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Commonwealth v. Ross, 361
Supreme Judicial Court of Massachusetts,
Argued
Decided
Mary C. Kingsley,
Michael G. West,
Gerald F. Muldoon, Asst. Dist. Atty., for the
Commonwealth.
Before [361
TAURO, Chief Justice.
The
defendants Ross, Daniels, and Williams appeal under G.L. c. 278, ss 33A‑‑33G,
from convictions on nine indictments arising out of an armed robbery of Timothy
Lehane, a security guard at
From the evidence presented at voir dire and
at trial, the following appears: On
After
fifteen or twenty minutes, Lehane drove into the pump area of the filling
station in an unmarked Boston University security automobile. The man identified as Daniels questioned
Lembeck about Lehane, and Lembeck told him that Lehane was a security guard at
Boston University. This man then got out
of the Oldsmobile and, carrying the plastic rabbit, approached Lehane who, in
the meantime, had gotten out of his vehicle.
In plain view of Lembeck, the man and Lehane conversed for approximately
two minutes in which time the man offered to sell Lehane the plastic
rabbit. He also asked whether 'Eddie'
was over at the School of Public Communications and Lehane answered that he
would go over and find out. Following
the conversation, Lehane left the filling station and drove up Commonwealth
Avenue to the School of [361 Mass.
668] Public Communications. The man identified as Daniels and his two
companions followed in the Oldsmobile and parked two car lengths in front of
Lehane's car on Hinsdale Street. A
brutal and unprovoked attack ensued in which Lehane received serious, multiple
stab wounds. The man identified as
Daniels was the first to attack but the other men later joined in. At one point an assailant said, 'Get his
gun,' and then the victim felt a hand reach into his pocket and take his
wallet. The three men then left Lehane
bleeding, on the ground. Back at the
filling station, five or ten minutes after Lehane and the three men had left,
the attendant Lembeck observed the black 1960 Oldsmobile coming down
Commonwealth Avenue at a high rate of speed with three black male occupants.
Later the
same morning at approximately 6 A.M., two Boston police officers in a patrol
car observed a black Oldsmobile turn from Dartmouth Street onto Tremont Street,
through a flashing red light, at about fifty miles an hour. The officer driving the patrol car was aware
of the assault at Boston University about an hour earlier. After a pursuit on Tremont Street, the police
officers stopped the Oldsmobile and took the occupants, four black men, into
custody. There was a large pink bunny
with visible red stains on the rear deck.
At this time a cursory search was made of the men. Later at station 4, while making an inventory
of the defendants' possessions, one of the arresting officers removed a wallet,
folded in thirds, from the defendant Daniels's outer coat pocket. He slid the wallet across a sloping desk to
the booking officer, the fold opened, and out fell a five dollar bill and two
ones. Upon observing bloodstains on two
of the bills, the police segregated all three bills from the wallet and kept
them for further investigation.
Still
later in the morning, two police officers interviewed Lembeck at the filling
station. Lembeck then went with the
officers to the police station, where he made a written statement, and then to
the Roxbury District Court, where he observed the defendants Ross and Daniels
and a third man in the 'lockup' area and later at the [361 Mass. 669]
arraignment. On voir dire, Lembeck
testified that, without any direction from police, he scrutinized about a
dozen men in the 'lockup' area and that privately in his own mind he picked out
Ross and Daniels. At trial, he was
permitted to testify that the defendant Ross gestured to him from within the
wire enclosure by raising a finger to his lips suggesting silence. Also on voir dire, he testified that he
identified Ross and Daniels for the police after watching the arraignment but
that he did not identify the third man arraigned with them. The defendant Williams, the fourth man in the
car, was not present at the arraignment.
About a
week later, Lembeck identified the defendant Williams after viewing a group of
fourteen police photographs of black males the same age as the defendants. These included pictures of Ross, Daniels, and
the third man at the arraignment.
Lembeck knew at this time that the police held a fourth suspect who had
not been present in the District Court.
Lembeck first viewed the pictures at the filling station and made his
identification of Williams on the second run through the photographs. He also identified Ross and Daniels. He was then taken to the police station where
he again looked at the photographs and identified Williams. Approximately three months later, there was a
third showing of the photographs, this time at the district attorney's
office. On the same day, Lehane also
visited the district attorney's office and viewed the photographs
separately. He identified only the
defendant Daniels.
