|
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. Simmons, 383
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael D. Cutler,
W. James O'Neill, Asst. Dist. Atty., for the
Commonwealth.
Before HENNESSEY, C. J., and BRAUCHER,
KAPLAN, WILKINS and ABRAMS, JJ.
WILKINS, Justice.
About ten
days before the start of the defendant's trial on indictments for rape, armed
assault with intent to murder, and assault and battery by means of a dangerous
weapon, two police officers took the victim onto private property, owned by the
defendant's mother‑in‑law, to view a motor vehicle that was parked
near the driveway. [383
Not more
than thirty minutes before the commencement of the trial, the assistant
district attorney told defense counsel of the victim's out‑of‑court
identification of the motor vehicle.
Defense counsel moved for a continuance in order to prepare and present
appropriate motions. He argued that the
recent inspection of the motor vehicle violated his client's constitutional
rights and so tainted the victim's identification testimony that it should be
excluded.
The judge
denied the motion for a continuance, no voir dire hearing
was held on the admissibility of the identification evidence, and the case went
to trial. Because of the suddenness with
which the identification issue was presented to defense counsel, in fairness we
treat the defendant's objections as presenting both a request for a continuance
and a request for a voir dire hearing on the
impermissible suggestiveness of the identification procedure and on the claimed
unreasonable search of the motor vehicle.
(1)
Although a voir dire is not constitutionally required
in all instances in which the admissibility of identification evidence is
challenged, the better course would have been to have conducted a voir dire on the admissibility of the victim's
identification of the motor vehicle. See
Watkins v. Sowders, 449 U.S. 341, ‑‑‑‑,
101 S.Ct. 654, 658, 66 L.Ed.2d 549 (1981). Because no voir
dire was held and the case proceeded to trial, we assess the record to see
whether there is a reasonable possibility not necessarily a certainty that the
defendant may have been unfairly prejudiced by the admission of the
identification testimony. ([FN1]) [383 Mass. 48] We conclude that there is
no basis on due process or common law evidence grounds for suppressing evidence
of the identification. We do not accept
the defendant's argument that constitutional principles concerning one‑to‑one
confrontations between victims and suspects should be applied to
"confrontations" between a victim and an inanimate object. Granting that in some instances due process
considerations might limit the admissibility of testimony of an identification
of an inanimate object, we conclude that this case simply does not present such
a situation.
We are not
certain, however, that the intrusion on private property to view the motor
vehicle was not a violation of the defendant's constitutional right against
unreasonable searches. We reject any
suggestion that, if there was a constitutional violation, the admission of the
victim's testimony of her out‑of‑court identification of the motor
vehicle was harmless error. The
defendant was not in a position to present evidence on the warrantless
search issue on the day trial started.
Therefore, we remand the case for a hearing on this point. If there was a violation of the defendant's
constitutional rights, there will have to be a new trial.
Before
stating the reasons for our conclusions, we summarize the case presented
against the defendant. On a Friday
evening, in October, 1977, between 7 P.M. and 7:30 P.M., the victim was walking
on a public way in Hyannis and planning to hitchhike to her home. A man driving a light blue Mustang stopped
and offered her a ride. She noted that
the car had bucket seats, a floor shift, a glove compartment, dents on its
black dashboard, and wires hanging down from the radio. The driver of the car took her to a somewhat
secluded spot. When she rejected his
offer to have sexual intercourse, he stabbed her with a knife, [383 Mass. 49] ordered her from the car, and raped her. He strangled her and threatened to kill her
if she said anything about the incident and then drove off. A passing motorist took the victim to a fire
station.
At trial,
the victim identified the defendant as her attacker. There was police testimony that the victim
made two photographic identifications of the defendant within two days of the
incident in circumstances the defendant does not now challenge. On redirect examination, the victim testified
that nine days before trial she had seen the same motor vehicle as that
operated by her assailant, a blue Mustang.
