Com. v. Barnett

• Decision Date: 15 September 1976
• Parties: COMMONWEALTH v. Willie BARNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 879

354 N.E.2d 879

371 Mass. 87

COMMONWEALTH

v. Willie BARNETT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1975.

Decided Sept. 15, 1976.

David S. Mortensen, Boston, for defendant.

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

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

KAPLAN, Justice.

Willie Barnett was convicted after trial by jury of assault with intent to rob while armed with a dangerous weapon (G.L. c. 265, § 18) and of three counts of assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A). He was sentenced to concurrent terms of five to seven years, to be served at the Massachusetts Correctional Institution at Walpole, from and after a sentence remaining to be served in the State of Alabama. An appeal under G.L. c. 278, §§ 33A--33G, is here, having been transferred from the Appeals Court under G.L. c. 211A, § 10(A).

The jury may be taken to have viewed the facts thus. On September 3, 1971, the defendant and two accomplices (both initially assumed by witnesses to be men) entered the Buy Rite Store, a grocery at 1627 Washington Street in the South End of Boston, with intent to rob it. As the defendant came through the front door and drew a shotgun from a paper bag, Clinton Tennyson, a uniformed security guard standing about ten feet away, saw the defendant and the gun although there were several customers in the intervening space. Tennsyson ran down an aisle toward the rear of the store. The defendant shot and wounded the store manager, Byron Randall, who was standing behind a cash register, and then ran out the door, apparently without getting at the money. Meanwhile Tennyson moved down the other aisle toward the front of the store while drawing his .38 caliber revolver from his holster. The defendant came back through the door. The two exchanged shots. Tennyson and Mrs. Elizabeth Ware, a customer were wounded by the shotgun blast (Tennyson receiving shot in his abdomen, face, and right arm), but, as later appeared, neither was seriously injured. The robbers fled.

Police arrived promptly and took Tennyson, Randall, and Mrs. Ware to Boston City Hospital. As one of the police units that had transported the wounded was returning to its station, the officers observed the defendant and another seated on the fender of a car in the parking area of a nearby garage at Shawmut Avenue and Ruggles Street. These two matched the rather general descriptions of two of the robbers that the officers had obtained at the scene and evidently over the police radio; and (according to testimony received at voir dire but not at trial) adjacent to the two was a red Ford Falcon automobile with a Connecticut license plate No. JS2939 matching a description, received over the radio, of a red automobile with Connecticut license plates believed to have been the car in which the robbers made their escape down Shawmut Avenue after the robbery attempt. Stopping at the garage, the officers saw that the defendant was bleeding from a gunshot wound in his left shoulder. As it turned out, the other person was a woman with close-cropped hair dressed in man's clothing. The officers took the two to Boston City Hospital. The defendant was hysterical and nauseated during the short drive.

As the defendant lay on a litter in an X-ray room with gauze visible covering his wound, Tennyson was wheeled into the room, also on a litter, and he immediately and positively identified the defendant as the man who had shot him. ¹ The confrontation occurred within an hour of the robbery. At the trial Tennyson also identified the defendant as the gunman.

When the doctors later extracted the slug lodged in the defendant's shoulder, it proved to be of .22 caliber and not capable of being fired from Tennyson's revolver. There was no testimony of any gunplay at the store besides that between Tennyson and the defendant, but a discharge from a .22 caliber weapon was not excluded. ²

The strength of Tennyson's identification was enhanced by his testimony that he had seen the defendant at the store three or four times in the month preceding the robbery; he had particular reason to recognize him during the robbery because on a visit to the store earlier that week the defendant had called him 'Uncle Tom's old nigger.' ³ On the other hand, the probative force of the fact that the slug in the defendant's shoulder could not have come from Tennyson's revolver was no doubt minimized by the jury because the defendant wavered badly on how the wound came to be inflicted. When the officers spoke to the defendant at the garage and subsequently at the hospital, he claimed he was robbed of $75 at a fruit stand across the street from the garage and had been shot during a struggle with the robbers. Early the next day he told the police that he shot himself accidentally during an argument and scuffle with his wife. At trial his story mediated between the two versions. He said he left the garage in midafternoon and was robbed (but not shot) at the fruit stand; he did not return to his companions at the garage but continued to his sister's apartment several blocks away where he was living with his wife; disgusted at the loss of his money, he attempted suicide with his sister's revolver, but succeeded only in wounding himself in the shoulder; he then returned to the garage on foot and was apprehended by the police. ⁴