After the
voir dire hearing the judge below denied the motions of all the defendants with
respect to in‑court identification testimony but did allow the
defendants' motions in so far as they might be 'construed as motions to
suppress the Commonwealth's offering of the photographic identification
procedures by the witnesses Lembeck and Lehane, and the Roxbury courthouse
identification procedures by the witness Lembeck.' Later at trial, however, the judge limited
his last ruling to the extent that he allowed Lembeck to give testimony
concerning the [361 Mass. 670] attempt by the defendant Ross to
communicate with Lembeck by gesture at the Roxbury District Court.
1. Each defendant contends that the judge erred
in permitting Lembeck to identify him at trial.
The defendants Ross and Daniels maintain, principally in reliance upon
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v.
California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno,
388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, that Lembeck's in‑court
identifications were the fruit of impermissibly suggestive pre‑trial
lineups, conducted in the absence of counsel, in violation of the right of the
defendants to counsel, and to a fair trial.
In addition, the defendant Ross contends on the basis of Simmons v.
United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, as does the
defendant Williams, that Lembeck's in‑court identifications were tainted
by prior photographic identification procedures.
The judge
after making detailed subsidiary findings on all the issues of identification
concluded as follows: 'The circumstances surrounding the identification
procedures by Mr. Lembeck at the Roxbury courthouse have not been shown in
enough detail before me to demonstrate an illegality in those procedures. Nor has any illegality been demonstrated re
the photograph(ic) identifications made by the witness . . . Lembeck . . .. However, even assuming the illegality of
these procedures, I find that . . . the incourt identifications of all three
defendants by the witness Lembeck are independent of the in‑custody
procedures and are therefore valid.'
The judge
ruled that the Commonwealth had satisfied its burden of proving the
independence of the in‑court identifications by 'clear and convincing
evidence' as United States v. Wade, supra, 388 U.S. at 224, 87 S.Ct. 1926, 18
L.Ed.2d 1149, requires. There was an
ample evidentiary basis to support the judge's conclusion.
[1] We
deal first with the pre‑trial identifications of Ross and Daniels. While there may have been an element of
suggestiveness in Lembeck's confrontations with the defendants at the Roxbury
court house, we believe that the judge correctly emphasized Lembeck's prior
opportunity to observe the men at the filling station earlier the same [361 Mass. 671] morning. The pump area of
the filling station was well lighted, and Lembeck could see the features of the
three occupants clearly. Although he
talked mainly with Daniels, he had some conversation with all three men, he was
in their presence for approximately twenty minutes, and he leaned inside the
automobile at one point and gave each man a cigarette. Later, he saw Daniels outside the automobile
as he conversed with Lehane. The
atmosphere during Lembeck's prolonged encounter with the trio was not casual,
but gave Lembeck reason to feel uneasy and thus to be more conscious and aware
of the men. The defendants argue that
Lembeck did not describe the men in detail in either his oral or his written
statement to the police; however, it is undisputed that the police did not ask
for details and, in this circumstance, we attach no particular significance to
the lack of a detailed description in Lembeck's statements.
[2][3] In
cases where there has been a suggestive in‑custody identification, the
determination whether to permit an identification at trial requires a
consideration of a variety of factors.
United States v. Wade,supra, at 241, 87 S.Ct. 1926, 18 L.Ed.2d
1149. (FN2) See Gilbert v. California, 388 U.S. 263, 272‑‑274,
87 S.Ct. 1951, 18 L.Ed.2d 1178; Commonwealth v. Cooper, 356 Mass. 74, 84, 248 N.E.2d 253;
Commonwealth v. Wilson, Mass.,a 276 N.E.2d 283; Commonwealth v. Mendes, Mass.,b281
N.E.2d 243. The factors applied,
however, depend upon their context, and every factor is not necessarily
entitled to equal weight. See United
States v. Wade, 388 U.S. 218, 241‑‑242, n. 33, 87 S.Ct. 1926, 18
L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d
1199. If greater weight is given to any
single factor, '(t)he extent of the witness' opportunity to observe the
defendant at the time of the crime . . . seems the most important. Clearly the firmer the contemporaneous impression,
the less is the witness subject [361
Mass. 672] to be influenced by
subsequent events.' Allen v. Moore, 453
F.2d 970, 975 (1st Cir.). Commonwealth
v. Mendes, supra. b In the circumstances of the instant case, we
are satisfied that Lembeck had ample opportunity to observe all three men at
the filling station and that, as a result of his observations, he received a
firm contemporaneous impression of each of them. We have considered the evidence bearing upon
Lembeck's confrontations with Ross and Daniels at the Roxbury court house, and
we conclude the judge correctly ruled that these confrontations were not so
suggestive as to taint Lembeck's initial impression of the men. Cooper v. Picard, 428 F.2d 1351, 1354 (1st
Cir.); Id., 316 F.Supp. 856, 859 (D.Mass.).