At the request of and in the company of two detectives she went to see
the vehicle. She recognized the front
seats and the dents on the dashboard and also the wires hanging out of the
radio in front of the dashboard. On recross‑examination, she testified that the car was
parked in a private yard. No one opened
the car door but she looked in through the passenger window. There was police testimony that the motor
vehicle was the same one that the defendant had been seen driving the night of
the crimes.
A
Barnstable police officer testified that, when questioned at a hospital shortly
after the incident, the victim, who was in pain and incoherent, stated that her
attacker's vehicle was "a small vehicle, a Volkswagen‑type of
vehicle." She mentioned
additionally the bucket seats, and floor shift, and that there were wires
hanging down from the radio. It was the
victim's reference to her attacker's vehicle as a Volkswagen‑type of
vehicle that prompted the assistant district attorney to be concerned about her
ability to identify the vehicle.
The
defendant was found guilty of each of the three crimes. We granted his motion for direct appellate
review of his appeal.
(2) 1. We
consider first the defendant's contention that the circumstances in which the
victim viewed the defendant's motor vehicle denied him due process of law and a
fair trial because it was an impermissibly suggestive confrontation. Relying on United States v. Wade, 388 U.S.
218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and [383 Mass. 50] Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), he argues that the same
constitutional principles that govern a confrontation between a witness and a
suspect should apply to the identification of an inanimate object. The defendant notes that, under both the
Constitution of the Commonwealth and the Constitution of the United States, one‑to‑one
show‑ups, although not per se invalid, are regarded as most susceptible
to the influence of suggestion and consequent mistaken identification. See Commonwealth v. Jackson, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNA])
386 N.E.2d 15 (1979); Commonwealth v. Nolin, 373
Mass. 45, 51, 364 N.E.2d 1224 (1977). He
notes further that disapproval of one‑to‑one confrontations has
extended beyond in‑person identifications to photographic identifications
(Simmons v. United States, 390 U.S. 377, 383‑384, 88 S.Ct.
967, 970, 19 L.Ed.2d 1247 (1968); Commonwealth v. Gilday,
367 Mass. 474, 494‑495, 327 N.E.2d 851 (1975)), and to voice
identifications (Commonwealth v. Torres, 367 Mass. 737, 740, 327 N.E.2d 871
(1975)).
No court
to our knowledge has applied principles applicable to pretrial identifications
of suspects to pretrial identifications of inanimate objects. Those few opinions that have dealt with this
issue are unsupportive of the defendant's argument. In Inge v.
Commonwealth, 217 Va. 360, 228 S.E.2d 563 (1976), a witness was taken to a
parking lot to look at the defendant's truck.
Police officers were photographing it as the witness approached. There was no vehicle of similar design
nearby. The witness was permitted to
testify that the vehicle appeared to be the same truck he had seen on the night
of the crime. The Supreme Court of Virginia
upheld the admission of the identification evidence, declining "to hold that
a lineup is required for the identification of an inanimate object possessed by
a suspect" because "the one‑on‑one identification of
(the) vehicle presents questions as to the credibility of the witness and the
weight of his testimony rather than an admissibility question of constitutional
dimension." Id. at 365, 228 S.E.2d
563.
A
Pennsylvania court upheld the admission of identification testimony of a bag and
a barrel of a gun which the police showed the witness shortly after the
commission of a [383 Mass. 51] crime. Commonwealth v. Carter, ‑‑‑Pa.Super. ‑‑‑, ‑‑‑, 414
A.2d 369 (1979). The court noted
"the enormous probative weight" of evidence identifying the accused
and that identification of an item of real evidence "does not generally
have this effect." Id.
"Consequently, it has never been the case that identification of an object
must be subject to the same precautions given the identification of a
person. Rather, any uncertainty in the
description, or suggestivity in a prior
identification, goes to the weight to be accorded the testimony, not its
admissibility. See Buchanan v. State,
561 P.2d 1197 (Alaska 1977); People v. Coston, 40 Colo.App. 205, 576 P.2d 182 (1977); Klase
v. State, 346 A.2d 160 (Del.1975); Inge v.
