Com. v. Bowden

• Decision Date: 09 January 1980
• Citation: 379 Mass. 472,399 N.E.2d 482
• Parties: COMMONWEALTH v. Horace BOWDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 482

399 N.E.2d 482

379 Mass. 472

COMMONWEALTH v. Horace BOWDEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1979.

Decided Jan. 9, 1980.

Robert L. Sheketoff, Boston, for defendant.

Kevin F. Driscoll, Asst. Dist. Atty. (Michael J. Traft, Spec. Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The defendant, Horace Bowden, was tried before a Superior Court judge and a jury. He was found guilty of murder in the first degree and of unlawfully carrying a handgun on his person. He was sentenced to imprisonment for his natural life on the first degree murder conviction and to a term of not less than two and one-half nor more than five years at the Massachusetts Correctional Institution at Walpole on the firearms conviction, to be served concurrently with the murder sentence. He appeals under G.L. c. 278, §§ 33A-33G, assigning as error various rulings on pretrial motions, jury instructions and admissibility of evidence. We reverse.

The facts disclosed at trial were as follows. On the evening of April 23, 1975, Frank Colvin was shot to death on the corner of Dearborn and Zeigler Streets in Boston. The police officers who arrived at the scene found two spent bullets, one next to the body and the other embedded in a window casing some distance away. The police questioned a cab driver who was sitting in his cab parked near the scene of the shooting. The driver, Jose Fernandes, also known as Jose Soares, had transported a passenger from 88 Brook Avenue to the corner of Dearborn and Zeigler Streets. Fernandes-Soares saw the man who had just been a passenger in his cab shoot the victim five or six times. He gave the police who arrived at the scene a description of the assailant.

The police officers went to 88 Brook Avenue and found the house locked. No one responded to their knock. These officers left and returned to District 2 headquarters. Shortly thereafter, the officers returned to 88 Brook Avenue to stake out the building. Several minutes later a cab came up Brook Avenue, and the officers observed that one of the two passengers, a male, appeared to look up and down the street. The cab then proceeded to 88 Brook Avenue, where it stopped and discharged two passengers, a female and a male who fit the description given by Fernandes-Soares.

After calling for and receiving additional police assistance, the officers knocked on the door, identified themselves as police officers and demanded entrance. It was not until the officers struck the door with a sledge hammer that their presence was acknowledged. The door was opened by the man the police saw entering the building, the defendant Bowden. After informing the defendant that he was sought for questioning in connection with a murder that had taken place shortly before, the officers searched the defendant for weapons. Four .38 caliber bullets were found in the pocket of a jacket he was wearing. He was arrested and read his Miranda rights.

While the officers were arresting the defendant, two other police officers conducted a search of the premises. One, an Officer Martin, proceeded down a hall where a woman was standing. He came on a partially opened door which led to a lighted cellar staircase. Observing what appeared to be ammunition at the foot of the stairs, Officer Martin went down the stairs into the basement. He seized several shell casings and proceeded to look behind objects that might conceal a person. Removing a tire in front of a "cubby area," Officer Martin saw a .38 caliber revolver in the tire. The gun was seized.

Following his arrest, the defendant was taken to District 2 headquarters where he was placed in a detention room. Fernandes-Soares, who was present at the station, was asked to look into the detention room. At different stages of the judicial proceedings, Fernandes-Soares gave radically inconsistent statements regarding his stationhouse identification of the defendant as the assailant. ¹ At trial Fernandes-Soares did testify that he positively identified the defendant when he looked in the detention room.

1. Pretrial Motions.

We first consider the defendant's assignments of error relative to the trial judge's denial of his pretrial motions. The defendant contends that the trial judge erred in (1) denying his motion to suppress evidence and (2) denying his motion to suppress identification testimony.

