Com. v. Cincotta

• Decision Date: 19 January 1979
• Citation: 6 Mass.App.Ct. 812,384 N.E.2d 1244
• Parties: COMMONWEALTH v. Albert J. CINCOTTA.
• Court: Appeals Court of Massachusetts

Page 1244

384 N.E.2d 1244

6 Mass.App.Ct. 812

COMMONWEALTH v. Albert J. CINCOTTA.

Appeals Court of Massachusetts, Norfolk.

Argued Nov. 13, 1978.

Decided Jan. 19, 1979.

P. J. Piscitelli, Brockton, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and KEVILLE and GRANT, JJ.

HALE, Chief Justice.

The defendant appeals (G.L. c. 278, §§ 33A-33G) from his conviction of armed robbery while having artificially distorted features (G.L. c. 265, § 17). He assigns as error the motion judge's denial of his motion to suppress certain identification testimony. He also assigns error in the trial judge's refusal to direct a verdict and his denial of a motion for a new trial.

On July 19, 1976, the Quincy branch of the First Federal Savings and Loan Association of Boston was robbed by a single male armed with a handgun who fled the bank with $4,004.38. Present in the bank at the time of the robbery were two employees, Helen Sands, the branch manager, and Cindy Carmusin, a teller. The admissibility of certain parts of their testimony as to the robber's identity was challenged in a motion to suppress and is in question on this appeal. The motion judge held a lengthy hearing on the motion, made findings of fact that were well supported by the evidence, and denied the motion. We summarize those findings, along with other relevant facts which could have been found based on the evidence adduced at the hearing.

The robber entered the bank at about 10:40 A.M., jumped on the counter and pointed a gun at Carmusin, telling her to lie on the floor. She complied, but only after observing his face for several seconds. Sands then came out of the ladies' room located in the rear of the bank and was confronted by the robber. She had several seconds to observe his face before he forced her to lie on the floor. Both Sands and Carmusin saw the robber's face twice more for a few seconds each during the course of the robbery. The bank was well lighted, and both saw him from close range. The trial judge found that these events gave both victims ample opportunity to observe the robber.

Both women gave relatively detailed descriptions of the robber to the detectives who arrived at the scene soon after the robbery. Sands was able to assist the officers in making up a composite rendition of the robber's face by the use of an "Ident-A-Kit" on the day of the robbery, but Carmusin was not. Later on the day of the robbery Sands viewed about 140 photographs at the police station but was unable to pick any one as being that of the robber. Cincotta's photograph was not among that array.

Three or four days later the police came to the bank with ten photographs. They showed them first to Sands at her desk while Carmusin remained behind the teller's counter about seven feet away. Sands picked out Cincotta's photograph after about ten minutes and said that he was the robber. The police then took the photographs from Sands and gave them to Carmusin. She examined them for five or ten minutes and picked out Cincotta's photograph as resembling the robber but said that she was not sure and asked to see him in person. The police said nothing to either one after asking them to look at the pictures. Carmusin was aware that Sands had picked out a picture but did not know which one.

Both women were subpoenaed to testify at Cincotta's probable cause hearing on July 29, 1976. They sat in the front row of the courtroom with two police officers and Assistant District Attorney Carhart in the following order: Carmusin, Mr. Carhart, a police officer, Sands, and a second police officer. The defendant, represented by counsel, was dressed in civilian clothes and was seated on the prisoner's bench to the right of the court without any uniformed officer in his immediate vicinity. All were speaking in whispers, so Sands and Carmusin could not hear each other speaking. As soon as she saw Cincotta, Sands leaned forward and told one of the officers, "That's him." Sands had not been asked to try to identify the robber. At about the same time, Carmusin turned to the person next to her, Mr. Carhart, and identified Cincotta as the man who had robbed the bank. The Commonwealth stipulated that Mr. Carhart had asked Carmusin before the proceedings began to look around the court to see if she could recognize anyone. Carmusin did not remember that statement, and, in fact, was unaware of the significance of the seating arrangement or of the fact that the accused had to be present at the hearing. Both women left the courtroom soon after the identification, apparently in response to a defense motion to sequester witnesses. Only Sands testified at the hearing and identified Cincotta as the robber.

