Com. v. Crowe

• Citation: 488 N.E.2d 780,21 Mass.App.Ct. 456
• Parties: COMMONWEALTH v. Thomas J. CROWE (and two companion cases). 1
• Decision Date: 02 April 1986
• Court: Appeals Court of Massachusetts

Page 780

488 N.E.2d 780

21 Mass.App.Ct. 456

COMMONWEALTH v. Thomas J. CROWE (and two companion cases). ¹

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 10, 1985.

Decided Jan. 22, 1986.

Further Appellate Review Denied

April 2, 1986.

Brownlow M. Speer, Boston, Committee for Public Counsel Services, for Thomas J. Crowe.

Judith Farris Bowman, Cambridge, for Corey W. Pirrotta.

John A. McNiff (James F. McNiff, II, Peabody, with him) for John R. Fournier.

Joseph P. Musacchio, Asst. Dist. Atty., for Com.

Before BROWN, KASS and WARNER, JJ.

WARNER, Justice.

After a jury trial in the Superior Court, the defendants were convicted of aggravated rape. ² Their motions for a new trial were denied. Their appeals raise common and discrete issues. ³ We recite the facts relevant to each issue separately.

1. The motions to suppress. On various grounds, the defendants challenge the denials of their motions to suppress the victim's identifications of the defendants at a lineup and at trial.

"We begin our review with the well-settled proposition that the judge's findings of fact are 'binding in the absence of clear error ... and [we] view with particular respect the conclusions of law which are based on them.' Commonwealth v. Correia, 381 Mass. 65, 76 (1980). While the judge's ultimate findings of fact and rulings of law, as they bear on issues of constitutional dimension, are open for reexamination by this court, such ultimate findings are 'entitled to substantial deference by this court.' Commonwealth v. Bookman, 386 Mass. 657, 661 n. 6 (1982). Questions of credibility are, of course, for the ... judge to resolve. Commonwealth v. Meehan, 377 Mass. 552, 557 (1979)." Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985).

We summarize the judge's findings of fact (only one of which, as will be seen below, is disputed), supplemented by uncontradicted evidence not involving determinations of credibility. ⁴ On April 22, 1983, the victim and a friend went to the Franklin Club in Shirley, Massachusetts, where, at about 9:00 P.M., they sat at a table near a stage on which a band named "Grand Slamm" was performing. The four-member band played from about 9:00 P.M. to 12:45 A.M., and there were at least three intermissions. While the band performed, the victim either sat at the table and talked with her companion and others or danced; there were dim overhead lights in the club and other lights which focused on the band. During one of the intermissions the victim spoke with the drummer and the defendant Pirrotta, who was also a member of the band. From about 8:30 P.M. to 12:45 A.M., the victim had at least four beers at the club. After the conclusion of the performance, Pirrotta offered the victim a ride to Fort Devens, where the victim, a private in the United States Army, resided. At that time, under good lighting conditions, she conversed with Pirrotta and other members of the band and their crew for approximately fifteen minutes. The defendants Crowe and Fournier were present during this time, and the victim had also observed them during the evening near the stage and at the bar.

Thereafter, the victim left the club and boarded the band's bus, along with seven or eight other people, including the defendants. The victim sat next to Pirrotta in the second seat in the front of the bus; Crowe sat behind and Fournier in front of her. The bus remained in the parking lot for ten to fifteen minutes; during that time the overhead lights in the bus were on. As the bus left the parking lot, the overhead lights were turned off, but the dashboard lights were on. During the ensuing trip light emanated from street lights from time to time.

The victim's version of the incident on the bus relevant to these appeals, as recited by the judge, was as follows. After the bus began moving, Crowe and Fournier put their hands on the victim's shoulders and forced her to move to the middle of the seat and lie down; Fournier unhooked her bra. Pirrotta, who had earlier left the seat, reappeared, pulled down her pants, and forced his penis into her vagina. Subsequently, the victim's clothes were put on, and she was carried off the bus and left in a field at the side of the road. On that same morning, after voluntarily appearing at the police station, the defendants were arrested. After the arrests, they were photographed for purposes of a photographic array. Shortly thereafter, the victim was shown eight photographs, including those of the defendants. The victim selected the photographs of the defendants.

