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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. Simmonds, 386
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Patricia A. O'Neill,
Dianne M. Dillon, Asst. Dist. Atty., for the
Commonwealth.
Before [386
NOLAN, Justice.
The
defendant was tried to a jury and found guilty of assault with intent to rape (G.L. c. 265, s 24), breaking and entering a dwelling in the
nighttime with intent to commit a felony, and making an assault on an occupant
therein (G.L. c. 266, s 14). Prior to trial, the trial judge denied the
defendant's motion to suppress identifications of him made at a lineup by the
victim and a witness to these offenses and a victim of an unrelated
offense. The defendant received a
sentence of life imprisonment on the breaking and entering indictment and a
sentence of from five to seven years on the assault with intent to rape
indictment, to be served concurrently with the life imprisonment sentence. He appealed his convictions and we granted
his application for direct appellate review.
The defendant argues that the judge erred in (1) denying the motion to
suppress the identifications; (2) denying the defendant's motion for a mistrial
based on a witness's statement; and (3) admitting certain hearsay
testimony. There was no reversible
error.
1. The
motion to suppress the identifications.
The defendant alleges that police conduct during a pretrial lineup
violated his right to counsel and due process and that all evidence identifying
the defendant as the perpetrator of the crimes charged should have been
suppressed. The judge made the following
findings in ruling on the defendant's motion to suppress.
On
[386 Mass. 236] Another nun responded to the victim's screams and ran out into
the hallway of their residence. She saw
a man come out of the victim's room, cross the hall and go down the
stairs. The hallway was illumined by
night lights and by street lights.
Both women
gave descriptions of the assailant to the police. On October 22, 1980, each sister
independently viewed photographs at the Springfield police department. Neither woman identified anyone. Later that day, both sisters independently
selected a photograph of the defendant from another array of photographs and
stated that the subject of the photograph looked most like the assailant. On October 23, 1980, the sisters viewed a
group of photographs which included a picture of the defendant, but not the
same picture as they had seen the day before.
When the victim saw the picture of the defendant, she doubled over,
trembling. She said she thought it
was her assailant, but did not say she was certain. The second nun also selected the photograph
of the defendant. Later that evening,
the sisters were again separately shown the same group of photographs. The victim again exhibited a physical
reaction to the photograph of the defendant but did not commit herself. The second nun again selected the photograph
of the defendant as looking most like the man she had seen in the convent two
days earlier.
At
approximately 10:45 P.M. that night the police went to the defendant's
home. They told him that they were
investigating some serious crimes and asked if he would be willing to
participate in a lineup. He agreed to
accompany them to the police station. At
11:05 P.M., he was advised of his Miranda rights and signed a card
acknowledging that he had read and understood those rights. The police did not consider him to be under
arrest at that point. The police
prepared a lineup consisting of seven black men including the defendant.
The victim
viewed the lineup through a one‑way glass. Each man was asked to step forward, face
right and left. When the defendant
stepped forward, the victim clenched [386
Mass. 237] the police officer's
hand. She listened to each voice without
knowing which man was speaking. When she
heard the defendant's voice, she positively identified him. The victim then left the room and the second
nun entered. The second nun positively
identified the defendant.
The judge
viewed a re‑creation of the lineup at the police station and viewed a
photograph of the men in the lineup as they appeared that night. He found that all the men fit the general
description given to the police, that nothing suggestive was said or done by
any of the witnesses and that each of the witnesses had a good opportunity to
view the man at the time of the crime.
He ruled that the lineup was not suggestive and not conducive to
misidentification. He further ruled that
no right to counsel arose since the identification procedures were at the pre‑arrest
and pre‑indictment stage. The
judge found it unnecessary to consider the validity or effect of the waiver of
counsel.
The
defendant contends that his Sixth Amendment rights under the United States
Constitution and his rights under art. 12 of the Massachusetts Declaration of
Rights were violated because he was deprived of the assistance of counsel at
the lineup. He argues that his right to
counsel had attached, even though formal charges had not been obtained, because
he was the subject of a warrantless arrest based on
probable cause.
[1][2] The
case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct.
1877, 32 L.Ed.2d 411 (1972), is dispositive of the
defendant's claim. In Kirby, the Supreme
Court held that there is no right to counsel at identification procedures which
take place before the defendant has been indicted or otherwise formally charged
with a criminal offense. The right to
counsel attaches "at or after the initiation of adversary judicial
criminal proceedings‑whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.... For it is only then that the government has
committed itself to prosecute, and only then that the adverse positions of
government and defendant have solidified.
It is then that a defendant finds himself faced with the prosecutorial
forces of organized society, and [386
Mass. 238] immersed in the
intricacies of substantive and procedural criminal law." Id. at 689, 92 S.Ct.
at 1882. In Commonwealth v. Lopes, 362
Mass. 448, 451, 287 N.E.2d 118 (1972), we followed that holding, as we have in
its progeny. See Commonwealth v. Kudish, 362 Mass. 627, 631, 289 N.E.2d 856 (1972);
Commonwealth v. Chase, 372 Mass. 736, 743, 363 N.E.2d 1105 (1977); Commonwealth
v. Clifford, 374 Mass. 293, 302, 372 N.E.2d 1267 (1978). Although this court has the power to extend
greater protection under our State Constitution than is demanded by the Federal
Constitution, see, e.g., Commonwealth v. Soares, 377
Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct.
