|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts,
Argued
Decided
Walter T. Healy, Frank G. Kelleher and James E.
McCall,
Judy G. Zeprun, Asst. Atty. Gen. (Ronald Moynahan and Margaret Steen Melville,
Asst. Dist. Attys., with her) for Com.
Before [402
ABRAMS, Justice.
The
defendant, Louis Santos, appeals from his convictions of murder in the first
degree on a theory of felony‑murder, armed robbery, assault and battery
by means of a dangerous weapon, and armed assault with intent to rob. For the reasons stated in this opinion, we
reverse and remand for a new trial.
We
summarize the facts. At about
Shortly
after
Meanwhile,
at about 5:30 P.M., William Whall, a resident of nearby Dorchester Avenue, was
driving home. At the intersection of Van
Winkle Street and Dorchester Avenue, he noticed a lone black male,
approximately seventeen years old, standing on the corner of Van Winkle Street
hailing a taxicab. The young man was
joined by three other young black males, two of whom were fourteen or fifteen
years of age and one of whom was about seventeen years of age. Whall saw a woman, later identified as
Colleen Maxwell, drive out from Van Winkle Street sounding her horn and
pursuing the group of youths down Dorchester Avenue. The woman cut the group off at Mercier
Avenue. Whall heard a couple of
"pops" which he believed were gunshots. Whall saw the young men running down
Dorchester Avenue. He lost sight of them
in the area of Sullivan's Confectionery.
Whall saw an automobile stopped in the middle of Mercier Avenue with the
driver's door open. Colleen Maxwell was
sitting on the sidewalk bleeding profusely from her nose and mouth. An ambulance came for Maxwell, who later died
of a bullet wound.
At
approximately 5:30 P.M., William Marinelli and Kevin Hagberg, two high school
students, were in the vicinity of Dorchester and Mercier Avenues when they
heard gunshots. About ten seconds later,
they saw three black males run down Mercier Avenue onto Dorcester Avenue in the
area of Sullivan's Confectionery. One of
the young men was wearing a blue windbreaker, another was wearing an orange or
red parka and the third was wearing a grey sweatshirt. Hagberg noticed the butt of a gun sticking
out of the pocket of the orange or red parka.
Hagberg
and Marinelli turned onto Mercier Avenue where they saw Maxwell lying on the
ground. When the police arrived, Hagberg
and Marinelli told them they had seen three young men fleeing the area. They got into the police car with Officers
Egan and Wilson and proceeded to search the area. [402 Mass. 778] Hagberg estimated that the three
young men were aged fourteen to seventeen, and that the man in the blue jacket
was approximately seventeen. While in
the police cruiser, Hagberg and Marinelli heard a radio broadcast concerning a
foot pursuit. At some point, the police
showed Hagberg and Marinelli a suspect.
The suspect was not one of the three men Hagberg and Marinelli had
observed running near the scene of the shooting.
Meanwhile,
Officers Robert Flynn and William Baker were cruising the Codman Square area of
Dorchester looking for the suspects.
They observed five to eight black males, aged fifteen to twenty, at the
entrance to the basketball court in Evans Park.
They turned the cruiser around and drove back by the playground. At that time, three of the young men started
running. The defendant was wearing a
blue jacket, another man was wearing a grey jacket, and the third man was
wearing a red parka. Officer Baker
pursued the defendant and the man in the grey jacket on foot. The two suspects separated on Stanton Street,
at which point they ran onto the street in front of a parked police
cruiser. Officer Paul Donahue, who had
heard reports of the chase on the police radio, jumped out of the cruiser and
chased the defendant. Officer Baker
continued to chase the man in the grey jacket.
Officer Donahue apprehended the defendant on the porch of a house on
Dyer Street.
Officers
Egan and Wilson went to the house on Dyer Street. Hagberg and Marinelli were still in the back
of the police cruiser. As the defendant
emerged from the house, Officer Wilson heard someone in the back seat say,
"That's him. That's definitely
him." Officer Wilson turned to
Hagberg and Marinelli and asked them if they were sure that the defendant was
one of the men they had seen earlier.
They answered affirmatively.
Later that night, at the police station, Marinelli and
Hagberg also identified the defendant as one of the men they had seen running
in the vicinity of Colleen Maxwell's shooting.
(FN1) The defendant was the only
black male in the office.
