Com. v. Blaney

• Decision Date: 17 November 1982
• Parties: COMMONWEALTH v. Stephen F. BLANEY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 389

442 N.E.2d 389

387 Mass. 628

COMMONWEALTH v. Stephen F. BLANEY, Jr.

Supreme Judicial Court of Massachusetts Norfolk.

Argued March 2, 1982.

Decided Nov. 17, 1982.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

John P. Courtney, Newton, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant, Stephen F. Blaney, Jr., was convicted of armed robbery after a jury trial. G.L. c. 265, § 17. The Appeals Court reversed his conviction, holding that the trial judge committed error by failing to order that a double-pose (full face and profile), "mug shot" photograph of the defendant be severed before being introduced in evidence. Commonwealth v. Blaney, 12 Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 1995, 428 N.E.2d 370. We granted the Commonwealth's application for further appellate review. G.L. c. 211A, § 11. We affirm the judgment of conviction.

1. Facts. On December 9, 1979, two men robbed the Andrews Pharmacy in Wellesley and escaped with drugs and money. Gary Manzo, the pharmacist-manager, observed one of the robbers briefly from at least four separate angles. He later identified the defendant as the person he observed during the robbery.

At about 6 P.M., Manzo was in the front of the store when he noticed a man standing at the pharmacy counter in the rear. As he approached the man to offer sales assistance, Manzo had a diagonal view of the man's profile from the rear. When Manzo drew near, the robber pulled a gun from his jacket, pointed it at Manzo's side and ordered Manzo to lie face down behind the counter.

The robber demanded dilaudid, a controlled substance. As Manzo rose to go to the safe where controlled substances were stored, he caught another glimpse of the robber's face. Manzo and the robber crouched before the safe. The robber removed two canisters of drugs from the safe, and Manzo again glanced at his face. The robber demanded cash. Manzo rose to go to the cash register, looking at the robber's profile as he rose. The robber followed Manzo to the register, took the money, and ordered Manzo to lie on the floor.

The robber called out to his accomplice, who had been holding a second pharmacy employee ¹ at gunpoint, and both men left the store. Manzo looked over the counter behind which he was lying and caught a final profile view of the man who had taken the drugs and the money from him; Manzo then crouched back behind the counter.

After a few moments, Manzo telephoned the Wellesley police department. When officers arrived, Manzo described his assailant as follows: slight build, almost six feet in height, medium length, darkish brown-black hair parted in the middle and brushed back at the sides, a prominent nose, a moustache, and acne scars. Three hours after the robbery, Manzo (with the aid of a police officer) made a composite drawing of the man he had described earlier. It was not until January 5, 1980, that Manzo returned to the police station and looked through an array of photographs from which he selected a double-pose photograph of the defendant. At trial, all the photographs in the array (including the defendant's), and the composite drawing were introduced in evidence by the Commonwealth through Manzo.

2. The composite drawing. Manzo made the composite drawing with the aid of a police officer who had been trained in the use of an "Identikit." This tool consists of 600 transparent overlays of facial features. A witness first selects a facial foundation, and then chooses features from the kit which most closely resemble those of the person the witness is attempting to describe; the witness tries different combinations of overlays until he is satisfied that the sketch resembles the person being described.

The judge admitted a copy of the composite drawing made by Manzo, over the defendant's general objection. The Appeals Court concluded that admission of the drawing was not error. There is no evidence that the Identikit composite was in any way suggested by the police officer, or that it was anything other than the sole product of the witness's perception of what the perpetrator of the crime looked like. ²

The defendant relies on Commonwealth v. McKenna, 355 Mass. 313, 326-327, 244 N.E.2d 560 (1969), in which the court found error in the admission of a similarly made composite drawing. See id. at 327, 244 N.E.2d 560 (the drawing "could have been used to refresh [the maker's] recollection but it had no standing as evidence of the truth or accuracy of the matter contained in it"). On the basis of this and a number of other errors, the court reversed McKenna's convictions.

"An extrajudicial identification made by a witness may be offered in evidence for three possible purposes: (1) for corroboration; (2) for impeachment; or (3) as substantive evidence of an identification, having probative value." Commonwealth v. Vitello, 376 Mass. 426, 458, 381 N.E.2d 582 (1978). Commonwealth v. Fitzgerald, 376 Mass. 402, 408, 381 N.E.2d 123 (1978).