170, 62 L.Ed.2d 110 (1979), we have not interpreted art. 12 of our Declaration
of Rights to require that a right to counsel arises at pre‑indictment
identification procedures and we do
not rule so now. Since the lineup in the
case before us took place before the defendant was indicted or formally
charged, his constitutional right to counsel was not violated. It is therefore unnecessary to consider the
validity or effect of the waiver of the right to counsel. Commonwealth v. Lopes, supra.
[3][4] The
defendant argues, in the alternative, that the conduct of the police,
misinforming him of the purpose of the lineup, was a deprivation of due process
that led him not to seek the advice of counsel prior to participating in the
lineup. He argues that the
identifications should be suppressed for this reason. In any event the record reveals nothing
improper in the conduct of the police here.
The judge found that the police went to the defendant's residence,
informed him that they were investigating some serious crimes and asked if he
would be willing to participate in a lineup.
The judge further found that the defendant voluntarily agreed to
accompany them to the police station and that the police did not consider the
defendant to be under arrest at that point.
The judge's findings are well supported by the evidence. There is no evidence that the police deceived
the defendant into accompanying them to the police station. There is no evidence of police coercion or
deception. It is true that the police
did not inform him that he had been tentatively identified by the victim and a
witness as the perpetrator of the crimes.
However, there is no support for the
[386 Mass. 239] defendant's
assertion that this failure should render the identification inadmissible. The defendant's reliance on cases which have
held that police trickery invalidated a defendant's waiver of Miranda rights is
misplaced. In addition to the fact that
the record does not show police trickery, the defendant did not make any
incriminatory statements and it is well settled that a lineup procedure does
not violate a defendant's constitutional privilege against self‑incrimination. Kirby, supra, 406 U.S. at 687‑688, 92 S.Ct. at 1881‑1882.
[5][6][7][8]
Although it is established that a suspect is not entitled to counsel at a pre‑arrest
identification procedure, the defendant is correct, of course, in arguing that
due process considerations are applicable to identification procedures
conducted prior to arrest. Commonwealth
v. Chase, 372 Mass. 736, 742, 363 N.E.2d 1105 (1977). Stovall v. Denno,
388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d
1199 (1967). "When a person has not
been formally charged with a criminal offense, Stovall strikes the appropriate
constitutional balance between the right of a suspect to be protected from
prejudicial procedures and the interest of society in the prompt and purposeful
investigation of an unsolved crime."
Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct.
1877, 1883, 32 L.Ed.2d 411 (1971). See
Commonwealth v. Bumpus, 354 Mass. 494, 500‑502,
238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct.
651, 21 L.Ed.2d 579 (1969). Under
Stovall, supra, 388 U.S. at 302, 87 S.Ct. at 1972, a
defendant is entitled to relief if the confrontation "was so unnecessarily
suggestive and conducive to irreparable mistaken identification that he was
denied due process of law." In
deciding whether a lineup was unnecessarily suggestive the judge is to consider
the totality of the circumstances surrounding it. Id.
The burden is on the defendant to establish by a preponderance of the evidence
that impermissibly suggestive procedures were used at the lineup. Commonwealth v. Botelho,
369 Mass. 860, 867, 343 N.E.2d 876 (1976).
[9][10]
The judge below concluded that "not only was the line‑up not
unnecessarily suggestive, it was not suggestive at all. It was not conducive to
misidentification." Our function on
review is to consider whether the evidence supported the judge's findings of
fact, giving due weight to his superior opportunity to observe and weigh
testimony. We then determine[386 Mass. 240] whether the findings
justify the judge's conclusion of law. Botelho, supra at 868, 343 N.E.2d 876. "If the judge's careful findings
regarding the identification of the defendant are supported by the evidence, we
are not likely to disturb them."
Commonwealth v. Clifford, 374 Mass. 293, 304, 372 N.E.2d 1267 (1978).
[11] The
defendant contends that the lineup was unnecessarily suggestive because of the
appearance of the participants. There
were seven individuals in the lineup including the defendant. Four of the seven had moustaches. The defendant did not have a moustache and
the witnesses had described the assailant as clean shaven. In addition, several of the men wore
regulation police pants. We believe that
the participants' facial hair and wearing apparel are factors to be considered
in determining the fairness of the confrontation, but they are not dispositive. See
id. The judge below not only heard
testimony concerning the lineup but also viewed a re‑creation of the
lineup at the police station and viewed a photograph of the men in the lineup
as they appeared that night. He found
that "(n)othing suggestive was said or done with
any of the witnesses. All of the men fit
the general description given the police.
None was distinctive in any way.
Each witness had a good opportunity to view the man at the time of the
crime, so each had a good basis for identification." We have viewed the picture and we think the
judge was warranted in concluding that the identification procedure was not
unnecessarily suggestive. There was no
error in the denial of the motion to suppress.
