendant had been previously observed; (b)
identifications made by two witnesses to the robbery. Following a hearing on the motion, the judge
issued findings and rulings, and ordered that the motion be denied. The following descriptions of the
underlying events are taken from the judge's findings, except where otherwise
noted.
On
November 25, 1974, at approximately 11:30 A.M., two men entered George's Market
in Dorchester. In the market at the time
were the proprietor, George Jakub, and a clerk, Daniel Stock. One of the men pointed a gun at Jakub and
Stock and took money from the cash register.
During the robbery, both Jakub and Stock clearly observed the robbers
for several minutes. They told police
that the man with the gun had glasses and wore a tan "rain‑and‑shine"
coat and a black "Russian‑type" hat. The victims also described the other robber,
noting, among other things, that he wore an "army‑type" jacket.
[376 Mass. 470] (a) Clothing taken from the car.
Officer John Smyth of the Milton police department was on routine patrol
in a marked police car about noon on November 25, approximately one‑half
hour after the robbery. He was not aware
that the robbery had occurred. As he
stopped for traffic, he noticed two passenger cars parked in a large parking
lot belonging to an American Legion post.
Smyth knew that the parking lot was usually empty at that hour. He observed that one of the cars, a Plymouth,
did not have a front license plate. He
also observed three people, two males and a female, alighting from the Plymouth
and walking a distance of about thirty yards to the second car, a four‑door
white Ford sedan with a black hood. A fourth
person was seated in the driver's seat of the Ford. Smyth drove his car into the parking lot and
parked near the Ford. At Smyth's
request, the person in the driver's seat produced the car's registration, which
was found to be in order, and indicated that the Ford was registered to the
driver. Smyth then turned to the other
occupants and asked them what was wrong with their car. The defendant replied, "What car?" Smyth said, "The car you just got out
of." The defendant replied,
"We didn't get out of any car."
Smyth then asked everyone to get out of the car and they complied,
leaving all the car doors open. As the
defendant left the car, Smyth saw him move his hand toward the floor next to
where he had been sitting in the back seat.
Smyth looked
through the open rear door of the Ford and observed a gun clearly visible on
top of clothing lying on the floor next to the back seat. Smyth reached in and picked up the gun, and
asked the four former occupants, as a group, "Who belongs to the
gun?" No one answered. Smyth repeated the question, and again there
was no answer. (FN1) Smyth then placed
the four persons under arrest for illegal possession of a firearm, and informed
them of [376 Mass. 471] their Miranda rights. The defendant then volunteered the statement:
"I'll take my lumps. The gun
belongs to me. The Plymouth is
stolen. I stole it. The plates are in Swenson's car (the Ford)
and in the trunk of the Plymouth."
During this conversation, Smyth observed in plain view in the back of
the Ford a tan rain‑and‑shine coat and a dark blue waist‑length
jacket, but he did not touch them. At
Smyth's direction, the two cars were towed to an outside police parking lot
behind the Milton police station. The
cars were left unlocked.
At
approximately 11:45 A.M. on the morning of the robbery Detective Richard M.
Driscoll of the Boston police department arrived at George's Market and
received descriptions of the two robbers.
One of them was said to have been wearing a tan rain‑and‑shine
coat, and the other an army‑type jacket.
The getaway car was described as a white Ford with a black hood. Driscoll subsequently learned that a car
fitting that description was in the custody of the Milton police. On November 26, the day after the robbery,
Driscoll went to the Milton police station parking lot where he observed the
Ford that had been impounded by Smyth. The car was unattended and
unlocked. Standing outside the car,
Driscoll looked through the windows and saw lying in the rear, in plain view, a tan
rain‑and‑shine coat and a blue army‑type jacket. Driscoll opened a door of the car and took
possession of the coat and jacket. He
had no warrant to search or seize.
The
defendant moved to suppress the gun taken from the Ford by Smyth, and the
clothing taken from the Ford by Driscoll.
In his brief, however, the defendant admits, as well he might, see, e.
g., Commonwealth v. Anderson, 366 Mass. 394, 318 N.E.2d 834 (1974);
Commonwealth v. Wilson, 360 Mass. 557, 276 N.E.2d 283 (1971); Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); G.L. c. 41, s 98, that
"Officer Smyth was acting properly in his threshold inquiry which resulted
in his observations that led to the arrest of the defendants and the seizure of
the automobile." The defendant does
not argue that the seizure[376 Mass.