[402 Mass. 779] At the police station, the defendant denied shooting Maxwell and
he stated that he did not believe that two people had already identified
him. He told the police that he had left
his house at approximately 4:15 P.M. that day and had played basketball with
nine other people for thirty to forty‑five minutes. The defendant could only name two other
people with whom he had played. The
defendant stated that he had run from the police because he possessed some
marihuana, and that the other man who ran away was selling it. The defendant possessed no marihuana when
booked; he told the police that he
discarded it during the chase. Later
that evening, the defendant accompanied a police officer to the spot where he
said he had dropped the marihuana, but none was found.
The next
day, Michelle Bernard, a nine year old girl, found a wallet containing papers
belonging to Colleen Maxwell in an uncovered garbage can outside her home along
a route from the site of Colleen Maxwell's murder and the park where the police
initially saw the defendant.
Prior to
trial, the defendant moved to suppress the one‑on‑one
identifications of the defendant. The
motion judge declined to suppress the initial identifications Hagberg and
Marinelli made outside the house on Dyer Street; however, the judge suppressed the one‑on‑one
stationhouse identifications on the ground that they were not justified by
exigent circumstances. The defendant
filed a motion seeking to suppress Bartick's stationhouse identification of the
defendant. (FN2) The trial judge denied that motion.
[402 Mass. 780] 1. The identifications.
[1] a. Bartick's stationhouse identification. The judge found that Bartick was a thirty‑two
year old man suffering from Down's syndrome.
Bartick could be described as moderately retarded with an I.Q. somewhere
between thirty‑five and forty‑nine.
Bartick was unable to conceptualize abstractions, could not describe the
passage of time (although he knew how to tell time), could not read, and could
write only his name.
Four hours
after the robbery, Bartick identified Louis Santos as one of Colleen Maxwell's
assailants at a one‑on‑one confrontation at the Area C police
station. Bartick had earlier described
the assailants as three black males, one of whom had a handgun. During his voir dire testimony, elicited in
response to defense counsel's motion to suppress Bartick's stationhouse
identification, Bartick stated that the assailants had "brown" faces,
yet he identified two white males, a police detective and a member of the
defense staff, as two of Maxwell's assailants.
(FN3)
We
consider whether the judge committed an error of law in admitting the
identification because the identification procedure was unconstitutionally
suggestive and thus violative of the defendant's due process rights.
"We are mindful that the responsibility of weighing credibility and
finding fact is reposed in the trial court.
In reviewing the testimony adduced at voir dire, we do not attempt to
usurp that authority nor do we seek to exceed the limitations traditionally
placed on us as an appellate court.
Nevertheless, where the ultimate findings and rulings bear on issues of
constitutional dimension, they are open for review. Our appellate function requires that we make
our own independent determination on the correctness of the judge's
'application of constitutional principles to the facts as found....' "
Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154
(1986), quoting Brewer v. Williams, 430 U.S. 387, 403, 97
S.Ct. 1232, 1241, 51 L.Ed.2d 424 (1977).
See Commonwealth v. Murphy, 362 Mass. 542,
551, 289 N.E.2d 571 (1972) (Hennessey, J., concurring). We think that [402 Mass. 781]
Bartick's one‑on‑one identification of the defendant was not
constitutionally permissible.
With
regard to one‑on‑one confrontations, we have said that, while
disfavored, such identifications are not subject to a per se rule of exclusion.
Commonwealth v. Storey, 378 Mass. 312, 317, 391 N.E.2d 898 (1979),
cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). See Commonwealth v. Torres, 367 Mass. 737,
740, 327 N.E.2d 871 (1975).
"Although such confrontations pose particularly serious dangers of
suggestiveness, we would consider it ill advised to exclude as constitutionally
unacceptable all evidence that has been derived from single person
confrontations simply because these identification procedures might have taken
place just as easily in the form of lineups." Storey, supra. See Commonwealth v. Barnett, 371 Mass. 87, 91‑92,
354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d
765 (1977). Our test is simply whether,
in light of the "totality of the circumstances," the identification
procedure was unnecessarily suggestive of the defendant. Commonwealth v. Bumpus,
354 Mass. 494, 499‑500, 238 N.E.2d 343 (1968), cert. denied, 393 U.S.
1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969). Storey, supra. The burden is on the defendant to prove, by
a preponderance of the evidence, that the identification was " 'so
unnecessarily suggestive and conducive to irreparable mistaken identification'
as to deny the defendant due process of law." Commonwealth v. Venios,
378 Mass. 24, 27, 389 N.E.2d 395 (1979), quoting Stovall v. Denno, 388 U.S.
293, 301‑302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).