2. Motion
for a mistrial. The defendant argues
that it was error for the judge to deny his motion for a mistrial based on the
testimony of a police officer. The
officer was asked a question concerning a conversation he had with the
defendant after the lineup. The officer
responded that "(h)e knew he had already been picked out in the lineup as
an individual that had assaulted one party and raped her and attempted
...." ([FN1]) Defense counsel
objected and moved [386 Mass. 241] for a mistrial based on the
contention that the jury now knew that the defendant had been accused of rape
and since the charge in the present case was not rape but assault with intent
to rape, the jury had been informed that the defendant had been charged with
another crime. The judge asked defense
counsel if he wanted him to say anything to the jury but defense counsel
replied that he did not. Defense counsel
did not make a motion to strike. During
his instructions the judge discussed the crime of assault with intent to
rape. He briefly defined rape and then
said "Now, the charge here is not rape.
It's assault with intent to rape."
He then discussed the elements of the latter offense. Defense counsel renewed his motion for a
mistrial following the judge's charge.
The judge denied the defense counsel's renewed motion for a mistrial. Defense counsel argues that the judge's
instruction that the defendant was not charged with rape served to highlight
the earlier testimony of the police officer.
[12][13][14]
Ordinarily, evidence which serves to inform a jury of a defendant's prior
criminal activity is not admissible.
Commonwealth v. Nassar, 351 Mass. 37, 45, 218
N.E.2d 72 (1966). We have held that the
admission of such evidence over objection may be prejudicial error. Id. In
the present case, although the defendant objected to the officer's testimony,
he did not make a motion to strike but only a motion for a mistrial, which was
denied. The decision whether to declare
a mistrial is a matter within the judge's discretion. Commonwealth v. Hoffer,
375 Mass. 369, 372‑373, 377 N.E.2d 685 (1978). No showing of an abuse of such discretion has
been made by the defendant. Since one of
the crimes involved in this case was assault with intent to rape and since this
comment is an obscure one, we are not convinced that its admission "could
have appreciably influenced the jury or tainted their verdict." Commonwealth v. Vanetzian,
350 Mass. 491, 495, 215 N.E.2d 658 (1966).
Commonwealth v. Billings, 6 Mass.App. 884, 376
N.E.2d 1252 (1978). We note also that
the judge offered to give a cautionary instruction to the jury but defense
counsel declined the offer. Since the
defendant did not make a motion to strike or request that the judge give a
curative instruction, [386 Mass. 242] he cannot complain of the judge's failure to take these
actions. Commonwealth v. Johnson, 374
Mass. 453, 458, 373 N.E.2d 1121 (1978).
When read in its entirety the judge's charge was fair and adequate. There was no error in the judge's denial of
the motion for mistrial.
3.
Impeachment testimony. Finally, the
defendant argues that it was reversible error for the judge to admit certain
testimony because it was hearsay. The
Commonwealth contends that the testimony was properly admitted as a prior
inconsistent statement of a defense witness.
At trial, the defendant's wife testified on direct examination that on
October 20, 1980, she had a fight with the defendant and scratched the right
side of his face. She went on to testify
that on the night of the crimes charged, the defendant was at home with
her. On cross‑examination, Mrs. Simmonds testified that when police officers had asked her
about scratches on the defendant's hand she told them that "we had a fight
and I told them if there (were) scratches, I didn't put them there." A police officer, Michael Sands, testified to
the conversation that he had with Mrs. Simmonds
following the defendant's arrest, in which she told him that she had fought
with the defendant but had not scratched him.
It is unclear from Officer Sands's testimony
whether the conversation or the fight took place on October 22 or 23.
[15][16]
It is a well‑settled rule of evidence that if a witness makes a statement
relevant to an issue on trial, the adverse party has the right to "show
that the witness has made previous inconsistent or conflicting statements
either by eliciting such statements upon cross‑examination of the witness
... or by proving them by other witnesses." Commonwealth v. West, 312 Mass. 438, 440, 45
N.E.2d 260 (1942), and cases cited. It
is not necessary that the prior statement contradict in plain terms the
testimony of the witness. "It is
enough if the proffered testimony, taken as a whole, either by what it says or
by what it omits to say, affords some indication that the fact was different
from the testimony of the witness whom it is sought to contradict." Id., and cases cited. See P. J. Liacos,
Massachusetts Evidence 135‑136 (5th ed. 1981).
[386 Mass. 243] [17] It was not reversible error to admit the officer's
statement. Mrs. Simmonds's
previous statement was inconsistent with her testimony on direct examination
that she had scratched the defendant's face.
The testimony was therefore admissible for impeachment purposes. While it is unclear as to when the fight
occurred, we do not think this confusion is enough to make the admission of the
evidence reversible error.
We rule
that the motion to suppress was properly denied and that there were no errors
at the trial which require reversal.
Judgments
affirmed.
(FN1.) A woman, seventy‑six years old,
who had been raped about a month before the attack on the victim had picked out
the defendant's photograph, identifying him as her assailant.