Com. v. Bumpus

• Decision Date: 14 June 1968
• Citation: 238 N.E.2d 343,354 Mass. 494
• Parties: COMMONWEALTH v. Paul BUMPUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 343

238 N.E.2d 343

354 Mass. 494

COMMONWEALTH v. Paul BUMPUS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1968.

Decided June 14, 1968.

William P. Homans, Jr., Boston, for defendant.

W. Langdon Powers, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

Bumpus was found guilty upon an indictment charging breaking and entering a building in the nighttime with intent to steal. He appealed from a sentence of six months in the house of correction. See G.L. c. 278, §§ 33A--33G. Portions of the evidence and certain facts, which on the evidence could have been found, are set forth below.

Greenberg, a student at Northeastern University, was in bed in his room at 214 Hemenway Street, Boston, on the early morning of July 13, 1967. About 3 A.M. he heard the outside door to the building being opened. Then he heard steps on the stairs. A man entered his room through the partly open door. Greenberg feigned sleep. He observed the man walk about his room, open drawers, and look in a closet. The man left after about twenty minutes. Greenberg called the police. Officer Fallon, and apparently other officers, arrived in ten minutes. After a talk with Greenberg, Officer Fallon went out. He returned in a short time with Bumpus.

Greenberg testified that the man who entered his room was wearing 'white sneakers, dark pants, a white shirt, a 'T' shirt, a dark over-jacket * * * and a wrist watch,' and was 'colored.' Subject to exception, he also testified that the man brought back by Fallon was 'colored' and similarly dressed. In court Greenberg identified Bumpus as the intruder. Bumpus, he also said, was with Fallon when he came back.

Greenberg was then asked, '(D)id you identify the defendant?' This question was excluded after a bench conference, during which the trial judge, subject to exception, refused to hold a voir dire 'in the absence of the jury to determine what part the confrontation * * * played in * * * Greenberg's * * * subsequent identification in court.' A nonresponsive answer, 'I identified him,' by Greenberg (to a question about how Bumpus was dressed) was struck from the record and the jury at once were instructed to 'disregard it entirely.' On cross-examination Greenberg agreed that, as to his identification of Bumpus, his 'state of mind' was that '(i)t could be then man; I am not really sure.'

Officer Fallon testified that, after he obtained a description from Greenberg, he went 'into the street looking for' someone fitting that description, and 'a short distance from the scene' found Bumpus, 'a man who fitted this description,' who did not give responsive answers. This was twenty minutes to half an hour after starting his search. Fallon also stated that Bumpus was wearing 'white sneakers, dark pants, white 'T' shirt, black type sweater-type coat, and he had a wrist watch on his arm.' Fallon arrested Bumpus 'for * * * breaking and entering.' He 'frisked' him and warned him 'that anything he told me could be used against him' and that he could use a telephone when they reached the station house. No mention of the right to counsel was then made, but no evidence of any interrogation of (or admissions by) Bumpus was introduced.

A flashlight was found on Bumpus's person. This was identified by William E. Perkins, another occupant of 214 Hemenway Street, as a flashlight (of which Perkins gave a detailed description) with a missing lens which had been 'on a table beside the front door' and which the witness had used on occasion. A screwdriver also was found in Bumpus's pocket.

Officer Fallon took Bumpus to 214 Hemenway Street. Perkins and Greenberg came out on the street and talked with him while Bumpus was standing on the street. Bumpus was then taken away in the patrol wagon.

1. The trial judge denied a motion for a directed verdict, and indicated in doing so that, if the only evidence had been Greenberg's identification (which was somewhat equivocal because of his candor in expressing his doubts on cross-examination), he would probably have granted the motion. The judge stated, however, that all the evidence, including (a) the similarity of the description (including clothing) of the intruder and the appearance of Bumpus when picked up, and (b) the finding of the flashlight on Bumpus, warranted the jury in finding Bumpus guilty. We agree. The evidence (concerning events, all of which took place within the space of about an hour and which were substantially continuous), summarized above, if admissible (as we think it was), and the inferences which reasonably could be drawn from theat evidence were sufficient in the aggregate to support the jury's verdict.

