|
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. Storey, 378
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Stephen W. Silverman,
William T. Walsh, Jr., Asst. Dist. Atty., for the
Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, KAPLAN,
WILKINS and LIACOS, JJ.
HENNESSEY, Chief Justice.
On the
afternoon of
We
summarize the evidence as it was presented at trial. About
The
prosecution's case against the defendant consisted exclusively of circumstantial
evidence. Willie J. Thomas, a tenant
relations advisor for the Springfield Housing Authority, identified the
defendant, both out of court and at trial, as having been seated at a table in
the victim's kitchen about
[378 Mass. 314] Following the discovery of the victim's body, Thomas gave a
description to the police of the man seen in the
apartment. ([FN2]) On the same day,
later in the evening, Thomas was shown a number of photographs of individuals
roughly matching his description of the suspect. A photograph of a certain man was selected,
but, on viewing this individual face to face, Thomas determined that he was not
the man whom he had seen in the victim's kitchen. ([FN3]) On the sixteenth of September and
again on the seventeenth, Thomas viewed several additional trays of photographs
and subsequently identified Storey from an array of nine photographs as the man
in the apartment. In consequence, two
police officers were dispatched to Storey's place of employment, the Smith
& Wesson plant outside Springfield, in order to ask the defendant to come
to police headquarters. Storey acceded
to the officers' request, and at the station house Thomas viewed the defendant
standing by himself, opposite a glass door of an adjoining room, and positively
identified him as the man he had seen in the apartment on the day of the
crime. This identification was repeated
minutes later in the defendant's presence and again in court. Corroborating Thomas's identification of
Storey at trial was the testimony of another witness, Russell Flack, who, while
unable to identify the defendant positively, stated that between 12:30 P.M. and
1 P.M. on the day of the crime he heard gunshots and observed a person fitting
the defendant's description leaving the area of the victim's building.
Storey was
formally arrested after Thomas identified him at police headquarters. Captain James F. Williams of the Springfield
police promptly read the defendant his [378
Mass. 315] Miranda rights and then
questioned him as to whether he had fired a gun within the past two weeks. Storey admitted, Williams testified at trial,
to having fired a gun in the basement of his home. Storey also admitted, Williams stated, to
having had a sexual affair with the victim.
As a
result of these admissions, a search warrant was obtained for Storey's home,
where a .38 caliber Smith & Wesson revolver was found between the mattress
and box spring of his bed, and nine unfired .38 caliber cartridges, with nickel
plated casings and round‑nosed, copper‑jacketed projectiles, were
discovered in an inside pocket of a suit belonging to the defendant. ([FN4]) Over the defendant's objection, the
gun and bullets were introduced in evidence at trial. A prosecution ballistics expert, Corporal
George Windisch, ([FN5]) provided testimony that the defendant's gun, which was
of the same caliber as the murder weapon, had been fired at least two times
from two charge holes. Although Windisch
was unable to identify the gun as the murder weapon (due to extensive damage to
the spent projectiles found at the murder scene and recovered from the victim's
body), the witness was able to match the type of bullets found in the
defendant's coat to those discovered at the murder scene. Most significantly, Windisch stated that he
had never previously encountered such bullets bullets having a projectile with
a round copper nose and a lead base during his five and one‑half years'
experience and through thousands of examinations similar to those conducted
here.
Two
representatives of the defendant's employer, the Smith & Wesson company,
were also called as witnesses by the prosecution. Robert Allen, wage and salary administrator
of the plant, testified that Storey worked the 3 P.M. to 11 P.M. shift and was
assigned the task of putting [378
Mass. 316] stocks on revolvers. James Isom, serial administrator for all
firearms manufactured by Smith & Wesson, stated that the company did not possess
a record of a final disposition of the revolver found in the defendant's home,
which indicated, he explained, that the gun had not been sold by the
company. ([FN6]) In defense, Storey
called a single witness, Carl Majesky, a private investigator and formerly a
supervisor of the Firearms Identification Section of the State police, who
offered the opinion that the bullets found at the crime scene and those found
in the defendant's coat were not unusual.
