Com. v. Coy

• Decision Date: 06 August 1980
• Citation: 10 Mass.App.Ct. 367,407 N.E.2d 1310
• Parties: COMMONWEALTH v. Jeffrey COY.
• Court: Appeals Court of Massachusetts

Page 1310

407 N.E.2d 1310

10 Mass.App.Ct. 367

COMMONWEALTH v. Jeffrey COY.

Appeals Court of Massachusetts, Suffolk.

Argued June 13, 1980.

Decided Aug. 6, 1980.

Robert L. Cooperstein, Asst. Dist. Atty. (Jan Roller, Sp. Asst. Dist. Atty., with him), for the Commonwealth.

Stephen Hrones, Boston, for defendant.

Before GREANEY, PERRETTA and KASS, JJ.

GREANEY, Justice.

In this case, on the Commonwealth's appeal (G.L. c. 278, § 28E; G.L. c. 211, § 4A), we are asked to pass upon the constitutional acceptability of identification of the defendant made by the victim at a hospital confrontation shortly after the occurrence of two violent crimes. After an evidentiary hearing, at which the victim and two Boston police officers testified, a judge of the Superior Court ordered the identification made at the hospital suppressed. Based on his assessment of the out-of-court identification, he also ruled that the victim's proposed in-court identification lacked an "independent source" (Commonwealth v. Botelho, 369 Mass. 860, 865-869, 343 N.E.2d 876 (1976)), and, alternatively, that it was "unreliable" (Neil v. Biggers, 409 U.S. 188 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)), and ordered that identification suppressed as well. We reverse the orders, holding that the hospital identification met constitutional standards. Our holding will render it unnecessary to consider other issues pertaining to the proposed in-court identification.

The historical facts taken from the judge's findings, supplemented in minor respects by the uncontradicted evidence, are these. On November 8, 1974, ¹ at approximately 8:30 P.M., the victim a Roman Catholic nun, was alone in the Symphony Hall subway station in Boston when she was approached by a young man whom she identifies as the defendant. After a brief conversation, this man assaulted her by striking her head against the subway wall and throwing her to the ground. The first assailant was then joined by a second young man who knelt by the victim. Both men demanded her money. She gave her first assailant twelve dollars (consisting of a ten dollar bill and two one dollar bills) and the second man some forty cents in change. After yielding the money, the victim was again assaulted and kicked before the youths fled. The entire episode lasted approximately five minutes and took place in lighting conditions found by the judge to be "fair."

After the assault and robbery, the victim was transported to St. Elizabeth's hospital by police van. She informed one of the officers in the van that her assailants were two "black youths under twenty," and she described the person she believes to be the defendant as approximately her height (five feet, six inches), "under twenty-one" with "dark eyes" and wearing a navy type watch cap, a blue coat and maroon pants. She described the second youth as wearing a maroon jacket and brown pants.

At approximately "8:34 P.M.," two other police officers who had received the radio dispatch which broadcast the descriptions observed two black youths in a fast-food restaurant located within two blocks of the subway station. The officers arrested the young men because they fit the descriptions relayed by the dispatch and searched them. In the search a ten dollar bill and two one dollar bills were taken from the defendant and some loose change was taken from his companion. The officers then ascertained that the victim was at the hospital and arranged to transport the two men to St. Elizabeth's. Upon reaching the hospital the following events, as described by the judge's findings, occurred: "The victim was in a small room near the emergency room. She had not yet been treated, although she was in a bed in hospital garb. The room in which she was then lying was small. When the defendant and his companion were brought into her presence, they were stood at the foot of the bed by the police officers. One police officer stood on each side of the bed, and a third police officer stood behind the defendants. I find that one of the police officers said to the victim, 'Sister, take a good look at their faces and tell me if these were the young men at the subway station.' I find that the victim then said, 'It's them.' I find that the police officer then said, 'Take a good look. I want you to be sure.' I find that the victim said, 'It's them.' I find that at the time of his arrest and at the time of the confrontation, the defendant was wearing a blue watch cap that is to say, a knit cap of dark Navy-blue woolen-type material . . . a blue jacket, maroon pants and a pink shirt."

At the time of the confrontation, the victim was awaiting medical treatment for facial wounds but had not been medicated. The judge found that the identifications were made "certainly within an hour, or at the most an hour and a half" after the incident. The defendant was subsequently indicted for unarmed robbery and assault and battery by means of a dangerous weapon (kicking with a shoe).

The judge concluded that the events at the hospital "conveyed to the victim, given her state of mind, her status in life and the circumstances of the confrontation, a clear . . . indication that the police desired her to make an affirmative identification." Based essentially on the foregoing findings, the judge ruled that the confrontation was unduly suggestive of the defendant, and he ordered this identification and the proposed in-court identification suppressed.

