Com. v. Brown

• Decision Date: 15 August 1978
• Citation: 376 Mass. 156,380 N.E.2d 113
• Parties: COMMONWEALTH v. Charles BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 113

380 N.E.2d 113

376 Mass. 156

COMMONWEALTH v. Charles BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1978.

Decided Aug. 15, 1978.

Albert L. Hutton, Jr., Boston, for defendant.

Timothy P. O'Neill, Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

The defendant was indicted for murder in the first degree and armed robbery. After a jury trial, he was convicted on both indictments. The defendant appeals pursuant to G.L. c. 278, §§ 33A-33G, and argues the following assignments of error. ¹ The trial judge erred in (1) admitting evidence of a photographic identification of the defendant as the assailant of the victim notwithstanding the Commonwealth's inability to produce the group of photographs from which his picture was selected, and (2) denying the defendant's motions for mistrial based on (a) a question asked by the prosecutor of the defendant's mother as to her knowledge of her son's heroin habit, and (b) the persistence of the prosecutor in alluding to that question, in spite of the judge's instructions to the contrary, by asking the defendant's mother if, during a particular time period relative to the date of the crimes charged, she had observed the defendant's arms.

We conclude that there was no error, and that there is no basis to modify the jury verdict or to grant the defendant any other relief under G.L. c. 278, § 33E.

We summarize the evidence presented by the prosecution. About 10:15 p.m. on October 14, 1974, Diane Kenney and the victim, Michael Richardson (Richardson), arrived by taxicab at the Kenney home at 23 Sunnyside Street in Jamaica Plain. When the taxicab stopped near the driveway of the house, Richardson got out while Mrs. Kenney gave the driver four one dollar bills for the fare. As Mrs. Kenney stepped out of the taxicab, a black male opened the door on the driver's side, grabbed the one dollar bills, leaving part of one of the bills in the driver's hand, and shoved an object into the side of the driver's body. The driver testified that the object felt like a knife. ²

On seeing the struggle between the man and the driver who attempted to get out on the other side of the vehicle, Mrs. Kenney screamed. This apparently caused the man to abandon his struggle with the driver. Mrs. Kenney ran to the porch of her neighbor's home and from there she observed two men outside the taxicab, one holding Richardson from behind, and the other standing to Richardson's side. Mrs. Kenney's husband, John Kenney (Kenney), and their fifteen-year old daughter, Paula, who were in their second floor apartment, heard Mrs. Kenney's screams and they ran down the stairs and outside onto the porch. From there, they both observed a black male strike Richardson in the neck. ³ As a result of this blow, Richardson began to bleed profusely and he died at the scene shortly thereafter.

After observing the man strike Richardson, Kenney took off his belt, began to swing it and chased the man down Sunnyside Street, followed closely by Paula. Although they did not catch him, they came quite close to him and had an opportunity to observe his features. The chase ended when the man entered a late model blue automobile, occupied by another person, and drove away. Both Kenney and Paula observed him again at close range through a window of the automobile as he turned to face them. ⁴ Kenney swung his belt in an effort to hit the window, but instead struck the top portion of the window on the driver's side of the car. The car then sped down Sunnyside Street. Paula was able to see a portion of the license plate number, and it was either 874 or 784, with two "1's" at the end. After the car drove off Kenney noticed another black male running into a court yard away from Sunnyside Street.

Approximately a week later, Boston police officers showed Kenney two thick books of photographs of black males from which he selected a picture of the defendant as the man he had observed strike Richardson. On the same date, Paula was shown fifteen photographs of black males from which she chose a picture of the defendant as the person she had seen strike Richardson. Mrs. Kenney was also shown certain photographs, but she could not make an identification.

On November 9, 1974, two police officers took Kenney and Paula separately through two wards of the Peter Bent Brigham hospital in Boston and asked them whether they could identify anyone. After looking at the individuals in the two wards, where there were at least fifteen black males, Kenney saw the defendant and identified him as the man he saw strike Richardson on October 14. When Paula walked through the wards, she stopped at the defendant's bed and looked at him. She then talked to one of the police officers but that conversation was not admitted in evidence. In addition to the photographic and hospital identifications, Kenney and Paula each identified the defendant at the trial as the man who struck Richardson and they testified that their in-court identifications were based on their memory of seeing the defendant on October 14, 1974.