"This court ... has previously concluded that extrajudicial identifications are not always limited to the purpose of impeachment; rather, even when a witness is unable or unwilling to make an in-court identification, out-of-court identifications may be admitted as substantive evidence of guilt as long as the defendant's due process and confrontation rights are satisfied. Commonwealth v. Swenson, 368 Mass. 268, 272 n. 3, 331 N.E.2d 893 (1975). Commonwealth v. Torres, 367 Mass. 737, 738-739, 327 N.E.2d 871 (1975). See Commonwealth v. Howard, 4 Mass.App. 476, 350 N.E.2d 721 (1976); Commonwealth v. Day, 4 Mass.App. 831, 351 N.E.2d 547 (1976). See also Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966); Commonwealth v. Nassar, 351 Mass. 37, 42, 218 N.E.2d 72 (1966); Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359 (1956). See generally Fed.R.Evid. 801(d)(1)(C); 4 J. Weinstein & M. Berger, Evidence par. 801(d)(1)(C) (1977)." Commonwealth v. Fitzgerald, supra. In this case, Manzo identified the defendant in court. We have held that extrajudicial statements are admissible to corroborate witnesses' in-court identifications ³ and that, when such corroborative testimony is not offered to prove the truth of the matter asserted (that the person depicted in the drawing committed the crime), it is not hearsay. See Commonwealth v. Repoza, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1980) 2499, 2509-2510, 414 N.E.2d 591. ⁴ Moreover, testimony concerning the extrajudicial identification of a photograph has been held admissible, not only as corroboration of a witnesses' in-court testimony, but also as substantive evidence of guilt, consistent with the theory that an identification made soon after the event is generally more reliable than an identification made at a much later date. Commonwealth v. Vitello, supra 376 Mass. at 459, 381 N.E.2d 582. See P.J. Liacos, Massachusetts Evidence 170-171 (5th ed. 1982), and cases cited. However, many courts have treated extrajudicial identification made by composite as inadmissible hearsay. See Annot., 42 A.L.R.3d 1217, 1220 (1972). Indeed, this court has held that such evidence is at best a recording in graphic form of out-of-court statements, with no standing as evidence of the truth or accuracy of the matter contained in it. Commonwealth v. McKenna, supra.

It is not necessary for us to resolve, on this occasion, what may be regarded as inconsistencies between the decisions in Commonwealth v. Repoza, supra, and Commonwealth v. Vitello, supra, on the one hand, and Commonwealth v. McKenna, on the other. The admission of the composite drawing of the defendant could not have prejudiced him. As we hold, infra, photographs of the defendant properly were admitted. In addition to this evidence, the victim identified the defendant in open court. In these circumstances, the defendant could not have been prejudiced by the Identikit evidence. This evidence was only cumulative, and could have had no significant impact on the jury who not only saw the defendant identified in court, but also took with them to the jury room actual photographs of the defendant from which a prior identification had been made. See Commonwealth v. Pickles, 364 Mass. 395, 400, 305 N.E.2d 107 (1973).

We, therefore, hold that the admission of the composite drawing does not require the reversal of the defendant's conviction.

3. Exclusion of testimony. A physician who had seen the defendant on several occasions, including during late November, 1979 and February, 1980, testified to his observations of the defendant's build and complexion in 1979. The judge did not allow defense counsel to ask this witness whether the defendant's hairline, in 1979, resembled that depicted on the composite drawing.

The judge was prepared to assume that the defendant's build and complexion had not undergone major changes during the weeks between the doctor's last observation of the defendant in 1979, and the date of the commission of the robbery; the appearance of the defendant's hairline, however, could have been altered easily by a haircut. Since the doctor could not testify regarding the defendant's apparent hairline on the date of the commission of the robbery, or at any time close enough to that date to be clearly relevant, the judge excluded this testimony. He committed no error. Although it might have been better to admit the testimony for whatever probative value it might have had, we cannot say that to exclude it was error. Whether evidence is legally relevant is a decision generally left to the trial judge. Commonwealth v. Chasson, 383 Mass. 183, ---, Mass.Adv.Sh. (1981) 724, 728, 423 N.E.2d 306, and cases cited.

4. The defendant's motion in limine. By means of a motion in limine, the defendant sought to limit the Commonwealth's cross-examination of any potential alibi witnesses. Specifically, the defendant sought to prevent the Commonwealth from inquiring...