Com. v. Boiselle

• Citation: 451 N.E.2d 1178,16 Mass.App.Ct. 393
• Parties: COMMONWEALTH v. Brian P. BOISELLE.
• Decision Date: 26 July 1983
• Court: Appeals Court of Massachusetts

Page 1178

451 N.E.2d 1178

16 Mass.App.Ct. 393

COMMONWEALTH v. Brian P. BOISELLE.

Appeals Court of Massachusetts Essex.

Argued April 7, 1983.

Decided July 26, 1983.

Arlene Beth Marcus, Boston, for defendant.

Lila Heideman, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, KAPLAN and WARNER, JJ.

WARNER, Justice.

The defendant was convicted by a jury in the Superior Court on six indictments, two for armed robbery while masked, ¹ three for robbery, ² and one for attempted robbery. ³ He was given concurrent sentences of six to ten years for the masked armed robbery convictions and five to seven years for the remaining convictions. The defendant asserts error in a ruling on a motion to suppress identification testimony and at trial. On our own motion, we consider an error in sentencing on the conviction of attempted robbery.

1. The motion to suppress. The defendant moved to suppress all of the pretrial identifications and subsequent trial identifications of the defendant by witnesses Barbara Vernile and Julie O'Neil. The motion with respect to Vernile was denied in its entirety, and the defendant does not question that ruling. The judge suppressed O'Neil's photographic identification of the defendant as "highly and unnecessarily suggestive," because O'Neil knew that one Brian Boiselle had been arrested in connection with the robberies and recognized that name under the defendant's photograph before identifying him, but the judge denied the motion to suppress her subsequent corporeal identifications, including any which would occur at trial. ⁴

The only issue raised on appeal by the defendant is whether the corporeal identifications by O'Neil were tainted by her one prior photographic identification which the motion judge suppressed. When an identification is suppressed because the defendant has carried his burden of establishing that the identification was unnecessarily suggestive, the Commonwealth must then "assume the burden of establishing by 'clear and convincing evidence' that the proffered identification has a source independent of the suggestive confrontation." Commonwealth v. Botelho, 369 Mass. 860, 868, 343 N.E.2d 876 (1976). The motion judge concluded that O'Neil's corporeal identifications were and would be the products of an independent source.

We summarize the relevant findings of fact of the judge on the motion to suppress. In the late morning of September 16, 1980, shortly after a Pizza Hut restaurant in Haverhill opened for business, a man wearing a ski mask, with the eye and mouth area cut out, entered, stated that "it was a holdup," and demanded money from the two women employees, Barbara Vernile and Julie O'Neil. The incident lasted for at least eight to nine minutes. The restaurant, and in particular the area where the robbery occurred, was well lighted. O'Neil testified that she could see the robber's eyes, mouth and eyebrows, and that he had big brown eyes which she would never forget. She further testified that at all times she was approximately two feet away from the robber, and during almost all of the time she looked at him. She described him as having an unusual gait. Vernile's point and period of observation were about the same. She was "impressed" with the robber's dark brown eyes and noted a sway to his walk. The defendant fit the description testified to by both women.

Two days later, on September 18, 1980, a person entered the restaurant about the same time of day as before, wearing the same type ski mask and said, "I'm Plaistow's ⁵ finest junkie and I'm back." This incident lasted about five minutes. O'Neil said that the robber was the same man, gave substantially the same physical description of him, and noted his big brown eyes, dark eyebrows and his lips. She was at times two feet away from him and never turned her back on him. Vernile was not present on this occasion.

Six days later, on September 24, 1980, when O'Neil and Vernile were both present, a person both women described as the same man entered the restaurant wearing the same type mask. This incident lasted about five minutes. O'Neil was about two feet away from the robber and observed his big brown eyes and his lips. The lighting in the restaurant was very good. Both women noted the robber's distinctive walk. ⁶

On October 4, 1980, Vernile and O'Neil were shown the 1976 Haverhill high school yearbook. Seated separately in the restaurant, each identified the defendant's photograph as that of the intruder in the restaurant on each of the incidents described for which he was indicted and during which each was present. Both knew that someone had been arrested for the crimes, but only O'Neil knew that one Brian Boiselle had been arrested. ⁷ Further, and apparently controlling in the judge's view, O'Neil saw the defendant's name under his picture before making the identification.

