Com. v. Avery

• Decision Date: 16 June 1981
• Citation: 421 N.E.2d 787,12 Mass.App.Ct. 97
• Parties: COMMONWEALTH v. Douglas AVERY.
• Court: Appeals Court of Massachusetts

Page 787

421 N.E.2d 787

12 Mass.App.Ct. 97

COMMONWEALTH v. Douglas AVERY.

Appeals Court of Massachusetts, Hampden.

Argued April 30, 1981.

Decided June 16, 1981.

Murray Shulman, Springfield, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GREANEY and SMITH, JJ.

SMITH, Justice.

The defendant, among others, was the subject of four indictments: two for rape, one for assault and battery by means of a dangerous weapon, and one for assault and battery. The indictments involved the same victim. Before the trial in the Superior Court, the defendant filed a motion to suppress (1) pretrial identifications consisting of (a) his identification by the victim as a result of a photographic array; (b) his identification by the victim at a District Court just prior to the commencement of the probable cause hearing; and (2) the anticipated in-court identification. After a hearing that extended over seven trial days and almost seven hundred pages of transcript, a judge of the Superior Court denied the motion and filed detailed findings of fact and rulings of law. At the trial the victim testified as to the out-of-court photographic identification and also made an in-court identification of the defendant. The Commonwealth did not offer the pretrial District Court identification nor was it referred to at trial. ¹ The defendant has appealed from his convictions and assigns as error (1) the denial of his suppression motion which permitted the admission in evidence of the out-of-court photographic identification; and (2) the admission of of the in-court identification. One of the claims of the defendant as to the in-court identification is that it was fatally corrupted by the pretrial District Court identification, even though that identification was not offered at trial.

As to our scope of review of the findings of fact made by the motion judge, "We shall accept his findings of fact as binding in the absence of clear error ... and view with particular respect the conclusions of law which are based on them." Commonwealth v. Correia, --- Mass. ---, ---, ^a 407 N.E.2d 1216 (1980). However with respect to the ultimate conclusions of law reached by the judge, we shall undertake an independent examination of the facts found by the judge to ascertain whether they involve a deprivation of the defendant's constitutional rights. bid. See Commonwealth v. Harmond, 376 Mass. 557, 560, 382 N.E.2d 203 (1978). Commonwealth v. Moon, --- Mass. ---, ---, ^b 405 N.E.2d 947 (1980). We summarize the judge's findings. During the afternoon of August 16, 1975, the victim, while walking to a store, was given a ride by two young men, previously unknown to her. During the course of the ride she was asked to go to a party where other men and girls would be in attendance. She agreed, and after the men stopped to purchase some beer and gin, she was driven to a building on College Highway in Southwick. The building consisted of two levels with a garage area on the ground level and a living area on the upper level. The victim and the two men entered the garage and inside there were four other men, including the defendant. Some of the men wore the colors of the Mothers Motorcycle Club (Mothers), and others wore the colors of another motorcycle club. Almost immediately one of the men attempted to molest her sexually, and very shortly thereafter a man whom she later identified as the defendant attacked and raped her. A short time later, the defendant threatened her with a knife in order to get the victim to take off her clothes. While naked, she was forced to run around a pool table in the presence of about ten men and was hit on the head with what appeared to be a broom handle by a person other than the defendant. She eventually left after being in the presence of the defendant for several hours. Shortly after 8:00 P.M. on August 16, 1975, two men (unconnected with the attack) brought the victim to the Southwick police station. She was dazed, disheveled, distraught, and in a somewhat befuddled condition. She related to Sergeant LaBombard that she had been raped and sexually molested, and otherwise assaulted and beaten. She described the building, which was known by LaBombard to be the local headquarters of the Mothers. Because of her condition she was taken to the hospital in Westfield, treated and then released. On the evening of August 17, 1975, she returned to the Southwick police station where she gave a written statement describing what had happened to her between 4:00 P.M. and 8:00 P.M. on August 16, 1975, including a general description of at least some of the men who had mistreated or abused her.

The victim made an identification of the defendant from a photographic array on August 18, 1975, at the Southwick police station. Prior to the identification, the defendant and one Martone were known by LaBombard to be members of the Mothers. The Mothers had a membership of about ten, and LaBombard regarded all members of the Mothers as potential suspects as a result of hearing the victim's stories on August 16 and 17, but neither LaBombard nor his police associates focused on any particular Mother as a suspect prior to the photograph identification procedure.

LaBombard assembled from the Southwick and Westfield police departments mug shots and other photographs of men matching the description supplied by the victim, and more particularly young men who looked like persons who were known to be members of motorcycle clubs. The packet consisted of eighteen photographs, some being mug shots and others being Polaroid or color photographs. Included in the group were two color photographs in each of which the defendant and Martone were shown. ² Also included in the array were a mug shot of the defendant and two additional photographs of Martone. All eighteen photographs were approximately the same size, and Martone appeared in four of them, the defendant in three (two with Martone) and one Gonsalves in two of the photographs. On the evening of August 18, the victim came to the Southwick police station and was given the stack of eighteen pictures and asked to select any photographs that showed any person who was in the garage on August 16 or who had touched her or done anything to her on that date. She was not told where the photographs came from or who the individuals shown in them were or whether any of the men shown were members of the Mothers, nor was she given any other information about the men in the pictures. Nothing was said to her while she was examining the photographs. Without hesitation, she selected and positively identified the defendant from the photographs as the first man who raped her shortly after she had arrived at the garage on August 16. She also indicated that several other pictures were of men who appeared to look like or resemble men who were there on August 16, but she could not identify any of them with any degree of certainty. Martone was never identified as a look-alike.

It is settled that the defendant has the burden of proving by a preponderance of the evidence that the procedures employed in the showing of the photographic array were so unnecessarily suggestive and conducive to mistaken identification as to deny the defendant due process of law. Commonwealth v. Botelho, 369 Mass. 860, 343 N.E.2d 876 (1976). Commonwealth v. Venios, --- Mass. ---, ---, ^c 389 N.E.2d 395 (1979). Commonwealth v. Correia, supra, --- MASS. ---, 407 N.E.2D 1216.^D Such a showing must depend on the totality of the circumstances of the confrontation alleged to be impermissibly suggestive.

At the time the...