On April 26, 1983, the victim viewed a second photographic array. The defendants' pictures were not included, and the victim did not identify anyone. Two days later, the victim saw, for approximately thirty seconds, a newspaper photograph which showed the defendants at their arraignments.

On May 11, 1983, the victim participated in a lineup identification, conducted to aid a grand jury investigation. Twelve people were in the lineup, including the defendants. The victim was asked to identify anyone who had been on the bus and to describe that person's role in the rape. She selected Pirrotta as a person who had intercourse with her. She identified Crowe and Fournier as the men who held her down. All of the defendants were represented by counsel who were present during the lineup.

Prior to trial, the defendants moved to suppress the photographic identifications, the lineup identifications and any subsequent in-court identifications. The motion was granted only as regards the photographic identifications on the ground that they were the product of an illegal detention resulting from an illegal arrest of the defendants. ⁵ On appeal, the defendants challenge the denials of their motions to suppress the victim's lineup and in-court identifications.

(a) The victim testified that on the morning of the incident she gave the police a description of Pirrotta which included a beard and mustache. Pirrotta argues that the judge's finding to that effect is clearly erroneous, as there was contrary testimony from the police officer to whom the description was given. The argument ignores the role of the fact finder. "Where there has been conflicting testimony as to a particular event ... a judge's resolution of such conflicting testimony invariably will be accepted. Commonwealth v. Jones, [375 Mass. 349, 354, 377 N.E.2d 903 (1978) ]. 'The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses and not of [an appellate] court.' Commonwealth v. Moon, [380 Mass. 751, 756, 405 N.E.2d 947 (1980) ]." Commonwealth v. Spagnolo, 17 Mass.App. 516, 517-518, 459 N.E.2d 1256 (1984). There was no error.

(b) In her rulings on the identifications, the judge first addressed the question of in-court identifications. Applying the holding of United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), she concluded that any such identification would be supported by an independent source--the victim's observations of her assailants before and during the incident--not related to the illegal arrest or tainted by the suppressed photographic identifications. Next, the judge, for the same reason, concluded that the lineup identifications would not be suppressed.

(i) Crowe, conceding that Crews supplies the proper analysis for the determination of the admissibility of in-court identifications in the circumstances, argues that the judge erred in applying Crews rather than Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), on the question of the admissibility of the lineup identifications. Both Crews and Brown are among the progeny of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which "articulated the guiding principle for determining whether evidence derivatively obtained from a violation of the Fourth Amendment is admissible against the accused at trial." Crews, supra, 445 U.S. at 470, 100 S.Ct. at 1249. ⁶

Brown, like Wong Sun, involved the question of the admissibility of inculpatory statements of a defendant following an illegal arrest. The issue presented in Brown was whether Miranda ⁷ warnings, in themselves, make such a statement "sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." 422 U.S. at 603, 95 S.Ct. at 2261. In holding that such was not the case, the Supreme Court said: "The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant." (Citations and footnotes omitted.) Id. at 603-604, 95 S.Ct. at 2261-2262. The holding, the Court said, was limited: "We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest." Id. at 605, 95 S.Ct. at 2262-2263.

In Crews, the Supreme Court dealt with the question of an in-court identification of a defendant which had been preceded by an illegal arrest and consequent photographic and lineup identifications. The pretrial identifications flowed directly from the illegal arrest, 445 U.S. at 469-470 n. 10, 100 S.Ct. at 1249 n. 10, and were "conceded to be suppressible fruits of the Fourth Amendment violation." Id. at 472, 100 S.Ct. at 1250. The Court compared the "typical" case with an in-court identification case. "As ... cases [subsequent to Wong Sun ] have confirmed, the exclusionary sanction applies to any 'fruits' of a constitutional violation--whether such evidence be tangible, physical material actually seized in an illegal search, items observed...