Com. v. Dickerson

• Citation: 364 N.E.2d 1052,372 Mass. 783
• Decision Date: 20 June 1977
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1052

364 N.E.2d 1052

372 Mass. 783

COMMONWEALTH v. Lewis H. DICKERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 1, 1976.

Decided June 20, 1977.

Maurice F. Ford, Dorchester, for defendant.

Robert J. McKenna, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant brings this appeal under G.L. c. 278, §§ 33A-33G, from his convictions on indictments charging murder in the first degree, armed robbery, and unlawfully carrying a handgun on his person. He was sentenced to two concurrent life sentences to be served at the Massachusetts Correctional Institution at Walpole on the murder and armed robbery convictions and to an additional concurrent sentence of two and one-half to three years on the handgun possession conviction.

The defendant raises the following issues in this appeal: (1) whether, during a voir dire hearing on the defendant's motion to suppress in-court and out-of-court identifications, the judge erred in excluding examination of witnesses with respect to other persons who were in the area in which the defendant was identified; (2) whether the judge erred in denying the defendant's motion to suppress identification and to suppress clothing seized in the defendant's presence without a warrant; (3) whether the judge erred in excluding a juror on his own motion; and (4) whether the judge erred in charging with respect to factors which the jury might consider in making their determination as to whether the offense constituted murder in the first or second degree.

We conclude that there was no error as to issues (1), (2), and (3) above. As to issue (4), we conclude that there was error, but it was harmless beyond a reasonable doubt. Consequently, we affirm the judgments.

We summarize the evidence presented. The incident in question occurred on February 7, 1975, at Cy's Variety & Package Store in Dorchester. Present in the store that evening were Cyril Miller, the owner of the store, and Eva Dodds, a friend who was assisting him as a clerk. At the rear of the store was a beer chest above which was a loft area in which was located a four-inch square peephole through which the front area of the store could be observed.

Miller stationed himself in the loft area at approximately 5 P.M. on the day in question while Dodds remained on duty in the front of the store. About 10:30 P.M. Miller heard someone ask Dodds for a pint of Wild Irish Rose wine. About a minute later he heard a voice say loudly, "All right. Give up the cash. Give it up." Miller immediately looked through the peephole and observed two men in the store. He saw one man, wearing a green army jacket with a poncho hood which obscured his face, taking the cash from the register, an estimated $752.10. The second man, described by Miller as a light-skinned black man, five feet eight inches tall with a moustache and small beard and wearing a dark blue or black coat and a knit cap and subsequently identified by Miller as the defendant, was standing across a counter from Dodds pointing a gun at her chest. He observed the defendant through the peephole for half a minute to one minute while reaching for a shotgun which he kept in the loft. As he turned away to grab the gun, he heard a shot. He heard Dodds scream and immediately thrust his shotgun through the peephole and fired. He was unsure whether he had hit anyone, but he subsequently found some torn lining from a blue nylon jacket caught in a wire mesh grating in the wall, behind which were imbedded several shotgun pellets. Miller than left the peephole, and the men fled. Dodds died as a result of a gunshot wound of the chest.

The Boston police responded to the scene within a few minutes, and Miller gave them the description of the two men as above. Officer Patrick Maloney broadcast the description, including information that one of the men may have been suffering from gunshot wounds. Shortly thereafter, about 11:30 P.M., Maloney received a report from a police detective that a man suffering gunshot wounds had admitted himself to Boston City Hospital. Maloney and his partner Detective Tower went immediately to the hospital and learned that two men, one white and one black, had recently been admitted for treatment of gunshot wounds. Hospital records indicated that the defendant was admitted at 10:50 P.M. suffering from multiple gunshot wounds of the left shoulder.