2. Bumpus's principal contention is that the trial judge erred in admitting (a) evidence concerning Greenberg's and Fallon's observation of Bumpus immediately after his arrest, and (b) Greenberg's incourt identification of Bumpus without a voir dire to establish that the identification had a source independent of the prior confrontation. Bumpus argues that admission of the in-court identification was in violation of United States v. Wade, 388 U.S. 218, 226--227, 236--237, 240--242, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 272--273, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, Warden, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Although the operation of these decisions (announcing novel principles 'not foreshadowed in * * * (Supreme Court) cases') is prospective only under the Stovall case, 388 U.S. 293, 299--301, 87 S.Ct. 1967, the events of July 13, 1967, took place about a month after the three decisions. Accordingly, we are required to follow the principles announced by the Supreme Court of the United States in the three cases, so far as those principles may be relevant, although our decisions have never stated such principles, and although, prior to the Wade case, we had not supposed that such constitutional principles existed.

In the Wade case (see 388 U.S. 218, 220, 87 S.Ct. 1926) a bank robbery took place on September 21, 1964. An indictment was returned on March 23, 1965. Wade was arrested on April 2, 1965, and counsel was appointed to represent him on April 26. Fifteen days later, without notice to Wade's lawyer, two bank employees observed a lineup and identified Wade. The post-indictment lineup (p. 237, 87 S.Ct. 1926) was held (pp. 228--239, 87 S.Ct. 1926) to be a 'critical stage of the prosecution' at which Wade was entitled to the assistance of counsel.

In Gilbert v. State of California, 388 U.S. 263, 269--274, 87 S.Ct. 1951, 18 L.Ed.2d 1178, three eyewitnesses to one robbery observed Gilbert 'at a lineup conducted without notice to his counsel * * * 16 days after his indictment and after appointment of counsel.' The robbery occurred on January 3, 1964 (see pp. 270, 282, 87 S.Ct. 1951). Gilbert was arrested on February 26 (see p. 283, 87 S.Ct. 1951). The lineup occurred on March 26, after Gilbert had been indicted (p. 270, fn. 2, 87 S.Ct. 1951). Witnesses, who were present at the lineup, identified Gilbert in court (pp. 269--270, 87 S.Ct. 1951). The court (per Mr. Justice Brennan, over vigorous dissent) said, at p. 272, 87 S.Ct. at p. 1956, 'The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. * * * (T)he record does not permit an informed judgment whetehr the in-court identifications * * * had an independent source.' The case (p. 272, 87 S.Ct. p. 1956) was remanded to the California Supreme Court 'to afford the State the opportunity to establish that the in-court identifications had an independent source, or that thier introduction * * * was in any event harmless error.' ¹

The Stovall case, 388 U.S. 293, 294--295, 87 S.Ct. 1967, did not involve a post-indictment lineup. A doctor was stabbed to death about midnight on August 23, 1961. His widow also was stabbed a number of times. She was placed in a hospital for surgery. Stovall was arrested on the afternoon of August 24. 'The police, without affording * * * (Stovall) time to retain counsel,' took him to the widow's hospital room handcuffed to a police officer. He was the only Negro in the room. She identified him. Later she testified to her identification of him in the hospital room and 'also made an in-court identification.' After holding the Wade and Gilbert cases prospective in effect only (pp. 296--306, 87 S.Ct. 1967) and 'therefore inapplicable' to Stovall's case (p. 296, 87 S.Ct. 1967) the Supreme Court (again per Mr. Justice Brennan) considered (pp. 301--302, 87 S.Ct. p. 1972) whether Stovall was 'entitled to relief on his claim that in any event the confrontation * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' After stating that the 'practice of showing suspects singly to persons for * * * identification, and not as part of a lineup, * * * (had) been widely condemned,' the opinion (p. 302, 87 S.Ct. p. 1972) proceeded, 'However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to * * * (the widow) in an immediate hospital confrontation was imperative' (emphasis supplied).

The confrontation in the present case, of course, was less immediately imperative than in the Stovall case. It was likely that Greenberg, a student, would be available at trial, whereas the widow in the Stovall case was seriously wounded and might die. It was, however, entirely reasonable for Officer Fallon to take Bumpus to 214 Hemenway Street upon his apprehension. Although Officer Fallon testified that he was in a one man cruiser when he first went to the scene of the crime, the somewhat...