See Commonwealth v. McGrath, Mass.,c 280 N.E.2d 681. Compare Foster v. California, 394 U.S. 440,
442‑‑443, 89 S.Ct. 1127, 22 L.Ed.2d 402. For these reasons, we conclude there was
sufficient basis for the judge's determination that the in‑court
identifications of Ross and Daniels had an origin independent of Lembeck's pre‑trial
confrontations with the defendants at the court house. See Commonwealth v. Robinson, 355 Mass. 620,
621‑‑622, 246 N.E.2d 669; Commonwealth v. Cooper, supra, 356 Mass.
at 84‑‑85, 248 N.E.2d 253; Commonwealth v. Cefalo, 357 Mass. 255,
257‑‑258, 257 N.E.2d 921; Commonwealth v. Balukonis, 357 Mass. 721,
725, 260 N.E.2d 167; Commonwealth v. Wilson, Mass.,d 276 N.E.2d 283;
Commonwealth v. Tempesta, Mass.,e 279 N.E.2d 663. Compare Commonwealth v. Kazonis, 356 Mass.
649, 653, 255 N.E.2d 333.
We turn
next to the claims of the defendants Ross and Williams concerning photographic
identification procedures followed by the police. Both defendants point to the judge's finding
that, of the photographs shown to Lembeck, '(o)nly the picture of the three
defendants . . . contained on the reverse side the names and other information
concerning the subjects of the photographs.'
However, there was no finding, nor was there any evidence on which a
finding could be based, that the witness saw the written material, much less
was influenced by it. Furthermore, apart
from this writing, the photographs were all of the same type and each showed a
black male of approximately the same age as the defendants.
[361 Mass. 673] The defendant Williams also objects to the manner in which the
photographs were shown. He notes that,
when Lembeck viewed the photographs at the police station, an officer pointed
to the picture of Williams and inquired about him by name, and that the witness
then made a positive identification.
While we might attach more significance to this episode if it had been
Lembeck's first identification of Williams (see United States v. Trivette, 284
F.Supp. 720, 723 (D. D.C.)), we see
little, if any, significance in the episode since the witness had already
identified Williams on a prior showing, an hour earlier at the filling station,
without any suggestion whatever from the police.
We agree
with the judge that police procedures in connection with the photographic
identifications were not 'so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384,
88 S.Ct. 967, 971, 19 L.Ed.2d 1247.
Commonwealth v. Wilson, 357 Mass. 49, 54, 255 L.Ed.2d 744. In any event, even if we were to assume that
they were, we are satisfied that Lembeck's prior observations of Ross and
Williams on the morning of the crime were 'an independent source' for his on‑court
identifications. United States v. Wade,
388 U.S. 218, 242, 87 S.Ct. 1926, 18 L.Ed.2d 1149. See Commonwealth v. Wilson, 357 Mass. 49, 55,
255 N.E.2d 744; Commonwealth v. McGrath, Mass., f 280 N.E.2d 681.
[4] We
recognize that the objections of the defendant Williams to some extent relate
to the absence of counsel at the various showings of photographs to
Lembeck. As we understand the Simmons
decision, however, it was expressly limited to due process considerations. No claim was made under the Sixth
Amendment. Simmons v. United States, 390
U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247.
The case of Cox v. State, 219 So.2d 762 (Ct.App.Fla.), to which Williams
directs our attention, involved a video taped lineup and is plainly
distinguishable from the instant case on the facts. Nor do we believe that the showing of
standard police identification photographs constitutes a State compelled
'confrontation' or exhibition within United States v. Wade, 388 [361 Mass. 674] U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Cf. Commonwealth v. Geraway, 355 Mass. 433,
438‑‑439, 245 N.E.2d 423. In
this regard, we agree with the following statement from United States v.