On appeal,
Storey advances five arguments which he suggests warrant setting aside the jury
verdict finding him guilty of murder in the first degree: (1) that Thomas's
identification of the defendant was unnecessarily suggestive and so unreliable
that it should have been suppressed; (2) that statements made by the defendant
to the police should have been suppressed because they resulted from an arrest
without probable cause; (3) that the trial judge erred in admitting in evidence
the defendant's gun without a curative instruction indicating that it had not
been proved to be the murder weapon; (4) that the prosecutor addressed improper
remarks to the jury in his closing argument; and (5) that the Commonwealth
failed to prove premeditation beyond a reasonable doubt. Because we are unpersuaded by all the
defendant's arguments, we conclude that the conviction should not be disturbed.
[1] 1.
Thomas's identification of Storey. We
turn initially to the defendant's contention that his identification by Thomas
should have been suppressed because it was unnecessarily suggestive. The gravamen of the defendant's argument is
that the use of a one‑on‑one showup by the police is improper where
no exigent circumstances exist [378
Mass. 317] to excuse or justify the
failure to employ an available lineup facility.
Since the police had ample time and adequate physical facilities to
conduct a lineup to determine if Thomas could identify the defendant, the
defendant contends that the police erred in utilizing a less formal showup
procedure.
[2][3] We
disagree. As has been frequently
suggested by this court and others, one‑on‑one confrontations,
whether photographic or in person, while often disfavored, are not subject to a
rule of per se exclusion. Commonwealth
v. Venios, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNA]), 389 N.E.2d 395 (1979). Commonwealth v. Jackson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNB]), 386 N.E.2d 15
(1979). Commonwealth v. Nolin, 373 Mass.
45, ‑‑‑ ([FNC]), 364 N.E.2d 1224 (1977). Nassar v. Vinzant, 519 F.2d 798, 801 (1st
Cir. 1975). State v. Middleton, 170
Conn. 601, 606, 368 A.2d 66 (1976).
Although such confrontations pose particularly serious dangers or
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.
See Commonwealth v. Chase, 372 Mass. 736, ‑‑‑ ([FND]),
363 N.E.2d 1105 (1977); Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343
(1968). But see Biggers v. Tennessee,
390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968) (Douglas, J., dissenting). Rather, the test to be applied in measuring
the constitutional sufficiency of single person confrontations under the due
process clause is simply whether the confrontation is unnecessarily suggestive
of the defendant. Commonwealth v. Venios,
supra, ‑‑‑ Mass. at ‑‑‑ ‑ ‑‑‑
([FNE]), 389 N.E.2d 395. Commonwealth v.
Dougan, ‑‑‑ Mass. ‑‑‑, ‑‑‑
([FNF]), 386 N.E.2d 1 (1979).
Commonwealth v. Marini, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNG]), 378 N.E.2d 51 (1978). Commonwealth v. Botelho, 369 Mass. 860, 867,
343 N.E.2d 876 (1976).
See Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 54 L.Ed.2d 424
(1977); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968); Stovall v. Denno, 388 U.S. 293, 301‑302, 87 S.Ct. 1967, 18
L.Ed.2d 1199 (1967).
[4]
Applying this standard to the case before us now, we are aware of no reason to
believe that the pretrial identification of the defendant by Thomas was in any
way [378 Mass. 318] unnecessarily suggestive. ([FN7]) During parts of three days prior to
and including the day he identified the defendant, Thomas viewed photographs of
potential suspects. On the night of
September 15, the day of the crime, he examined an estimated fifty photographs;
the following day he viewed several additional trays of photographs; and
finally, on September 17, he selected a picture of the defendant from an array
of nine photographs. No claim has been
made that the photograph of the defendant was presented in such a way as to
suggest the defendant was suspected of the crime by the police. Compare Commonwealth v. DeBrosky, 363 Mass.
718, 297 N.E.2d 496 (1973), with Commonwealth v. Kazonis, 356 Mass. 649, 255
N.E.2d 333 (1970). Moreover, we can
assume from the deliberate manner in which the witness scanned photographs over
this three‑day period that the police exerted no pressure on Thomas to
select hastily the photograph of the defendant.
