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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. Vardinski, 438
Present:
Indictments found and returned in the Superior Court Department on
A pretrial motion to suppress evidence was heard by Suzanne V. DelVecchio, J.;
the cases were tried before her, and a motion for a new trial also was heard by
her.
After review by the
Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.
Chauncey B. Wood for the defendant.
MARSHALL, C.J.
A Superior Court jury convicted the defendant
of armed robbery, G. L. c. 265, § 17, and stealing by confining, G. L. c. 265,
§ 21. He was sentenced to a term of from nine to twelve years in a State prison
on the first indictment and three years' probation on the second indictment. No
physical evidence linked the defendant to the crime; the verdicts were based on
the victim's identification of the defendant from a photographic array compiled
by the police. The defendant appealed from his convictions and the denial of
his motion for a new trial, arguing in part that he had been unfairly denied
the opportunity to probe the reliability of the identification. The
The critical issue in this case is whether the defendant's constitutional and
statutory rights to present a defense and to cross-examine witnesses were
impermissibly limited by the judge's decisions (1) to preclude from evidence an
exact version of the "mugshot"[2] used to identify the
defendant, and (2) to prohibit the defense counsel from offering in evidence a
prior charge against the defendant listed on the "mugshot" form and
the disposition of that charge. We agree with the
1. Background. We recite the facts as summarized by the
What happened next is succinctly recounted by the
"Two days following the robbery, at the
request of Detective James Moy, Morrissey went to the police station to look at
photographs of possible suspects. Morrissey described the person who had robbed
him as a slightly built white male, approximately five feet, seven inches tall,
and weighing approximately 130 to 140 pounds, but . . . gave no particularized
details, such as the unusual hairline he testified at trial to having observed.
Detective Moy set up a photo array using a computerized photo imaging machine
-- essentially an electronic mug book -- by entering the general criteria
provided by Morrissey as to the perpetrator's race, height and weight. A
computerized data bank search generated the photographic images of 999 males
meeting these criteria, meaning that there were likely more males that met
these criteria but only the maximum number of 999 would be transmitted for
viewing. Morrissey was instructed that he would be viewing one image at a time,
and that by clicking on a computer 'mouse' button he could advance to the next
image after viewing each image for as long as he wished. At a certain point in
the process Morrissey selected a photograph, number 82, of 'the man that robbed
me.'[[3]] The photograph was of the defendant. Detective Moy printed a
copy of the photograph selected by Morrissey. This printout contained the
inscription 'Boston Police Department Mugshot Form' and included a front and
profile view of the defendant. The printout also set forth the defendant's name
and other identifying information, and listed a booking number, an October,
1997 booking date and the information that Anthony Vardinski had been arrested
for illegal possession of a firearm on that date.[[4]] Morrissey signed
the printout after viewing it, placing his signature on the front of the form
next to this printed information."
Commonwealth v. Vardinski, supra at 311. In
all, Morrissey viewed a total of 258 photographs. It should be noted that the
image on the computer screen, selected by Morrissey as the "carbon
copy" of the man who had robbed him, contained only the photograph of the
defendant; it contained no reference to the
After Morrissey had identified the defendant, law enforcement officials showed
a photograph of the defendant to Lieutenant Richard Leeman with the Veterans
Administration (VA) police department, who worked at the VA clinic across the
street from Morrissey's place of business and who was in the vicinity at the
time the crime was committed. Leeman, in turn, showed the photograph to a VA
patient, Jorge Lebron Colon. Both men said that they had seen the defendant in
the area, but could not confirm his presence there on the day of the crime.
Neither man could remember precisely when he had seen the defendant.