Bennett, 409 F.2d 888, 899‑‑900 (2d Cir.), cert. den. sub nom. Haywood v. United States, 396 U.S. 852, 90
S.Ct. 113, 24 L.Ed.2d 101, reh. den. 396 U.S. 949, 90 S.Ct. 376, 24 L.Ed.2d
256: '(T) o require that defense counsel be allowed or appointed
to attend out‑of‑court proceedings where the defendant . . . is not
present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the
assistance to be given by counsel . . . (citations omitted) suggests that
counsel must be present when the prosecution is interrogating witnesses in the
defendant's absence even when . . . the defendant is under arrest; counsel is
rather to be provided to prevent the defendant himself from falling into traps
devised by a lawyer on the other side and to see to it that all available
defenses are proferred. Many other
aspects of the prosecution's interviews with a victim or a witness to a crime
afford just as much opportunity for undue suggestion as the display of
photographs; so, too, do the defense's interviews, notably with alibi
witnesses. . . . (I)n (the) Wade (case) itself, the Court
listed as one of the ways the prosecution might attempt to show that a witness'
identification of defendant at trial was not the fruit of a lineup held in the
absence of counsel a showing of 'the identification by picture of the defendant
prior to the lineup,' 388 U.S. (218) at
241, 87 S.Ct. 1926, at 1940, . . ., which clearly implies that such
identifications are permissible even when defendant's counsel is not
present.' (FN3) See United States v. Roth, 430 [361 Mass. 675] F.2d 1137, 1140 (2d Cir.)
(following the Bennett decision), cert. den. sub nom. Roth v. United States, 400 U.S. 1021, 91
S.Ct. 583, 27 L.Ed.2d 633.
2. Nor is there merit in the defendant Daniels'
argument that the judge erred in permitting the victim Lehane to identify him
at trial. He raises objections to police
photographic identification procedures under Simmons v. United States, 390 U.S.
377, 88 S.Ct. 967, 19 L.Ed.2d 1247, which are similar in nature to those of the
defendant Williams just considered.
Lehane spoke with the man he identified as Daniels, face to face at a
distance of two feet, for two to three minutes in a well lighted area
of the filling station. The conversation
(first about the inflated plastic rabbit and later about 'Eddie' at the School
of Public Communications) was such to arouse Lehane's suspicions and to cause
him to serutinize the man's appearance.
This man was Lehane's principal assailant. About three months later at the district
attorney's office, Lehane viewed the same set of photographs as the witness
Lembeck had seen earlier. There was, as
we have stated, nothing suggestive about these photographs apart from some
writing on the reverse side of four pictures in the set. (FN4)
At voir dire, Lehane testified that he viewed the photographs face up,
and only after picking out Daniels, did he notice the writing[361 Mass. 676] on the back of some of the
pictures. No police were present during
the viewing, and although Lehane knew the set contained pictures of all his
assailants, he declined to identify any but the photograph of Daniels. Had the writings influenced him, a different
result might ensue. While it is true he
had seen a newspaper photograph showing Daniels and the man arraigned with both
Ross and Daniels, significantly he picked out only Daniels' picture among those
he viewed at the district attorney's office.
[5][6] In
these circumstances, the judge was correct in concluding that there was nothing
in the photographic identification procedures sufficient 'to give rise to a very
substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384,
88 S.Ct. 967, 971, 19 L.Ed.2d 1247.
Further, regardless of any possible suggestiveness in the photographic
viewing, (FN5) we conclude that the observations of Lehane on the morning of
the crime fixed in his mind the features of his principal assailant and
provided at trial 'an independent source' for his identification of
Daniels. United States v. Wade, 388 U.S.
218, 242, 87 S.Ct. 1926, 18 L.Ed.2d 1149.
See Commonwealth v. Wilson, 357 Mass. 49, 55, 255 N.E.2d 744;
Commonwealth v. McGrath, Mass.,g 280 N.E.2d 681.
3. We come next to the argument by the defendant
Ross that there was error in the admission of testimony by Lembeck that he
observed the defendant make an inculpatory gesture while at the Roxbury court
house. Ross contends that the evidence
of the inculpatory gesture was the direct result of an illegal pre‑trial
confrontation and was therefore inadmissible under Gilbert v. California, 388 U.S.
