Com. v. Chase

• Citation: 363 N.E.2d 1105,372 Mass. 736
• Decision Date: 10 June 1977
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1105

363 N.E.2d 1105

372 Mass. 736

COMMONWEALTH v. Carl R. CHASE.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Dec. 6, 1976.

Decided June 10, 1977.

Robert W. Kelley, Brockton (Kevin J. Reddington, Brockton, with him), for defendant.

Helen M. Donna, Asst. Dist. Atty., for the Com.

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

WILKINS, Justice.

The defendant appeals from his conviction of murder in the first degree. He raises numerous issues which can be grouped into three general categories: the denial of his motion to suppress out-of-court and in-court identifications by one Walter Sylvia, Jr., rulings on other evidentiary issues, and various non-evidentiary questions, including an argument that he should be granted a new trial by order of this court pursuant to G.L. c. 278, § 33E. We have considered all of these arguments and conclude that the verdict of guilty of murder in the first degree should stand.

Although specific facts will be set forth as necessary for consideration of particular issues, the general circumstances of the victim's death and the defendant's alleged involvement in that death should be set forth first. As to these general circumstances, there is no substantial discrepancy between the evidence heard on the defendant's motion to suppress and the evidence introduced at the trial. The judge made detailed findings on the defendant's motion to suppress and supported his conclusions with a carefully prepared memorandum explaining the reasons for his decision on each element of the defendant's motion. The defendant has not challenged the judge's subsidiary findings as unwarranted by the evidence. Our summary of the evidence concerning the discovery of the victim's body and the defendant's possible presence at the site of the discovery is based on the judge's memorandum of facts. ¹

On March 14, 1973, at approximately 4:20 A.M., ² one Walter Sylvia, Jr., a part time police officer who was employed regularly as a truck driver, was traveling south on Route 3 in Plymouth. He was driving a tractor-trailer truck containing United States mail. The trailer had sides of aluminum and a legend 'U.S. Mail.' The tractor was red and had a white sign indicating Grant Rental as its owner. Its high beams were on. When he was fifty to seventy-five feet beyond the Jordan Road Bridge overpass, Sylvia observed certain things on the right hand side of the road, approximately 250 yards southerly of the overpass. He saw a large, light-colored sedan situated either entirely or almost entirely off the traveled way. The automobile was possibly a Cadillac or a Lincoln of a 1966 or 1967 model design, with a black top, possibly vinyl. The headlights of the vehicle were on, the passenger door was open, and the inside passenger compartment light was on. He observed a man standing in front of the right front headlight and looking down. He also saw a brownish, glossy object by the right front door but he could not otherwise identify it. The man was middle aged, had 'slumped' shoulders, was wearing a light coat, and perhaps had a cap on his head. He saw only a profile of the face. Sylvia was traveling about fifty miles an hour on a slight upgrade which slowed the vehicle slightly. He observed the man and the vehicle for approximately ten seconds. He first saw the profile of the man when he was about 100 feet from him and continued to observe him in the rear view mirror after he passed the vehicle. He saw the man only from the waist up. Sylvia had been driving on Route 3 almost nightly for about two and one-half years. He did not stop but continued to his next scheduled stop at Buzzards Bay. ³ The judge found expressly that '(t)here was apparently something about what he had observed on the road . . . which caused him to not only take note of it but to feel some special concern and interest in it.' ⁴

About twenty-five minutes after Sylvia drove by the man and automobile south of the Jordan Road Bridge overpass, Robert D. Sampson, Jr., a messenger for a New Bedford company, passed the same location on Route 3 in Plymouth, while traveling south in a yellow-gold Dodge station wagon. He saw something brownish and white on the shoulder of the road which he thought might be the carcass of a deer. He stopped and backed up. He observed a partially clothed woman who appeared to be badly injured. Using a radio telephone, he sent a message to the Plymouth police station through a Hyannis mobile operator. The message was received at the Plymouth police station at 4:50 A.M. Sampson took his flashlight and went to the aid of the woman. He testified that, while he was with the woman, a Grant Rental tractor-trailer mail carrier drove by, decelerating but traveling at sixty to seventy miles an hour. The cab was red; the trailer body was silver. He helped the woman to his car. The police arrived shortly thereafter.