472]
of the gun was improper. We
therefore focus only on the seizure of the clothing by Driscoll on the day
after the robbery.
The judge
found that Driscoll's warrantless seizure of the clothing was lawful and could
be supported on two independent theories.
First, the judge relied on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.
1975, 26 L.Ed.2d 419 (1970), which held that a warrantless search of an
automobile at the police station generally is not constitutionally distinguishable
from an immediate search of the car on the highway under exigent circumstances
and based on probable cause. See,
generally, Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325
(1974); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
(1971); Commonwealth v. White, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNA), 371 N.E.2d 777
(1977), cert. granted, 436 U.S. 925, 98 S.Ct. 2817, 56 L.Ed.2d 767 (1978);
Commonwealth v. Haefeli, 361 Mass. 271, 275‑283 (1972), habeas corpus
granted sub nom. Haefeli v. Chernoff,
394 F.Supp. 1079 (D.Mass.), rev'd, 526 F.2d 1314 (1st Cir. 1975). Second, the judge concluded that the
"plain view" doctrine supported Driscoll's seizure of the clothing,
citing our decision in Commonwealth v. Ross, 361 Mass. 665, 681‑682, 282
N.E.2d 70 (1972), judgment vacated on other grounds, 410 U.S. 901, 93 S.Ct.
968, 35 L.Ed.2d 265, aff'd on rehearing, 363 Mass. 665, 296 N.E.2d 810, cert.
denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). We agree that the plain view doctrine is
applicable to the facts of this case and that Driscoll's actions are fully
justifiable under that doctrine. It is
therefore unnecessary for us to consider the applicability of the Chambers case
and its progeny.
[1] On
numerous occasions we have described and applied the plain view doctrine,
relying principally on the exposition provided in Coolidge v. New Hampshire,
403 U.S. at 464‑473, 91 S.Ct. 2022.
As summarized in Commonwealth v. Walker, 370 Mass. ‑‑‑,
‑‑‑ (FNB), 350 N.E.2d 678, 686, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314
(1976): "The plain view doctrine requires prior police justification for
an intrusion in the course of which an officer inadvertently comes across incriminating
evidence. The 'prior justification'
language is merely another way of articulating the necessity for 'some . . .
legitimate reason for being present unconnected with a search directed against
(an) [376 Mass. 473] accused.' Coolidge v. New Hampshire, supra (403 U.S.)
at 466, 91 S.Ct. at 2038. The
inadvertence requirement simply lends credibility to the doctrine by ensuring
that only evidence which the police did not Anticipate or Know to be at the
locus of a search will be seized without a warrant." We have also said that "mere evidence,"
as distinguished from contraband, fruits of crime and so on, may be seized only
if the police recognize it to be plausibly related as proof to criminal
activity of which they were already aware.
Commonwealth v. Bond, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNC), 375 N.E.2d 1214
(1978).
[2] [3]
The judge in the instant case made subsidiary findings of fact relevant to the
application of the plain view doctrine, and we are bound to accept those
findings
absent clear error. See, e.
g., Commonwealth v. Hosey,368 Mass. 571, 574 n.1, 334 N.E.2d 44 (1975). There was no error. The record supports the view that Driscoll
went to the parking lot at the Milton police station for the purpose of determining
whether the white Ford in the custody of the Milton police matched the
description of the getaway car he had received at the scene of the crime. The car properly had been removed to the
security of the police parking lot, and Driscoll was entitled to proceed into
the parking lot in furtherance of what were legitimate police investigatory
duties. Cf. Commonwealth v. Ross, supra,
361 Mass. at 681, 282 N.E.2d 70 (preincarceration inventory was a legitimate
police function forming basis for plain view seizure). See also South Dakota v. Opperman, 428 U.S.
364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
Driscoll therefore had a legitimate reason for being in a position which
occasioned his view of the coat and jacket.
