Com. v. Clark

Decision Date05 July 1979
Citation378 Mass. 392,393 N.E.2d 296
PartiesCOMMONWEALTH v. George E. CLARK.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Willie J. Davis, Boston, for defendant.

William L. Pardee, Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

On December 20, 1972, Edward J. Donovan, the manager of the My Way Lounge located in the Cambridge Holiday Inn, was shot and killed by two male patrons during an attempted armed robbery of the lounge. George E. Clark was arrested, indicted and, after a jury trial, convicted of the murder in the first degree of Donovan. Clark appeals pursuant to G.L. c. 278, §§ 33A-33G.

The defendant argues assignments of error concerning (1) the denial of his motion to suppress identification testimony; (2) the refusal of the court to require the Commonwealth to produce certain photographs shown to witnesses; and (3) the denial of his motion for a directed verdict. The defendant also seeks relief under G.L. c. 278, § 33E, asking that we reverse his conviction and order a new trial or, alternatively, that we reduce the verdict to accessory after the fact. We affirm the conviction and we decline to exercise our powers under G.L. c. 278, § 33E.

We summarize the evidence. Shortly after 11 P.M. on December 19, 1972, two men entered the My Way Lounge at the Holiday Inn located in Cambridge. Both men were black, and were between the ages of twenty-five and thirty-five. One of the men appeared to be slightly taller than the other.

The two men sat at the horseshoe-shaped bar, and the taller of the two ordered two bottles of Budweiser beer from the bartender, one Patricia Delong. Delong opened the bottles and placed one bottle in front of each of the men. She also placed a napkin and a glass in front of each man.

About forty-five minutes later, the same man asked Delong for two more Budweisers. Delong removed the first two bottles, which were empty, and placed them in a wastebasket located against the inside of the bar. She then served each man another bottle of Budweiser beer.

After the two men finished their second bottles of Budweiser, Delong removed the bottles and placed them in the same wastebasket. She then informed the men that the lounge would close shortly and asked if they wished to order another beer. Neither man placed an order.

A few minutes before 1 A.M. on December 20, Delong locked the liquor cabinets, washed off the top of the bar and removed the money from the cash register. She placed the money in a small cashbox, walked to the end of the bar and handed the money to Edward Donovan, the manager. Delong then walked toward the kitchen area to leave for the night.

She had taken only a few steps when she was confronted by one of the black men who earlier had been sitting at the bar. He pointed a revolver at her and said something to the effect that "this is a holdup" or "put your hands up."

The second black man put a gun to Donovan's head and reached for the cashbox. Donovan said, "No, no way. You're not going to get it." Donovan then threw down the cashbox and reached for his own gun, which Donovan wore in a holster on his hip. Both men fired, and Donovan fell to the floor. His assailant then took a step backward and fired at Donovan three more times. Both of the black men then left the scene, leaving the cashbox on the floor.

One of the other customers then told everyone in the bar not to touch anything until the police arrived. The rescue squad arrived along with the police and Donovan was pronounced dead at the scene. An autopsy later revealed that Donovan died as a result of his gunshot wounds.

During the course of their investigation, police examined the contents of the bartender's wastebasket located on the inside of the bar. They discovered five empty Budweiser beer bottles in the basket. 1 These five bottles, along with some glasses, were removed and later checked for fingerprints.

The fingerprint examination revealed that the defendant's fingerprints appeared on two of the empty Budweiser beer bottles recovered from the bartender's wastebasket. The defendant's thumbprint was also found on one of the glasses taken from the lounge where the perpetrators had been seated.

At about 2 A.M. on December 20, three black men arrived in a gold-colored Buick automobile at the gatehouse guarding the entrance of the Chelsea Naval Hospital. The men told the security guard that one of them had been shot in the arm. The guard allowed the men to enter the grounds. The guard then returned to the gatehouse and informed his sergeant, one John Hunter, of the incident.

The sergeant followed the men to the hospital emergency entrance where he copied the license number of the Buick. He then went inside the hospital and questioned the two men who were not being treated.

In response to the sergeant's questions, the shorter of the two men gave his name as Irving Mallory and his address as 29 Wyoming Street. 2 However, the man said that he had forgotten to bring any identification with him.

