Com. v. Correia

• Decision Date: 02 July 1980
• Parties: COMMONWEALTH v. Joseph Fernandes CORREIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1216

407 N.E.2d 1216

381 Mass. 65

COMMONWEALTH v. Joseph Fernandes CORREIA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1980.

Decided July 2, 1980.

Brian Kanner, Boston University Law Student (John Leubsdorf, Boston, with him), for defendant.

M. Ashley Brown, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

Joseph Fernandes Correia was indicted on September 28, 1977, for murder, arising out of his alleged participation in an attempted bank robbery, during which one Alphonse Puzan, a security guard, was shot and killed. Before trial he filed motions to suppress lineup and expected in-court identifications of him by three persons as a participant in the robbery. After a hearing on the motions which lasted six days, a judge of the Superior Court granted the motions as to one witness, Gary David, and denied them as to two other witnesses, Debra Mark and Mitchell Fischman. At the defendant's trial, both Mark and Fischman testified to their lineup identifications of the defendant, and identified him in court. He was convicted of murder in the first degree.

The defendant appeals his conviction under G.L. c. 278, §§ 33A-33G, and assigns as error (1) the admission of in-court and out-of-court identifications by Mark and Fischman, and (2) jury instructions relating to the crime of attempted armed robbery. We hold that there was no error, either as to the identification evidence or as to the jury instructions, and, accordingly, we affirm the judgment of conviction.

I. Findings of Fact by the Motion Judge.

We review the facts found by the judge on the motion to suppress to the extent necessary to our disposition of this appeal. On February 20, 1976, at about 1:57 P.M. the branch office of The First National Bank of Boston, at Government Center, was the subject of an attempted armed robbery by two white males wearing wigs and sunglasses. One of the robbers accosted the bank guard and shot him twice in the chest. The other robber, also armed and carrying a shopping bag, vaulted over the counter into the tellers' area, dropped his gun, retrieved it, and after a few seconds jumped back over the counter without taking any money. Both robbers fled on foot. A shopping bag containing gold-rimmed eyeglasses was found behind the bank counter. A wig and a pair of sunglasses were found behind a column a short distance from the bank.

Debra Mark (Mark) was on duty as a teller at the bank at the time of the robbery attempt. She testified at the hearing on the motion to suppress that she observed the second robber (referred to by the police as "the vaulter") for three to four seconds as he ran toward her, and for an additional nine to fourteen seconds while he was behind the counter, within two feet of her. During this time she was "extremely scared and nervous."

She described the "vaulter" as a white male, five feet eight inches to five feet nine inches tall, 140 pounds, with curly "flyaway" hair, light brown in color with blond streaks, wearing sunglasses, white gloves, a blue waist-length jacket and blue trousers. She noticed that he had a fair complexion, was agile in his movements, and was carrying a gun.

The wig of light brown hair with blond streaks which was found a short distance from the bank was identified by Mark as similar to the wig worn by the "vaulter" she saw in the bank.

Within a day or two after the incident she further described the "vaulter" to an F.B.I. agent as a white male in his early twenties, no taller than five feet eight inches, with fair eyebrows, a light complexion and "standard features," wearing blue pants, shoes (not sneakers) and sunglasses that kept sliding off his face, and carrying a gun in his right hand.

She subsequently described the person to a different F.B.I. agent as a "white male, early twenties, approximately five foot six inches to five foot seven inches, husky but not fat, light complexion, light brown curly hair, might have worn a wig, sunglasses, blue jacket and blue pants, good teeth, needed a shave."

Mitchell Fischman (Fischman), a customer in the bank when the incident occurred, heard a shot and immediately crouched down where he stood near a customer counter at the far end of the bank lobby. He saw the "vaulter" run toward the tellers' windows, leap through one, and then leap back out and run toward the door. He observed the vaulter from the rear as the latter approached the windows and from the side as he left, and saw him in all for a total of about six seconds. He was then unable to tell with certainty whether the person he saw was male or female, but he obtained a general "impression of the face." He later described the person as a white male in his early twenties, with a thin, elongated face, possibly dark hair, and wearing a dark jacket. Neither Mark nor Fischman had viewed the robber who had fired the shots.