Commonwealth, 217 Va. 360, 228 S.E.2d 563 (1976)." Id. ([FN2])
Although
we are aware of no case in which due process considerations have led to the
suppression of an out‑of‑court identification of an inanimate
object, we recognize that, in an extreme case, the degree of suggestiveness of
an identification procedure concerning an inanimate object might rise to the
level of a denial of due process. Even
if constitutional considerations did not apply, an appropriate rule of evidence
might require that an identification of an inanimate [383 Mass. 52] object
not be admitted in evidence where the government used a highly suggestive
identification procedure because the unfair, prejudicial, and unreliable
quality of the identification would outweigh its probative value. See W.B. Leach
& P.J. Liacos,
Massachusetts Evidence 295 (4th ed. 1967).
We recognize, however, that there is a difference between an out‑of‑court
identification of a defendant and an out‑of‑court identification of
an inanimate object. The chances of
fundamental unfairness are greater in the former situation. Identification of a defendant directly tends
to prove the case against him.
Identification of tangible property is only indirect proof of the
defendant's guilt, even though its force may be most persuasive in certain
instances. Motor vehicles, and most
tangible objects, are not unique. There
is only one person with the physical characteristics of the defendant, but
there are many blue Mustangs. There is
often a further distinction between identification of people and identification
of property. A lineup of people is
practical. A lineup of property may not
be. It would have required a
considerable effort, if it could have been done, to place the Mustang in a
lineup. We reject the notion that a
lineup of inanimate objects is required in circumstances where a lineup of
people would be required.
The
victim's identification of the defendant's motor vehicle was not unfairly
prejudicial to him. In a case such as
this, the circumstances of the identification were properly submitted to the
jury. Defense counsel forcefully cross‑examined
the victim, pointing out potential weaknesses in her identification. At his request, the jury viewed the Mustang,
and counsel pointed to salient features of the motor vehicle not identified by
the victim. He argued to the jury that
there was a rapist, somewhere at large.
The question was appropriately one for the jury, including the
suggestiveness of the "confrontation" and the availability of fairer
identification procedures (such as a lineup).
Commonwealth v. Rodriguez, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FNB]) 391 N.E.2d 889
(1979). "While a voir dire would have been permissible, we conclude that it
was not required." Commonwealth v. Bumpus, 354 Mass. 494, 501‑502, 238 N.E.2d 343
(1968), cert. denied, 393 U.S. 1034 (1969).
[383 Mass. 53] One further aspect concerning the claimed suggestiveness of the
identification of the Mustang must be considered. The defendant argues that the identification
was impermissibly suggestive because the police told the victim that she was
going to look at the car. The evidence
does not support a claim that the police acted improperly. On recross‑examination,
the victim testified as follows. DEFENSE
COUNSEL: "They told you where you were going?" THE VICTIM: "To look at the
car." Shortly after that, DEFENSE
COUNSEL: "And you were told this was the Defendant's car?" THE VICTIM: "They asked me." There was no evidence by either police
officer who took the victim to view the Mustang concerning what he said to the
victim about the ownership of the car.
We see no basis, on the ground of impermissible suggestiveness, for
keeping from the jury the victim's identification of the motor vehicle. The defendant had an adequate opportunity to
elicit evidence that the police conducted an improperly suggestive
identification procedure and did not do so.
([FN3])
(3) 2. We
deal next with the defendant's argument that the victim's viewing of his motor
vehicle, shortly before trial in the company of two police officers, was a warrantless, unreasonable search in violation of his
constitutional rights. The
constitutional protection against unreasonable searches extends to people and
not to places. Katz v. United States,
389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). There can be no valid argument that there was
exigent circumstances justifying the warrantless[383 Mass. 54] search of the
vehicle. Cf. Commonwealth v. Rand, 363
Mass. 554, 560‑561, 296 N.E.2d 200 (1973). In the circumstances of this case, both the
defendant's standing to raise the constitutional claim and the validity of the
claim itself depend on whether he had a reasonable expectation of privacy in
the area where the motor vehicle was parked.
