Com. v. Flowers

• Decision Date: 03 August 1977
• Citation: 5 Mass.App.Ct. 557,365 N.E.2d 839
• Parties: COMMONWEALTH v. Andrew FLOWERS et al. 1
• Court: Appeals Court of Massachusetts

Page 839

365 N.E.2d 839

5 Mass.App.Ct. 557

COMMONWEALTH v. Andrew FLOWERS et al. ¹

Appeals Court of Massachusetts, Suffolk.

Argued June 7, 1977.

Decided Aug. 3, 1977.

Joseph F. Flynn, Boston, for Andrew Flowers.

Margaret Hayman, Boston, for Mark White.

Robert J. McKenna, Jr., Asst. Dist. Atty. (Eugene McAuliff, Asst. Dist. Atty., with him), for the Commonwealth.

Before HALE, C. J., and GRANT and BROWN, JJ.

HALE, Chief Justice.

The defendants were convicted after a jury trial held subject to the provisions of G.L. c. 278, §§ 33A-33G, on separate indictments charging each with armed robbery. The defendant Flowers has argued three assignments of error; the defendant White one. There was no error.

We summarize the facts found by the judge together with additional evidence summarized from the transcript of the hearing on the defendants' motions to suppress. At approximately 7:00 P.M. on September 12, 1974, Detectives Accera and Graham of the Boston police department were patrolling along Dorchester Avenue in an unmarked police vehicle as part of an ongoing investigation by the robbery suppression unit of the Boston police department. Accera operated the vehicle, and Graham sat in the passenger's seat. Graham observed a two tone (white top, blue bottom) 1974 Plymouth Fury automobile, Massachusetts registration 7T8189, parked in front of one of the stores which was under surveillance. He was aware that a motor vehicle fitting that description had been used in an armed robbery of a convenience food store in Hyde Park a week earlier. As the police vehicle passed the Fury, Graham saw that there were four occupants in the vehicle; the driver was a woman and the three passengers, one seated in the front and the other two in the back, were men. The police stopped their vehicle a short distance beyond the Fury and observed the two front seat occupants alight and walk into the store. The woman was later identified as one Grace Campbell. The man, later identified as Flowers, was wearing dark trousers, a dark shirt, and a dark vest. He had a short Afro style haircut. One of the men who had remained in the rear seat of the vehicle was wearing a pink hat and a pink shirt. Campbell and Flowers returned to the car empty-handed and drove away. Graham and Accera followed. The car then stopped in front of a second convenience store, and the same action was repeated. When Campbell and Flowers returned from the second store they entered their car and sped off up Dorchester Avenue toward Gallivan Boulevard, with the officers in pursuit. The police lost sight of the vehicle when it turned off Dorchester Avenue into Gallivan Boulevard. At this time (approximately 7:20 P.M.) Graham gave a radio communication relative to the vehicle, and then returned to the area of the two convenience stores on Dorchester Avenue, where he remained until 9:10 P.M.

That evening one Bonvie and one MacLean were working as clerk-salesmen at a "Radio Shack" store on the American Legion Highway in Roslindale. Shortly before 8:30 P.M. Bonvie went out to a nearby store. After he had left, three black males entered the store. MacLean observed that one wore a pink hat and pink shirt. (We shall refer to that person as "X".) One wore dark clothing, a black sweater vest, and had short hair (later identified as Flowers by both Bonvie and MacLean). The third (later identified as White by Bonvie and MacLean) was shorter than the other two, had a medium Afro, dark clothing and a skin condition. The three men moved about the store looking at the merchandise. Bonvie returned to the store, and X asked him for assistance. After answering X's question, Bonvie joined MacLean behind the counter. Flowers and X approached the counter, and X inquired about a layaway plan as White walked to the door. X then called to White and asked whether he had ten dollars. White then looked out the door and answered, "Yes." With that answer, Flowers drew a long-barreled gun, and X drew a short-barreled gun.

X directed Bonvie to open the cash drawer and put the money in a bag. He complied. MacLean, who had been ordered to lie on the floor behind the counter, responded to Flowers' demand for the rest of the money by leading him to the back of the store where loose and rolled coins were kept. MacLean unlocked a box which contained the change, and then Flowers rejoined X and White in the front of the store. The three men then left the store. On the way out X picked up some stereo equipment and took it with him.