263, 272‑‑273, 87 S.Ct. 1951, 18 L.Ed.2d 1178. We do not agree.
It is
undisputed that police officers brought Lembeck to the court room at the
Roxbury District Court between nine and ten o'clock on the morning of the
crime. There [361 Mass. 677] were
approximately twelve black males, including the defendants Ross and Daniels, in
a wire enclosure visible from the court room.
Lembeck testified that, without encouragement from police, he 'looked
around on . . . (his) own,' and that when no police were present, the defendant
Ross placed the forefinger of his right hand virtically to his lips while at
the same time making a 'peace sign' (first and second fingers forming a 'V')
with his left hand. According to Lembeck,
the police at no time pointed to, nor did they ask him to identify, any of the
men in the enclosure. He picked out the
defendants Ross and Daniels in his own mind, but he did not tell the police
until later.
[7][8] The
right to have counsel present attaches at every 'critical stage' of a criminal case where the State exhibits the
defendant to the victim of the crime or to potential witnesses against
him. Commonwealth v. Cooper, 356 Mass. 74, 80‑‑83, 248 N.E.2d
253; Commonwealth v. Guillory,356 Mass. 591, 592‑‑593, 254 N.E.2d
427; Commonwealth v. Wilson, 357 Mass. 49, 55‑‑56, 255 N.E.2d
744. See United States v. Wade, 388 U.S.
218, 236‑‑237, 87 S.Ct. 1926, 18 L.Ed.2d 114 Gilbert v. California,
supra, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178. See also Simmons v. United States, 390 U.S.
377, 382‑‑383, 88 S.Ct. 967, 19 L.Ed.2d 1247; Foster v. California,
394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402; Coleman v. Alabama, 399 U.S.
1, 7, 90 S.Ct. 1999, 26 L.Ed.2d 387. The
defendant Ross makes much of the fact that the police brought the witness to
the court room in order to view the arraignments and, if possible, to identify
the suspects. However, even if we agreed
that this factor sufficiently indicates a State compelled confrontation, we perceive
no constitutional error in the admission of Lembeck's testimony concerning the
defendant's gesture to him. While pre‑indictment
lineup may be a 'critical stage' within the meaning of the Wade case (see
Commonwealth v. Cooper, supra; Mason v. United States, 134 U.S.App.D.C. 280,
414 F.2d 1176, 1178‑‑1181), we do not believe that lack of counsel
is determinative in the present circumstances.
The purpose of the Wade case, as the defendant Ross himself states, is
to provide the accused, through the presence of counsel, with an adequate basis
at trial to recount any unfairness in pre‑trial police [361 Mass. 678] identification procedures and to enable an informed cross‑examination
of identification witnesses. United
States v. Wade, supra, 388 U.S. at 232, 87 S.Ct. 1926, 18 L.Ed.2d 1149. It is difficult, however, to see the
relevance of this protection in the present situation where, prior to
arraignment, the defendant Ross signalled the witness from the detention
pen. The gesture was a voluntary act and
in no sense the result of police exploitation.
Thus, even assuming arguendo the illegality of the witness's observation
of the lockup, we are nonetheless satisfied that evidence of the inculpatory
gesture came 'by means sufficiently distinguishable to be purged of the primary
taint' of the lockup identification.
Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9
L.Ed.2d 411. See Gilbert v. California,
supra, 388 U.S. at 272‑‑273, 87 S.Ct. 1951, 18 L.Ed.2d 1178.
Furthermore,
we believe the Supreme Court never intended that the Wade decision should
protect a criminal defendant from an inculpatory communication, whether by word
or by gesture, if the communication is voluntary. The prohibition against pre‑trial
identification without notice and without counsel depends on the Sixth
Amendment and not on the Fifth Amendment.
In United States v. Wade, supra, 388 U.S. at 222, 87 S.Ct. at 1930, the
court said: 'We have no doubt that compelling the accused merely to exhibit his
person for observation by a prosecution witness prior to trial involves no
compulsion of the accused to give evidence having testimonial
significance. It is compulsion of the
accused to exhibit his physical characteristics, not compulsion to disclose any
knowledge he might have.' See
Commonwealth v. Cooper, 356 Mass. 74, 82, 248 N.E.2d 253. If the defendant's gesture created a
'critical' situation for him, responsibility rests with the defendant and not
with the Commonwealth. In the absence of
this voluntary gesture on the defendant's part, it is clear that the judge
would have suppressed Lembeck's identification of the defendant in the
detention area, in its entirety, just as he suppressed the later identification
at his arraignment. In the
circumstances, the defendant cannot now complain that his own voluntary conduct
deprived him of his constitutional rights.
