Com. v. Botelho

• Citation: 369 Mass. 860,343 N.E.2d 876
• Parties: COMMONWEALTH v. Carlos BOTELHO.
• Decision Date: 05 March 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 876

343 N.E.2d 876

369 Mass. 860

COMMONWEALTH

v. Carlos BOTELHO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1975.

Decided March 5, 1976.

Alan L. Kovacs, Asst. Dist. Atty., Cambridge, for the commonwealth.

Paul A. D'Agostino, Jr., Somerville, for defendant.

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

KAPLAN, Justice.

The defendant Carlos Botelho is under indictment for the murder in the first degree of Lawrence S. Salvucci. The defendant moved before trial to suppress incourt and out-of-court identifications of him by one Marie Kearney. After an extended hearing, a judge of the Superior Court made findings and allowed the motion. The Commonwealth applied for interlocutory appeal pursuant to G.L. c. 278, § 28E, and leave was granted by a single justice of this court.

1. The judge's findings, amplified by some details taken from the transcript, yield the following picture of the Kearney confrontations and identifications. The murder occurred on March 5, 1974, at approximately 2 A.M. in the lobby of the Cockatoo Lounge in Cambridge. Mrs. Kearney worked in the lounge several evenings a week as a cocktail waitress, but this night she went to the lounge to socialize, arriving about nine thirty. She had three or four full drinks of Scotch whiskey in a 'rock' glass and stayed after closing to assist Lawrence Salvucci, one of the managers in straightening up the bar. They heard a noise and Salvucci went out to the lobby to investigate. He returned, jumped over the bar to get something and went out again. Mrs. Kearney followed him into the lobby, which is shared by several bars and a restaurant. She saw two men above her on the balcony where the offices of the complex are located. She indicated to Salvucci where the men were. As Salvucci ran up the stairs toward them, one of the men drew a gun and shot and killed him. Mrs. Kearney turned and ran back through the Cockatto, out a fire exit, and to the desk area of a neighboring motel. Police were summoned but arrived too late to pursue Salvucci's assailants.

Mrs. Kearney had viewed the men on her estimate) at a distance of twenty-five to thirty feet under subdued illumination. She was able to give the police only a general description of the gunman--'a white male, approximately five foot ten, early twenties, long brown hair, brown jacket on.' (In fact, as the judge noted, the defendant had black hair.) After taking Mrs. Kearney's story, the police drove her to Watertown Square to view two suspects, but she said they were not involved because both had beards. The police then took her to the Cambridge and later to the Arlington police stations to view photographs (the defendant's picture was not among them). She did not match any to her recollection of the gunman though the picked out several pictures as resembling the second man. After dawn she went to the home of a friend, but was unable to sleep.

Meantime an Arlington police officer suggested to the Cambridge police that the defendant's photograph be shown to Mrs. Kearney. The officer knew that the defendant worked in a car wash near the Cockatoo, thought his reputation was bad, and believed he fit the description. It may be that the officer's attention was attracted to the defendant because the officer was to appear in Lowell District Court that day to prosecute the defendant for motor vehicle offenses.

Mrs. Kearney appeared at the Cambridge police station about noon and examined an array of photographs that included a picture of the defendant. She failed to identify him. The judge examined the picture and concluded that it reasonably represented the defendant althought it had been taken one or two years previously.

