Com. v. Crowley

• Decision Date: 18 July 1990
• Docket Number: No. 89-P-931,89-P-931
• Citation: 556 N.E.2d 1043,29 Mass.App.Ct. 1
• Parties: COMMONWEALTH v. Jeffrey CROWLEY.
• Court: Appeals Court of Massachusetts

Page 1043

556 N.E.2d 1043

29 Mass.App.Ct. 1

COMMONWEALTH v. Jeffrey CROWLEY.

No. 89-P-931.

Appeals Court of Massachusetts Middlesex.

Argued March 8, 1990.

Decided July 18, 1990.

Kathleen B. Rogers, Boston, for defendant.

LaDonna J. Hatton, Asst. Dist. Atty., for Com.

Before BROWN, DREBEN and FINE, JJ.

DREBEN, Justice.

The principal issue raised in this case is whether the police, after subjecting the defendant to a Terry-type stop, ¹ were justified in taking him back a short distance to the scene of the crime for purposes of a prompt identification. In this appeal from his convictions of several offenses ² arising out of an armed robbery at the Cambridge Savings Bank in Porter Square, Cambridge, the defendant also argues that the identifications were impermissibly suggestive, that testimony concerning an out-of-court identification was improperly admitted in evidence as it did not meet the requirements of Commonwealth v. Daye, 393 Mass. 55, 60 n. 8, 469 N.E.2d 483 (1984), that the judge gave incorrect instructions, and that the defendant had ineffective assistance of counsel. We affirm the convictions.

1. Detention and transportation of the defendant to the scene of the robbery. Although troubled by the lateness of the defendant's motion to suppress ³--it came a week before trial--the trial judge held a voir dire to determine the admissibility of the identification of the defendant as one of the robbers when he was brought back to the Cambridge Savings Bank, where the robbery took place.

Detective Kathleen Murphy, the only witness at the voir dire, gave the following account of the events leading to the identifications. At 1:05 P.M. on March 6, 1987, a police broadcast reported that an armed robbery had occurred at the Cambridge Savings Bank in Porter Square, that "someone in the bank was on the telephone giving the radio room a rundown of what had happened," that several persons had bailed out of a car emitting orange smoke, ⁴ that two suspects on foot were still at large, and that one was running down Hancock Street near the bank. In response to the radio communication, Detective Murphy and Officer Centrella, in separate unmarked cruisers, proceeded to Hancock Street where, at a distance of approximately one to one and one-half blocks from the bank, they saw a lone man, the defendant, running in a white sweatshirt. Centrella's cruiser pulled over to the defendant who was now walking. He was out of breath and sweating. Murphy joined Centrella; the latter asked the defendant his name and what he was doing.

He replied that he was from Chelsea, that he was out for a walk and that he always took long walks. He next said he was living in Everett, but produced a license showing a Charlestown address. Becoming increasingly suspicious, the police officers placed the defendant in the back seat of the cruiser to go back the short distance to the bank to see if eyewitnesses would identify the defendant as one of the robbers.

At approximately 1:30 P.M., a teller, who had been on duty at the bank during the robbery, looked at the defendant while he was out of the automobile. She "made a lot of shrugging with the shoulders, and was taken away." ⁵ Thereafter, a second teller was brought out of the bank. She nodded her head "Yes." The defendant was then placed under arrest and taken to the Cambridge police station for booking.

At the voir dire, defense counsel conceded that the police officers had a right to make a threshold inquiry, but argued that the police did not have a right to put the defendant in the back seat of the car and transport him to the bank. We agree with the trial judge that the police actions, including "detaining [the defendant] for the limited purpose of taking him back to the scene to have him confront the bank tellers," were appropriate responses to their escalating suspicions that the defendant was involved in the robbery.

The following circumstances provided the reasonable and articulable suspicion justifying a "Terry-type" stop. A few minutes after the robbery, as a result of a radio communication, the police had grounds to believe that one of the robbers was on Hancock Street, a location close to the bank, seeking to flee the scene. The defendant was the sole person seen running on that street.

Once stopped, the defendant gave conflicting accounts of where he lived, as well as an implausible explanation for his presence in Cambridge. The increasing suspicion of the officers justified prolonging the stop and enlarging the scope of the threshold inquiry. See Commonwealth v. Walker, 16 Mass.App.Ct. 955, 956-957, 451 N.E.2d 737 (1983); United States v. Viegas, 639 F.2d 42, 46 (1st Cir.), cert. denied, 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348 (1981) (case presents common picture of "a proper progression of escalating responses to circumstances which generated a mounting degree of suspicion").