That the police refrained from attempting to influence Thomas's
identification would seem to be indicated by the fact that, after Thomas made a
tentative identification of the man believed to have been in the victim's
apartment, he evidently felt free to reject his own earlier determination. Additionally, there is no hint in the record
that the "in person" confrontation between the witness and the
defendant was improperly suggestive.
Indeed, the record indicates that the police said nothing to Thomas
regarding the defendant during the period between the witness's selection of
Storey's photograph and the time when that identification was verified by the
one‑on‑one station house showup.
[5]
Although we recognize that informal identification procedures, whether they
occur at the scene of the crime or in the station house, can be both
constitutionally permissible and useful tools of criminal investigation, see
Commonwealth v. Alicea, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNH]), 331 N.E.2d 144 (1978); Commonwealth v.
Barnett, 371 Mass. 87, ‑‑‑ ‑ ‑‑‑
([FNI]), 354 N.E.2d 879 (1976), cert. [378
Mass. 319] denied, 429 U.S. 1049, 97
S.Ct. 760, 50 L.Ed.2d 765 (1977), our approval of these techniques is strongly
qualified by the observation that prosecutors, and the public they represent,
may often stand to benefit at trial through the use of formal identification
techniques which are more easily viewed as inherently fair and accurate. Commonwealth v. Botelho, supra, 369 Mass. at
874, 343 N.E.2d 876. See Commonwealth v.
Dickerson, 372 Mass. 783, ‑‑‑ ([FNJ]), 369 N.E.2d 1145
(1977). As Judge Carl McGowan has noted,
"(a)n identification made at a lineup with counsel present is more likely
to impress the jury than any number of vehement assertions from the witness
stand that the defendant is the man."
McGowan, Constitutional Interpretation and Criminal Identification, 12
Wm. & Mary L.Rev. 235, 241 (1970).
([FN8])
Since we
are convinced that the identification procedure used by the police in the
instant case may be upheld under an approach which considers the suggestiveness
of the confrontation, we need not decide here whether we will follow the
usually
more lenient "reliability" standard in determining the
admissibility of identification evidence in cases where an improperly
suggestive confrontation has occurred.
([FN9]) Similarly, because we hold that the pretrial identifications of
the defendant were not constitutionally[378
Mass. 320] infirm, we need not consider if Thomas's in‑court
identification was adequately based on observations of Storey independent from
any improper pretrial identification procedure.
See Commonwealth v. Clifford, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNK]), 372 N.E.2d 1267 (1978). See generally Commonwealth v. Venios, supra
at ‑‑‑ ‑ ‑‑‑ [FNL], 389 N.E.2d 395.
2.
Probable cause. The defendant next
argues that his arrest in the station house, following the in‑person
identification of him by Thomas, was unsupported by probable cause. In consequence, he contends, all evidence
obtained as a result of the arrest most particularly the admissions he made to
Captain Williams, and the gun and bullets found in his home should have been
excluded at trial. See Brown v.
Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Cf. Commonwealth v. Alicea, supra at ‑‑‑
[FNM], 381 N.E.2d 144. Although it is
conceded that this issue is presented for the first time here and that no
probable cause hearing was ever requested below, the defendant nevertheless
seeks our review, citing the broad powers granted this court under G.L. c. 278,
s 33E.
The
defendant's argument is weakened, and our task is made more difficult, by the
defendant's failure to raise the issue at trial. When a matter so central to the
Commonwealth's case against a criminal defendant as the existence of probable
cause is belatedly raised, it may be argued that the contention is either
frivolous or a recognition of poor trial tactics. See Commonwealth v. Johnson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNN]), 373 N.E.2d 1121
(1978). Moreover, without the benefit of
a record from a lower court hearing addressed to the specific issue, an
appellate court is ill equipped to determine questions such as the one presented
here viz., whether a police officer had probable cause to arrest the
defendant. Because hearsay that is
admissible for purposes of probable cause determinations, see Commonwealth v.
Lehan, 347 Mass. 197, 196 N.E.2d 840 (1964), will often be inadmissible if not
immaterial or irrelevant at trial, the trial record alone may never present a
truly accurate reflection of the arresting officer's state of mind. A trial
[378 Mass. 321] transcript
standing by itself is thus an inadequate substitute for the record of a full
hearing on the matter prior to the commencement of trial.