Miller was brought to the hospital by another police officer about midnight. He was accompanied by Maloney and Tower to the Shortell Unit, a holding area for the X-ray unit, where the defendant, the black man who had admitted himself for treatment of gunshot wounds, had been taken. Miller identified the defendant as the man who had shot Eva Dodds. We will discuss the identification procedure in greater detail in connection with our discussion of the issues raised by the defendant with regard to his motion to suppress identification.

The defendant was placed under arrest immediately following the identification. During questioning which followed the giving of Miranda warnings and the defendant's expression of willingness to talk, Maloney seized as evidence a bag found at the foot of the defendant's bed which contained the clothing he was wearing at the time of his admission to the hospital. In the bag was, among other items of apparel, a blue nylon jacket with shredded padding in the area of the wound. Subsequent microscopic analysis indicated that the padding of the jacket matched the shreds of padding found at the store.

The defense was one of alibi. The defendant was employed full time at an auto body shop at a wage of approximately $170 a week. He worked on the day of the crimes and was paid approximately $125 after taxes. The defendant testified that he went shopping after work and then stopped and had a few beers. He was walking to his girl friend's house around 10 or 10:30 P.M. when he saw a fight in progress on the street and stopped to watch. He testified that one of the men involved in the fight got a gun and fired several shots, one of which hit the defendant. He was driven to the hospital by a woman with whom he was slightly acquainted who had emerged from a nearby store.

1. The Identification Issues. We first discuss the circumstances in which the defendant was identified by Miller, as developed in the course of the voir dire hearing held by the trial judge on the defendant's motion to suppress. When Miller arrived at the hospital, he was accompanied by Maloney and Tower to the Shortell Unit. Maloney told Miller that they were taking him to a room in which there was a man who had been admitted for treatment of gunshot wounds. He asked Miller to enter the room alone and look at the patients without saying anything while in the room and then to return and tell him whether he could identify anyone. The officers waited outside the room.

At the time Miller entered the room, there were approximately five to seven patients lying in beds all wearing hospital johnnies and covered with sheets. Maloney testified during voir dire that he remembered seeing one other black patient in the room. Miller testified that there may have been three or four black men. It was not possible to tell on visual observation of the men in the room which of them was suffering from gunshot wounds.

The defendant was lying on a bed on the left side of the room. Miller looked around, and observed the defendant. He returned outside to the officers and told them that he thought he had seen the man. Maloney told Miller that he had to be sure of his identification, whereupon Maloney and Miller entered the room together. Miller went with the officer to the defendant's bed, walked around it looking at the defendant, and then told Maloney that he was sure that the defendant was the man he had shot at in his store.

The defendant was also identified by Miller at the defendant's probable cause hearing when the defendant was standing alone in the dock. The probable cause hearing had been continued from its initially scheduled date when the judge granted the defendant's request for an in-court lineup. Defense counsel undertook to make the necessary arrangements for a lineup on the continued date. When the probable cause hearing was held, no lineup was conducted because the arrangements had not been made and because there were insufficient people in the court room on the date of the hearing to make a lineup possible.

The defendant moved prior to trial to suppress the out-of-court and in-court identifications. The judge denied the motion, making his findings on the record. He apparently assumed that the confrontation in question was a one-on-one showup, but he denied the motion based on his findings that there was nothing coercive or suggestive in the procedures employed by the police.

The defendant raises two issues with regard to the denial of the motion to suppress identification: (1) whether the judge erred in limiting the scope of examination during the voir dire hearing, and (2) whether the confrontations were so suggestive as to constitute a violation of due process. We find no reversible error.

Even considering the broad discretion permitted the judge in controlling the scope of cross-examination, we see no good reason here for the judge's limitation of examination related to circumstances surrounding the hospital confrontation. Defense counsel attempted to examine witnesses with respect to the number and descriptions of people in the hospital at the time of the confrontation and in the area of the confrontation, both in the long corridor leading to the room and in the room itself, but he was denied such opportunity beyond establishing the limited information that there were five to seven other patients in the room, one or more of whom were black. The judge also limited exploration of how closely...