Dr. George W. Curtis, a pathologist and medical examiner for Suffolk County, testified that an autopsy which he performed on October 15, 1974, revealed that Richardson had died as a result of a stab wound which entered the right side of the neck, severed the left main artery and jugular vein, and ended in the left shoulder. The wound was six to eight inches deep and was caused by a very powerful, hard blow. He testified that such a blow could have been delivered by either a right-handed or left-handed person.

Officer Eugene Simpson of the Boston police department, testified that during his investigation at the scene of the crime on October 14, 1974, he found a piece of vinyl covering on the sidewalk in front of 19 Sunnyside Street.

John Chu testified that between 9:30 and 10:30 P.M., on October 14, 1974, he discovered that his 1971 blue Cougar automobile, license plate number 82471L, was missing from a parking space on Harrison Avenue in the Chinese section of Boston. He reported this to the police at approximately 11 P.M., and the automobile was found in Jamaica Plain a few days later. He identified the piece of vinyl covering found by Officer Simpson as one which had been attached to the kick plate on the passenger side of his car. He also testified that some dents in the chrome area above the driver's window of the automobile were not present when he had last seen his car on October 14, 1974.

The sole defense witness, the defendant's mother, Mrs. Anna Brown, testified on direct examination that on October 14, 1974, she and the defendant left their Dorchester home at 4:30 P.M., to tend her garden in the Fenway area of Boston and returned home again at 6:30 P.M. They ate supper together and then watched television until 11:30 P.M., when Mrs. Brown, the defendant, and two of Mrs. Brown's other children went to bed. Mrs. Brown testified further that the defendant was right handed, that his front teeth were broken in an accident in 1969, and they were extracted in 1972.

On cross-examination, Mrs. Brown testified that the defendant worked at a factory until the third week in October when he was laid off, that he was a quiet person, that he had no friends, and that he had never brought company to the house. The prosecutor then asked Mrs. Brown whether on October 14, 1974, the defendant had a heroin habit. She responded in the negative. Counsel for the defendant objected to the question and moved for a mistrial. After an extensive bench conference at which the judge indicated to the prosecutor that this line of inquiry was inadmissible, the question was excluded and the judge instructed the jury to disregard it. However, he denied the defendant's motion for a mistrial.

A short time later, the prosecutor asked Mrs. Brown some general questions concerning where the defendant had lived during the months of September and October, 1974, what the state of his health had been during that period, and whether Mrs. Brown had observed his appearance. Mrs. Brown responded that the defendant had lived with her during that time, that his health had been good and that she had observed his appearance. The prosecutor then asked her if she had observed the defendant's arms. She answered affirmatively, counsel for the defendant objected, and the question and answer were struck. At a bench conference, the judge admonished the prosecutor that he had given him strict instructions not to inquire about the subject of heroin and that he would not allow any evidence to be introduced on the matter. The defendant again moved for a mistrial and the judge denied it.

Finally, the Commonwealth called as a rebuttal witness the personnel manager from the factory where Mrs. Brown had stated the defendant worked through the third week in October. The witness testified from an employment record, which was admitted as an exhibit, that the defendant had commenced work on September 9, 1974, and was terminated on October 2, 1974. The witness further testified to the address given by the defendant on the employment record which was different from the one given by Mrs. Brown.

1. Photographic Identification.

The defendant contends that it was error to permit the Commonwealth to introduce in evidence the photographic identification made by Kenney because the Commonwealth was unable to produce the entire group of photographs from which the defendant's picture was selected. The defendant argues in effect that the failure to preserve and produce the photographs prevented the jury from assessing whether the identification procedure had been so suggestive as to affect its evidentiary weight. We disagree with this contention.

In Commonwealth v. Gibson, 357 Mass. 45, 47, 255 N.E.2d 742, cert. denied, 400 U.S. 837, 91 S.Ct. 75, 27 L.Ed.2d 70 (1970), we held it was not error to refuse ...