On seeing the clothing in plain view, and recognizing that the clothing
matched the description of that worn by the robbers, Driscoll was justified in
seizing the potential evidence. He did
not conduct an extended general or exploratory search; he removed only the two
articles of clothing. (FN2) See Coolidge[376 Mass. 474] v. New Hampshire, supra,
403 U.S. at 467, 91 S.Ct. 2022 (seizure of object in plain view is consistent
with objective of avoiding "general warrant" to rummage through a
person's belongings); cf. Cardwell v. Lewis, 417 U.S. 583, 590‑591, 94
S.Ct. 2464, 41 L.Ed.2d 325 (1974) (traditional privacy interests are not
implicated by "search" of car exterior, emphasizing plain view of
evidence and lesser expectation of privacy in a motor vehicle).
(b)
Identifications. The judge made the
following findings of fact, which are fully supported by the record, regarding
the exhibition of photographs to the two witnesses, Jakub and Stock. Within one or two days after the robbery
Driscoll obtained a group of fourteen color photographs of men roughly fitting
the description of the robbers. The
pictures were not police "mug‑shot" photographs, but were color
Polaroid photographs giving a single front view of the faces of the
subjects. No numbers or other
identifying data appeared on the pictures.
Driscoll
went to George's Market and asked Jakub and Stock to view the photographs. Nothing was said or suggested as to which of
the subjects might have been involved in the robbery. Jakub and Stock independently selected one of
the pictures as being that of the shorter of the two robbers. Stock picked the defendant's photograph as
being that of the taller robber. After
observing Stock make the selection of the defendant's picture, Jakub joined in
identifying the defendant's picture as that of the taller robber. At the hearing on the motion to suppress,
both witnesses affirmed their identifications of the defendant's
photograph. Stock also testified that
the defendant, who was seated in the dock, was the taller robber.
[4] [5]
The defendant makes no objection to the array of fourteen photographs displayed
to the witnesses, but does contend that the photographs were shown to the
witnesses in an unduly suggestive manner.
The judge specifically found and ruled, however, that the exhibition of
photographs was fairly conducted and was not impermissibly suggestive. As we have already noted, subsidiary [376 Mass. 475] findings of fact by the trial judge will be accepted by a
reviewing court absent clear error. The
ultimate legal conclusions to be drawn from the subsidiary facts, however, are
matters for review. Commonwealth v.
Hosey, 368 Mass. 571, 574 n.1, 334 N.E.2d 44 (1975). The legal standard to be applied in a case in
which a photographic identification procedure is attacked as constitutionally
invalid is whether the procedure was " 'so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification'." Commonwealth
v. Mobley, 369 Mass. ‑‑‑, ‑‑ ‑ (FND), 344 N.E.2D 181, 184 (1976), quoting from Simmons v.
United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
There is
no need to discuss in detail the defendant's objections to the process by which
Stock came to identify the defendant's picture.
The judge's findings of fact with regard to that process, and his legal
conclusion drawn from those facts, were clearly warranted. Nor is there reason for us to add to or alter
the judge's findings of fact regarding the process by which Jakub identified
the defendant's picture. We do pause to
consider, however, whether the photographic identification procedure employed
with regard to Jakub satisfied the legal standard of Mobley and Simmons.
[6] [7] At
the suppression hearing, Jakub gave the following description of the
photographic identification procedure: "And the next one (the defendant),
my clerk (Stock) picked him out; and I went along with him. I verified it." Stock and Jakub had viewed simultaneously the
array of fourteen photographs. Driscoll
was present during the procedure but said nothing. In the course of determining that this
procedure was not impermissibly suggestive, the judge placed appropriate
emphasis on the considerations enumerated in United States v. Wade, 388 U.S.
218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). (FN3) In reviewing the judge's ruling, we are
mindful [376 Mass. 476] that "each case must be
considered on its own facts."
Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. 967. "While there are obvious pitfalls in
permitting victims to view photographs in each other's presence, the practice
is not Ipso facto invalid so as to preclude an identification made as a result
thereof." Commonwealth v. Cofield,
1 Mass.App. 660, 667, 305 N.E.2d 858, 862 (1974). We concluded in Commonwealth v. Garvin, 360
Mass. 846, 273 N.E.2d 882 (1971), that a photographic selection procedure similar
to the one employed in the instant case was not improper under the Simmons
standard. See also Commonwealth v.