Prior to trial, defense counsel moved to suppress Morrissey's pretrial
identifications of the defendant.[5] The judge denied the motion. Having
lost this key ruling, defense counsel adopted mistaken identification as the
primary defense at trial. It is undisputed that the defendant was not permitted
to develop this defense in the manner he desired. Specifically, defense counsel
sought to introduce evidence that Morrissey's initial identification of the
defendant from the computer image was reinforced and tainted by Morrissey's
learning from the printed form of the mugshot he later signed that the
defendant had been booked on a prior firearms charge.[6] Defense counsel
raised no objection when the Commonwealth introduced in evidence the mugshot
signed by Morrissey that referenced the prior charge, but defense counsel did
object when the judge, after a discussion of the exhibit at a sidebar
conference requested by the Commonwealth, ordered the mugshot redacted before
being shown to the jury.[7] When defense counsel attempted to mention
the prior firearms charge and its disposition in his opening statement and
later to witnesses, the judge prohibited him from doing so over his numerous
and strenuous objections.[8]
In her charge, the judge did not include an instruction on "honest
mistake," although taken as a whole the instructions did alert the jury
that witnesses' identifications could be inaccurate. In the midst of their
deliberations, the jury asked to be reinstructed on the standard for reasonable
doubt. The judge repeated her instructions to the jury, and the jury returned
guilty verdicts on both indictments.
Thus, the jury had before them during their deliberations an inexact copy of
the printed mugshot that Morrissey signed, indicating only that Vardinski had
been booked for a prior charge, the date of the booking, and that the
photograph was a Boston police department mugshot. The jury had no information
that the prior charge was for firearms possession, although Morrissey had this
information at the time he signed and dated the photograph. Nor did the jury
(or Morrissey) have information that the prior firearms charge had been nolle
prossed. Against this backdrop, we consider the constitutional issues raised by
the defendant.
2. Constitutional claims. The defendant claims that his State and Federal
constitutional rights to present a defense and to cross-examine witnesses
pursuant to the Sixth Amendment to the United States Constitution and art. 12
of the Massachusetts Declaration of Rights were violated when the judge refused
to allow both a full cross-examination of the prosecution's witnesses and the
introduction in evidence of the signed identification photograph in its
original form.[9] See G. L.
c. 263, § 5.[10],[11] Because in this one witness identification
case the right to cross-examine is so closely linked to the right to put on a
defense, we shall discuss both under the more specific right to cross-examine.
We must determine, first, whether the defendant's constitutional rights were
violated, and, second, if a violation is found, whether reversal is warranted
because the error was not harmless beyond a reasonable doubt.
Cross-examination has been called "the greatest legal engine ever invented
for discovering the truth."
To determine whether the judge unreasonably limited cross-examination, "we
weigh the materiality of the witness's direct testimony and the degree of the
restriction on cross-examination." Commonwealth v. Miles, supra. Here, the
photographic identification was unarguably material. It was the only
investigatory tool that fixed suspicion on the defendant, "and both
prosecution and defense had an interest in arguing whether a positive
identification of the defendant on the basis of the photo array was
plausible." Commonwealth v. Smith,
Just as surely, the success of the defendant's misidentification theory rested
on the defendant's ability to instill reasonable doubt about the fairness and
integrity of the identification process. When the judge restricted the
defendant's ability to cross-examine Morrissey about his knowledge of the prior
firearms charge against the defendant and the disposition of that charge, she
eviscerated the defendant's trial strategy. The degree of restriction on
cross-examination, Commonwealth v. Miles, supra at 72, was extreme. We conclude
that the judge unreasonably limited the defendant's ability to cross-examine
Morrissey at trial, in violation of his Federal and State constitutional rights
to do. See id. at 71-73. See also Commonwealth v. Payton,
Because the defendant's constitutional right to cross-examine was abridged, we
must review the violation for prejudicial error. In Commonwealth v. Miles,
supra, we concluded that "[t]he admission of testimony obtained in
violation of a defendant's confrontation rights will not amount to reversible
error 'if the reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable doubt.'"
We consider several factors to determine whether the error was harmless:
"the importance of the witness' testimony in the prosecution's case,
whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution's case."
In this case, Morrissey's identification of the defendant was powerful. See
notes 2 and 4, supra. However, his identification was the only evidence
directly linking the defendant to the crime. To the extent that the
identification was corroborated at all, it was corroborated only by two
witnesses who placed the defendant in the general vicinity of the crime at some
nonspecific time before or after it had happened. Under the standards set forth
in Commonwealth v. DiBenedetto, supra, we cannot say that the restriction of
the defendant's right to cross-examine the victim was either insignificant or
harmless, let alone harmless beyond a reasonable doubt.[12] See id. The
challenged evidentiary rulings were not only prejudicial to the defendant's
strategy, they bolstered the Commonwealth's case by permitting Morrissey's
certainty about the identification to stand without being subject to full
cross-examination. Cf.