The
defendant claims that the stationhouse identification by Bartick was
unconstitutionally suggestive in light of Bartick's limitations. Bartick was unable to express how long he was
able to view the defendant at the scene of the crime. Furthermore, Bartick only identified the
perpetrators as three young black men, one of whom had a gun. There was, therefore, no indication from
Bartick's description that he saw the defendant for a sufficient length of time
to enable him to make a subsequent identification of the defendant. (FN4)
See Commonwealth [402 Mass. 782] v. Moon, 380 Mass. 751, 757, 405 N.E.2d
947 (1980) (identification procedure tainted where victim's description of
assailant was so general that he would not have been able to identify
assailant, but police officer suggested defendant as assailant). Additionally, although the trial judge found
that, "Bartick has no difficulty recognizing people and can remember how
or when he knew them but may not remember their names," this finding is
not supported by the evidence. Bartick
identified two white males as the robbers.
(FN5) The police officers did not
suggest to Bartick that Santos was involved in the robbery. Nevertheless, at the stationhouse Santos was
the only nonuniformed black person in the office at the time of Bartick's
identification.
The
evidence also contradicts the judge's finding that Bartick is not a suggestible
individual. Sharon Bacon, Bartick's
social worker, stated that when Bartick does not know the answer to a question,
"rather than telling you that he doesn't know he will skirt the issue or
give you an answer that he thinks you want because he doesn't want to admit
that he doesn't know something."
(FN6) In these circumstances, we
conclude that the stationhouse identification by Bartick was unduly suggestive
and therefore must be suppressed.
[2] We
address the Commonwealth's contention that Santos waived his constitutional
rights by assenting to the one‑on‑one confrontation. In her findings on the motion, the judge
found that "Santos knew he was being viewed by Bartick and not only agreed
but wanted Bartick to see him. If Santos
had not voluntarily agreed to be viewed by Bartick, [Officer] Murphy would not
have conducted the viewing."
We "
'indulge every reasonable presumption against waiver' of fundamental
constitutional rights and ... 'do not presume acquiescence in the loss of
fundamental rights.' " Commonwealth v. Harris, 371 Mass. 462,
472, 358 N.E.2d 982 (1976), quoting
Johnson [402 Mass. 783] v. Zerbst, 304 U.S. 458, 464, 58 S.Ct.
1019, 1023, 82 L.Ed. 1461 (1938).
"Where constitutional rights have been involved in criminal cases,
certain alleged waivers have been tested by careful scrutiny as to whether the
defendant acted freely and knowingly." Spence v. Reeder, 382 Mass. 398, 411,
416 N.E.2d 914 (1981). The judge made no
findings as to whether Santos' assent to the identification was knowingly
made. There was no evidence as to the
manner in which Santos agreed to be viewed.
The record does not indicate whether Santos agreed to forgo a lineup or
whether he agreed to the suggestive procedure.
Furthermore, the record does not indicate whether Santos was apprised of
Bartick's limitations. We conclude that
the identification procedure was impermissibly suggestive. Evidence of the identification must be
excluded at Santos' new trial. (FN7)
Bumpus, supra 354 Mass. at 499‑500, 238 N.E.2d 343.
[3][4] b. Hagberg's and Marinelli's identifications. The defendant appeals from the motion
judge's failure to suppress Hagberg's and Marinelli's identification, at the
time Santos was apprehended, outside the house on Dyer Street. The motion judge correctly concluded that the
identification was constitutionally permissible and admissible as
evidence. (FN8)
Hagberg
and Marinelli were able to view the defendant and his two companions for
approximately fifteen seconds as they ran down Mercier Avenue to Dorchester
Avenue. The three suspects ran directly
past Hagberg and Marinelli, and one suspect brushed Marinelli. Hagberg and Marinelli were able to provide
the police with specific descriptions of the assailants, including their
approximate ages and the details of their clothing. Furthermore, the identification was made
immediately following the defendant's apprehension, and after both witnesses
had been shown another suspect whom they both determined was not involved in
Maxwell's murder.
