Com. v. Cefalo
| Decision Date | 10 April 1970 |
| Citation | 257 N.E.2d 921,357 Mass. 255 |
| Parties | COMMONWEALTH v. Robert J. CEFALO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alfred P. Farese, Everertt, for defendant.
Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.
The defendant was indicted and convicted on a charge of armed robbery in a trial held under the provisions of G.L. c. 278, §§ 33A--33G, and is hereon assignments of error.
The robbery occurred at a Stop & Shop store located off the northbound lane on Route 1 in Saugus. While working around noon in the cash office of that store on September 28, 1968, Linda Austin saw a man standing at the office window who was unknown to her. He was holding a gun pointed at her and, putting a paper bag through the window, he said, '(F)ill it up or I'll kill you.' She filled the bag with bills of various small denominations from the cash drawer to an amount under $1,000, returned the bag to the man, and he departed. She then pulled an alarm and very shortly thereafter Saugus police arrived. The defendant was later apprehended on the same afternoon in Boston by a Boston policeman who testified that upon a search of the defendant bills in the denominations taken from the store were found. In open court the witness Linda Austin identified the defendant as the man who had held her up and described clothing which he wore at the time of the robbery.
1. The defendant made a motion to suppress 'certain identifications * * * made without the benefit of a police lineup,' and in the absence of counsel. This motion after hearing was denied. During the hearing the judge excluded over the defendant's objections and exceptions a series of questions directed to Linda Austin regarding certain observations made by her at the time of the robbery. These inquiries were not directly related to the limited objective of the defendant's motion to suppress, i.e., the exclusion of the witness's identification of the defendant while he was in police custody. The questions ranged beyond the scope of the motion. The included queries dealing with the kind of clothing worn by the robber, the opportunity of observation at the time of the robbery, lighting conditions in the store, and other factors bearing upon the robbery incident itself. The questions were not concerned with the identification by the witness of the defendant while he was in police custody some three or four hours later. The defendant's motion was directed solely to the in-custody identification. In effect, as we said in Commonwealth v. Roy, 349 Mass. 224, 227, 207 N.E.2d 284, 286, '(a) pre-trial motion to suppress, based on an alleged illegal search and seizure, should specify the evidence sought to be suppressed, and the hearing should be directed to the specified evidence and to the grounds alleged for its suppression.' Such a hearing, as we there stated, should not develop into a 'far ranging and free wheeling expedition in which the defendant * * * (is) able to search out all of the evidence, physical and testimonial, which the Commonwealth * * * (has) against the defendant.' The judge acted properly in excluding the questions.
2. The defendant also assigned as error the trial judge's denial of the motion to suppress, denial of a motion for a mistrial, and failure to exclude certain evidence and testimony. The in-custody identification occurred when the witness, at the request of the police, arrived at approximately 4:30 P.M. on the day of the robbery near the entrance of Division 1 of the police department in Boston, at which time the defendant, handcuffed to two other persons, emerged from the station house and entered a patrol wagon. He later alighted from the patrol wagon near another police station, to which the cruiser in which the witness was a passenger had also been driven.
However, assuming arguendo the illegality of the in-custody identification by the witness, we are of the belief that her in-court identification of the defendant was independent of the in-custody identification and therefor valid. At the time of the robbery the man who approached the cash office stood about four and a half feet from her. The witness observed the robber for a half minute to a minute. She noticed his clothing, hair and complexion. In the court room she stated that she was 'positive' that the defendant was the man who had robbed her although she admitted she was nervous when the robbery occurred. She gave a statement to the Saugus police approximately twenty minutes after the robbery which differed only in insignificant respects from her testimony on the stand. In the investigatory phase of the case she was shown a series of pictures and was quite positive that the defendant's picture was not among them. The trial occurred four months after the robbery. In sum, it would appear that her in-court identification of the defendant originated in a series of observations independent of those which ...
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