After the robbers had left, Bonvie telephoned the police and gave a description of the three robbers. The police arrived at the store within minutes, and Bonvie and MacLean again described the three men. Bonvie reported to the police that four twenty dollar bills (one bearing the number E 36), twenty singles, two fives, two or three tens, three Kennedy half dollars, several rolls of pennies, and several dollars in quarters, dimes, nickels and pennies had been taken. The police were also given a description of the two guns used by the robbers.

At 8:45 P.M. that evening officer Chanette and two other officers were on patrol in the area of Columbia Circle when they received the radio communication relative to the armed robbery. At 9:10 P.M. they observed a 1974 Plymouth, blue with a white top, Massachusetts registration 7T8189, heading towards South Boston. There were three people in the vehicle (two in the front and one in the rear). Chanette immediately pulled out behind the vehicle and caught up to it on Mt. Vernon Street as it headed into the Columbia Point housing project. The officers pointed their guns at the occupants of the Plymouth and motioned to the driver to pull over. After the car had stopped the occupants were taken from it. The operator was Grace Campbell. Flowers, the passenger in the front seat, was wearing dark clothing. White was in the rear of the car and was wearing dark trousers and a flowered shirt. Graham, who had been called by radio, arrived on the scene and frisked the two men. This search revealed no weapons, but three rolls of pennies were found on Flowers. Because a large crowd had formed at the scene, no search of the car was conducted. Campbell, Flowers and White were taken to District 11. There Chanette looked into the car and observed and seized a short-barrel, loaded .22 caliber revolver, the butt of which was protruding from the cushions of the rear seat. At approximately 10:00 P.M. the defendants were taken by Graham to the Radio Shack, where they were confronted by MacLean. MacLean identified Flowers and White as being two of the three men who had robbed the store earlier that evening.

The defendants were then taken to the District 5 station, where complete searches of their persons were conducted. A twenty dollar bill, a ten dollar bill, seven one dollar bills, five dollars and nine cents in loose change, and two Kennedy half dollars were found on Flowers. A twenty dollar bill (bearing the number E 36), two five dollar bills and sixteen one dollar bills were found on White.

FLOWERS' CASE

1. Flowers assigns as error the denial of his motion to dismiss the indictments for failure to grant a speedy trial. We have examined the defendant's claim in light of the oft stated factors set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and have determined that there was no error. No useful purpose would be served by a detailed discussion of those factors and the now well known applicable law in this area.

2. Flowers next argues that the motion judge erred in finding that the stop of the car in which the defendant was a passenger, his subsequent arrest, and the search of the car were constitutionally permissible. Having first ruled that the burden of proving the reasonableness of the search was on the Commonwealth (Commonwealth v. Antobenedetto, 366 Mass. 51, 56, 315 N.E.2d 530 (1974)), the motion judge made extensive findings of fact which we have summarized above and which were amply supported in the record. We are of the opinion that the motion judge correctly found and ruled (1) that the stopping of the vehicle was reasonably warranted based on "specific and articulable facts" known to the officers (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see Commonwealth v. Riggins, 366 Mass. 81, 86, 315 N.E.2d 525 (1974); Commonwealth v. Ling,--- Mass. ---, --- - --- ^a, 346 N.E.2d 703 (1976)); (2) that the description, given the police provided probable cause to arrest the defendant (see Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 564-569, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Commonwealth v. Tarver,--- Mass. ---, --- ^b, 345 N.E.2d 671 (1975); contrast Commonwealth v. Morales, --- Mass.App. ---, --- ^c, 341 N.E.2d 693 (1976)); (3) that the monies taken from the defendant's person need not be suppressed from evidence because the lawful custodial arrest gave rise to the authority to search (see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Commonwealth v. Tarver, supra, --- Mass. --- ^d, 345 N.E.2d 671); and (4) that the warrantless search of the automobile at the police station was justified by the circumstances that existed at the time of the initial stopping of the vehicle (see Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Commonwealth v. Rand, 363 Mass. 554, 558-559, 296 N.E.2d 200 (1973); Commonwealth v. Barnes, 2 Mass.App. 357, 361, 312 N.E.2d 575 (1974); contrast Commonwealth v. Antobenedetto, 366 Mass. at 55, 315 N.E.2d 530).

3. The defendant claims that the judge erred in allowing him to proceed without counsel and in refusing to grant a continuance once counsel had been allowed to withdraw to a consulting status, alleging that in so doing the judge denied him counsel, thus depriving him of his rights under the United States Constitution...