The Commonwealth argues that the judge's subsidiary findings are clearly erroneous at critical points. We need not explore this proposition because the significant historical facts, outlined above, are supported by the evidence and will be accepted by us. Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972); Commonwealth v. Harmond, 376 Mass. ---, --- - ---, ^a 382 N.E.2d 203 (1978); Commonwealth v. Moon, --- Mass. ---, --- - ---, ^b 405 N.E.2d 947 (1980). As we see it, the turning point in the case comes in the conclusions of law reached by the judge. We accord respect to these conclusions but we are not bound by them. Commonwealth v. Cincotta, --- Mass. ---, ---, ^c 398 N.E.2d 478 (1979). Rather, the legal conclusions drawn from the facts are subject to our independent examination and judgment and must be reversed if erroneous. See Commonwealth v. Jones, --- Mass.App. ---, --- - --- n.9, ^d 399 N.E.2d 1087 (1980), citing to and quoting from State v. Cefalo, 396 A.2d 233, 239-240 (Me.1979).

As has been frequently stated, one-to-one confrontations, whether photographic or in person, are disfavored, but they are not subject to a rule of per se exclusion. Commonwealth v. Storey, 378 Mass. ---, ---, ^e 391 N.E.2d 898 (1979), and cases cited. Nassar v. Vinzant, 519 F.2d 798, 801 (1st Cir. 1975). "Although such confrontations pose particularly serious dangers of suggestiveness, we would consider it ill advised to exclude as constitutionally unacceptable all evidence that has been derived from single person confrontations simply because these identification procedures might have taken place just as easily in the form of lineups." Commonwealth v. Storey, supra, 378 MASS. AT ---, 391 N.E.2D AT 902,^F citing Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343 (1968), and Commonwealth v. Chase, 372 Mass. 736, 742-743, 363 N.E.2d 1105 (1977). The unquestioned authority in this Commonwealth holds that show-ups arranged by the police between victim and suspect promptly after the crime are constitutionally permissible. Commonwealth v. Bumpus, 354 Mass. 494, 501, 238 N.E.2d 343 (1968); Commonwealth v. Connolly, 356 Mass. 617, 624, 255 N.E.2d 191 (1970); Commonwealth v. Denault, 362 Mass. 564, 566, 289 N.E.2d 863 (1972); Commonwealth v. Barnett, 371 Mass. 87, 92, 354 N.E.2d 879 (1976); Commonwealth v. Dickerson, 372 Mass. 783, 789-791, 364 N.E.2d 1052 (1977); Commonwealth v. Alicea, 376 Mass. ---, --- - ---, ^g 381 N.E.2d 144 (1978); Commonwealth v. Storey, 378 Mass. at --- - ---, ^h 391 N.E.2d 898 (1979); Commonwealth v. Bowden, --- Mass. ---, ---, ⁱ 399 N.E.2d 482 (1980). "(T)he police procedure of arranging . . . show-ups is recognized as usual and natural and justified by the need for efficient investigation in the immediate aftermath of crime." Commonwealth v. Barnett, supra, 371 Mass. at 92, 354 N.E.2d at 883. Exigent or special circumstances are not a prerequisite. Id. See also United States v. Hines, 455 F.2d 1317, 1327 (D.C.Cir. 1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). Such confrontations permit witnesses to view the suspect while recollection is fresh and before other images crowd in to distort the original picture, and provide the witness with a good opportunity for an accurate identification. "A further consideration is that a prompt confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part is or may be in error and releases them quickly to follow another track." Commonwealth v. Barnett, supra, 371 Mass. at 92, 354 N.E.2d at 883. See also Am.Law Inst.Model Code of Pre-Arraignment Procedure § 160.2(1)(a) and commentary at 436-438 (Proposed Official Draft 1975). Such meetings are particularly valuable and permitted where the police are working from a description of the criminal provided by the victim immediately after the crime. Commonwealth v. Bumpus, supra, 354 Mass. at 501, 238 N.E.2d 343. Commonwealth v. Dickerson, 372 Mass. 783, 790, 364 N.E.2d 1052 (1977). "The test to be applied in measuring the constitutional sufficiency of single person confrontations under the due process clause is simply whether the confrontation is unnecessarily suggestive of the defendant." Commonwealth v. Storey, supra, 378 Mass. at --- - ---, ^j 391 N.E.2d at 902, and cases cited. Put another way, if the confrontation is not permeated by "special elements of unfairness" which are designed by the...