A little over three and a half months later, on January 14, 1981, while they waited in the lobby of the courthouse prior to the defendant's probable cause hearing, Vernile and O'Neil saw and identified the defendant as the robber. He had not been pointed out by the police; he was not in the company of police or handcuffed; and there were twenty-five to thirty other men and women in the lobby at the time. Both women apparently identified the defendant at the probable cause hearing, and both identified him at trial.

The judge's findings of fact may be disputed only if there is clear error. Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980). For reasons which are apparently not the fault of either party, the transcript of the suppression hearing has not been made available to us. ⁸ No issue has been raised regarding the unavailability of the transcript, and no effort has been made to reconstruct the proceedings. See Commonwealth v. Harris, 376 Mass. 74, 77, 78-79, 379 N.E.2d 74 (1978). Consequently, there is no basis for disputing the judge's findings.

The motion judge's conclusions, while given substantial deference, are nonetheless subject to review. Commonwealth v. Moon, supra 380 Mass. at 756, 405 N.E.2d 947. Commonwealth v. Worlds, 9 Mass.App.Ct. 162, 166, 399 N.E.2d 1121 (1980). In reviewing those conclusions we will apply the independent source standard as stated in Commonwealth v. Botelho, 369 Mass. at 865-869, 343 N.E.2d 876 (and see cases cited), "since that standard is at least as strict as the Biggers-Brathwaite ⁹ standard [of reliability]." Commonwealth v. Venios, 378 Mass. 24, 30, 389 N.E.2d 395 (1979). ¹⁰ See Commonwealth v. Correia, 381 Mass. 65, 81, 407 N.E.2d 1216 (1980). In accordance with the independent source standard we review the following factors:

(a) The extent of the witness' opportunity to observe the defendant at the time of the crimes. Although the defendant was wearing a ski mask with the eye and mouth openings cut out, the motion judge found that the three robberies which occurred when O'Neil was present happened in a well-lighted restaurant, that the quickest of these robberies took from four to five minutes, that the longest took at least eight to nine minutes, that O'Neil looked at the defendant for most of the time when he was present, and that often she saw the defendant from a distance of as little as two feet. See Commonwealth v. Correia, supra at 72, 74, 81, 407 N.E.2d 1216 (independent source standard satisfied where witnesses saw defendant for only a few seconds).

(b) Prior errors in description. There was no finding indicating that O'Neil had made any errors in her description.

(c) Prior errors in identifying another. At no time did O'Neil identify anyone other than the defendant.

(d) Prior errors in failing to identify the defendant. At no time did O'Neil fail to identify the defendant.

(e) The receipt of other suggestions. The findings do not show that O'Neil's corporeal identifications were the result of outside suggestions, or that any subsequent identifications at trial would be so.

(f) The lapse of time between the crime and the corporeal identifications. Approximately four months elapsed between the time of the last robbery at which O'Neil was present and the corporeal identifications at the probable cause hearing. Seven months elapsed between the probable cause hearing and the suppression hearing. In view of the preceding factors, these lengths of time do not cast any significant doubt on O'Neil's ability to identify the defendant. See Commonwealth v. Walker, 370 Mass. 548, 563-565, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976) (lapse of eight months); Commonwealth v. Correia, supra 381 Mass. at 66, 69, 407 N.E.2d 1216 (lapse of nearly sixteen months).

(g) Other factors. The motion judge found that O'Neil "identified [the defendant] with great purpose at the hearing" and that "she observed and reported all that occurred during the robberies." He found that the defendant fit the descriptions given by O' Neil, and that the defendant "had unique brown appearing eyes."

The judge obviously thought that the evidence was clear and convincing that the corporeal identifications by O'Neil were and would be from a source, her memory of her observations of the defendant during the commission of the crimes, independent of the suppressed photographic identification, and we agree. See Commonwealth v. Ross, 361 Mass. 665, 671-672, 282 N.E.2d 70 (1972). Any weaknesses in these identifications were for the consideration of the jury. Commonwealth v. Jones, 9 Mass.App.Ct. 83, 92-93, 399 N.E.2d 1081 (1980), and cases cited.

2. Trial issues. The other errors claimed by the defendant may be dealt with under the rule that an appellate court will not review alleged errors not brought to the attention of the trial court unless there is a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967); Commonwealth v. Redding, 382 Mass. 154, ---, Mass.Adv.Sh. (1980) 2537, 2538, 414 N.E.2d...