A. First (Boston Police) Photographic Array.

Almost immediately after the robbery attempt and shooting, members of law enforcement agencies arrived at the bank and began an investigation, including interviewing witnesses to the crime. That same afternoon a detective of the Boston police department showed Debra Mark three books containing together over two hundred "mug shot" photographs. In showing the photographs to Mark the detective indicated that she should view the photographs carefully since participants in bank robberies frequently wore disguises. In mentioning this, he pointed as an example to two photographs of the defendant appearing on the first page of one book, one depicting him without a disguise and the other showing him wearing sunglasses and a black wig. The picture showing the defendant with no disguise had been taken some years earlier when he was slimmer and more youthful appearing and had shorter hair. Mark "discounted the pictures immediately" as not showing the man she had seen. Other bank employees also viewed the photograph books and gave descriptions of varying generality to the police, but none made any identification of possible suspects.

B. Second and Third (F.B.I.) Photographic Arrays.

As a result of further information and investigation not put in evidence, the suspicion of law enforcement officers began to rest on the defendant and one Stanley Ulatowski as the perpetrators of the crime. The Federal Bureau of Investigation (F.B.I.) prepared two photographic arrays of relevance here. The first was a display consisting of ten photographs of persons wearing wigs and sunglasses (Exhibit 2), and included one photo each of the defendant and Ulatowski. This photographic display did not unduly highlight either suspect. The photograph of the defendant was the same one which had been included in the Boston police book of photographs. The motion judge found that, "(d)espite this, it is so dissimilar from the other photos of Correia as to not readily cause a mental correlation and in effect to constitute a separate and distinct photo of him."

The second F.B.I. photographic display (Exhibit 3) consisted of various photographs of undisguised individuals, and also included one picture each of the defendant and Ulatowski. The picture of the defendant was the same one which appeared on the first page of the Boston police photograph book. This display was found to show a fair composition of various faces, hair styles, profiles and complexions consistent with some of the descriptions given by witnesses, and was not unduly suggestive with respect to the defendant.

On February 23, 1976, three days after the crime, Mark viewed Exhibits 2 and 3, and was unable to identify anyone shown therein. Fischman was shown Exhibit 3 on February 27, 1976, but he too was unable to make any identification. The judge found that the viewing of these arrays had no particular impact on either witness.

C. Final (Bank Security) Photographic Array.

A security agent of the bank prepared a photographic array (Exhibit 15) consisting of fourteen photographs. Three of these were of the defendant and three were of Ulatowski. Two of the pictures of the defendant were those included in the Boston police and F.B.I. arrays, and the third depicted him with longer hair and a moustache. Of the other pictures in the display, one was of a black man, although no witness had said that a black man had been involved, and another showed a white man with a crewcut hairstyle. Thus the judge found that the display functionally consisted of twelve photographs, of which three were of the defendant and three of Ulatowski. The judge found this display to be unduly suggestive of the defendant. Mark viewed this display on February 24, 1976, and again was unable to make an identification.

D. The Lineup.

On June 15, 1977, lineups were arranged at District One headquarters of the Boston police department, which were to be viewed by some thirty-six witnesses to five different bank robberies for which the defendant and Ulatowski were under suspicion. Mark and Fischman viewed two lineups, as did other witnesses to the First National Bank incident at issue here. One lineup was for the purpose of seeing if anyone could identify the defendant.

Before the lineups the witnesses were instructed not to talk to the others, and to "think back and recreate in their minds" what they had viewed at the incident. They were told to take as much time as they needed in viewing the lineup, and that after each part of the lineup was completed the witnesses could request the standees to perform such exercises as might assist them in making an identification. They were instructed that they could make identifications even though they were not a "hundred per cent positive" if they felt that certain characteristics of the standees resembled those of the perpetrators, and were told that two suspects would be participating in the lineups. The witnesses were given identification sheets which they...