Com. v. Bernard

• Decision Date: 20 July 1978
• Parties: COMMONWEALTH v. Richard BERNARD (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 696

378 N.E.2d 696

6 Mass.App.Ct. 499

COMMONWEALTH v. Richard BERNARD (and a companion case ¹).

Appeals Court of Massachusetts, Suffolk.

Argued May 10, 1978.

Decided July 20, 1978.

Morris M. Goldings, Boston, for Lampros Venios.

Ernest T. Coutlis, Boston, for Richard Bernard.

Timothy P. O'Neill, Asst. Dist. Atty. (Brian J. Dobie, Sp. Asst. Dist. Atty., with him), for the Commonwealth.

Before HALE, C. J., and GRANT and BROWN, JJ. HALE, Chief Justice.

The defendants appeal from their convictions after a jury trial in the Superior Court on indictments charging them with receiving stolen and embezzled property in violation of G.L. c. 266, § 60. Venios assigns as error the judge's allowance of an in-court identification of him by a Commonwealth witness. ² Both assign as error the judge's permitting the trial to proceed despite the Commonwealth's failure to produce certain evidence requested by the defendants in pretrial discovery, the judge's rulings regarding the admission of certain testimony and other matters in the course of the trial, and the judge's refusal to charge the jury in conformity with instructions proposed by the defendants. No reversible error is disclosed by any of the defendants' contentions. Accordingly, the judgments of the Superior Court will be affirmed.

Most of the case against the defendants was presented through the testimony of one Michael Foxworth. Foxworth was hired in September, 1976, as a courier for Homer's Jewelry Company, Inc. (Homer's), in Boston. As a courier Foxworth delivered gems and jewelry to and from Homer's and other jewelry establishments in Boston. On December 6, 1976, he was given a consignment of gems and jewelry by Homer's and instructed to make several deliveries throughout the city. After visiting one or two establishments, Foxworth absconded with the jewelry in his possession. None of the jewelry was ever recovered. Homer's valued the items lost in the theft at over $11,000.

A warrant was issued for Foxworth's arrest on a charge of larceny. He was arrested on or about January 25, 1977, in Portsmouth, Virginia, by police in that city who had been advised that a warrant had been issued. Two Boston police officers travelled to Portsmouth on January 26, 1977, to accompany Foxworth back to Boston. Foxworth waived extradition and agreed to cooperate with the officers. In subsequent conversations with one of the Boston police officers, a Detective Lundbohm, Foxworth confessed the details of the theft and described the persons who had purchased the stolen jewelry from him. His statements to Detective Lundbohm inculpated the defendants, and they were eventually arrested.

Foxworth pleaded guilty to the charge of larceny in the Municipal Court of the City of Boston. On February 25, 1977, he received a two-year sentence on that charge and was committed to a house of correction. During sentencing the Municipal Court judge informed Foxworth that his sentence could be revised on the condition that he testify in the cases against those persons to whom he had sold the jewelry. In March, 1977, criminal proceedings were brought against Bernard and Venios in the Municipal Court. Foxworth refused to testify at the proceedings. The trial was postponed, and the complaints against Bernard and Venios were ultimately dismissed. Foxworth did testify before the grand jury in April, 1977. The grand jury returned the present indictments against the defendants. After his appearance before the grand jury, Foxworth's sentence was suspended, and he was placed on probation.

At the trial in the Superior Court, Foxworth testified that in November, 1976, he had visited a book store on Boylston Street in Boston. At the book store Foxworth had been introduced by a friend to a man whom the friend called "Richie" and whom Foxworth subsequently identified as the defendant Richard Bernard. In the course of the introduction the friend had informed Bernard of Foxworth's employment as a jewelry courier.

Foxworth met Bernard upon subsequent visits to the book store during the next several weeks. On those occasions Bernard brought up the subject of Foxworth's employment. Bernard told Foxworth that he could make some "big money" by selling the jewelry which he had been hired to deliver. Bernard offered to purchase from Foxworth those gems and jewelry which might be entrusted to him.

Foxworth accepted Bernard's offer on December 6, 1976. After making one or two deliveries, he visited Bernard at the Boylston Street book store and offered to sell him the jewelry in his possession. Bernard inspected the jewelry and agreed to pay Foxworth $1,500 for the lot. He told Foxworth that as he did not have that amount of cash available, he would have to contact his partner. Foxworth agreed to return with the jewelry in about an hour.

