Com. v. Roberts

Decision Date20 July 1972
PartiesCOMMONWEALTH v. Joseph L. ROBERTS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Whitney L. Scott, Brookline, for defendant.

William J. Doyle, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

QUIRICO, Justice.

These are appeals from a trial under G.L. c. 278, §§ 33A--33G, as amended, at which the defendant, then a person under seventeen years of age, was found guilty by a jury on indictments charging him with (1) armed robbery and (2) assault and battery by means of a dangerous weapon. The defendant assigns various errors as grounds for these appeals, including: (a) the denial of his motion to quash the indictments on the ground that the police prosecutor at a juvenile hearing suppressed certain evidence; (b) the denial of his pre-trial motion to suppress certain in-court identifications; (c) the denial of his motion for directed verdicts on the indictments; and (d) the denial of his motion to set aside the verdicts and dismiss the indictments. Portions of the evidence and certain facts found by the trial judge in ruling on the defendant's motion to suppress will be set forth as necessary in deciding the issues raised.

At approximately 4 P.M. on July 23, 1970, two boys, one of whom was armed with a pistol, robbed the Mission Hill Food Shop, a bakery in Roxbury. In the course of the robbery one the two boys shot and wounded William Baker, a co-owner of the shop.

The defendant was later charged with participating in the robbery and shooting, and his case was heard in the Boston Juvenile Court on September 15, 1970. Prior to, and at that hearing, the defendant was represented by appointed counsel. At the hearing each of five witnesses, more fully described later in this opinion, identified the defendant as one of the two boys who robbed the bakery.

At the conclusion of the hearing, the judge acting under G.L. c. 119, § 61, dismissed the juvenile complaint and ordered the defendant bound over for trial in the Superior Court as an adult. G.L. c. 119, § 75. Thereafter, during the trial in the Superior Court, three witnesses identified the defendant as the taller of the two boys who robbed the bakery, and two other witnesses testified that they saw the defendant fleeing from the shop on that day. The jury returned verdicts of guilty on both indictments. The various assignments of error which comprise the basis of his appeals will be considered separately.

A. THE DENIAL OF THE MOTION TO QUASH THE

INDICTMENT.

The defendant's first assignment of error relates to the denial of his 'Motion to Quash Indictment,' 1 which was based upon the alleged failure of the police prosecutor to disclose to the defendant's counsel at the juvenile hearing the fact that on the evening of the robbery Miss Burke and Miss Bates, the two salesgirls on duty at the bakery at the time of the robbery, had failed to recognize the defendant's photograph and had selected the photographs of two other boys as looking 'like' the robbers.

The Superior Court judge made no findings of fact in connection with his denial of the defendant's motion to quash. Thus, there was no express finding that, in fact, this information had not been disclosed to the defendant's counsel at the juvenile hearing, but the Commonwealth's brief argues on the basis that this information was first revealed to the defendant's counsel at the voir dire hearing prior to the trial in the Superior Court. Since the Commonwealth has argued on this basis, we accept as a fact that the defendant's counsel at the juvenile hearing did not have this information.

The facts surrounding this incident appear in the later findings by the judge in ruling on the defendant's motion to suppress evidence. At approximately 7:30 P.M. on the evening of the robbery the police had gone to the home of Miss Bates, where Miss Burke was also present. Both girls were shown three to four pictures while they were standing together. The defendant's photograph was among the group. They could not identify any of the photographs as depicting the perpetrators of the robbery and shooting and rejected the defendant's photograph because the face was 'too full' or 'too fat.' They had indicated earlier that the taller boy had a thin face. After viewing the pictures at the Bates home, the girls were taken to police headquarters, where they viewed about 200 pictures. They selected two pictures which 'looked like they were the two boys.' Neither picture was of the defendant.

The defendant claims that the failure to disclose this information to his counsel constituted the suppression of evidence which, he asserts in his brief, 'was material to the decision of the Juvenile Court judge to dismiss the delinquent child proceedings and order the issuance of a criminal complaint.' He contends that the nondisclosure of this information denied him due process of law under the Fourteenth Amendment to the United States Constitution, 2 citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and subsequent Federal court decisions.