A. Motion to suppress evidence. The defendant filed a motion to suppress evidence seized as a result of a warrantless search of his person and residence. The judge filed a statement of findings and rulings on the motion which indicates that three searches had been made: a pat-down search of the defendant, a search of the basement of 88 Brook Avenue, and a search of the second floor of 88 Brook Avenue. The judge denied the motion to suppress as it pertained to the first two searches, but he allowed the motion in regard to the third search. Thus, the bullets found on the defendant's person were allowed in evidence, as were the shell casings and the .38 caliber revolver found in the basement. Other guns and ammunition found during the search of the second floor were suppressed.

The defendant challenges the denial of his motion to suppress and the admission in evidence of the bullets and the revolver on two grounds. First, he claims the arrest was illegal because the police did not have probable cause to arrest, and any evidence seized after the invalid arrest must be suppressed. Secondly, he claims that even if the police had probable cause to arrest, the warrantless search of his apartment was beyond the scope of a permissible search incident to a valid arrest.

The facts as found by the judge indicate that the police had probable cause to arrest the defendant. The judge summarized the facts as follows: "A person who had witnessed the shooting gave the police a detailed description of the alleged assailant. ² He also told police an address at which the assailant might be found. Acting upon this information, the police proceeded to Brook Avenue. While at Brook Avenue, they observed the defendant approach the apartment in a taxi cab. He made some suspicious movements in the cab which seemed to indicate he was concerned as to who might be on the street. When he got out of the cab, the police observed that he matched, in every detail, the description given by the eyewitness. When they knocked on the door and announced their presence as police officers, they received no response even though the police knew the defendant was in the apartment. They also observed someone looking at them from behind the shades."

The judge's subsidiary findings of fact are supported by the evidence before him, and we accept them. Commonwealth v. Valliere, 366 Mass. 479, 486, 321 N.E.2d 625 (1974). Probable cause to arrest has been defined as facts and circumstances within the knowledge of the police and of which they had trustworthy information which were "sufficient to warrant a prudent man in believing that the * * * (defendant) had committed * * * an offense." Commonwealth v. Perez, 357 Mass. 290, 300, 258 N.E.2d 1, 7 (1970), quoting from Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). When hearsay is the basis of action by the police, as it was in the instant case when the police relied on the information of the cab driver, the police must show a substantial basis for crediting the hearsay. Commonwealth v. Stevens, 362 Mass. 24, 283 N.E.2d 673 (1972). Stevens drew on Aguilar v. Texas, 378 U.S. 108, 112-116, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in holding that credibility is established by meeting two requirements: "(1) there should be underlying facts and circumstances indicating the informant's reliability, and (2) there should be underlying facts and circumstances on which the informant bases his information that the defendant is engaged in criminal activity." Commonwealth v. Stevens, supra 362 Mass. at 27, 283 N.E.2d at 675.

The defendant argues that the Commonwealth failed to produce evidence that the hearsay was credible under the two-pronged test set forth above. While it is true that the underlying facts and circumstances upon which the cab driver based his information were not brought out during the hearing on the motion to suppress, we conclude, nonetheless, that the motion was properly denied. First, the cab driver was not an "informant," but was instead an ordinary citizen. As was stated in Commonwealth v. Martin, --- Mass.App. ---, --- ^a, 381 N.E.2d 1114, 1117 (1978), "persons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of an investigation, are not informers." Unlike the anonymous informer, Fernandes-Soares was an ordinary citizen who witnessed a violent crime and as such could be regarded as reliable without any prior demonstration of his reliability. See United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977), collecting cases holding that the requirement of known reliability should be relaxed when dealing with eyewitnesses and participants in a crime.

Second, there was evidence presented at the hearing which showed corroboration of the cab driver's information by independent sources. Commonwealth v. Stevens, 362 Mass. 24, 27, 283 N.E.2d 673 (1972), as well as Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), hold that even if an informant's tip cannot meet the Aguilar criteria, the constitutional requirements are met if the tip is corroborated by other sources. See Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). We conclude the arrest was founded on probable cause and hence was lawful.

The police had the authority to conduct a search of the defendant incident to this lawful arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (19...