[6]
Despite the handicap posed by the defendant's failure to raise this issue
earlier, we still are able to find, on the basis of the trial transcript and of
the transcript of the hearing of the defendant's motion to suppress Thomas's
identification, sufficient evidence that the police had probable cause to
arrest Storey. As the standard is most
often formulated, probable cause exists where, at the moment of arrest, the facts
and circumstances within the knowledge of the police are enough to warrant a
prudent person in believing that the individual arrested has committed or was committing an offense. Commonwealth v. Haas, 373 Mass. 545, ‑‑‑
([FNO]), 369 N.E.2d 692 (1977).
Commonwealth v. LeBlanc, 373 Mass. 478, ‑‑‑ ([FNP]),
367 N.E.2d 846 (1977). Commonwealth v.
Snow, 363 Mass. 778, 788, 298 N.E.2d 804 (1973). Commonwealth v. Andrews, 358 Mass. 721, 723,
267 N.E.2d 233 (1971). Beck v. Ohio, 379
U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
1 W.R. LaFave, Search and Seizure s 3.4 (1978).
[7] We
believe that this test was met by Thomas's positive identification of the
defendant as the man he saw seated in the victim's kitchen shortly before the
time of Wilson's death, see Commonwealth v. Boswell, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNQ]), 372 N.E.2d 237
(1978), coupled with the absence of any evidence of other suspects, such as an
intruder, ([FN10]) see Commonwealth v. Haas, 373 Mass. 545, ‑‑‑
‑ ‑‑‑ ([FNR]), 369 N.E.2d 692 (1977) (Hennessey, C. J.,
concurring in part, dissenting in part).
In brief, trustworthy evidence ([FN11]) made it clear that an offense
had been committed[378 Mass. 322]
and that one particular person had been on the scene at or near the time
of its commission. See United States v.
Cooperstein, 221 F.Supp. 522, 526 (D.Mass.1963). Although our examination is unfortunately
truncated, we think it yet possible to conclude that the police had ample
justification to believe that Storey "more probab(ly) than not" had
killed the victim. See Commonwealth v.
Cruz, 373 Mass. 676, ‑‑‑ ([FNS]), 369 N.E.2d 996 (1977).
[8] 3.
Admission in evidence of the defendant's gun.
The defendant further maintains that the introduction in evidence of the
revolver seized from his apartment was erroneous because the gun was not directly
proved to be the murder weapon and because its introduction was not accompanied
by appropriate limiting instructions.
We discern
no error. The gun was correctly admitted
in evidence because it was clearly relevant to show that the defendant had
readily available means of committing the offense. Commonwealth v. Watkins, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ‑‑‑
([FNT]), 379 N.E.2d 1040 (1978).
Commonwealth v. Roach, 108 Mass. 289 (1871). See 1 Wharton's Criminal Evidence s 157 (13th
ed. 1972). Whether or not the gun in
question was in fact the murder weapon was an issue the jury surely understood.
The cases
cited by the defendant, Commonwealth v. Ellis, 373 Mass. 1, 364 N.E.2d 808
(1977), and Commonwealth v. Russell, 2 Mass.App. 293, 311 N.E.2d 581 (1974), do
not speak to the facts of the instant case.
In both of these cases, unlike here, the prosecution admitted that the
murder weapon had not been recovered. In
order to provide a display for the jury, specially purchased firearms, similar
to those alleged to have been used in the crime, were introduced in
evidence. Because these guns bore no
connection to the defendants, limiting instructions were deemed necessary to
mitigate [378 Mass. 323] the unfairness of the firearms'
obviously prejudicial effects.
[9] 4.
Unfair prosecution argument. The
defendant also challenges two aspects of the prosecutor's closing argument to
the jury as unfair and prejudicial.