[402 Mass. 784] There is no error in the identification procedure. Hagberg and Marinelli identified the
defendant as he was being led from the house on Dyer Street before the police
had asked them whether Santos was one of the men they had seen fleeing the
scene of the murder. "Such meetings
between witnesses or victims and suspects in custody
are often unavoidable or nearly so; and
in any event the police procedure of arranging these showups is recognized as
usual and natural and justified by the need for efficient investigation in the
immediate aftermath of crime.... To have
the witness view the suspect while his recollection or mental image of the
offender is still fresh, before other images crowd in or his attempts to
verbalize his impressions can themselves distort the original picture, provides
the witness with good opportunity for an accurate identification.... A further consideration is that prompt
confrontation yielding a negative result, besides freeing the innocent, informs
the police that a possible predisposition on their part is or may be in error
and releases them quickly to follow another track." (Citations omitted.) Commonwealth v. Barnett,
371 Mass. 87, 92, 354 N.E.2d 879 (1976).
Accordingly, we conclude that the motion judge correctly denied the
defendant's motion to suppress. (FN9)
[5] 2. Witnesses to Bartick's identification. The judge admitted testimony corroborating
Bartick's stationhouse identification presented by Nicola Garofalo and Officers
Murphy and Walsh. That was error. Because Bartick's identification violated the
defendant's due process rights, testimony corroborating the unconstitutional
identification must be excluded as well.
We reject
the Commonwealth's argument made to the trial judge and on appeal that the
testimony of Garofalo, Murphy, and Walsh is admissible as evidence of a
spontaneous utterance. Although hearsay,
spontaneous utterances are admissible when
[402 Mass. 785] "made
during a rapidly developing incident in circumstances reasonably negating
premeditation." Commonwealth v. Clary, 388 Mass. 583,
589, 447 N.E.2d 1217 (1983). See
Commonwealth v. Rivera, 397 Mass. 244, 248, 490 N.E.2d 1160
(1986). Spontaneous utterances are
admissible as evidence "tending to prove the circumstances under which the
crime charged was committed." Commonwealth v. Harris, 376 Mass. 201,
207, 380 N.E.2d 642 (1978), quoting Commonwealth v. Simpson, 300 Mass. 45,
50, 13 N.E.2d 939 cert. denied, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531
(1938).
Commonwealth v. Murphy, 362 Mass. 542, 551, 289 N.E.2d 571 (1972)
(admissible statements made while events of crime were transpiring). See P.J. Liacos, Massachusetts Evidence 351
(1981 ed. & Supp.1985); Commonwealth v. Sellon, 380 Mass. 220,
229, 402 N.E.2d 1329 (1980); Commonwealth v. Reid, 384 Mass. 247, 258‑259,
424 N.E.2d 495 (1981). Bartick's
statement was not a spontaneous utterance as to the robbery, but rather a
response to the suggestive identification procedure.
[6] 3. Motion for a required finding of not
guilty. The defendant contends that
the trial judge erroneously denied his motion for a required finding of not
guilty, and that without evidence of the extra‑judicial identifications,
the Commonwealth lacks sufficient evidence of guilt to withstand the
defendant's motion. In considering the defendant's
contention, we assume that Bartick will not be able to identify Santos at
trial. (FN10)
The test
for determining the propriety of a judge's denial of a motion for a required
finding of not guilty is "whether the Commonwealth produced enough evidence,
taken in the light most favorable to the Commonwealth, to satisfy any rational
trier of fact beyond a reasonable doubt that each element of the crime was
present." Commonwealth v. Hilton, 398 Mass. 63,
64, 494 N.E.2d 1347 (1986). Commonwealth v. Barry, 397 Mass. 718,
719, 493 N.E.2d 853 (1986). See Commonwealth v. Latimore, 378
Mass. 671, 677‑678, 393 N.E.2d 370 (1979). Our review of the evidence convinces us that
the Commonwealth has met that burden.
[402 Mass. 786] Bartick was able to describe the robbery, the fact that one
assailant had a gun, and that one assailant, wearing a ring, hit him on the
head. Bartick's testimony as to the
robbery was corroborated by Garofalo, who stated that Maxwell had run from the
direction of the subway station screaming, that she told him that she had been
robbed. The fact of an injury to
Bartick's head is not disputed.
Garofalo
stated that Maxwell drove off in her car.
