Com. v. Cooper

• Decision Date: 29 May 1969
• Citation: 356 Mass. 74,248 N.E.2d 253
• Parties: COMMONWEALTH v. Charles F. COOPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 253

248 N.E.2d 253

356 Mass. 74

COMMONWEALTH v. Charles F. COOPER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 4, 1969.

Decided May 29, 1969.

John C. Cratsley, Washington, D. C., for defendant.

Paul A. D'Agostino, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

KIRK, Justice.

The defendant Cooper waived his right to trial by jury and was found guilty by the judge on an indictment charging him with armed robbery. The trial was subject to G.L. c. 278, § 33A-33G.

Cooper's appeal is before us with a summary of the record, a transcript of the evidence and eight assignments of error, only three of which purport to be based upon exceptions. ¹ These three assignments rest on the single contention that eyewitness testimony identifying Cooper as one of the robbers was inadmissible under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

A proper consideration of the main contention dictates that we first summarize the pertinent evidence; second, state and discuss certain procedural steps preceding and attending the trial; and third, resolve the central issue.

1. We summarize the evidence. ² On the evening of March 4, 1968, Maurice Jacobson was working in his pharmacy on Rindge Avenue, North Cambridge. His wife was helping him. About 10:25 P.M. while Jacobson was sweeping up, preparing to close the store, two men entered. The store was reasonably well lighted. The taller of the two men approached within three or four feet of Jacobson and asked for a bottle of cough medicine. Jacobson directed him to his wife at the drug counter at the rear of the store. The two men started to go to the rear of the store, but instead went to the card rack near the door where they stopped. Soon thereafter, as Jacobson's sweeping brought him within a few feet of the tall man, ³ the latter turned around, opened his coat and revealed a gun at his belt. The gun looked like a German Luger. Cooper said, '(T)his is a holdup. * * * (J)ust go down back of the store and no one will get hurt, and take it easy.'

The other man then held a gun to Jacobson's back and took him to the rear of the store near the drug counter. Jacobson was given a paper bag and told to fill it up. Cooper was pointing the gun at Mrs. Jacobson. Jacobson put money into the bag from both cash registers. Mrs. Jacobson at the counter was within two feet of Cooper and she looked at his face as he leaned on the counter with his elbow and pointed the gun at her while Jacobson was filling the bag. When the bag was filled Jacobson told the men that the police would be coming along in a few minutes to help close up the store. The two men grabbed the bag and ran out.

Jacobson did not notice the color of Cooper's hair too much 'because the other characteristics stood out * * * (s)uch as a pock-marked face and pulled-in cheeks. Sallow.' Mrs. Jacobson 'observed his face, and I couldn't forget it. * * * his cheeks are in a little * * * (a)nd he was soft spoken. * * * I remember his face. I remember the shape of his face.'

The next day Jacobson went to the police station to look at photographs in an attempt to identify the participants in the robbery. He looked through five or six boxes of photographs without identifying anyone. Then '(a) detective came in and threw a manila envelope with a picture in the front of it on the table and I (Jacobson) just looked at it and * * * said: that is the man--without any hesitation at all.'

On March 20, 1968, Cooper was arrested in Chicago, Illinois, by officers of the Cambridge police on a warrant for a crime other than the crime charged in the present case. At the time of his arrest he was advised of his rights under the Miranda rules. He was brought to Boston on the same day. On the plane ride from Chicago he was similarly warned of his rights. On the way from the Boston airport to the police station one of the officers stopped off to purchase shaving cream and razor blades for Cooper who had left his personal effects in a Chicago rooming house. When he reached the Cambridge police station he was again advised of his rights. He made a telephone call to a girl. He did not ask for a lawyer.

While Cooper was at the police station on March 20, 1968, the Jacobsons had been asked to report to the station house. First Jacobson and later Mrs. Jacobson was taken to a room and asked to look through a 'one-way' glass or window to an adjoining room to determine if they could pick out anyone there who had participated in the robbery. There were twelve to twenty men 'in all manners of dress,' 'milling around' in the room. Some of the men were police officers. Jacobson picked out Cooper. Mrs. Jacobson immediately picked out Cooper. After Jacobson had picked out Cooper he requested the police to have Cooper walk alone in front of him because 'I just wanted to see him closer and see him walk around just to be 100% sure that that was the man.' This was done in the presence of both Jacobsons.