In so holding, we recognize that the judge may have assumed that she had an
independent duty to sanitize the mugshot in order to protect the defendant's
constitutional rights, even if this required her to override the defense's
chosen strategy.[13] In Commonwealth v. Day, 42 Mass. App. Ct. 242,
246-247 (1997), the Appeals Court determined that defense counsel's strategic
introduction in evidence of a flyer seen at a police station by two witnesses
prior to their identification of the defendant was manifestly unreasonable
where the flyer contained information that the defendant had a prior criminal
record, was armed and dangerous, and was a gang member. The court stated that,
regardless whether the defense or the prosecution had asked that the flyer be
redacted, the judge abused her discretion by allowing the flyer in evidence
without sanitizing it because of its highly prejudicial suggestion that the
defendant "had a prior record and propensity for criminality."
In this case the defendant's strategy relied on placing before the jury
evidence that in other circumstances would have been struck as unduly
prejudicial.
We also note that unless the defendant's strategy is "manifestly
unreasonable," a claim for ineffective assistance of counsel will not
succeed.
3. Issues likely to arise at retrial. Having determined that the defendant is
entitled to a new trial, we discuss briefly the remaining issues that are
likely to recur. First, defense counsel sought to introduce in evidence that
the prior firearms charge that led to the inclusion of the defendant's
photograph in the computer mugbook was nolle prossed because of mistaken
identity. The nolle prosequi, filed
Second, defense counsel argues that it was error for the judge not to instruct
the jury on "honest mistake" at the close of evidence. Defense
counsel never requested that instruction, nor did he raise the issue at the
postcharge conference. In the absence of a request, a judge is not required to
instruct the jury on "honest mistake."
Third, the defendant claims that the judge should have suppressed the
identifications of the defendant made by the two witnesses who placed the
defendant near the crime scene at indefinite dates because each was shown only
one photograph, that of the defendant, and this procedure was improperly
suggestive. These witnesses were asked only if they recognized the defendant.
Their identifications were not unnecessarily suggestive and need not be
suppressed.
Fourth, we agree with the
Fifth, the defendant argues that the admission in evidence of testimony that he
had been seen near the VA methadone clinic, and the prosecution's subsequent
use of that testimony in closing argument, was error. The defendant first
brought to the attention of the jury the issue of methadone, the judge ruled
that the witness could testify about his drug use and methadone treatment, and
the defendant did not object to the ruling or the testimony. There was no
error.
Finally, the defendant objected to some of the prosecutor's statements in his
closing argument. As a retrial is required, it will be for the defendant's
trial counsel to make timely and specific objections to any statements made in
closing argument that counsel considers unfair and for the judge to rule on
those objections in her sound discretion. Commonwealth v. Carlino, 429
4. Conclusion. For the reasons stated above, the judgments are reversed, the
verdicts set aside, and the cases are remanded to the Superior Court for a new
trial.
So ordered.
FOOTNOTES:
[1] As is our custom, we spell the defendant's name
as it appears on the indictments.
[2] A full frontal and profile photograph of an
individual is "commonly known as a mug shot."
[3] Morrissey testified at trial that the
eighty-second mugshot that he viewed "jumped right off the screen,"
and that the photograph was a "carbon copy" of the man who had robbed
him. He also testified that, "[i]t was unmistakable in my mind that this
is the man who had robbed me." Morrissey testified further that he looked
at the robber virtually the entire time because he was too afraid not to look
at him. On cross-examination, he did admit to looking away several times and
that at no time could he independently recall the robber's eye color.
[4] At trial, Detective Moy testified that he said
nothing to Morrissey about the defendant's prior criminal history.
[5] After Morrissey identified the defendant from the
photographic array, he identified the defendant from a lineup. Defense counsel
moved to suppress both pretrial identifications.