See Rawlings v. Kentucky, ‑‑‑U.S. ‑‑‑‑,
‑‑‑‑, 100 S.Ct. 2556, 2561,
65 L.Ed.2d 633 (1980); United States v. Salvucci, 448
U.S. 83, ‑‑‑‑ ‑ ‑‑‑‑, 100
S.Ct. 2547, 2552‑2553, 65 L.Ed.2d 619 (1980);
United States v. Chadwick, 433 U.S. 1, 6‑7, 97 S.Ct.
2476, 2480, 53 L.Ed.2d 538 (1977). The
question is thus not one of property law that is, whether the area was private
property but rather whether the area was one as to which, for the purposes of
the Fourth Amendment and art. 14 of the Declaration of Rights of the
Constitution of the Commonwealth, the defendant had a reasonable expectation of
privacy. See United States v. Santana,
427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300
(1976); Commonwealth v. Ortiz, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, ‑‑‑ ‑
‑‑‑, ([FNC]) 380 N.E.2d 669
(1978). The constitutional protection may
extend beyond a house to include immediately adjacent areas, sometimes called
the "curtilage." See Commonwealth v. Colella,
360 Mass. 144, 150, 273 N.E.2d 874 (1971); Wattenburg v.
United States, 388 F.2d 853, 857 (9th Cir. 1968). The term seems more conclusory
than instructive in resolving the question.
There is
not enough evidence in this record to pass judgment on the Fourth Amendment
issue of the admissibility of the identification, even if we were inclined to
reach conclusions in the absence of findings by the judge. It seems agreed that the Mustang was stored
on property owned by the defendant's mother‑in‑law. The defendant's wife testified that she had
the use of the Mustang and did use it after the defendant's pretrial
incarceration until she had the Mustang towed to her mother's property when it
became inoperable at another location.
There was testimony that the motor vehicle was parked approximately
forty feet from a public way, and visible from the public way. It was said to have been parked "near
the driveway." Despite this
evidence, we are not aware of certain possibly important facts, such as where
the motor vehicle was in relation to the
[383 Mass. 55] house, how far it
was from the driveway, whether its interior could be seen from the driveway,
and the extent to which the driveway might have been a normal means of entrance
and egress from the house. Because the
defendant elected not to testify at the trial and there was no voir dire hearing, we have no testimony from the defendant on
whatever expectations of privacy, if any, he may have reasonably had about the
area where the Mustang was stored.
([FN4])
The case
is remanded to the Superior Court where a hearing should be held on the
reasonableness of the search. The need
to remand the case is unfortunate because it could have been avoided had the
assistant district attorney obtained a search warrant or had the judge granted
the defendant's request for a hearing on his claim that there had been an
unreasonable search. If the judge
hearing the matter should conclude that the testimony concerning the victim's
identification of the blue Mustang on the property of the defendant's mother‑in‑law
must be suppressed, a new [383 Mass.
56] trial would be required. In such a case, the judge should consider and
decide whether admission of the victim's in‑court identification of the
motor vehicle would be proper on the ground that the identification would rest
"on an independent recollection of her initial encounter with the
(vehicle), uninfluenced by the pretrial (identification)" of the
vehicle. See United States v. Crews, 445
U.S. 463, 472‑473, 100 S.Ct. 1244, 1250‑1251,
63 L.Ed.2d 537 (1980).
The case
is remanded to the Superior Court for further proceedings in accordance with
this opinion.
So
ordered.
(FN1.) It would not have been an abuse of
discretion if the judge had denied the request for a continuance and had held a
voir dire immediately on the claimed due process
violation. The defendant makes no claim
that he would have had evidence to present bearing on the suggestiveness of the
motor vehicle identification, except through cross‑examination of the
Commonwealth's witnesses.
(FNA.) Mass.Adv.Sh. (1979) 401, 418.
(FN2.)