First, Storey alleges that the prosecutor made impermissible comments
concerning his refusal to testify and his motives in exercising his right to
trial by jury. Secondly, the defendant
asserts that the prosecutor attempted to fill "a vital missing link"
in his case by stating certain facts not in evidence. Although the defendant neither objected nor excepted
to these incidents, we nonetheless consider it proper, given our powers of
review in capital cases under s 33E, "to examine the alleged prejudicial
statements against the background of the entire case to determine if a
miscarriage of justice has occurred."
Commonwealth v. Nordstrom, 364 Mass. 310, 314, 303 N.E.2d 711, 713
(1973). However, on close viewing of the
alleged prosecutorial improprieties in the content of the trial, we are unable
to find anything so egregious as to require reversal of the defendant's
conviction.
[10][11]
The defendant's first claim of prosecutorial misconduct focuses on two
particular remarks. In one, the
prosecutor rhetorically asked the jury, "(H) ave you heard word one from
the defendant as to what took place down at the police station?" In the other, the prosecutor said the
following: "We told you at the beginning of this case that the
Commonwealth could not bring a man in and say, yes, ladies and gentlemen of the
jury, that bullet taken from that young lady's body was fired from this
defendant's gun. Do you think we would
be here today if we could have said that?
Do you think we could have had a trial?
Of course not, we wouldn't have had a trial." While we agree that both comments would have
been better left unsaid, neither in our opinion reaches the level of
condemnation achieved by prosecutorial remarks in cases like Commonwealth v.
Shelley, ‑‑‑ Mass. ‑‑‑ ([FNU]), 373 N.E.2d
951 (1978), Commonwealth v. Burke, 373 Mass. 569, 369 N.E.2d 451 (1977), or
Commonwealth[378 Mass. 324]
v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977). As read in the context of the entire
argument, we think that the first remark was directed more at the general
weakness of Storey's defense than toward the defendant's own failure to testify. Cf. Commonwealth v. Costello, 5 Mass.App. ‑‑‑
([FNV]), 363 N.E.2d 1119 (1977); Commonwealth v. Morrison, 1 Mass.App. 632, 305
N.E.2d 518 (1973). With regard to the
second remark, we question whether it was prejudicial at all. In any event, we are satisfied that the
brief, indeed fleeting, nature of these comments, together with clear
instructions by the judge that opening and closing statements are not evidence,
see Commonwealth v. Gouveia, 371 Mass. 566, ‑‑‑ ‑ ‑‑‑
([FNW]), 358 N.E.2d 1001 (1976); Commonwealth v. DeChristoforo, 360 Mass. 531,
536‑538, 277 N.E.2d 100 (1971), prevented these remarks from having an
impact on the jury's verdict.
[12][13]
The defendant also contends, however, that the prosecutor abused the standards
of fair closing argument by stating facts not in evidence namely, that Russell
Flack had signed a pretrial statement in which he identified the defendant as
the man he saw leaving the victim's building.
It is, of course, beyond dispute that a prosecutor commits error when he
uses closing argument to argue or suggest facts not previously introduced in
evidence. Commonwealth v. Shelley, supra
at ‑‑‑ [FNX], 373 N.E.2d 951.
Commonwealth v. Johnson, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNY]), 373 N.E.2d 1121 (1978). But the prosecutor's statement that the
defendant challenges was based essentially on Flack's own trial testimony, not
on matters extraneous to the trial.
Flack, in fact, had signed a statement identifying a specific
individual, and he indicated at trial that he had done so. When Flack failed to make an in‑court
identification of Storey, the prosecutor evidently believed that the members
of the jury deserved an explanation, because they had been promised in opening
argument that Flack would identify the defendant during the course of the
trial. ([FN12]) In these circumstances
it appears [378 Mass. 325] plain that the prosecutor's motives
were proper. The prosecutor was not
attempting to deceive the jury by misrepresenting the evidence introduced
during the trial. ([FN13]) The prosecutor's
objective, as revealed in the context of his closing argument, was simply to
defend his credibility, and that of his case, by pointing out contradictions
and inconsistencies in the witness's testimony.
Cf. Commonwealth v. Reddick, 372 Mass. 460, 362 N.E.2d 519 (1977).
5.