On this appeal, the defendant argues that the judge committed error in declining on the defendant's motion (1) to suppress the out-of-court and in-court identifications by Tennyson; (2) to allow the defendant to examine testimony before the grand jury; (3) to permit the defendant to make certain offers of proof; (4) to grant a mistrial. Error is also claimed (5) in the judge's failure to halt the prosecution's pursuing a certain line of cross-examination.

1. The defendant moved in advance of trial to suppress evidence of identifications of him, both in- and out-of-court, by the eyewitness Tennyson. ⁵ Following the method and standards derived from the Wade-Gilbert-Stovall cases, ⁶ the judge received evidence at an extended voir dire regarding the circumstances of the hospital identification which paralleled the evidence on the subject at trial summarized above. The judge found the confrontation at the hospital to be permissible; accordingly he ruled that the testimony as to that identification could be admitted at trial, and as there was 'no poison' in the hospital confrontation, there was no need to show that an in-court identification would be based on an independent untainted source. Paying due regard to the judge's appraisal of the testimony, we find no basis for rejecting his conclusion.

A 'one-on-one' confrontation with a person in custody is disfavored generally as a basis of identification (seE stovall v. denno, 38 U.S. 293, 302, 87 S.Ct 1967, 18 L.Ed.2d 1199 (1967); P. Wall, EyeWitness Identification in Criminal Cases 27--40 (1965)); but such showups of suspects to eyewitnesses of crimes have been regularly held permissible when conducted by the police promptly after the criminal event. Of cource, where the circumstances are so exigent as to exclude waiting to arrange a lineup, the case is very clear: in Stoval an 'immediate hospital confrontation was imperative' (388 U.S. at 302, 87 S.Ct. 1967) because the eyewitness was believed to be near death. Exigent or special circumstances, however, are not prerequisite. See United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1327 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). Such meetings between witnesses or victims and suspects in custody are often unavoidable or nearly so; and in any event the police procedure of arranging these showups is recognized as usual and natural and justified by the need for efficient investigation in the immediate aftermath of crime. See, e.g., Commonwealth v. Bumpus, 354 Mass. 494, 501, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969); Model Code of Pre-Arraignment Procedure 80, 436 (1975). To have the witness view the suspect while his recollection or mental image of the offender is still fresh, before other images crowd in or his attempts to verbalize his impressions can themselves distort the original picture, provides the witness with good opportunity for an accurate identification. See Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); United States v. Hines, supra at 1327.

See generally Buckhout, Eyewitness Testimony, 231 Scientific Am. 23 (1974). A further consideration is that prompt confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part is or may be in error and releases them quickly to follow another track. Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106 (1968). The general view that such speedy confrontations are permissible is accepted in this jurisdiction and elsewhere. See Commonwealth v. Connolly, 356 Mass. 617, 623--624, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970); Commonwealth v. Bumpus, supra, 354 Mass. at 501, 238 N.E.2d 343; Commonwealth v. Lifsey, --- Mass.App. --- (1974) ^a, 310 N.E.2d 629; cf. Commonwealth v. Denault, 362 Mass. 564, 566--567, 289 N.E.2d 863 (1972). See generally, Annot., 39 A.L.R.3d 791, 804--806 (1971 & 1975 Supp.). See also Model Code of Pre-Arraignment Procedure, supra at § 160.2(1)(a) & Commentary at 436--438.

The judge could properly hold here that there were no such 'special elements of unfairness' (Russell v. United States, supra at 1284) as might take the case out of the general class permitting a confrontation without lineup. He found, to the contrary, 'no indication of any police desire or intention to deal with Barnett unfairly.' ⁷ He also found the police...