The question is "whether the intrusiveness of the seizure"--here transporting the defendant the short distance back to the bank for identification purposes--"was proportional to the degree of suspicion that prompted the intrusion." Commonwealth v. Borges, 395 Mass. 788, 793, 482 N.E.2d 314 (1985). ⁶ Had the bank tellers been brought to the scene, there is little doubt that the defendant could have been detained for the time, if short, that it would have taken for them to appear. "An expeditious collateral inquiry which might result in the suspect's arrest or prompt release is not unreasonable when done to meet the practical demands of effective criminal investigation and law enforcement." Commonwealth v. Salerno, 356 Mass. 642, 646-647, 255 N.E.2d 318 (1970) (citations omitted). Although here the intrusion was greater, ⁷ the transportation did not unduly prolong the detention since only twenty minutes was involved.

As in People v. Hicks, 68 N.Y.2d 234, 243, 508 N.Y.S.2d 163, 500 N.E.2d 861 (1986), "the authorities knew that a crime had ... been committed; the total period of detention was [short]; the crime scene to which the defendant was taken was very close, and the eyewitnesses were there; and there [was] no proof of significantly less intrusive means available to accomplish the same purpose." As in Hicks, the "[d]efendant might, alternatively, have been momentarily detained where he had been stopped and the witnesses brought there, but such a procedure would have entailed first securing defendant ... and then arranging transportation for the witnesses, possibly even a more time-consuming process than that chosen." Id. at 242, 508 N.Y.S.2d 163, 500 N.E.2d 861. We conclude, as did the New York Court of Appeals, that "given the time and distance involved" taking the suspect to the witnesses and not the witnesses to the suspect "is a difference without constitutional significance." Ibid. See also the following cases permitting police to transport the defendant to the witnesses to confirm or dispel the investigators' suspicions quickly: United States v. Wylie, 569 F.2d 62, 70 (D.C. Cir.1977) , cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978); United States v. Short, 570 F.2d 1051, 1054 (D.C.Cir.1978); Pliska v. City of Stevens Pt., 823 F.2d 1168, 1176 (7th Cir.1987); State v. Mitchell, 204 Conn. 187, 197-200, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987); Buckingham v. State, 482 A.2d 327, 334 (Del.1984); Wilkerson v. United States, 427 A.2d 923, 925-926 (D.C.), cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981); People v. Hines, 94 Ill.App.3d 1041, 1050, 50 Ill.Dec. 312, 419 N.E.2d 420 (1981); State v. McKissic, 415 N.W.2d 341, 345 (Minn.Ct.App.1987); State v. Wheeler, 108 Wash.2d 230 236-237, 737 P.2d 1005 (1987). See generally LaFave, Search & Seizure § 9.2(g) (2d ed. 1987 & Supp.1990). ⁸

2. Suggestiveness of showup. Based on the claim that television cameras and media reporters were present at the time of the showup at the bank, the defendant contends that the encounter was impermissibly suggestive. Officer Murphy testified at the voir dire that the media persons were asked to leave prior to the showup and that they complied. At trial, another police officer testified to the same effect. Moreover, although the showup was highly suggestive, in the circumstances, it was not impermissibly so. Due process rights are not violated when police arrange a one-on-one confrontation between an eyewitness and a suspect promptly after the occurrence of a criminal event. Commonwealth v. Williams, 399 Mass. 60, 67, 503 N.E.2d 1 (1987).

3. Hearsay identification. At trial, the first teller testified that, two or three days after the robbery, she identified the defendant's picture at the Cambridge police station as the "first guy that came in the bank." A police officer who had been present at the station corroborated that the teller had identified the defendant's picture. Recognizing that a nonidentifying witness may testify to corroborate an extrajudicial identification if the testimony does not differ in material respects from that of the identifying witness, Commonwealth v. Daye, 393 Mass. 55, 60 n. 8, 469 N.E.2d 483 (1984); Commonwealth v. Rivera, 397 Mass. 244, 249, 490 N.E.2d 1160 (1986), the defendant points to an alleged material variation between the testimony of the officer and that of the first teller. The officer reported that the teller, at the time of the identification, said "this is the guy that was standing next to me in the bank." The teller's trial testimony, on the other hand, was that the first robber to enter had stood next to her coworker. There was no inconsistency, let alone a material one. The teller testified that there were three robbers who came into the bank, that her focus was on the first robber, that he was in the bank for more than five minutes, that the robbers "revolved," that is, moved around looking through everything, and that the first robber put a gun next to her desk and opened her...