Nothing was done or said to the defendant which [361 Mass. 679]
compelled his act of self‑incrimination.
In any event, even if the defendant's lawyer had been present in the
court room, we fail to see what protection his mere presence would have
afforded the defendant. 'No issue of
counsel's ability to assist petitioner in respect of any rights he did possess
is presented.' Schmerber v. Calfornia,
384 U.S. 757, 766, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. This is the logical rationale unless we
require that counsel must be with a defendant at all times and places
(including the 'dock') so that he may advise him not to incriminate himself by
gesture to those who may be witnesses against him. We do not believe the Fifth Amendment
protection against self‑incrimination can be carried to such an
extreme. See Miranda v. Arizona, 384
U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694.
4. The defendant Ross contends that the judge
erred in admitting in evidence against all the defendants certain paper money,
covered with bloodstains, which the police took from the defendant Daniels
while making an inventory of his possessions at the police station. Ross argues that admission of the money was
error because it was the fruit of an illegal search and seizure and, also,
because it was alternatively irrelevant or prejudicial in the circumstances of
this case.
[9][10][11]
We consider the defendant's nonconstitutional ground first. 'The relevancy of . . . (evidence) depends
upon the question, whether it has a rational tendency to prove the issues made
by the pleadings or other incidental material issues developed in the course of
the trial.' Commonwealth v. Durkin, 257
Mass. 426, 427‑‑428, 154 N.E. 185, 186. The fact that there was no testimony as to
the type of the blood on the paper money goes to the weight and not to the
admissibility of the evidence. The
victim Lehane testified that the defendant Daniels and two other black men had
stabbed and robbed him, that he had bled profusely, and that a five dollar bill
was among the property taken from him.
Also, there was testimony that the paper money was found not within the
compartment of the defendant Danniels's wallet but rather inserted loosely
inside the fold. Further, the testimony
of the witness Lembeck placed the [361
Mass. 680] defendants Ross and
Williams as well as the defendant Daniels at the scene of the crime. We conclude, therefore, that the paper money
had probative value because, together with other evidence, it tended to
establish the fact of robbery and to constitute a link between all three
defendants and the crime. See
Commonwealth v. Abbott, 130 Mass. 472, 473; Commonwealth v. Durkin, supra, 257
Mass. at 428, 154 N.E. 185; Commonwealth v. Norton, 339 Mass. 592, 594, 161
N.E.2d 766; Commonwealth v. Palladino, 346 Mass. 720, 726, 195 N.E.2d 769;
Commonwealth v. White, 353 Mass. 409, 419, 232 N.E.2d 335. There is no merit to the contention by the
defendant Ross that the blood tainted paper money was so inflammatory as to be
inadmissible. See Commonwealth v.
Stirling, 351 Mass. 68, 71‑‑72, 218 N.E.2d 81.
[12]
Inasmuch as the Commonwealth does not contest Ross's standing, we proceed to
the merits of his claim of constitutional error with reference to the paper
money. In denying his motion to suppress
made under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the judge
ruled as follows: '(t)he procedure which gave rise to the seizure . . . (of the
paper money) was not a search within the Constitutional prohibitions raised by
this motion, but instead was a mere inventory of the suspect's effects within
the unvarying police procedures, for the purpose of protecting the valuables of
the suspects and removing from them any property which could be instruments for
suicide or self‑injury by prisoners.'
(FN6) The judge made subsidiary
findings, fully supported by the evidence, which may be summarized as follows:
After arresting the defendants Ross, Daniels, and Williams and a fourth man,
the police took the suspects to the police station for booking. There, as a [361 Mass. 681] part of
normal booking procedures, an inventory was made of their possessions. The paper money later sought to be suppressed
became visible simultaneously to two officers when one officer slid Daniels's
wallet across a sloping booking desk to the other officer and the fold in the
wallet opened and three loose bills emerged from the fold. The officers seized the bills when they observed
what appeared to be bloodstains on two of them.
