Com. v. Bowie

• Decision Date: 25 January 1988
• Docket Number: 86-1234,Nos. 85-840,s. 85-840
• Parties: COMMONWEALTH v. Robert C. BOWIE.
• Court: Appeals Court of Massachusetts

Page 1345

514 N.E.2d 1345

25 Mass.App.Ct. 70

COMMONWEALTH v. Robert C. BOWIE.

Nos. 85-840, 86-1234.

Appeals Court of Massachusetts Norfolk.

Argued Jan. 21, 1987.

Decided Nov. 18, 1987.

Further Appellate Review Denied Jan. 25, 1988.

Jack I. Zalkind, Chestnut Hill, for defendant.

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

Before KASS, QUIRICO and WARNER, JJ.

QUIRICO, Justice.

On February 14, 1985, a Norfolk County Superior Court jury convicted the defendant of armed burglary, armed robbery, and breaking and entering in the nighttime and larceny. The trial judge sentenced the defendant to concurrent terms of ten to twelve years at M.C.I., Walpole (Cedar Junction), for the first two convictions and, with the defendant's consent, placed the third indictment on file. The defendant filed a timely appeal from the convictions. Subsequently, the defendant brought and argued a motion for a new trial and has since appealed its denial. The two appeals were consolidated for briefing and argument before this court.

The defendant raises four contentions: 1) he claims that the court erred in denying his motion to suppress identifications made and to be made by the victim of the crimes; 2) he contends it was error to permit a police officer to testify at trial concerning a statement made to the police by the defendant's girlfriend just prior to the discovery of an incriminating gun in her apartment; 3) he argues that the judge committed reversible error in using the jury instructions found in Commonwealth v. Little, 384 Mass. 262, 424 N.E.2d 504 (1981), to charge on proof beyond a reasonable doubt; and 4) he claims error in the denial of his motion for a new trial based on newly discovered evidence.

Trial Evidence

The jury could have found the following facts from the testimony at trial. On April 11, 1981, Anthony Felos returned to his house in Stoughton between approximately 8 and 8:30 P.M., when it was dark outside. As he entered his house through an enclosed porch he heard a noise coming from the interior. Thinking that neighborhood children had intruded, he picked up a hammer and proceeded to his bedroom, where he encountered two men. One of the men (Burglar 1) was to his immediate left, rifling through a drawer in his dresser; the other (Burglar 2) was crouched eight to ten feet away, perusing the contents of a footlocker at the end of the bed. The room was illuminated by a small table lamp with a low-wattage bulb on the dresser and Felos clearly saw the faces of both men for a period of some seconds. Felos could see from the bedroom doorway that a loaded pistol which he kept under his bed "was not there." When the second, crouching, burglar exclaimed, "Shoot him with that gun," Felos understandably fled. The thieves also fled, following closely behind Felos. All three reached the exterior porch door at about the same time. Felos testified, "It was almost like three people trying to get out the one door at the same time." Felos turned and threatened Burglar 1 with his hammer, causing him to back off. At this point, Burglar 1 was only inches away, Burglar 2 was within three feet, and Felos could see the faces of both men in the light cast by a "wagon wheel" fixture overhead on the enclosed porch. Felos and the burglars, in that order, abandoned the house, Felos to call the police at a neighbor's house, and the burglars to flee in an automobile parked nearby. Gerald Morrell, who was parked in the lot of a nearby ice cream stand with his family, testified that he saw two light-skinned black men run across the parking lot and jump into the automobile next to his. He testified that the two men both wore long coats and were around six feet tall; one was carrying a bag. ¹

When the Stoughton police arrived, Felos gave a general description of the two burglars: both were non-Caucasian--black or Puerto Rican, both were around six feet tall and had short "Afro" hairstyles. Burglar 1 had a moustache and wore a dark coat; Burglar 2 was clean shaven and wore a lighter colored jacket or coat. When Felos returned to his house that evening he found that his door had been jimmied open. He later found nearby a piece of a tool resembling a crowbar. Felos also discovered that a bowling bag and three pistols--a Walther P.P.K. nine millimeter, a Ruger .22 caliber "convertible," and a .25 caliber Beretta--had been taken from his bedroom.