[6] To avoid a witness's exposure to potentially
prejudicial information concerning a suspect, the printout of a computer image
should contain no such information. Specifically, the printout should make no
reference to any criminal history of the suspect, nor should it contain any
other potentially prejudicial information, such as "Boston Police
Department Mugshot Form."
[7] The judge redacted from the mugshot the
description of the charge, "unlawful possession of a firearm," but
did not redact "Boston Police Department Mugshot Form" printed at the
top of the mugshot. Nor did she redact the information that the defendant had
been "booked" on
[8] At a bench
conference in the middle of defense counsel's opening statements, the
prosecutor and defense counsel agreed that the October, 1997, firearms charge
was nolle prossed. His opening statement continued:
Defense counsel: "[T]he little photograph shown to Mr. Morrissey . . .
indicates that [the defendant] was [previously] arrested for possession of a
firearm. That case, ladies and gentlemen, was dismissed and the police knew it
was dismissed --"
The prosecutor: "Objection, Your Honor."
Defense counsel: "knew that he was the wrong person."
Immediately thereafter, the judge sustained the objection and issued a curative
instruction to the jury.
[9] The defendant additionally argues that the judge
committed reversible error in denying his motion to suppress Morrissey's
identification from the photographic array and the subsequent lineup. Before
the judge, the defendant argued that the identification should be suppressed
because the identification procedure was impermissibly suggestive. On appeal,
the defendant argued instead that if the victim's identification is admitted in
evidence, the defendant's prior criminal history must necessarily be revealed
to his prejudice because of the procedures used by the police to secure the
identification. Because the suppression claims raised on appeal are not those
argued before the judge, the suppression argument is not properly before the
court, and we will not review it. Trustees of the Stigmatine Fathers, Inc. v.
Secretary of Admin. & Fin., 369
[10] The Sixth Amendment to the United States
Constitution provides, in part, that the accused has the right "to be
confronted with the witnesses against him." Article 12 of the
Massachusetts Declaration of Rights provides, in part, that "every subject
shall have a right to produce all proofs, that may be favorable to him; to meet
the witnesses against him face to face, and to be fully heard in his defense by
himself, or his counsel at his election." The defendant has also raised
claims based on G. L. c. 263, § 5, which provides: "A person accused of
crime shall at his trial be allowed to be heard by counsel, to defend himself,
to produce witnesses and proofs in his favor and to meet the witnesses produced
against him face to face." The defendant's statutory claims are identical
to his constitutional claims and, in any event, were only briefly discussed on
appeal. We shall not consider them separately.
[11] The defendant has not claimed that he was
denied the ability to procure any witnesses. Although a criminal defendant's
right to present a defense is guaranteed by the Sixth Amendment and art. 12,
see Commonwealth v. Dagenais, 437
[12] The Commonwealth claims that, because there was
no dispute that the identification was made from a mugshot, defense counsel was
not prevented from adequately cross-examining Morrissey in an attempt to show
that awareness of the defendant's prior charge influenced Morrissey's
identification. The Commonwealth ignores that the judge redacted information
showing that the defendant had previously been arrested for a firearms charge.
This information could have assisted the defense in demonstrating that the
prior arrest bolstered Morrissey's confidence in his initial identification of
the defendant, because both charges involved firearms.
[13] The judge did not sanitize all of the
potentially prejudicial information from the mugshot before it was shown to the
jury. See note 7, supra. Her partial redaction thus permitted the jury to
receive some, but not all of the information that was prejudicial to the
defendant. See Commonwealth v. Blaney, 387 Mass. 628, 639 (1982) ("where .
. . it is not reasonably possible to 'sanitize' completely photographs which
must be introduced, the jury are best left with the impression that any
photographs used to identify the defendant were taken after his arrest on the
charges for which he is being tried").
[14] The admissibility of the fact of that nolle
prosequi is discussed infra.
[15] The Commonwealth argues that the defendant
seeks to admit "reverse propensity evidence" and that such evidence
is inadmissible. Propensity evidence, evidence of a defendant's prior bad acts,
is not permitted because a jury may not convict an individual in the belief
that he or she may have a propensity for criminal behavior.