At this time, they were aware that there had been an armed robbery,
although they did not know the amount of money allegedly taken from the
victim. There was no error.
'It is
well established that under certain circumstances the police may seize evidence
in plain view without a warrant.'
Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29
L.Ed.2d 564. These circumstances include
a requirement that discovery of the evidence be inadvertent and incident to
legitimate police activity. Id. at 465‑‑471,
91 S.Ct. 2022, 29 L.Ed.2d 564. See
Commonwealth v. Haefeli, Mass.,h 279 N.E.2d 915; Harris v. United States, 390
U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067.
There must, in addition, be 'a nexus . . . between the item to be seized
and criminal behavior.' Warden v.
Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782. In the instant case, as the defendant Ross
concedes, there is no question that the preincarceration inventory of
possessions was a legitimate police function.
On the evidence, an ultimate finding was warranted that the paper money
seized came into plain view through inadvertence and during routine, legitimate
police work. See Westover v. United
States, 394 F.2d 164 (9th Cir.). Compare
Brett v. United States, 412 F.2d 401, 405‑‑406 (5th Cir.); United
States v. Jones, 317 F.Supp. 856, 858 (E.D.Tenn.). (FN7) Finally, the bloodstains on two of the
bills, and the suspicious location of these bills outside the compartment[361 Mass. 682] of the wallet, provided
sufficient nexus between the paper money and the armed robbery to provide
probable cause for the seizure. See
Commonwealth v. Haefeli, supra, at ‑‑‑ ‑ ‑‑‑,
i 279 N.E.2d 915. For these reasons, we
cannot say that it was improper in the circumstances of this case for the
police to seize the paper money without first obtaining a search warrant.
[13]
5. The defendant Ross asserts that the
judge's failure to ask the veniremen specific questions drawn by the defendant
on the subject of racial prejudice deprived him of the right to an impartial
jury. We said in Commonwealth v. Nassar,
354 Mass. 249, 253‑‑254, 237 N.E.2d 39, 'In accordance . . . with
our long standing practice, inquiry of prospective jurors was only by the
judge. A trial judge is required only to
ask those questions prescribed by statute or court decision. Other questions are in his discretion. . . .
(citations omitted) There is ample power in this court to review whether
a trial judge has committed any abuse of discretion in refusing to put
additional questions, or otherwise to test members of the venire for bias or
interest.' Upon his probing the subjects
required by law (see G.L. c. 234, s 28), he was satisfied that the jurors could
render a fair and impartial verdict.
There was no abuse of discretion let alone any constitutional error.
Judgments
affirmed.
(FN1.)
Of the companion cases two are against James Ross, Jr., three are
against Roy Daniels, Jr., and three are against James Williams.
(FN2.)
The six factors enumerated in United States v. Wade, 388 U.S. 218, 241,
87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149, were: '(1) The extent of the witness'
opportunity to observe the defendant at the time of the crime; prior errors, if
any, (2) in description, (3) in identifying another person or (4) in failing to
identify the defendant; (5) the receipt of other suggestions, and (6) the lapse
of time between the crime and the identification.' Allen v. Moore, 453 F.2d 970, 975 (1st Cir.).
FNa.
Mass.Adv.Sh. (1971) 1731, 1734‑‑1735.
FNb. Mass.Adv.Sh.
(1972) 681, 684.
FNc.
Mass.Adv.Sh. (1972) 591, 596‑‑597.
FNd.
Mass.Adv.Sh. (1971) 1731, 1734‑‑1735.
FNe.
Mass.Adv.Sh. (1972) 335, 338‑‑339.
FNf.
Mass.Adv.Sh. (1972) 591, 597.
(FN3.)
The majority of circuits of the United States Court of Appeals follow
the approach of the Second Circuit in the Bennett case. See United States v. Collins, 416 F.2d 696,
699‑‑700 (4th Cir.), cert. den. sub nom. Collins v. United States, 396 U.S. 1025, 90
S.Ct. 601, 24 L.Ed.2d 519; United States v. Ballard, 423 F.2d 127, 130‑‑131
(5th Cir.); United States v. Serio, 440 F.2d 827, 829‑‑930 (6th
Cir.), cert. den. sub nom. Serio v.
United States, 404 U.S. 838, 92 S.Ct. 129, 30 L.Ed.2d 71; United States v.