The cited opinions, other than that of the Virginia court discussed above, are
less in point. Buchanan v. State, 561
P.2d 1197, 1202 (Alaska 1977), concerned an out‑of‑court
photographic identification of a motor vehicle.
The defendant's argument focused on the admissibility of that
identification because it was hearsay.
The court rejected the argument that the identification was unfair but
did not discuss the issue in constitutional terms.
The other
two cases involved "lineups" of personal property. In Klase v. State,
346 A.2d 160, 162 (Del.1975), the defendant objected to a "lineup" of
six knives as "impermissibly suggestive," relying on Stovall v. Denno, 388 U.S. 293, 87 S.Ct.
1967, 18 L.Ed.2d 1199 (1967), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). He did not argue that a "lineup"
was required. The court found no due
process violation, assuming arguendo that such
principles applied. Klase
v. State, supra at 162. The court
cautioned "against the admission into (sic) evidence of unnecessary
'lineup' identification of inanimate objects in the ordinary case." Id.
The
Coston case involved a lineup of motor vehicles. People v. Coston,
40 Colo.App. 205, 207‑208, 576 P.2d 182
(1977). The court concluded that there
was no right to have counsel present and that any suggestiveness of the
"lineup" affected only the weight to be given to the evidence, not
its admissibility.
(FNB.) Mass.Adv.Sh. (1979) 1527, 1541.
(FN3.) Often it would be desirable to conduct
a voir dire on a challenge based on a claimed
suggestive "confrontation" in the identification of an inanimate
object. If an identification was
unfairly suggestive, tainted perhaps by what the victim was told or by the
circumstances of the "confrontation," the question would then arise
whether the victim should be allowed nevertheless to give an in‑court
identification of the object because (a) the Commonwealth had shown that the in‑court
identification had a source independent of the unfair procedures (see
Commonwealth v. Jackson, 377 Mass. 319, ‑‑‑, 386 N.E.2d 15
(1979) (Mass.Adv.Sh.
(1979) 401, 416)) or possibly (b) the Commonwealth had shown that the
out‑of‑court identification was nevertheless reliable and was
itself, therefore, admissible (see Commonwealth v. Moon, 380 Mass. 751, ‑‑‑,
405 N.E.2d 947 (1980) (Mass.Adv.Sh. (1980) 1337, 1345)). In such situations, findings by the trial
judge are most important.
(FNC.) Mass.Adv.Sh. (1978)
2511, 2513‑2515, 2521‑2522.
(FN4.) Because we conclude that there should
be a hearing to determine the reasonableness of the search, we decline to
speculate on the result of that hearing.
We do note two opinions dealing with warrantless
searches of driveways that may be instructive.
In United States v. Humphries, 600 F.2d 1238, 1245 (9th Cir. 1979),
vacated on other grounds, 445 U.S. 956, 100 S.Ct.
1640, 64 L.Ed.2d 231 (1980), the court said: "Considering all of the
circumstances surrounding (the officer's) entry into the driveway and
identification of the Monte Carlo as the automobile previously stopped by BIA agents near the crash site, we conclude that the entry
and identification did not violate any reasonable expectation of privacy held
by (the defendant). The auto was visible
from the street. It does not appear from
the record that the driveway was enclosed by a fence, shrubbery or other
barrier. (The officer) did not move
bushes or other objects in order to make his observations."
In
United States v. Magana, 512 F.2d 1169, 1171 (9th Cir.), cert. denied, 423 U.S.
826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975), the court
said: "A driveway is only a semiprivate area. The expectation of privacy which a possessor
of land may reasonably have while carrying on activities on his driveway will
generally depend upon the nature of the activities and the degree of visibility
from the street. It would be equally
unwise to hold, as a matter of law, that all driveways are protected by the
Fourth Amendment from all penetrations by police officers as to hold that no
driveway is ever protected from police incursions. The test in each case should be that of
reasonableness, both of the possessor's expectations of privacy and of the
officers' reasons for being on the driveway."