Later that night, Felos was questioned further at the Stoughton police station, where he assisted in preparing a composite drawing of Burglar 1. (Felos did not participate in preparing a composite of Burglar 2.) Felos also looked through two books of photographs compiled by the Stoughton police but was unable to identify any of the pictures as that of either of the men who had broken into his house. Gerald Morrell also helped prepare a composite drawing and unsuccessfully searched through the books of mugshots. The next day, Felos was shown approximately nine other photographs from the files of the Brockton police department but again was unable to make a positive identification.

At 2:30 A.M. on September 9, 1981, several Brookline police officers were dispatched to the Brookline apartment of Thomasina Benson in response to a call indicating there was a disturbance at that apartment and that there might be a man there with a gun. According to the testimony of one of the Brookline police officers, Ms. Benson was in the hall outside the apartment and appeared "very upset." In a low voice, Benson told the officers, "My boyfriend, Robert Bowie, is in the apartment, and he may have a gun." The police entered the apartment and found the defendant in a bedroom. The defendant claimed to have no gun. The officers thereupon searched the apartment and found a Walther P.P.K. nine millimeter pistol secreted under a rug in the living room. In time, it was discovered that the serial number on the pistol matched that of the Walther pistol taken from the Felos residence.

About two months later, the Brookline police transmitted a photograph of the defendant to the Stoughton police. At some point, the Brookline police also sent a letter to Felos informing him they had recovered his Walther P.P.K. Thereafter, on December 24, 1981, a Stoughton detective went to Felos's house and presented Felos with an array of nine photographs which included the Brookline photograph of the defendant. In twenty-four seconds (the time was noted by the detective, who was looking at his watch), Felos picked out the defendant as resembling Burglar 2. The Stoughton detective then stated something to the effect of, "That's the one," and told Felos the police had found one of the missing guns in that man's possession.

In May of 1983, Felos was present in Stoughton District Court for a probable cause hearing (which did not go forward) and identified the defendant as he entered the courtroom and then sat in the audience. Felos testified he thought the defendant resembled the second burglar even though at the time of the probable cause hearing he looked heavier, better dressed, and wore a moustache. Felos also identified the defendant from the witness stand at a subsequent probable cause hearing (which did go forward) in Stoughton District Court on June 29, 1983, and at later hearings in Superior Court.

Further evidence adduced at trial and the motion hearings will be described where relevant to the issues raised by the defendant.

1. Denial of the Motion to Suppress Identifications.

On December 14, 1984, there was a hearing in the Superior Court in Norfolk County on the defendant's motion to suppress "all out-of-court identifications, the in-court identification, and any subsequent identifications" made by Felos. The court heard testimony by Felos and the Stoughton detective who was present at the photographic identification on Christmas Eve, 1981, and at both in-court identifications. The Commonwealth and the defendant submitted briefs and waived arguments. On December 21, 1984, the motion judge found that there was no evidence of suggestiveness on the part of the police and denied the motion.

The defendant contends the identifications made by Felos should have been excluded because they were rendered unreliable by suggestive police procedures. See, e.g., Commonwealth v. Moon, 380 Mass. 751, 756-759, 405 N.E.2d 947 (1980). He fails, however, to present in the argument section of his brief any factual support from the record for these contentions. In forming his vague argument, it appears that the defendant is relying primarily on evidence presented in support of the motion for a new trial (see infra ) and not evidence presented in support of the motion to suppress held some eighteen months earlier. Since he has not specified the reasons for his contentions, the defendant's argument to this court falls short of an adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Nevertheless, we discuss the issue and hold that the denial of the motion to suppress was correct and amply supported by the evidence adduced at the suppression hearing and reflected in the motion judge's findings of fact, to which we grant great deference. See Commonwealth v. Correia, 381 Mass. 65, 76, 407 N.E.2d 1216 (1980); Commonwealth v. Melvin, 399 Mass. 201, 204, 503 N.E.2d 649 (1987); Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 459, 488 N.E.2d 780 (1986).

"The question raised by a motion to suppress identification testimony is not whether the witness was or might be mistaken but whether any possible mistake was or would be the product of improper suggestions made by the police." Commonwealth v. Gordon, 6 Mass.App.Ct. 230, 237, 374 N.E.2d 1228 (1978), quoted in Commonwealth v. Paszko, 391 Mass. 164, 172, 461 N.E.2d 222 (1984). See Commonwealth v. Dougan, 377 Mass. 303, 316-317, 386 N.E.2d 1 (1979). In the present case, Felos had ample opportunity and reason to view the defendant's face during the crime and thereafter...