Robinson, 406 F.2d 64, 67 (7th Cir.), cert. den. sub nom. Robinson v. United States, 395 U.S. 926, 89
S.Ct. 1783, 23 L.Ed.2d 243; United States v. Long, 449 F.2d 288, 301‑‑302
(8th Cir.); Allen v. Rhay, 431 F.2d 1160, 1166‑‑1167 (9th Cir.),
cert. den. 404 U.S. 834, 92 S.Ct. 116, 30 L.Ed.2d 64; United States v. Edwards,
433 F.2d 357, 358 (9th Cir.); United States v. Roustio, 435 F.2d 923, 924 (9th
Cir.); United States v. Williams, 436 F.2d 1166, 1169 (9th Cir.), cert. den.
sub nom. Williams v. United States, 402
U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654; United States v. Fowler, 439 F.2d 133,
134 (9th Cir.); McGee v. United States, 402 F.2d 434, 436 (10th Cir.), cert.
den. 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220; Rech v. United States, 410
F.2d 1131, 1132 (10th Cir.), cert. den. 396 U.S. 970, 90 S.Ct. 457, 24 L.Ed.2d
438; United States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir.). But see United States v. Zeiler, 427 F.2d
1305, 1307 (3d Cir.); United States v. Ash (D.C.Cir.) (en banc, 5‑‑4) (10 Cr.L.Rep. 2408). Decisions in ten States accord with the
Bennett case. People v. Lawrence, 4
Cal.3d 273, 93 Cal.Rptr. 204, 481 P.2d 212; Reed v. State, 281 A.2d 142, 145‑‑146
(Del.); Staten v. State, 248 So.2d 697 (Ct.App.Fla.); People v. Martin, 47
Ill.2d 331, 336, 265 N.E.2d 685, cert. den. sub nom. Martin v. Illinois, 403 U.S. 921, 91 S.Ct.
2240, 29 L.Ed.2d 700; Smith & Samuels v. State, 6 Md.App. 59, 64 250 N.E.2d
285; Crenshaw v. State, 13 Md.App. 361, 365‑‑370, 283 A.2d 423;
Stevenson v. State, 244 So.2d 30, 33 (Miss.).
State v. Brookins, 468 S.W.2d 42, 47 (Mo.). State v. Accor, 277 N.C. 65, 80‑‑81,
175 S.E.2d 583; State v. Searcy, 4 Wash.App. 860, 861‑‑864, 484
P.2d 417; Kain v. State, 48 Wis.2d 212, 218‑‑219, 179 N.W.2d
777. Decisions in two States are
contra. Thompson v. State, 8 Nev. 134,
137‑‑138, 451 P.2d 704; Commonwealth v. Whiting, 439 Pa. 205, 209,
266 A.2d 738, cert. den. sub nom.
Pennsylvania v. Whiting, 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159.
(FN4.)
The photographs of the fourth man arrested with the defendants on the morning
of the crime, as well as those of the defendants, bore the name of the subject
and other data on its reverse side.
(FN5.)
To the extent, however, that the defendant Daniels relies on the Sixth
Amendment, we reject his claim without qualification. For the reasons stated, supra, we are of the
opinion that the right to have counsel present does not extend to showings of
standard police identification photographs.
FNg.
Mass.Adv.Sh. (1972) 591, 597.
(FN6.)
The judge also made a second ruling that 'even if the procedure at the
police station were construed to be a search within the Constitutional
prohibitions raised by the motion, the events at the police station constituted
a reasonable and lawful continuation of the hasty and permissible search of the
suspects which was conducted at the time and place of the arrests and which was
temporarily suspended for good and necessary reasons of security, and was then
continued at the police station after a lapse of only about seven minutes.' In view of our holding, post, we find it
unnecessary to review this second ruling.
FNh.
Mass.Adv.Sh. (1972) 423, 432‑‑433.
(FN7.)
Furthermore, there was no evidence here, as there was in the Jones case
(at 857), that police went through the compartments of the suspect's
wallet. Even if this had been the case,
however, it would have been open for the Commonwealth to show that it was
necessary to count the money in the suspect's wallet in order to give the
suspect an accurate receipt and thereby to ensure the safety of his
valuables. This justification was
apparently not considered in the Jones case.
See p. 858.
(FNI.)
Mass.Adv.Sh. (1972) at 433‑‑434.