Roberts, 362 Mass. 357, 365, 285 N.E.2d 919 (1972). Although it would have been highly preferable
for the two witnesses to have made their photographic selections independently,
we do not think that the judge was wrong in concluding that the defendant
failed to sustain his burden of showing that the procedure was impermissibly
suggestive. See Commonwealth v. Botelho,
369 Mass. ‑‑‑, ‑‑‑ (FNE), 343 N.E.2d 876
(1976). In so deciding, we place
particular emphasis on the favorable conditions under which Jakub viewed the
robbers and the short amount of time that elapsed between the robbery and the
photographic identification. See note 3,
Supra. Cf. Manson v. Brathwaite, 432
U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 [376
Mass. 477] (1977) (external indicia
of reliability may outweigh suggestiveness of identification procedure); Neil
v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (central
question is whether, under totality of the circumstances, identification was
reliable even though the confrontation procedure was suggestive). Compare
Commonwealth v. Botelho, supra at ‑‑‑ ‑ ‑‑‑
(FNF), 343 N.E.2d 876. Although it is a
close question, we think that this is a case in which the claimed weaknesses in
the photographic identification process properly were left for consideration by
the jury as bearing on the weight to be given the identifications. See Commonwealth v. Jones, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNG), 377 N.E.2d 903
(1978).
2.
Admissibility of polygraph evidence favorable to the defendant. Before the trial, the defendant moved that he
be allowed to take a polygraph examination, at the expense of the Commonwealth,
"for the purpose of introducing its result into evidence" at the
trial. After a hearing before a judge,
who was not the trial judge, the motion was allowed. The motion judge entered written findings to
the effect that the defendant was fully competent to waive his constitutional
right to assistance of counsel and privilege against self‑incrimination,
and that the defendant had made an intelligent, voluntary, and knowing waiver
of such rights to the extent of allowing a polygraph examination to
proceed. Among other findings the motion
judge also found that John Cahalane, a polygraph examiner selected by the
defendant, was qualified and experienced and therefore an appropriate person to
administer the test.
Immediately
after the Commonwealth rested, the defendant informed the trial judge at a
bench conference that he intended to call Cahalane as his first witness. The judge ruled that Cahalane could not
testify at that point, reasoning that polygraph evidence favorable to a
defendant was not admissible "as an independent substance of
evidence," but was only admissible to corroborate the defendant's
testimony. This result followed from the
judge's view that the polygraph measures only the defendant's[376 Mass. 478] truthfulness and
"does not relate as such to the substance of fact whether he did or did
not commit the crime." (FN4) The
defendant noted his exception and made an offer of proof as to the substance of
Cahalane's expected testimony. The judge
refused the defendant's request that his long criminal record not be used to
impeach his credibility if he took the stand.
The judge also ruled that a voir dire concerning the qualifications of
the polygraph examiner and the propriety of the examination could not be
conducted until after the defendant had taken the stand.
The
defendant took the stand and testified that he had not participated in the
robbery. The defendant said that on the
morning of the robbery, he and another man were busy "casing" a bank
to determine whether they should rob it, and that after the casing of the bank
he had gone to a bar. He said he left
the bar in the company of a woman and drove to the American Legion post parking
lot in Milton, where he was subsequently arrested by Smyth. The prosecutor
introduced in evidence the defendant's long record of criminal convictions for
the purpose of impeaching the defendant's credibility.
The
polygraph examiner, Cahalane, testified before the jury following a voir dire
hearing on his qualifications and the propriety of the examination. He testified that, in his opinion, the
defendant's answers to questions put to him while attached to the polygraph
machine were not deceptive. The
questions and answers would indicate that the defendant told the truth when he
denied robbing George's Market and that his alibi story was truthful.
[8] [9]
[10] For reasons fully developed in Commonwealth v. Vitello,‑‑‑
Mass. ‑‑‑ (FNH), 381 N.E.2d 582 (1978), we hold that
polygraph evidence favorable to the defendant cannot be introduced as
independent evidence of innocence but can be admitted to corroborate[376 Mass. 479] the defendant's testimony. The
ruling of the judge in this case was therefore correct. (FN5) The defendant having decided to
testify, his criminal record was admissible for impeachment purposes as
provided in G.L. c. 233, s 21; see Commonwealth v. Cook, ‑‑‑
Mass. ‑‑‑ (FNI), 359 N.E.2d 949 (1977). Although the judge should have granted the
defendant's request that the voir dire of the polygraph examiner be conducted
prior to his taking the stand, see Vitello, ‑‑‑ Mass. ‑‑‑
part 1(e) iii at ‑‑‑ (FNJ), 381 N.E.2d 582, this error is
harmless in view of the fact that the examiner was found to be qualified and
his favorable testimony was received in evidence.