The Plymouth police took the woman to the Jordan Hospital in Plymouth where she died shortly thereafter of the effects of multiple 'blunt force injuries.' She did not identify her assailant. There was evidence that the defendant owned a white 1966 Cadillac with a black top. On March 14, 1973, Sampson had a beard; the person Sylvia saw did not.

Subsequently the investigation established who the victim was and that she had lived with the defendant. Attention, therefore, focused on the defendant. He was interrogated on March 20, 1973, at his residence and at a Boston police station, but he was not arrested. The police knew that he retained an attorney on March 20.

THE MOTION TO SUPPRESS IDENTIFICATION EVIDENCE.

1. We find no error in the judge's denial of the defendant's motion to suppress Sylvia's photographic identification of the defendant. We summarize briefly the judge's findings and conclusions concerning the photographic identification.

On March 25, 1973, a State police officer visited Sylvia at his home. He brought fifteen sets of photographs with him, one set of which showed the defendant. This officer had no information about any statements previously made by Sylvia and had no information about the defendant. All the photographs were of the 'mug-shot' variety, containing both a front view and a profile view of the subject. The photographs were of a random group; no one person depicted closely resembled any other. There was nothing particularly distinctive about the pictures of the defendant, although the pictures of the defendant had somewhat less contrast between black and white than the others. Sylvia looked at the photographs for a period of ten to fifteen minutes. The officer made no gestures or comments concerning any set of photographs. Sylvia selected the photographs of the defendant as photographs of the man he had observed on Route 3 in the early morning of March 14.

The judge ruled correctly that the identification was not so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The judge made an appropriate analysis of the 'totality of the circumstances' surrounding the identification (see Commonwealth v. Botelho, --- Mass. ---, --- ^a, 343 N.E.2d 876 (1976)), and found 'that there was no such suggestiveness as would violate due process.' His conclusion was plainly warranted and fully supported by his findings.

2. The defendant argues next that the judge erred in failing to suppress Sylvia's pre-arrest identification of the defendant while the defendant was working as a bartender at the Back Bay Lounge (lounge), a bar on Massachusetts Avenue in Boston. ⁵ The defendant's basic argument is that the in-person identification was essentially equivalent to a one-to-one confrontation. The defendant relies on cases which involved impermissible confrontations in police stations. Commonwealth v. Kazonis, 356 Mass. 649, 651, 255 N.E.2d 333 (1970). Commonwealth v. Guillory, 356 Mass. 591, 592--593, 254 N.E.2d 427 (1970). He cites no supporting authority concerning the pre-arrest identification of a suspect from a group of people in a public place.

We summarize the judge's findings concerning the identification of the defendant in the lounge. On the evening of April 6, 1973, just over three weeks after the commission of the crime, two State police officers, Lieutenant Masuret and Officer Tobin, met Sylvia in Boston by arrangement and drove him to the lounge. Officer Tobin told Sylvia that he was going there for the purposes of identification. They had no other conversation concerning the object of the trip nor any conversation relating to the case under investigation. Sylvia and Officer Tobin entered the lounge. There were approximately twenty-five patrons in the lounge and at least two bartenders, one of whom was the defendant. The light conditions were fair to good. While standing just inside the door as he entered, Sylvia observed all the people in the lounge and, from approximately twenty feet away, he recognized a man behind the bar, the defendant, as the man he had seen on Route 3. He did not tell Officer Tobin at that time. Sylvia and Officer Tobin sat at the bar and each ordered a beer which was served by the defendant. The defendant continued to work behind the bar. After five or ten minutes Officer Tobin asked Sylvia if he recognized anyone. Sylvia said that he recognized a man behind the bar, the defendant, as the man he saw on Route 3. At no time had Officer Tobin directed Sylvia's attention to the defendant. He was shown no photograph of the defendant at any time on April 6. The defendant was arrested the next day.

It is important to assess what is not involved in the defendant's argument. He makes no claim that the police used this identification procedure to avoid constitutional protections which a formal lineup procedure would have afforded him. A different question would be presented if it were shown that the police had...