Com. v. Denault
| Decision Date | 06 November 1972 |
| Citation | 362 Mass. 564,289 N.E.2d 863 |
| Parties | COMMONWEALTH v. Joseph E. DENAULT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Klari Neuwelt, Cambridge, for defendant, submitted a brief.
John M. O'Connor, Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.
The defendant Denault, convicted after a trial under G.L. c. 278, §§ 33A--33G, on an indictment with charges of breaking and entering a dwelling house at night with intent to commit larceny, and of committing the larceny of a purse and its contents, seeks reversal on grounds stemming from the admission of evidence regarding his identification by the victim of the burglary, a Mrs. Bates-Gee.
While in bed in her first floor apartment at 40 Grand Street, Worcester, about 11:45 P.M. on August 28, 1969, Mrs. Bates-Gee observed the figure of a man entering the room and lifting her purse from a doorknob. Putting on her duster, she pursued the intruder and grabbed his shoulder but then lost her hold as he made his escape through a pantry window. At this point she had a good look at him by the night light in the pantry. A lodger, Robert Ela, had been roused from the television set in another room by the disturbance and Mrs. Bates-Gee's shouts. The two ran through the back hall into the street but the man got away from them. On Grand Street they saw a black sedan with parking lights on and the motor running. The car started up and proceeded some distance on Grand Street; there was a whistle, the car stopped, a figure entered the car, the car door slammed, and the car moved and turned a corner onto Main Street. Ela saw and jotted down the registration number of the car. Police were promptly summoned and Mrs. Bates-Gee and Ela told their stories to Officers Jasper and Ramsdell and another. Mrs. Bates-Gee's description of the intruder was fairly indicative. This was shortly after midnight. Officer Ramsdell, resuming patrol duty, observed a car at about 1:15 A.M. that roughly suited the description and had the reported registration number. He followed the car and drew alongside it on Central Street. The defendant Denault was one of the three occupants. Officer Ramsdell and Officer Jasper (who with other policemen shortly appeared on Central Street) could note that Denault fairly matched Mrs. Bates-Gee's description of the intruder. Miranda warnings were given to the men now in custody. Some $150 was found on Denault's person including a folded $2 bill which later figured as telltale proof against him, as it was traceable to the stolen purse. 1
Officer Ramsdell had radioed to have Mrs. Bates-Gee driven to the police station by a route car, but in fact she was picked up at her house by a cruiser which proceeded to the Central Street location. The police said they had someone and wanted to know whether she could identify him, but during the trip to Central Street there was no further talk about identification. As the cruiser reached the scene, Mrs. Bates-Gee saw the black sedan parked near the curb and said that that was the car and the same registration number. When the cruiser pulled up in front of the black car, Mrs. Bates-Gee saw a police car ahead with a man sitting in the back seat. She said without prompting that there was the man and, immediately thereafter, walking over to the police car with an officer she said that this was definitely the man.
At the trial Mrs. Bates-Gee recounted what she had done and seen and heard as just described. She testified without objection that the man she saw at the pantry window was the defendant now in the court room; objection with exception was taken only to her subsequent reference to the man who fled into the street as 'Mr. Denault.' She thereafter testified without objection to her identification of Denault at Central Street.
The defendant's first assignment of error is that Mrs. Bates-Gee's in-court identification of the defendant should have been excluded as the tainted result of the Central Street identification which is said to have occurred under improperly insinuating conditions; but the exception taken appears hardly sufficient to raise that point timely or squarely, and the defendant had not made a pre-trial motion to suppress. In all events we think there was no error. The Central Street confrontation occurred about an hour and three-quarters after the burglary as part of a continuation of police activity immediately following the criminal episode. Such prompt meetings of victim and suspect are a routine and quite natural means of assuring reliable identification and preventing unjust detention...
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