The Cambridge police then told Mrs. Kearney that she would be taken to Lowell to view a suspect. The Arlington police officer who was prosecuting the defendant had learned that the defendant and a brother worked part time in the motel next to the Cockatoo, and that the defendant recently had acquired some money. Therethe balcony for approximately a minute (by fore the officer had recommended that the witness view the defendant. He arranged to have the defendant held in custody in Lowell on a capias that had issued when the defendant failed to arrive on time for his court engagement. Mrs. Kearney, accompanied by her friend John Esposito, a barman at the Cockatoo, was brought to the Lowell court house. Cambridge officers spoke briefly there with an assistant district attorney who advised them not to display the defendant to the witness in the court room--the court room would be empty except for the handcuffed defendant and two court officers. Instead, the Cambridge officers contrived to display the defendant as he left the court house. Mrs. Kearney and Esposito were taken in a car to a court house parking lot where they could have a view of the rear entrance. Mrs. Kearney then observed the defendant as he came out the door between two court officers, both dissimilar in appearance to the defendant. The defendant's hands were secured and he walked within a few feet of the car on a bright sunny day. The police officer who was with Mrs. Kearney testified that she said 'That's positively not him. His hair is too long and his complexion is too dark.' Mrs. Kearney testified at the suppression hearing, with Esposito agreeing, that she said, 'It looks exactly like him featurewise only his hair is too dark.' She testified as well, however, that she thought at the time that the defendant's complexion also was not the same as the gunman's. In any event she informed the police that she could not identify the defendant as the gunman.

Several days later Mrs. Kearney was seated at the bar of the Cockatoo. She testified at the suppression hearing that she went to the Cockatoo bacause she did not want to be alone, although she had testified earlier at the probable cause hearing that her purpose was to see if the man who killed Salvucci would come into the lounge. The defendant, who was apparently working that night at one of the other bars in the complex, was sent to the Cockatoo to borrow a cocktail shaker. ¹ Mrs. Kearney observed the defendant from a distance of eight to ten feet in the intimate lighting of the lounge, and after he left, she called over Esposito and said, 'That's him, John.'

The police arrived within minutes and arrested the defendant. They brought him handcuffed before Mrs. Kearney and she identified him as Salvucci's killer (as she subsequently did at the probable cause hearing). The police did not inquire at the time why she had been unable to identify him in Lowell but she testified at the suppression hearing that she had not realized the defendant was the man because of a difference in lighting.

When testimony was concluded on the motion to suppress, the prosecution acknowledged that the Lowell confrontation was suggestive. Counsel argued, however, that the subsequent identifications by Mrs. Kearney should be admitted because all believable evidence should reach the jury and the case for exclusion was not strong enough here. The judge, without challenge by the Commonwealth, framed the issue before him thus: whether the subsequent identifications should be excluded 'on the grounds that (they) had no independent origin.' In ruling on the motion, the judge summarized the evidence and found that 'the Commonwealth has failed to establish by clear and convincing evidence that the in-court identification and, in fact, the identification at the probable cause hearing were based on observations other than the . . . (observations of the defendant subsequent to the crime). The Court finds that the probable cause identification and the in-court identification were tained as a result of impermissible confrontations prior (there)to.' The judge added, 'The circumstances of the confrontation were so (un)necessarily suggestive that they did create the extreme likelihood that the identification was tainted and that the government has failed to establish by clear and convincing evidence otherwise.'

On its application for interlocutory appeal the Commonwealth stated both that the judge applied an improper standard of law, and that his decision to suppress was not supported by the evidence. But in its brief in this court the Commonwealth argued only the latter issue.

2. The judge followed the procedure and standard derived from the Wade-Gilbert-Stovall case ² as generally understood. In brief re sume : When it appears that the prosecution intends to use an eyewitness of the crime to identify the defendant at trial, the defendant may show at a suppression hearing that the witness was subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process. If this is established, then the prosecution is barred from putting the particular confrontation in evidence at the trial ³--there is a 'per se' exclusion. Further, the prosecution is limited to introducing at trial only such identifications by the witness as are shown at the suppression hearing not to be the product of the suggestive confrontation--the later identifications, to be usable, must have an independent source. It would be open to the defendant, however, if he chose, to attempt to attack and weaken the prosecution's case at trial by introducting the suggestive confrontation and arguing to the trier that it did corrupt any later identifications including the in-court identification. ⁴

In deciding whether a particular confrontation was unnecessarily suggestive, the judge is to consider 'the totality of the circumstances surrounding it' (Stovall, 388 U.S. at 302, 87 S.Ct. at 1972). This has been understood to refer to the episode itself; it does not extend to a consideration of the witness's entire connection with the case to determine whether the confrontation, although set up in such a way as to be unnecessarily suggestive, was nevertheless reliable,...