Com. v. Balukonis

• Decision Date: 19 June 1970
• Citation: 260 N.E.2d 167,357 Mass. 721
• Parties: COMMONWEALTH v. Richard W. BALUKONIS (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 167

260 N.E.2d 167

357 Mass. 721

COMMONWEALTH v. Richard W. BALUKONIS (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 2, 1970.

Decided June 19, 1970.

Wilbur A. Hyatt, Lawrence, for defendant Balukonis.

Joel R. Labell, Lawrence, for defendant Allen.

Dante J. DeMichaelis, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

The defendants were found guilty by a jury of armed robbery of the Shirley Co-Operative Bank. Each defendant was sentenced to serve for a term not exceeding twelve years or less then eight years. They appealed under the provisions of G.L. c. 278, §§ 33A--33G. The cases are here on a summary of the record, a transcript of the evidence, and a combined total of 101 assignments of error. ²

On February 2, 1968, there were four employees, all women, working at the bank. They are Gladys S. Will, Doris A. Nowokunski, Edith E. Peterson and Jeannine F. Michaud. Between 9:30 and 9:45 A.M. their attention was drawn to a 'disturbance' in front of the bank building. The disturbance was caused by a pack of dogs that were creating problems with the traffic. The dogs ran toward the parking lot on the right side of the bank building. The women moved to a window facing the bank parking lot when their attention was drawn to an automobile 'backing in towards the bank.' Three of the women saw the defendant Allen alight from the car, walk to the rear of the car, toward the bank, and then walk back to the front of the car. Shortly thereafter the defendant Balukonis entered the bank and approached Mrs. Peterson's teller's window. He asked if he could see the manager. Mrs. Peterson told 'him that the manager was out and would be back shortly.' She asked if he could be helped by anyone else but he said, 'no, he still wanted to see the manager.' Balukonis then proceeded to walk back and forth in the bank lobby. Meanwhile, the defendant Allen came into the bank and he, too, went to Mrs. Peterson's window. He asked her for change in exchange for four dollar bills that he had placed on the counter. At that time Miss Michaud was going for coffee and as she unlocked the gate which led to the area behind the counter and the vault, Balukonis pushed her back. He held a gun in his left hand and said, 'This is a holdup.' Balukonis ordered the women into the vault, pulled two paper shopping bags from under his jacket and told the women to fill the bags with the money in the vault. As these events were occurring, Allen went behind the counter and began emptying Mrs. Will's cash drawer. While in the vault Balukonis 'kept telling * * * (Allen) to hurry up and get the back door open.' Balukonis emptied one shopping bag into the other and after inquiring whether the vault could be opened from the inside, he told the women to lie down in the vault and remain there for ten minutes. Balukonis left the vault and turned the dial on the door. The Women remained in the vault about five minutes and then came out. Mrs. Will immediately called the police and locked the bank's front door.

On the day of the robbery each of the women were shown a large number of photographs, but did not pick out any as resembling the defendants. On the morning of February 8, 1968, each of the women viewed about fifteen to twenty new photographs, from which each selected two photographs of Allen. On the evening of February 8, 1968, the women were shown about fifteen additional photographs at their respective homes and each picked out pictures of Balukonis as the other participant in the robbery.

On February 13, 1968, Miss Michaud and Mrs. Nowokunski were driven to the District Court of Lawrence to see if they could identify one of the bank robbers. As they were getting out of the car they saw Allen walking in the street. After entering the court house, they again observed Allen in the court house corridor for about fifteen minutes. A number of other people were present in the corridor at that time. The women informed Chief Saball of the Shirley police department, who had accompanied them to Lawrence, that the man they had seen in the street and in the corridor was one of the bank robbers. The women then viewed Allen in a court room where he was a defendant in another criminal proceeding and for the third time identified him to Chief Saball as one of the bank robbers. Neither Allen nor his attorney, who was present, was aware that Allen was being observed for purposes of identification with regard to the robbery of the Shirley Co-Operative Bank. ³ That same day Miss Michaud and Mrs. Nowokunski were taken to the Lawrence police department, and viewed Balukonis through a 'glass' while he was sitting in a room at the detective bureau. Balukonis was the only person in the room dressed in work clothes. On February 15, 1968, Mrs. Will and Mrs. Peterson ⁴ were taken to State police headquarters in Boston where they viewed Balukonis through a 'window' in a room with only one other individual who they knew was not Balukonis. On February 29, 1968, Mrs. Will and Mrs. Peterson ⁵ were taken to the Lawrence police station and observed Allen through a 'one-way mirror' in the detective bureau while Allen was engaged in conversation with one of the several police officers who were present. Each of the women identified Allen as one of the men engaged in the bank robbery.

1. There is no need for us to separately discuss each of the defendants' contentions regarding the identification process. The substance of these contentions is that the pre-trial identifications, together with the in-court identifications of the defendants' pictures, were so unnecessarily SUGGESTIVE that the in-court identifications of the defendants were not 'purged of the primary taint' of improper confrontations and therefore were not of an independent source.

We need not determine whether the pre-trial identifications were improper, because even if we assume that they were, we are satisfied that the in-court identifications of the defendants 'had an independent origin.' United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 18 l.Ed.2d 1149. Each of the witnesses had ample opportunity prior to or during the robbery to observe the defendants. Their testimony warrants the conclusion that their in-court identifications were based on their observations of the defendants on February 2, 1968, the day of the robbery and not as the result of the pre-trial confrontations. COMMONWEALTH V. WILSON, MASS., 255 N.E.2D 744,^A and cases cited. As we recently stated in the case of COMMONWEALTH V. FRANK, MASS., 257 N.E.2D 919, 921,^B 'Here, an initial confrontation has occurred under circumstances likely to fix in the minds(s) of the witness(es) the identity of the person confronted. Upon * * * subsequent and definite in-court identification(s) of the same person, such in-court identification(s) * * * (are) not rendered inadmissible by an intervening illegal pre-trial confrontation and identification.' See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. See also Commonwealth v. Wilson, supra.

2. The defendants maintain that the admission in evidence of a composite picture of them violated the best evidence rule. They argue, too, that the picture was 'not authenticated.' We confine our comment to these points.

The best evidence rule is applicable to only those situations where the contents of a writing are sought to be proved. See Fauci v. Mulready,337 Mass. 532, 540--542 150 N.E.2d 286. As stated in Wigmore, Evidence (3d ed.) § 796, '(T)his rule is usually regarded * * * as not applicable to any objects but writings * * *. So far, then, as concerns objects not writings, a photographic representation could be used without accounting for the original.' Consequently, a composite picture does not come within the ambit of the best evidence rule, and our review of the record reveals that there was adequate authentication. See People v. Imbler, 57 Cal.2d...