William Whall testified to seeing a woman he later identified as Maxwell
drive out of Van Winkle Street and chase the three young men from the corner of
Van Winkle Street, across Dorchester Avenue, and up Mercier Avenue. Whall stated that he saw Maxwell
"corral" the three young men with her car, and then heard what he
believed to be pistol shots. Whall
watched the young men run up Dorchester Avenue.
He lost sight of them at Sullivan's Confectionery on Dorchester Avenue.
At
Sullivan's Confectionery, Hagberg and Marinelli saw the three young black men
running up the street, just seconds after the witnesses heard gunshots. Hagberg saw that one of the men had a gun,
partly concealed. Hagberg and Marinelli
had described the three men as wearing a red or an orange parka, a grey
sweatshirt, and a blue windbreaker and dungarees. Minutes later, both men identified Santos as
one of the three men they had seen fleeing the area of Maxwell's murder. The defendant was dressed in a blue
windbreaker and dungarees. Marinelli
identified the defendant at the probable cause hearing; both men identified him at trial. Evidence of Hagberg's photographic
identification of Santos also was admitted without objection at trial. From this evidence of the chain of events
surrounding Maxwell's shooting, the jury could have inferred that Hagberg and
Marinelli had seen the same three young men whom Whall saw being chased by
Maxwell.
There was
evidence that the victim's empty wallet was discovered in a trash can located
one street away from the street on which the three men had fled the scene of
the murder. Furthermore, the end of the
street on which the wallet was found was in the vicinity of the park in which
the police first encountered the defendant.
The defendant's flight from the [402
Mass. 787] park was an indication of
a consciousness of guilt. The defendant
provided evidence of a motive for the robbery with his testimony that he
supported a marihuana habit that cost him $35 a week, although he was
unemployed in October, 1983. Finally,
circumstantial evidence supported a reasonable inference that the three men
were engaged in a joint venture.
"The test [for joint venture] is whether each defendant was (1)
present at the scene of the crime, (2) with knowledge that another intends to
commit the crime or with intent to commit a crime, and (3) by agreement is
willing to help the other if necessary." Commonwealth v. Bianco,
388 Mass. 358, 366, 446 N.E.2d 1041,
S.C., 390 Mass. 254, 454 N.E.2d 901 (1985).
See Commonwealth v. Longo, 402 Mass. 482,
486, 524 N.E.2d 67 (1988); Commonwealth v. Casale, 381 Mass. 167,
173, 408 N.E.2d 841 (1980). Existence of
a joint venture may be proved by circumstantial evidence. Longo, supra, 402 Mass. at
487, 524 N.E.2d 67. Casale, supra. There is evidence that the three young men
fled together and that the defendant was among them. We conclude that the Commonwealth's evidence
is sufficient to withstand the defendant's motion for a required finding of not
guilty.
4. Other issues.
[7][8] a. Competency. After Bartick identified two white men at
the voir dire, the defendant moved for a competency examination pursuant to
G.L. c. 123, § 19 (1986 ed.).
(FN11) In these circumstances,
the
judge should have ordered a competency evaluation pursuant to G.L.
c. 123, § 19. "If the competency of
a witness is placed in issue, 'it is the duty of the judge to examine into the
question of [the witness's] competency, and to reject [the witness] unless [the
judge] is satisfied that [the witness] is competent.' "
Commonwealth v. Gibbons, 378 Mass. 766, 770, 393 N.E.2d 400 (1979),
quoting
Commonwealth v. Reagan, 175 Mass. 335, 340, 56 N.E. 577 (1900). Testimony from an expert on Down's syndrome
is not the equivalent of following the mandate[402 Mass. 788] of the statute that an impartial expert be
assigned by the Department of Mental Health.
(FN12)
b. Instructions to the jury. The defendant complains of instructions
explaining felony‑murder by analogy to other cases. "It is proper to quote or to paraphrase
to the jury statements made by this court in decided cases, provided of course
that care is taken to see that the statements are properly applied to the case
in hand and do not leave any false impression as to the duty of the jury."
Commonwealth v. Heffner, 304 Mass. 521, 525, 24 N.E.2d 508
(1939). In Commonwealth v. Costa, 360
Mass. 177, 187, 274 N.E.2d 802 (1971), we stated that the judge did not err in
refusing "to import into [the] case the conclusions of fact recited in
[another] opinion as based upon evidence there previously presented in the
trial court and the findings of the trial court in that case." Too much detail by analogy to other cases
diverts the jury's attention from the issue whether the Commonwealth has proved
guilt beyond a reasonable doubt to a comparison between the evidence before
them and the facts of the other cases mentioned by the judge. A judge should not elaborate on the facts of
other cases in instructing the jurors.