Foxworth returned to the Boylston Street book store with a friend. Bernard led Foxworth and his friend to a nearby book store on Washington Street. The three men entered an office on the second floor above the book store and waited for the arrival of the man with the money. Some time later the "money man," subsequently identified by Foxworth as the defendant Lampros Venios, arrived at the office. Venios inspected the jewelry and made some comments on its value. After inspecting the jewelry, Venios took $1,500 cash from his pocket and paid Foxworth. The parties separated. Foxworth met with Bernard once after the exchange of the jewelry. He did not see Venios again until after the latter's arrest.

1. The first question raised by the assignments of error is whether the judge erred in allowing Foxworth to identify Venios in court as the "money man" involved in the sale of the jewelry. ³ Venios contends that he was denied due process of law by the judge's allowance of the in-court identification because that identification was tainted by an earlier photographic confrontation which was conducted by the police in a manner "so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct 967, 971, 19 L.Ed.2d 1247 (1968). We start our analysis of the defendant's claim of constitutional error by recounting the circumstances of Foxworth's pretrial identification of Venios, reciting those facts which were found by the trial judge or which were warranted by the evidence presented at the hearing on Venios's motion to suppress. See Commonwealth v. Gordon, --- Mass.App. ---, --- ^a 374 N.E.2d 1228 (1978).

As part of his understanding with the police, Foxworth agreed to try to identify the men to whom he had sold the stolen jewelry. During his return trip on January 26, 1977, from Portsmouth to Boston, Foxworth described the two men for Detective Lundbohm. He described the "money man" as being approximately five feet nine, dark, well-built, with long hair and a mustache. Upon arriving in Boston Foxworth was taken to a police station where he was shown a series of about two dozen photographs. He selected a photograph of Bernard from that array, identifying him as the man whom he had known as "Richie." Foxworth identified no photograph in that series as that of the "money man." After Foxworth's selection of Bernard's photograph, Detective Lundbohm asked if the name "Venios" meant anything to him. Foxworth responded to the effect that he was unfamiliar with the name.

Foxworth was then transported to police headquarters. While enroute he was driven down Washington and Boylston Streets, and he indicated to Detective Lundbohm the location of the two book stores involved in the jewelry exchange. At police headquarters Foxworth was shown a series of approximately 150 photographs. Although photographs of several persons with the surname "Venios" were included in the display, a photograph of the defendant Lampros Venios was not among them. Foxworth identified no photograph as that of the "money man." He did, however, select photographs which he claimed bore a resemblance to the "money man."

Detective Lundbohm first obtained a photograph of Venios on the next morning. He went with that photograph to the Municipal Court, where Foxworth was being held awaiting arraignment. Lundbohm had Foxworth brought out from the court lockup, and he showed the single photograph to Foxworth. Foxworth immediately identified the photograph of Venios as that of the "money man."

We observe at the outset that the manner of Foxworth's photographic identification of Venios in this case is clearly the type of identification procedure looked upon with disfavor by the courts. See Simmons v. United States, 390 U.S. at 383, 88 S.Ct. 967, 19 L.Ed.2d 1247. Commonwealth v. Nolin, --- Mass. ---, --- ^b 364 N.E.2d 1224 (1977). Nevertheless, an error in police procedure does not inevitably render an identification incompetent. Manson v. Brathwaite, 432 U.S. 98, 112-113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). A witness may still be constitutionally permitted to testify to his identification of a defendant so long as the court finds that in the totality of the circumstances the identification will be reliable. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243. Commonwealth v. Gordon, supra at --- ^c 343 N.E.2d 1228.

In his decision denying the defendant's motion to suppress the judge found that "Michael Foxworth's original observations of defendant Lampros Venios were made under conditions so favorable to his identification as to cure any possible suggestion that may have been made either orally or by the presentation of the single photo by Detective Lundbohm." ⁴ We view that statement as a finding by the judge that under all the circumstances Foxworth's in-court identification of Venios would be reliable, and we hold that this finding of reliability is supported by the judge's subsidiary findings and warranted by the evidence.

In Manson v. Brathwaite, the United...