Com. v. Dupont

• Decision Date: 04 October 1974
• Citation: 317 N.E.2d 83,2 Mass.App.Ct. 566
• Parties: COMMONWEALTH v. Michael K. DUPONT (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 83

317 N.E.2d 83

2 Mass.App.Ct. 566

COMMONWEALTH v. Michael K. DUPONT (and a companion case ¹).

Appeals Court of Massachusetts, Worcester.

Argued April 8, 1974.

Decided Oct. 4, 1974.

William A. Nelson, Boston, for defendants.

James P. Donohue, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ.

ARMSTRONG, Justice.

The defendants, Dupont and Hinson, appealing under G.L. c. 278, §§ 33A--33G, were jointly tried and convicted of an armed robbery of the Iandoli Market in Milford in the early evening of July 3, 1971. The principal evidence introduced by the Commonwealth consisted of the proceeds of the robbery, which were found and seized minutes after the robbery in a car which was owned and was being driven by Hinson and in which Dupont was a passenger, and of in-court and out-of-court identifications of Hinson by a clerk of the Iandoli Market. The defendants assign as error (1) the denial of their motions to suppress the evidence seized from the car; (2) the introduction of the identification testimony; and (3) matters arising out of an incident which occurred in the course of the trial during a recess whereby certain jurors inadvertently saw the defendants in a cellblock. In addition, the defendant Dupont assigns as error the denial of his motion for a directed verdict.

1. At the voir dire on the motion to suppress the evidence seized from the car testimony was adduced to the effect that, prior to the evening of the Iandoli Market robbery, the defendants were under suspicion by both State and Milford police of having participated in another Milford robbery. Writings to that effect had been posted at the Milford police station, and a Milford officer, Vincent Liberto, had been assigned to 'stake out' a 1966 Pontiac, license number 45223K, known to be registered to the defendant Hinson. On April 21, 1971, Officer Liberto observed that vehicle pull into the parking lot of the Iandoli Market, stop there for a brief period, and then move to another parking lot directly across the street from Iandoli's, where it stopped for a short while before departing. Officer Liberto later learned from other officers that, upon leaving Milford, the vehicle had proceeded north along Route 495.

On July 3, 1971, at around 6:30 P.M., Officer Liberto received a radio dispatch informing him that an armed robbery had just taken place at the Iandoli Market. Liberto was directed to be on the lookout for a 1962 Chevrolet. Some three to five minutes later, a second radio dispatch advised him that the 1962 Chevrolet had been found abandoned. Liberto then proceeded to an entrance ramp along Route 495 and began looking for the 1966 Pontiac registered to Hinson. At approximately 6:50 P.M. it drove into view, moving north on Route 495 at a slower rate of speed than the other cars. Hinson was driving with Dupont seated beside him. As they passed him, Liberto observed both men turn their heads away from him, and as he pulled out to follow them, they increased their speed from thirty to thirty-five miles per hour to sixty to sixty-five miles per hour. Liberto turned on his siren and beacon light, observing Dupont bend down on two occasions and turn twice to look back at the cruiser. After motioning the car to pull over, Liberto observed both men bend down as he approached the car. He instructed them to keep their hands visible and asked for Hinson's license and registration. Liberto, seeing a knife handle and part of a blade showing on the floor board of the driver's side of the car, took possession of the knife, and placed the defendants under arrest for 'possession of a dangerous weapon and suspicion of armed robbery.'

Liberto then conducted a general search of the car. Hidden in a well behind the right headlight assembly he found a pillow case which contained brown money bags, a green money bag with Iandoli written across it, and loose currency. The defendants moved to suppress these items, but the trial judge found that probable cause existed for the arrests and search, and therefore ruled the search reasonable and permitted the items to be introduced in evidence.

