Com. v. Downey

• Decision Date: 17 May 1990
• Parties: COMMONWEALTH v. Kevin J. DOWNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1303

553 N.E.2d 1303

407 Mass. 472

COMMONWEALTH v. Kevin J. DOWNEY.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 8, 1990.

Decided May 17, 1990.

Charles A. Clifford, Charlestown, for defendant.

Wendy Murphy, Asst. Dist. Atty., for the Com.

Before WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

After a jury trial in the Superior Court, the defendant, Kevin J. Downey, was convicted of armed robbery while masked, kidnapping, armed robbery, assault by means of a dangerous weapon, assault and battery, and unauthorized use of a motor vehicle. On appeal, he claims that (1) the Superior Court judge supervising the grand jury erred in ordering the defendant to comply with a grand jury order that he provide samples of his blood, saliva, and hair; (2) that a motion judge erred in denying his motion to suppress pretrial identifications of his photograph by witnesses to the kidnapping; and (3) that the trial judge erred in denying his motion to dismiss the indictments based on alleged improprieties in the Commonwealth's presentation of evidence to the grand jury. We transferred the case to this court on our own motion, and now affirm.

The jury could have found the following facts. On December 4, 1986, at 11:47 A.M., two masked men wearing hooded sweatshirts and "scally" caps robbed the Burlington branch of the Boston Federal Savings Bank (bank) of $85,000 in bills of small denominations. The two men sped away from the bank in a white automobile bearing Massachusetts registration number 556 FDM. The car was subsequently discovered in the parking lot of a nearby shopping mall. The back seat of the car contained a mask into which small amounts of hair and saliva had been deposited.

At noon on the same day, approximately fifteen minutes after the bank robbery, two men meeting the same general description as the bank robbers abducted Denis Renaghan in the parking lot of the Lahey Clinic (clinic) in Burlington. The two men threatened Renaghan with a gun, threw him into the back seat of his automobile, and drove to Cambridge. The clinic is only a short distance from the shopping mall where the getaway car was abandoned, and the police observed fresh footprints heading away from the getaway car and toward the clinic.

1. Blood, saliva, and hair samples. On January 29, 1987, a Middlesex County grand jury returned four indictments against the defendant, charging him with armed robbery, assault by means of a dangerous weapon, kidnapping, and unauthorized use of a motor vehicle. These indictments arose in connection with the kidnapping of Renaghan.

On April 22, 1987, a second Middlesex County grand jury were convened to investigate the December 4, 1986, bank robbery. The first witness who testified was State Trooper Robert Cox. Cox stated that he had examined the places where the crimes had occurred and reported that the location where the getaway car was abandoned was geographically between the bank and the clinic, about one-quarter of a mile from the bank and 300 yards from the clinic. He reported that on the day of the crimes he had observed fresh footprints heading away from the abandoned car and toward the clinic. Cox testified that Renaghan had positively identified the defendant from a photographic array as one of his kidnappers.

Cox also reported that the investigation had revealed that, during the few days following the bank robbery, the defendant had purchased an automobile for over $14,000 and rented a new apartment by making an initial payment of $1,500. In each case, the defendant had paid entirely in cash with bills of small denominations. In addition, searches of the defendant's new apartment and his bedroom in his parents' house had uncovered a gun, clothing, and caps similar to the bank robbers' gun, clothing, and caps.

Cox also testified that the mask found in the back seat of the abandoned getaway car had been forwarded to the Federal Bureau of Investigation (F.B.I.) for laboratory analysis. The laboratory report, which was entered in evidence before the grand jury, indicated that saliva and hair had been deposited in the mask. The report indicated that the saliva had been deposited by a person with type O blood. ¹ The report also indicated that the saliva and hair retrieved from the mask could be scientifically compared to blood, saliva, and hair samples taken from suspects in the criminal investigation.

At the conclusion of Cox's testimony the prosecutor requested that the grand jury vote on whether there was "sufficient cause" to order the defendant to provide blood, saliva, and hair samples. ² The grand jury voted and then issued such an order. ³ Subsequently, the prosecutor filed a motion with the Superior Court judge supervising the grand jury to compel the defendant to provide the samples. Accompanying this motion were the grand jury's order, an affidavit from Cox summarizing his testimony, the F.B.I. laboratory report, and a memorandum of law in support of the motion. After a hearing during which both the prosecutor and defense counsel were heard, the supervising judge granted the order compelling the defendant to provide the samples. ⁴

a. The blood sample. We address first the defendant's claim that that portion of the order compelling him to provide a blood sample violated his Federal constitutional rights because when the order issued, the defendant had not been arrested or indicted in connection with the bank robbery, no finding of probable cause to arrest him had been made, and no summons had been issued for his appearance before the grand jury. ⁵

An order compelling the production of a blood sample is an intrusion that implicates protections provided by the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). Commonwealth v. Trigones, 397 Mass. 633, 640, 492 N.E.2d 1146 (1986). ⁶ In Schmerber, the Supreme Court held that, when a person was lawfully arrested in circumstances clearly suggestive of driving while under the influence of intoxicating liquor, the subsequent seizure of a blood sample was reasonable in light of the exigent circumstances present--the fact that his blood alcohol percentage could begin to decline rapidly. Id. at 770-771, 86 S.Ct. at 1835-36. In reaching this conclusion the Schmerber Court made clear that a government order compelling a person to produce corporeal evidence involves potential violations of the Fourth Amendment to the United States Constitution at two different levels: "the 'seizure' of the 'person' necessary to bring him into contact with government agents ... and the subsequent search for and seizure of the evidence." United States v. Dionisio, 410 U.S. 1, 8, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973).

The defendant does not challenge the constitutionality of the bodily intrusion necessary to "search for" and "seize" the blood sample. He apparently concedes that the grand jury could have constitutionally ordered the intrusion necessary to obtain his blood sample if their directive that he be detained had been proper. See Matter of an Investigation into the Death of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982) (upholding court order that a suspect in a homicide investigation produce a blood sample). Cf. Commonwealth v. Trigones, supra (upholding a postindictment order to produce a blood sample). The defendant's claim is that his detention for the purpose of a blood test in connection with the bank robbery investigation was unconstitutional because he had not first been indicted, arrested, subjected to a probable cause determination, or even summonsed to appear before the grand jury.

Given the facts before us, we do not find this claim compelling. If the evidence before the grand jury would have supported the arrest or indictment of the defendant, he was not harmed by the fact that the order issued in the absence of either. We find that the evidence before the grand jury was adequate to meet this test. Cox's testimony before the grand jury concerning the defendant's cash purchases, as well as the gun, clothing, and caps recovered by the police from the defendant's apartment and his parents' house, suggested a direct link between the defendant and the bank robbery. In addition, Cox's testimony disclosed evidence linking the defendant to the kidnapping (Renaghan's positive identification of the defendant) and also linking the kidnappers to the bank robbery (location of the getaway car, the footprints, and the description of the robbers). This testimony provided ample support for the grand jury to have indicted the defendant.

Moreover, the defendant did receive a hearing before the supervising judge in which he was afforded the opportunity to oppose the grand jury order and to contest the constitutionality of his detention for the purpose of a blood test.

For these reasons, we hold that that portion of the order...