Such a practice can only cause confusion and lead to error.
The
instruction on reasonable doubt upheld in Commonwealth v. Little, 384 Mass. 262,
266 n. 4, 424 N.E.2d 504 (1981), misstates the proper instruction for
reasonable doubt and should not be used in instructing juries. The proper statement of the standard of proof
beyond a reasonable doubt is contained in
Commonwealth v. Webster, 5 Cush. 295, 320 (1850).
The
judgments of the Superior Court are reversed, the verdicts set aside, and the
case remanded for a new trial.
So ordered.
(FN1.) About one and one‑half weeks
later, Hagberg again identified the defendant from an array of twelve to
fourteen photographs. In December, 1983,
Marinelli identified the defendant from among spectators at the probable cause
hearing. Hagberg was unable to identify
the defendant. Both Hagberg and
Marinelli identified the defendant at trial.
(FN2.)
Suppression of Bartick's stationhouse identification was argued as part of the
motion to suppress. The defendant, in
his motion, sought to suppress "[a]ny and all identifications made while
the defendant was in custody in Area C...."
At trial,
defense counsel argued that the judge's ruling applied to Bartick's
stationhouse identification as well and that the motion judge inadvertently
neglected to mention Bartick's identification.
The motion judge stated, in his findings, that he intentionally had not
ruled on Bartick's identification because he did not consider the robbery
investigation to be part of the murder charge.
The defendant's arguments that the motion judge necessarily included
Bartick's stationhouse identification are not supported by the record.
(FN3.) Defense counsel moved to have Bartick
examined for competency, see G.L. c. 123, § 19 (1986 ed.), after his voir dire
testimony. The judge denied the
defendant's motion. See infra at 391.
(FN4.) On the day of the robbery, Bartick only
described the perpetrators in terms of their race. On voir dire, Bartick stated that one man had
on a red shirt, that another man had on a black coat, and that the third man
had on a pink shirt. He also stated that
the man with the ring had on a white shirt.
He was not asked at trial for a description.
(FN5.) At trial, the defendant moved to be
seated among the spectators during Bartick's testimony. The judge denied that motion. During his testimony, Bartick identified a
black spectator twice as two of the three culprits and the defendant's brother
as the third participant.
(FN6.) On three separate occasions during voir
dire, Bartick sought approval of his answers by asking whether he was doing
well.
(FN7.) We have decided this issue without
regard to the statement of Officer Paul Murphy that Santos was in Bartick's
view "[o]nly when we brought Mr. Bartick to the hallway where we pointed
out Mr. Santos."
(FN8.) The motion judge suppressed Hagberg's
and Marinelli's stationhouse identifications in essence because the two
witnesses already had identified Santos and there was ample time to arrange for
a lineup. Thus, there was no need for a
second field identification. There is no
error in this ruling.
(FN9.) The defendant argues that reports of
the foot pursuit transmitted over the police radio in the cruiser in which
Hagberg and Marinelli were passengers rendered the identification unduly
suggestive. We do not agree. Hagberg stated during the hearing on the
motion to suppress that he was not paying attention to the broadcasts. Marinelli remembered some of the broadcasts,
but stated that his identification of Santos was based on his observations as
Santos fled the scene of Maxwell's murder.
(FN10.)
Because the stationhouse identification is not admissible, unless the
Commonwealth can demonstrate a basis for an in‑court identification
independent from the tainted procedure, any in‑court identification by
Bartick would not be admissible at retrial.
(FN11.) General Laws c. 123, § 19,
provides: "In order to determine
the mental condition of any party or witness before any court of the
commonwealth, the presiding judge may, in his discretion, request the
department [of Mental Health] to assign a qualified physician or psychologist,
who, if assigned, shall make such examinations as the judge may deem
necessary."
(FN12.) Although a judge may permit an expert
to testify at trial as to objective manifestations of Down's syndrome and the
limitations of persons so afflicted, care must be taken that such testimony is
not used "for the purpose of assessing a witness's credibility."
Commonwealth v. Widrick, 392 Mass. 884, 888, 467 N.E.2d 1353 (1984).