2. We state and discuss certain procedural aspects of the case. On April 5, 1968, Cooper was indicted for the Jacobson robbery. At his arraignment on April 10, he was represented by counsel and pleaded not guilty. Several motions thereafter were filed on his behalf. At Cooper's request the case was continued for trial until June 14, 1968, when he filed his waiver of right to trial by jury. At the opening of the trial his counsel presented certain motions not theretofore filed. Referring to one of these motions, counsel said to the judge, 'The motion to exclude testimony I will bring up in the course of the trial. I previously intended to have a hearing before the trial, but I am not going to do that.' The motion was returned to counsel.

During the Commonwealth's examination of Jacobson he was asked if either of the two men who had entered the store was in the court room. Cooper's counsel objected 'on the grounds of the case of United States vs. Wade. I have a written motion here which I would like to file.' The judge declined to receive the motion, advising counsel that 'as the evidence goes in you may object to it. Right now, there is no question of any lineup. * * * I will hear you later if you with to have it stricken.' The defendant's exception was saved.

There was no error in the judge's ruling. Nothing in the record gave the judge the slightest intimation that a special issue was to be made of identification or that of voir dire would be requested. Cooper's counsel had failed to comply with Rule 101B, adopted April 30, 1965, effective June 1, 1965, in amendment of the Rules of the Superior Court (1954). ⁴ In addition at the trial he made no effort to show that he was within the flexible exculpatory provisions of the second paragraph of the rule. As appears from the colloquy between the judge and counsel at the outset of the trial, counsel sought to reserve to himself the prerogative to decide whether or when he would have a hearing on his motion to exclude identification evidence. This he may not do. Rules of court are indispensable to the orderly and efficient conduct of a court's business. They are not to be set aside and the order of trial affected or dictated by the caprice or design of counsel. Currently, Rule 101B is of special importance in arranging for and expediting the trial of criminal cases especially where constitutional issues are to be raised. A motion to suppress or exclude evidence of identification because of alleged failure to meet constitutional requirements comes clearly within the scope of Rule 101B. The last minute waiver of right to jury trial did not dispense with the rule. The defendant cannot now be heard to complain of a procedure which was his deliberate choice. See Commonwealth v. Lewis, 346 Mass. 373, 379, 191 N.E.2d 753.

In his cross-examination of Jacobson the defendant was not restricted. Jacobson's opportunities to observe Cooper and the details of his observation at the time of the robbery were fully developed. ⁵ The fact that Cooper had been viewed by the Jacobsons on March 20, 1968, at the police station, was also elicited in the cross-examination of Jacobson. The observations on both occasions are stated in our summary of the evidence. At the conclusion of Jacobson's testimony, Cooper moved for the 'exclusion of the testimony of * * * (Jacobson) on the basis of the fact that we have established that there was a confrontation at the police station.' Subject to exception, the motion was denied. This was not error for the obvious reason that, when made, it was premature under the judge's ruling and was based on inadequate grounds.

3. At the close of the Commonwealth's case following the testimony of Mrs. Jacobson and two police officers, ⁶ Cooper moved that a hearing be held on his 'motion to exclude the testimony of Mr. Jacobson and the testimony of Mrs. Jacobson * * * (o)n the basis of the case of United States vs. Wade.' We infer that this motion was made in reliance upon the judge's earlier statement that he would hear the defendant later if he wished to have the testimony struck. The defendant was not entitled to have the motion heard as of right. He does not argue and indeed on this record cannot argue that the information of the station house observation and confrontation was a surprise development at the trial. Accordingly, we deal with the merits of the motion on the premise that the defendant disregarded the provisions of Rule 101B, that the judge nevertheless consented to consider the issue of identification under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, in the event that the evidence elicited during the trial warranted it, that he did so consider the issue, and thereupon denied...