Com. v. Bumpus

• Decision Date: 04 December 1972
• Parties: COMMONWEALTH v. Robert T. BUMPUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 167

290 N.E.2d 167

362 Mass. 672

COMMONWEALTH v. Robert T. BUMPUS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 2, 1972.

Decided Dec. 4, 1972.

Roger C. Park, Boston (Norman S. Zalkind, Boston, with him), for defendant.

Newman A. Flanagan, Asst. Dist. Atty. (Alvan Brody, Boston, with him), for the Commonwealth.

Before TAURO, C.J., and READON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

HENNESSEY, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from a conviction under an indictment charging him with the murder of Edward Grenier and from convictions under four other indictments charging him with the armed robbery of four other persons. The jury recommended, as to the murder conviction, that the death penalty not be imposed.

On July 9, 1970, a robber entered the Mount Vernon Co-operative Bank on Boylston Street, in the city of Boston, vaulted over the teller's counter with a pistol in his hand and robbed four of the tellers. He took about $5,900 from them. Edward Grenier, a bank vice-president, tackled the robber and attempted to wrest the pistol from him. They wrestled and Grenier remained on the floor of the bank. The robber turned, went to the door, turned back, faced Grenier and fired one shot, killing him.

The robber proceeded out of the bank and went in the direction of the Boston Public Library on Dartmouth Street and headed toward Flagston Street. A taxicab driver named James E. Taylor was hailed by a man in this area and drove the individual to Annunciation Road.

Gail O'Brien, a bookkeeper, identified the defendant as the bank robber. Rose Lowden, a teller, also identified the defendant as the bank robber. Janice Michael, a teller, testified that the defendant looked like the robber. The witness Taylor testified that the defendant was the man who had ridden in his cab after the robbery, that the defendant gave him between $160 and $180 from a paper bag, and that the defendant had left a sneaker and a gun in the cab. The robber had worn sneakers and had left one in the bank. From other evidence the jury could properly infer that the sneaker left in the taxicab was the mate of the one left in the bank, that the gun left in the taxicab was the weapon which fired the fatal bullet, and that the paper bag described by Taylor resembled a bag carried by the robber.

Elizabeth H. Kappel, a sister-in-law of the defendant, testified that on July 20, 1970, at her home in Waterloo, Ontario, the defendant stated to her that he had robbed a bank.

The defendant argues that the trial judge erred in denying the defendant's motion for separate trials on the issues of guilt, responsibility and punishment; in requiring the defendant to sit in the dock throughout the trial; in various rulings concerning the selection and excusing of jurors; in denying the defendant's motion to suppress the identification testimony of the witnesses Lowden, Michael, O'Brien and Taylor; in various other rulings on the admission of evidence; and in various instructions and omissions in the charge to the jury.

1. Several of the defendant's assignments of errors relate to identification testimony. Among those argued is the defendant's contention that he was unlawfully detained under court order and forced to participate in a lineup. Therefore, he argues, pre-trial and in-court identification of the defendant by witness Gail O'Brien should have been excluded as the product of an illegal arrest.

Two weeks after the crime, an attorney representing the Boston police department appeared before a judge of the Superior Court and sought and procured an order which compelled the defendant to submit to identification procedures. The defendant was neither present nor represented by counsel at this hearing. Until this time the defendant had neither been arrested nor interrogated. The defendant does not contend that the resulting lineup proceedings were suggestive or otherwise improper and he agrees that he was represented by counsel at the lineup. He was viewed and identified by the witness O'Brien at the lineup. Photographs of the lineup were taken.

The defendant's contention, that if the detention was unlawful, the in-court identification by the witness O'Brien must be excluded, is of doubtful validity. Exclusion only of evidence of the lineup and the identification made at that time appears to be the appropriate relief, if any is required, particularly since the trial judge warrantably found that the in-court identification, by clear and convincing evidence, had a basis independent of the pre-trial lineup. Compare United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 22 L.Ed.2d 676. In the Davis case, it was held that the fingerprints of the defendant obtained during an illegal detention must be excluded from evidence. Perhaps, also, in the case before us, photographs of the lineup and evidence of witnesses' identification of the defendant as shown in those pictures should also have been excluded, if the detention which gave rise to the lineup was unlawful. However, we need not decide these issues, since we have concluded that the defendant was detained for the lineup upon evidence which established probable cause for his arrest.