Premeditation; s 33E. Finally, as an
alternative disposition, the defendant urges us to invoke our s 33E powers to
reduce his conviction to murder in the second degree. Storey predicates his application on the
contention that the evidence presented at trial could not support a finding of
"deliberately premeditated malice aforethought." See Commonwealth v. McInerney, 373 Mass. 136,
365 N.E.2d 815 (1977).
[14][15]
We reject the defendant's argument. In
our judgment, the trial produced sufficient evidence from which a jury [378 Mass. 326] could conclude beyond a reasonable doubt that the defendant had
killed the victim with malice and deliberate premeditation. Evidence was received that the victim was
shot more than once, see Commonwealth v. Caine, 366 Mass. 366, 374, 318 N.E.2d
901 (1974), and that a fatal shot entered her body while she was lying on her
back. Accordingly, the jury could
reasonably have inferred that the victim had been inflicted with a mortal wound
after she had been felled and rendered helpless. Such facts are legally sufficient to prove
premeditation. See 1 Wharton's Criminal
Evidence s 135 (13th ed. 1972).
The facts
of this case, we think, may be reviewed as roughly similar to those in
Commonwealth v. Stirling, 351 Mass. 68, 218 N.E.2d 81 (1966). In that case, as here, there were no
eyewitnesses to the crime. However, in
Stirling we held and we do so herein that the chain of circumstantial evidence
was so strong that it could properly persuade a jury of the defendant's
guilt. See Commonwealth v. LeBlanc, 373
Mass. 478, ‑‑‑ ([FNZ]), 367 N.E.2d 846 (1977). But see Commonwealth v. Fancy, 349 Mass. 196,
200, 207 N.E.2d 276 (1965).
In
conclusion, our examination of the entire record pursuant to this court's duty
under s 33E reveals no reason in justice why we should disturb the jury
verdict.
Judgment
affirmed.
(FN1.) "He never smiled, there was a
scowl on his face (despite) the fact that he was playing with a child. Usually I associate playing with a child and
a smile and happiness, that did not occur," Thomas stated.
(FN2.)
Thomas described the man he had seen as being five feet, nine inches tall, 175‑180
pounds; as having a "pop gut," full mustache, and hair cut short; and
as wearing a blue midwaist jacket and medium gray cotton pants.
(FN3.)
Thomas found the suspect to be heavier and to have longer hair than the man he
witnessed at the murder scene.
(FN4.)
The specific location of these objects had been provided by Storey himself.
(FN5.)
Windisch, at the time of trial, was an officer in the Massachusetts State
police assigned to the Firearms Identification Section.
(FN6.)
This conflicted with Storey's statement, offered immediately following his
arrest, that he bought the gun and ammunition from an unknown seller in New
Jersey two weeks earlier.
FNa.
Mass.Adv.Sh. (1979) 1184, 1190‑1191.
FNb.
Mass.Adv.Sh. (1979) 401, 418.
FNc.
Mass.Adv.Sh. (1977) 1503, 1510.
FNd.
Mass.Adv.Sh. (1977) 1287, 1294.
FNe.
Mass.Adv.Sh. (1979) at 1187‑1188.
FNf.
Mass.Adv.Sh. (1979) 380, 396.
FNg.
Mass.Adv.Sh. (1978) 1701, 1711.
(FN7.)
We note with regret that the judge made no findings of fact in denying the
defendant's pretrial motion to suppress Thomas's identification.
FNh.
Mass.Adv.Sh. (1978) 2707, 2715‑2716.
FNi.
Mass.Adv.Sh. (1976) 2276, 2282‑2283.
FNj.
Mass.Adv.Sh. (1977) 1344, 1353.
(FN8.)
Weaknesses in identification procedures, of course, may be considered by the
jury in its determination of the weight of the identification. Commonwealth v. Jones, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1978) 1467, 1474), 377 N.E.2d 903
(1978). Commonwealth v. Funderberg, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(Mass.Adv.Sh. (1978) 601, 606‑607),
373 N.E.2d 963 (1978).
(FN9.)
See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140
(1977). Under the rule of Manson, the
reliability of the witness is the "linchpin" in determining the
admissibility of identification evidence.