The sergeant then left the emergency room and returned to the gatehouse to make out his report. Shortly thereafter, the two men who were not wounded also left the hospital grounds.

A hospital physician removed a bullet from the third member of the group and determined that the man was not seriously injured. 3 The man left the hospital the next morning.

The incident at the Chelsea Naval Hospital was reported to Cambridge police a few days later. The police were given the bullet taken from the wounded man. They found that the bullet had been fired from Donovan's gun.

Within three weeks, Cambridge police had procured a picture of the defendant from the defendant's wife. Police officers included this picture in a group of photographs shown to the sergeant who had questioned the men at the hospital. The sergeant picked out the picture of the defendant as bearing a "striking resemblance" to the man who had given the name "Irving Mallory" at the hospital.

Police questioned the defendant on April 18, 1975. Clark initially denied ever having been in the Cambridge Holiday Inn. However, when police informed Clark that his fingerprints had been found at that location he said that he may have been in the Holiday Inn with his girl friend on one occasion. Later, Clark admitted to having been at the Holiday Inn earlier in the evening of December 19, 1972.

The defendant presented Andrei Clark as a witness. 4 Mrs. Clark denied having given Clark's photograph to police. However, she said that the person in the photograph had the same facial features as Clark, but that the hair and clothes were different.

The jury found Clark guilty of murder in the first degree. The judge sentenced him to life imprisonment. G.L. c. 265, § 2.

I. Motion to Suppress Identification Testimony.

Clark claims that the judge erred in denying a motion to suppress the identification testimony of John Hunter. Clark argued to the judge that Hunter's identification testimony should be suppressed because Hunter was unable to provide an unequivocal identification of the defendant. Clark further argued to the judge that a photograph which Hunter picked out of an array of photographs shown to him should be suppressed because the Commonwealth had not established that the photograph was a picture of the defendant. 5 On appeal, Clark asserts that the testimony should have been suppressed because it resulted from a constitutionally impermissible pretrial photographic identification procedure. 6

None of the defendant's arguments relating to Hunter's identification testimony is properly before us. 7 A defendant "is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to this court on a different ground." Commonwealth v. Flynn, 362 Mass. 455, 472, 287 N.E.2d 420, 433 (1972). See Commonwealth v. Johnson, 371 Mass. 862, ---, 359 N.E.2d 1286 (1977); Commonwealth v. Lewis, 346 Mass. 373, 383, 191 N.E.2d 753 (1963), cert. denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964). Nonetheless, to avoid a "substantial risk of a miscarriage of justice," we have reviewed the record to determine whether any of the defendant's arguments has merit. Commonwealth v. Lovett, --- Mass. ---, --- - ---, A 372 N.E.2d 782 (1978). See G.L. c. 278, § 33E. See also Commonwealth v. Johnson, supra, 371 Mass. at ---, 359 N.E.2d 1286. We find no error in the denial of the defendant's motion to suppress. 8

The facts relating to the identification testimony indicate that during the early morning hours of December 20, 1972, Hunter was the sergeant on security duty at the Chelsea Naval Hospital. After the gatehouse guard allowed an automobile containing three men to enter the grounds, the guard reported the incident to Hunter and Hunter followed the vehicle to the hospital emergency entrance. Hunter then entered the hospital and questioned two of the individuals who had arrived in the automobile. Hunter stated that he never saw or spoke with the man who was being treated for the gunshot wound.

Hunter provided a detailed description of each of the men whom he questioned, and stated that the shorter of the two had given the name "Irving Mallory," and gave an address of "29 Wyoming Street." Hunter also stated that "Mallory" had subsequently made a telephone call, and that Hunter was close enough to the man to overhear the conversation. The man said, "Lewis Brown ha(s) been shot" and "I think we're in big trouble."

Approximately three weeks after the incident, Hunter went to the Cambridge police station where he was shown an array of thirteen photographs. All of the photographs were of black men of approximately the same age and build. Eleven of the photographs were of the "mug shot" variety, showing two views of the individual pictured. The other two photographs were snapshots: one showed a man...

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