The evidence which we conclude showed probable cause was produced at the hearing by the attorney representing the police department, and included sworn testimony by policemen. First of all, it was shown before the judge that there was a substantial correlation between the facts known about the bank robber and the facts known about the defendant. Police testimony, and a police 'wanted' bulletin entered in evidence, showed that witnesses described the robber as a good-looking negro with dark skin, twenty-five to twenty-seven years old, about six feet two inches tall, slim build, carrying a revolver, who left the taxicab of James Taylor at Annunciation Road in Roxbury. By comparison, evidence about the defendant showed him to be a negro with dark skin and a 'beautiful' face, about six feet one inch tall, weighing 145 pounds, who owned and carried a handgun, and who had previously lived and presently had friends in the Annunciation project.

It was also shown by police testimony that Elizabeth and Bruce Kappel, the defendant's sister-in-law and her husband, had informed police that the defendant had visited them at their home in Ontario, Canada, on July 20 (eleven days after the robbery at the Mount Vernon Co-operative Bank) and told them that he had robbed a bank in Boston a couple of weeks before. These informants stated that the defendant had a rifle, a shotgun, and a handgun, and was driving a new red Mustang automobile which he said he had bought for $600. He also talked to them about buying a new house. In contrast to these facts, other evidence showed that the defendant was unemployed. The reliability of the Kappels as informants was adequately shown (Commonwealth v. Stevens, Mass., 283 N.E.2d 673, ^a and cases cited) by evidence of detained information furnished to the police by a Boston lawyer, by a detailed corroborating telegram which had been received from the Ontario police, and be detailed evidence of telephone conversations between Boston police and the Kappels.

The Commonwealth argues that a showing of something less than probable cause for arrest would be sufficient to detain the defendant for a lineup. The support for this virtually unprecedented contention, the Commonwealth argues, lies in the fact that the police sought a narrowly circumscribed order from a judge. See Wise v. Murphy, 275 A.2d 205, 208 (D.C.App.) (but see dissenting opinions). Compare Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 22 L.Ed.2d 676; compare also Terry v. Ohio, 392 U.S. 1, 8--31, 88 S.Ct. 1868, 20 L.Ed.2d 889. See generally McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235; Am. Law Inst., A Model Code Of Pre-Arraignment Procedure, § 120.1(2), Commentary at 132--136, and § 210.1(7), Commentary at 163--164 (Official Draft No. 1, 1972). In view of our conclusion that probable cause for arrest was shown, it is unnecessary for us to consider this argument further.

2. The defendant challenges the identification testimony of three other witnesses. We first consider the testimony of Janice Michael, a teller at the bank. Although she was present at the police station, she was not brought to the lineup. Instead, she was shown a single photograph of the defendant and his bride in wedding attire, and identified him as the robber. The judge found that the wedding photograph was suggestive and was the product of an illegal search. He excluded the witness's identification of the defendant in both the wedding photograph and in a lineup photograph. She was allowed to identify the defendant at the trial and the defendant argues that this, too, should have been excluded. There was no error. The circumstances do not indicate that the photographic identification procedure was so impermissibly suggestive as to rise to due process proportions. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967 19 L.Ed.2d 1247. While the parties have stipulated that the wedding picture was the product of an unlawful search, the trial judge's finding that the in-court identification of the defendant by this witness was the result of means sufficiently distinguishable to be purged of the primary taint, is supported by the evidence. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

We next consider the defendant's contention that the admission in evidence of both pre-trial and in-court identification by James Taylor, the taxi driver, was error because of the suggestive effect of repeated showings of the lineup photographs and because the witness viewed these photographs in the absence of counsel....