This court has yet to address a case squarely raising the question whether
reliable identification evidence could be admitted where an unnecessarily
suggestive confrontation has taken place.
Commonwealth v. Rodriguez, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (Mass.Adv.Sh.
(1979)), 391 N.E.2d 889 (1979).
Commonwealth v. Venios, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (Mass.Adv.Sh.
(1979) 1184, 1189), 389 N.E.2d 395.
Cf. State v. Cefalo, 396 A.2d 233, 236‑240 (Me.1979). As we advised in Venios, supra at ‑‑‑
(Mass.Adv.Sh. (1979) at 1190), 389 N.E.2d 398, however, "judges who must
make findings with respect to challenged identification procedures should
direct their attention to the issues framed by our prior cases as well as to
the 'reliability test.' " See Neil
v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), for a
recital of factors germane to reliability.
FNk.
Mass.Adv.Sh. (1978) 214, 230.
FNl. Mass.Adv.Sh. (1979) at 1192‑1193.
FNm. Mass.Adv.Sh. at 2713.
FNn. Mass.Adv.Sh. (1978) 431, 446‑447.
FNo. Mass.Adv.Sh. (1977) 2212, 2224.
FNp. Mass.Adv.Sh. (1977) 2114, 2122.
FNq. Mass.Adv.Sh. (1978) 177, 181.
(FN10.) Sergeant William Fitchet of the
Springfield police department, one of the officers who was sent to the victim's
house after Sandra Crump discovered her body, testified that the house was in
good order and that there was no evidence of a burglary.
FNr. Mass.Adv.Sh. (1977) 2212, 2241‑2242.
(FN11.) Thomas was a respected member of the
community, a tenant‑relations advisor for the Springfield Housing
Authority, who supervised an estimated 1,200 apartments. At midday on the day of the crime, he had
opportunity to observe the man he subsequently identified as the defendant from
no more than five feet away. During this
view, he paid rapt attention to this individual, who he said was seated at the
victim's kitchen table. Then, at police
headquarters, he exhibited marked deliberation in choosing the photograph of
the defendant as the man seen in the victim's apartment. Finally, in confronting the defendant only
two days after the crime Thomas identified Storey without equivocation.
FNs. Mass.Adv.Sh. (1977) 2395, 2404.
FNt. Mass.Adv.Sh. (1978) 1646, 1672‑1673.
FNu. Mass.Adv.Sh. (1978) 448.
FNv. Mass.App.Ct.Adv.Sh. (1977) 706.
FNw. Mass.Adv.Sh. (1976) 2877, 2883‑2884.
FNx. Mass.Adv.Sh. (1978) at 453.
FNy. Mass.Adv.Sh. (1978) 431, 438.
(FN12.) In relevant excerpt, the prosecutor
said in closing argument: "I did default on one aspect in this case, and
it has bothered me that I have defaulted on that aspect of that case, that is
when I told you I was going to bring a witness in here, Mr. Rusty Flack, who
would come in and tell you that he had identified a man, known to him on prior
occasions, exiting from the crime scene moments after he heard the two
shots. And I defaulted on that, because
you saw Mr. Rusty Flack come in here and I asked him the preliminary questions:
'Did you see a man?' 'Yes.' 'Would you
look around this courtroom and pick this man out?' He stated that he looked around the
courtroom, he says, 'No, I can't pick him out.'
And I defaulted, that is the fellow I was going to bring in here to show
you that this defendant had exited that building from that building area
moments after the firing of those two weapons two gunshots. Then I said to Mr. Flack, 'Well, wait a
minute, now, you gave a statement to the police on August 17, 1977, where you
named a person known to you exiting from that apartment.' 'Yeah, that's right,' he said, 'yes, I did
name the man to the police.' That's what
I based my contract on; he named the man to the police."
(FN13.) Although the evidence introduced
before the jury did not disclose that Flack in his statement had identified the
defendant as the man seen, we have examined, by agreement of the parties, a
copy of that statement and it establishes that the prosecutor could reasonably
have expected Flack to provide an in‑court identification of the
defendant. Flack specifically identified
the defendant in the statement given the police.
FNz. Mass.Adv.Sh. (1977) 2114, 2128.