The Commonwealth, however, makes the threshold argument that the due process standards enunciated in Brady v. Maryland, supra, and its progeny, do not apply here because the question of guilt or innocence here because the question of guilt or innocence is immaterial to a juvenile hearing which results only in a decision to dismiss the juvenile complaint and order the issuance of a criminal complaint under G.L. c. 119, § 75, as amended through sT.1964, c. 308, § 7. The Commonwealth contends that the purpose of such a hearing is 'merely to decide whether (to try) the defendant . . . as a delinquent child or as a criminal offender.'

Assuming, without deciding, that Brady v. Maryland, supra, and subsequent decisions regarding the due process aspects of suppression of evidence by the prosecution do apply to juvenile hearings such as the one involved here, nondisclosure of the information in question did not, on the facts of this case, constitute a denial of due process of law.

It should be noted at the outset that with respect to this information, there was no evidence of a 'deliberate refusal to disclose after a request, nor . . . (of) a deliberate suppression of evidence indicating a clear intention on the part of the prosecution to withhold from the defendant knowledge of its existence.' 3 COMMONWEALTH V. EARL, MASS., 283 N.E.2D 677, 679,A and cases cited. United States v. Keogh, 391 F.2d 138, 146--147 (2d Cir.). See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Consequently, this case falls into the 'category of cases . . . where the suppression was not deliberate . . . and no request was made, but where hindsight discloses that the defense could have put the evidence to not insignificant use.' United States v. Keogh, supra, 391 F.2d at 147. In such cases 'the problems of the courts and the wider interests of society unite to require a substantially higher probability that disclosure of the evidence to the defense would have altered the result.' United States v. Keogh, supra, at 148. See Commonwealth v. Earl, supra, Mass., b 283 N.E.2d 677.

Applying the preceding principle to this case, in light of the fact that three other eyewitnesses also identified the defendant at the juvenile hearing (see Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1250, cert. den. 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567; United States v. DeLeo, 422 F.2d 487, 490 (1st Cir.), cert. den. sub nom. DeLeo v. United States, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648), we are convinced, beyond a reasonable doubt (see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705), that there was not 'a substantially higher probability' that disclosure of this information to defence counsel at the juvenile hearing would have altered the result of that hearing. Accordingly, we hold that nondisclosure of the information in question, in the circumstances presented here, did not deprive the defendant of due process of law at the juvenile hearing, and that therefore there was no error in the denial of the defendant's motion to quash the indictments.

B. THE DENIAL OF THE MOTION TO SUPPRESS THE IN-COURT IDENTIFICATIONS.

Prior to the trial in the Superior Court, the defendant filed a motion to suppress all evidence of identifications of him (1) from photographs, (2) at a 'showup' during which two salesgirls on duty in the bakery at the time of the robbery observed him in a detention cell shortly before the hearing in Juvenile Court, (3) at the juvenile hearing, and (4) at the trial in the Superior Court. Following a voir dire hearing the judge suppressed all evidence of the identification at the detention cell 'showup,' but denied the motion to suppress in all other respects, and filed written 'Findings of Fact and Conclusions of Law on Defendant's Motion to Suppress.' The defendant duly excepted thereto. For convenience we discuss the defendant's contentions with reference to the various witnesses to which they apply.

1. The in-court identifications by Miss Bates and Miss Burke. By his second and third assignments of error the defendant contends that the in-court identifications by Miss Bates and Miss Burke, the two salesgirls on duty at the bakery during the robbery, should have been suppressed on the ground that they were 'tainted' by their confrontation of him while he was confined in the detention cell at the Juvenile Court. The defendant argues that the admission in evidence of their in-court identifications violated the due process clause of the Fourteenth Amendment to the Constitution of the United States.

At the voir dire hearing on the motion to suppress there was considerable evidence of the circumstances surrounding this confrontation, of the girls' prior opportunity to observe the perpetrators during...

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