Com. v. Ferguson

• Decision Date: 27 March 1974
• Citation: 309 N.E.2d 182,365 Mass. 1
• Parties: COMMONWEALTH v. Richard FERGUSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 182

309 N.E.2d 182

365 Mass. 1

COMMONWEALTH v. Richard FERGUSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1974.

Decided March 27, 1974.

Timothy Wilton, Cummington, for defendant.

Elizabeth C. Casey, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

Richard Ferguson, convicted by a jury of the crimes of robbery while armed with a dangerous weapon, and assault and battery by means of a dangerous weapon, the weapon specified under each charge being a knife, takes his appeal under the provisions of G.L. c. 278, §§ 33A--33G. He assigns eleven errors and argues ten of them. We affirm the judgments.

It will be convenient to summarize the story as told by the victim Donald Merowitz and police lieutenant Thomas Moran, called by the prosecution, and then to indicate the line taken by the defendant and his wife, the witnesses for the defence.

The criminal episode occurred on the evening of July 16, 1972. Merowitz, aged fifteen at the time, had met the defendant for about ten minutes two weeks before July 16, and again a week before, when they were together for a longer period, perhaps as much as an hour. ¹ On the latter occasion Merowitz had also met a young woman called Lulu and understood the defendant to be 'Lulu's man.' Merowitz did not know that the defendant and Lulu were married, nor did he know their last name. About 8:15 P.M. to 8:30 P.M. on July 16, Merowitz encountered Lulu and the defendant on Westland Avenue in the Fenway neighborhood of Boston.

Merowitz asked Lulu, in the presence of the defendant, whether she wanted to 'cop', that is, by heroin. Lulu indicated that she did. Merowitz and Lulu started to walk together toward Edgerly Road, while the defendant headed in another direction. Reaching a rooming house at 22 Edgerly Road, Merowitz and Lulu entered and went to a common hallway bathroom where Merowitz sold her three bags of heroin for $30 and Lulu 'shot' the drug. Merowitz placed the $30 with the $170 already in his wallet in his back pocket. He had still on his person two or three bags of the bundle of twenty-five bags that he had been selling. Shortly Merowitz left the building with Lulu, the two turning to their right and walking in the middle of the street on Edgerly Road toward Westland Avenue. This was about 8:30 P.M. to 8:45 P.M.

Merowitz then heard footsteps of three persons running behind him in apparent pursuit. Alarmed, he started to run, continuing in the same direction on Edgerly Road and then commencing to turn at the corner of Norway Street. At that moment Merowitz felt the impact of a thrown knife entering his left lower back. Evidently the blow forced him into a leaning position on a parked car. He screamed, 'Take the knife out'; one or perhaps two of the three persons now close behind him also shouted to take the knife. Out. As he felt the knife being removed, he turned his head. In the light of a street lamp overhead, he saw Lulu's man pulling out the knife. At the same time he recognized one William LaChardy, blackjack in hand, shouting 'Give me the . . . money.' There was a third person present whom he evidently did not squarely see. LaChardy took the wallet, but did not search for or take the heroin bags. The robbery accomplished, the three fled. Lulu had disappeared. The episode from the time the men came up to Merowitz to their departure had occupied perhaps thirty or forty seconds. Merowitz managed to get to Hemenway Street where he hailed a taxicab. He was taken to Peter Bent Brigham Hospital.

At about 9:15 P.M. Lulu appeared at the fourth district police station at Warren and Berkeley Streets and told Lieutenant Moran of a knifing at Norway Street corner. Lieutenant Moran drove Lulu to the spot and observed blood on the sidewalk. He then proceeded to the hospital but was unable because of Merowitz's condition to interview him at that time, nor was he able to do so for two weeks thereafter. When finally the interview took place, Lieutenant Moran, in the presence of another officer, showed Merowitz six or seven pictures, ² including pictures of the defendant and the brothers William and Joseph LaChardy, and asked Merowitz whether he recognized any of the faces. Merowitz identified William LaChardy as one of his assailants, but he passed over Joseph LaChardy's picture. He picked out the defendant's picture as being that of Lulu's man but he said he could not be sure of the identification until he saw the man in the flesh. ³ Merowitz remained in the hospital until mid-August. Hospital records showing that he underwent three operations were received as bearing on his condition when he was shown the pictures. ⁴

On October 6, 1972, Merowitz, while riding in a friend's car on Washington Street in Boston, saw the defendant standing outside the Novelty Bar. Merowitz and his friend entered the bar and Merowitz observed the defendant there for several minutes. He was sure this was the man. He left the bar and telephoned the police who came and made the arrest.