Although traditional Fourth Amendment requirements, including the necessity of a search warrant, have been held to apply to automobile searches (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed. 777 (1964); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), the United States Supreme Court has long distinguished between searches of automobiles and searches of buildings (Carroll v. United States, 267 U.S. 132, 149--153, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Chambers v. Maroney, 399 U.S. 42, 48--52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)) and has upheld the warrantless search of an automobile, independent of any arrest, where the search is based upon probable cause, and exigent circumstances exist. Carroll v. United States, supra. Exigent circumstances exist when an automobile is stopped on the highway, because the car is 'movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.' Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981. This principle applies even where the occupants of the vehicle have been placed under arrest. 'For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.' Chambers v. Maroney, supra, at 52, 90 S.Ct. at 1981.

The critical question is whether Officer Liberto had probable cause to search the vehicle, in other words, whether he had "reasonable or probable cause' to believe . . . (the would) find the instrumentality of a crime or evidence pertaining to a crime before (he began his) warrantless search.' Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed. 538 (1968). ² See also Commonwealth v. Barnes, --- Mass.App ---, 312 N.E.2d 575 (1974). We agree with the trial judge that Liberto had probable cause. Officer Liberto had been alerted through radio dispatches that a robbery had just occurred at the Iandoli Market, and that the original getaway car had been abandoned. Relying on this information and on his prior knowledge of the defendants' suspected complicity in an earlier robbery, coupled with his own observations of the earlier apparent reconnaissance of the Iandoli Market by Hinson's car on April 21, 1971, Liberto proceeded to Route 495, the highway Hinson's car had taken upon their departure from Milford on April 21, 1971. Within twenty minutes of the first radio dispatch, Liberto observed the defendants in Hinson's car proceeding north on Route 495. As the defendants passed him, they turned their heads away. When Liberto pulled onto the highway and began to follow them, they increased their speed, and he observed Dupont bend down on two occasions and look back at the cruiser twice. Under these circumstances, Liberto had probable cause to stop and search the car, apart from the arrests which followed his subsequent observation of the knife. Chambers v. Maroney, 399 U.S. 42, 47--48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Commonwealth v. Barnes, supra. This was not an instance where the defendants were arbitrarily stopped merely because of police suspicion of prior activities alone. To the contrary, in addition to Liberto's earlier observations while staking out Hinson's car, from which he could have hypothesized that its occupants had been engaged in a dry run for a robbery of the Iandoli Market, the reappearance of that car at the time and place anticipated confirmed the hypothesis, and made reasonable an inference that Hinson's car was involved in the robbery. Commonwealth v. Riggins, --- Mass. ---, 306 N.E.2d 254 (1974). The search was not arbitrary. Mere coincidence was too improbable. The defendants' subsequent suspicious behavior tended to corroborate the preexisting probable cause. Commonwealth v. Breen, 357 Mass. 441, 444--446, 258 N.E.2d 543 (1970).

2. The second assignment of error before us is the introduction in evidence of the pretrial and in-court identifications of the defendant Hinson by John O'Connor, a grocery clerk at the Iandoli Market. On the night after the robbery, the police showed Hinson's driver's license to O'Connor without indicating how it had been obtained and asked him if he recognized the picture. O'Connor identified it as that of the driver of the getaway car at the robbery. He also identified Hinson at the trial. Hinson argues that the showing of his driver's license to O'Connor was unnecessarily suggestive, and that it tainted as well the subsequent identification at trial.

We do not consider the argument. There was no motion made to suppress the identification under former Rule 101B of the Superior Court, as amended (now Rule 61 of the Superior Court (1974)). Even more decisive is the defendant's failure to take any exception either to the testimony as to the out-of-court identification or to the in-court identification. An assignment of error which is not based on an exception brings nothing before us for review. Commonwealth v. McDonald, 264 Mass. 324, 336, 162 N.E. 401 (1928). Commonwealth v. Foley, 358 Mass. 233, 236, 263 N.E.2d 451 (1970). Commonwealth v. Dinnall, --- Mass. ---, 314 N.E.2d 903 (1974). The court does have the power to review on the merits an assignment of error where no exceptions have been saved, but this power is exercised only where there exists a substantial risk of a miscarriage of justice. Commonwealth v. Freeman,352 Mass. 556, 564, 227 N.E.2d 3 (1967). COMMONWEALTH V. CONCEPCION, --- MASS. ---, 290 N.E.2D 514 (1972)^A. Such a risk is not present here.

3. The...