At trial both Sands and Carmusin testified to the identifications they had made of Cincotta's photograph at the bank and of Cincotta himself in the courtroom before the start of the probable cause hearing. They also pointed him out at trial.

1. Due Process: Suggestivity.

The defendant argues that the motion judge violated his due process rights by refusing to suppress testimony regarding the identifications made by Sands and Carmusin from photographs and from their views of the defendant at his probable cause hearing. He asserts that those identifications were unnecessarily suggestive, that corruptive influences outweighed any indicia of reliability, and that exclusion at trial of evidence regarding them was required. The motion judge found that Carmusin's photographic identification of Cincotta "was not impermissibly suggested," and ruled that Sands' photographic identification "was not constitutionally impermissible." He found that their live identifications at the probable cause hearing were based on recollections of the robber's face, independent of the photographic identifications, but did not explicitly find that either of those identifications was nonsuggestive or reliable.

As evidence of those identifications was admitted at trial, we proceed to address these issues even though they were not examined by the judge below. ¹ In the course of this examination we shall defer to the judge's subsidiary findings in the absence of clear error. Commonwealth v. Moynihan, --- Mass. ---, ---, ^A 381 N.E.2d 575 (1978). "Our duty as an appellate tribunal . . . is not to substitute one set of findings for another but is to determine whether the judge's findings were supported by clear and convincing evidence." Commonwealth v. Cofield, 1 Mass.App. 660, 667, 305 N.E.2d 858, 862 (1974). ²

Reliability is the key to the admission of testimony regarding pretrial identifications of a defendant. Testimony as to pretrial identifications based on procedures that are so impermissibly suggestive as to give rise to a "substantial likelihood of misidentification," Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), should be excluded at trial because it would be violative of a defendant's due process rights. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Commonwealth v. Wheeler, 3 Mass.App. 387, 391-392, 331 N.E.2d 815 (1975). However, even confrontations that were unnecessarily suggestive can be the subject of identification testimony, as long as the circumstances of the identification satisfy certain indicia of reliability. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 375. Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Commonwealth v. Mobley, 369 Mass. 892, 895-896, 344 N.E.2d 181 (1976). Commonwealth v. Jones, --- Mass. ---, --- - ---, ^B 377 N.E.2d 903 (1978). Commonwealth v. Gordon, --- Mass.App. ---, --- - ---, ^C 374 N.E.2d 1228 (1978). Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Testimony as to unsuggestive confrontations, of course, does not raise the spectre of a due process violation and can be admitted without a judicial determination that they are reliable. See Commonwealth v. Jones, --- Mass. at --- - ---, ^D 377 N.E.2d 903.

The appropriate factors to be considered in the assessment of the reliability of a particular pretrial identification under the totality of the circumstances include: "(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Against those factors is to be weighed the corrupting effect of the suggestive identification itself." Commonwealth v. Gordon,--- Mass.App. at --- ^E, 374 N.E.2d at 1232, quoting from Manson v. Braithwaite, 432 U.S. at 114, 97 S.Ct. 2243. Any weaknesses in a reliable identification which are not of constitutional magnitude are "properly left for consideration by the jury relevant to the weight of the identification," COMMONWEALTH V. JONES, --- MASS. AT ---, 377 N.E.2D AT 906.^F See Commonwealth v. Moynihan, --- Mass. at --- - ---, ^G 381 N.E.2d 575. Commonwealth v. MARTIN, --- MASS.APP. ---, 374 N.E.2D 293 (1978)^H.

a. Photographic identifications. The defendant's allegations of suggestivity in the photographic identifications are directed both to the array of ten photographs shown and the procedures employed at the showing. We have examined the array and find that it was unsuggestive and unlikely to cause either witness to select the defendant's photograph.

The defendant points to no procedure that the police employed, and we have found none, that may have influenced Sands in her selection of Cincotta's photograph from the group given to her.

When Carmusin selected Cincotta's photograph, she was aware that Sands had already chosen a photograph as that of the robber although she did not know which one Sands had selected. Even if this procedure was marginally suggestive, it fell short of being impermissibly so. Compare Commonwealth v. Moynihan, --- Mass....