Turning to testimony for the defence, Lulu said that though the defendant was present when Merowitz asked whether she wanted to 'cop,' he had not heard or understood the question, and she had led him to think that Merowitz had inquired where he, Merowitz, could 'cop.' She walked with the defendant to a 'Chicken-a-Go-Go' on Westland Avenue where the defendant put in an order; she said she would wait outside; she stepped out and accompanied Merowitz to 22 Edgerly Road where she bought the heroin. (She said she misled or evaded the defendant because he was trying to break her of the habit.) She said that three men pursued Merowitz: she recognized the LaChardy brothers and the third was a 'junkie' whom she knew only by sight. She was twenty-five to thirty feet from Merowitz when the knife was thrown, and ten to fifteen feet from the person who took the knife out. Merowitz slumped to the ground, his hands on a parked car.

The knife was in so deep, according to Lulu, that William LaChardy had to kick Merowitz in the back to get it out. She said (on cross-examination) that it was a 'big,' 'good sized knife,' like a carving knife and the size of a carving knife, something you would use in cutting up a roast. The blade was 'probably maybe that long, six, seven inch blade.' She didn't know if it had a wooden handle. It wasn't simply a jackknife or a pocket knife.

Lulu testified that the sight of the knifing made her hysterical; she cried out for someone to give Merowitz money so he could get to a hospital. But the men ignored her, took a bundle of heroin from Merowitz, but not his money, and fled. She left Merowitz there and went back to Westland Avenue where she found the defendant sitting on a stoop eating chicken. She gave him a muddled story of the stabbing and to quiet her and get her out of the area he walked with her to a bar at Park Square (where they would be recognized) and they stayed there drinking for perhaps an hour. Then she stepped out and went to see Lieutenant Moran and named the LaChardy brothers, who were well known to herself and the defendant. In going to the police she was moved by a fear that Merowitz might die.

The defendant, testifying in his own defense, denied any personal knowledged of the stabbing. He had been at 'Chicken-a-Go-Go.' He said Lulu had not told him any details. She had not mentioned the LaChardy brothers to him. She had not told him who did it. He did not know she had gone to Lieutenant Moran. He had not connected Merowitz with the stabbing, nor had he recognized him at the Novelty Bar.

1. The judge's denial of the defendant's pre-trial motion to suppress the photographic and later identifications is assigned as error (assignment 1). We need not state separately the evidence on the motion as it did not differ in substance from that emerging at trial, as recounted above; the witnesses on the motion called by the defendant were only Merowitz and Lieutenant Moran. The defendant says that the showing of his picture at the hospital was impermissibly suggestive, whence it would follow, he argues, that any later identifications, in court or out, were tainted. The judge did not say whether he thought the showing in the hospital was suggestive, holding rather that there was 'no identification through photograph on the evidence'; it will be recalled that Merowitz wanted to see the man in the flesh before he would commit himself. There is no indication in the record that Merowitz was pointed or nudged toward the defendant's photograph, see COMMONWEALTH V. ROSS, MASS. (1972), 282 N.E.2D 70;^A Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Merowitz's identification in making a positive identification at that time may indeed be taken as a sign of his circumspection. If, however, we were to assume that there was something suggestive in the display at the hospital, we would nevertheless agree with the judge's finding, in effect, that Merowitz's observations of the defendant's appearance at the three encounters before the stabbing, and his view of the defendant at the climactic moments of the withdrawal of the knife, in themselves provided a sufficient basis for his later positive identifications; the identifications stemmed from those observations rather than from the viewing of the picture. COMMONWEALTH V. ROSS, SUPRA, 282 N.E.2D 70,^B and cases cited. COMMONWEALTH V. MURPHY, MASS. (1972), 289 N.E.2D 571.^C COMMONWEALTH V. STANLEY, MASS. (1973), 292 N.E.2D 694.^D United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Thus we think the judge was not in error in denying the motion to suppress and in admitting the testimony regarding identifications to be weighed by the jury.

2. If the man who pulled out the knife was properly identified as being the defendant, then there was sufficient evidence to indicate that he...