Judgment
affirmed.
QUIRICO,
Justice (concurring in the result).
In this
case the trial judge refused to allow the defendant to offer evidence of the
results of a polygraph test taken by him unless he first testified at the
trial. After the defendant testified the
judge admitted the polygraph evidence but limited the jury's consideration of
the evidence to "the question of whether or not at the time of the
examination the subject was telling the truth." The court holds that the evidence was
properly admitted, and that it was properly limited to the corroboration of the
defendant's testimony.
For the
reasons stated in my concurring opinion in Commonwealth v. Vitello, ‑‑‑
Mass. ‑‑‑ (FNA), 381 N.E.2d 582 (1978), decided this day, I
would hold that the polygraph evidence was not properly admitted for any purpose. However, since it was favorable to the
defendant, even if on the limited issue of corroboration, I would not reverse
the judgment. I therefore concur in the
result reached by the court.
[376 Mass. 480] KAPLAN, Justice, concurring, refers to his concurring opinion in
Commonwealth v. Vitello, ‑‑‑ Mass. ‑‑‑
(FNA), 381 N.E.2d 582 (1978), decided this day.
FN1. Smyth
testified at trial that he then examined the gun, noting that it was fully
loaded and that the serial number had been filed off.
FNa. Mass.Adv.Sh. (1977) 2805, 2815‑2816.
FNb. Mass.Adv.Sh. (1976) 1657, 1666.
FNc. Mass.Adv.Sh. (1978) 1241, 1246‑1247.
FN2. The instant case is thus to be
distinguished from Commonwealth v. Rand, 363 Mass. 554, 557‑558 n.1, 296
N.E.2d 200 (1973), in which we held the plain view doctrine inapplicable to
evidence found after an hour‑long examination of the vehicle at the
police station.
FNd. Mass.Adv.Sh. (1976) 717, 721.
FN3. Those considerations are: (1) the extent
of the witness's opportunity to view the robber; (2) the general description
given by the witness of the robber; (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. Commonwealth v. Mobley, supra at ‑‑‑
(Mass.Adv.Sh. (1976) at 722, 344 N.E.2d
181). The judge properly emphasized in
his findings the extent of the opportunity to see the robber at the time of the
crime, perhaps the most important of the five considerations. See Commonwealth v. Ross, supra 361 Mass. at
671, 282 N.E.2d 70. The judge found:
"During the holdup both Jakub and Stock had clear unobstructed views of
the two bandits under good lighting conditions.
The experience left on the victims' minds clear impressions of the
robbers' appearance. There is no
discrepancy between the description that the victims gave to the police and the
actual description of (the defendant) . . .. Nor have the victims identified
anyone else as the robbers. Further,
less than a day elapsed between the time of the holdup and the exhibition of
the pictures to the victims."
FNe. Mass.Adv.Sh. (1976) 652, 661.
FNf. Mass.Adv.Sh. (1976) at 666‑669.
FNg. Mass.Adv.Sh. (1978) 1467, 1474.
FN4. The judge charged the jury in similar
terms, adding that the corroborative weight to be given the polygraph testimony
was to be determined by the jury.
FNh. Mass.Adv.Sh. (1978) 2603.
FN5. We attach no significance to the finding
of the motion judge that the defendant understood that the polygraph results
would be admissible in the trial in chief.
Even if the defendant had agreed that the results could be used as
independent evidence of guilt, the agreement would not be controlling. See Vitello, ‑‑‑ Mass. at ‑‑‑
n.27 (Mass.Adv.Sh. (1978) at 2639 n.27)
381 N.E.2d 582 (1978).
FNi. Mass.Adv.Sh. (1977) 210.
FNj. Mass.Adv.Sh. (1978) at 2635.
FNa.
Mass.Adv.Sh. (1978) 2603.
FNa. Mass.Adv.Sh. (1978) 2603.