Com. v. Gordon

• Decision Date: 18 April 1978
• Citation: 6 Mass.App.Ct. 230,374 N.E.2d 1228
• Court: Appeals Court of Massachusetts

Page 1228

374 N.E.2d 1228

6 Mass.App.Ct. 230

COMMONWEALTH v. Leroy GORDON.

Appeals Court of Massachusetts, Middlesex.

Argued March 13, 1978.

Decided April 18, 1978.

Jane Kenworthy Lewis, Lowell, for defendant.

Michael J. McHugh, Legal Asst. to the Dist. Atty., for the Com.

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

GRANT, Justice.

The defendant has been convicted of the armed robbery of a gasoline filling station in Tewksbury on September 18, 1976, and has appealed under the provisions of G.L. c. 278, §§ 33A-33G. The errors which have been assigned and argued are (1) the denial of the defendant's motion to suppress (a) evidence of the photographic identification of the defendant which the victim of the robbery had made to the Tewksbury police two days following the robbery and (b) the victim's proposed in-court identification of the defendant as the robber, and (2) the exclusion of inquiries which counsel for the defendant sought to make of witnesses who testified at the pretrial hearing on the motion to suppress.

1. Our discussion of that motion will commence with a summary of the facts which could have been found on the relevant evidence which was adduced from all sources at the hearing on the motion.

The gas station in question was of the self-service type, with three slightly elevated pump islands and a rectangular cashier's booth located on the center island. There were windows in three sides of the booth, and one of those sides also contained a full length glass door. The victim of the robbery was the cashier, who either sat or stood inside the booth at all material times on the day of the robbery. At approximately 7:00 P.M. on that day, while there was still bright sunlight, a yellow Impala containing three black men drove into the station. All three men emerged from the car. The driver, never identified, remained in the vicinity of the car; a second man, later identified by the cashier as one Williams, pumped gas into the car; and the third man, later identified by the cashier as the defendant, came to the window of the booth, which contained a cash slot at its bottom at approximately waist level. The third man paid for the gasoline which had been pumped into the car and conversed with the cashier for a period of from three to five minutes while he exchanged some small bills he had for ones of larger denominations which the cashier had. The cashier was seated on a stool inside the booth during the course of this incident, and the man in question was leaning over in the direction of the booth, as the conversation was conducted through the cash slot in the bottom of the window. The man was approximately two feet away from the cashier, who got a three-quarter side view of the man. The three men then got into their car and drove off.

At 10:00 P.M. the cashier extinguished all the lights in the station except those inside the booth and started to count his cash. The lights inside the booth illuminated the area outside the booth for a distance of approximately ten feet on the three sides of the booth which contained glass. A few minutes later the same yellow Impala drove into the station, and two black men emerged therefrom and walked in the direction of the booth. One man, whom the cashier recognized as the man who had pumped gas into the car at 7:00 P.M., stayed about ten feet from the booth. The other man, whom the cashier recognized as the man with whom he had conversed and exchanged bills at 7:00 P.M., walked up to the booth, produced a gun, threatened the cashier, entered the booth, took the money in the cash drawer, and left the booth. Both men then returned to the car, which was then driven off by a third person. When the robber reached the booth the cashier looked straight at him; he had the robber in his view for a little more than a minute during the course of the robbery; and at one point the robber actually brushed against the cashier.

The cashier, who will hereafter be referred to as the victim, telephoned the Tewksbury police, who arrived at the station within minutes after the robbery. The victim described the robber as a black man aged approximately twenty-three, weighing approximately 130 to 140 pounds, and wearing a partial moustache and tightly braided hair. He told the police that he could not give them an accurate description of the robber's height as he had not observed the robber standing up straight during the course of the robbery, but he estimated the robber's height as five feet two inches. On the night of the robbery the police showed the victim photographs from their files of two black males for the purpose of identifying the type of hairstyle which he had described. The victim immediately rejected both photographs as not showing the right kind of hair.

On the day following the robbery the victim saw a television news clip of persons who had been arrested following a robbery in Dedham and which portrayed one of the persons arrested as wearing his hair in rows of tight braids which ran from his forehead to the nape of his neck. The victim then called the police, described what he had seen, and advised them that the person who had robbed him had worn his hair in the same fashion.

The photographic identification which is challenged in this case took place on the afternoon of the second day following the robbery. The Tewksbury police showed the victim mugshots of nine different black males, displaying them in such fashion as to show only the heads and shoulders of the individuals portrayed. There was nothing suggestive about the manner in which the photographs were displayed, nor did the police ask any improper questions. The victim picked out two photographs, identifying one of them as a likeness of the person who had robbed him and the other as a likeness of the man who had remained outside the booth during the robbery. The victim did not hesitate in picking out either photograph. The first photograph, which was of the defendant, was the only one in the array which depicted a man wearing his hair in braids; it showed a man with a moustache wearing his hair arranged in rows of tight braids running from his forehead to the nape of his neck. The other photograph was of a man named Williams.

Both photographs had been obtained from the Lowell police, and both had been taken by the police in Bedford, New Hampshire. The information on the backs of the photographs disclosed that the defendant and Williams had been arrested together in Bedford two days prior to the robbery here in question and while in the company of a third black man by the name of Woodward, whose photograph had also been included in the array shown to the victim. ¹ The information on the back of the photograph of the defendant described him as twenty-three years old, weighing 140 pounds, and being five feet eleven inches tall. It does not appear that any of this information was ever disclosed to the victim at any time; indeed, it is not even referred to in the briefs of the parties.

The victim identified the defendant as the robber during the course of the hearing on the motion to suppress. The defendant was asked to rise, and the judge observed that he might be as tall as five feet eleven inches. The defendant produced four youths who had been present in the gas station at 7:00 P.M. on the day of the robbery and who identified the defendant as having been present at that time. All four testified that they had conversed with the defendant for several minutes at a point several feet away from the cashier's booth, described his hair as part Afro and only partially braided, and insisted that it was someone other than the defendant who had gone up to the booth on that occasion.

At the conclusion of the evidence, and following argument, the judge denied the motion in its entirety. Substantially the same evidence as has already been summarized was admitted at the trial.

The hearing on the motion was conducted by both counsel on the theory, and the judge appears to have considered, that the burden was on the defendant to prove that the photographic identification was unnecessarily suggestive and conducive to an irreparably mistaken identification and that the burden would be on the Commonwealth to prove by clear and convincing evidence that the proposed in-court identification would be independent of any taint in the photographic identification which the judge might find. See Commonwealth v. Botelho, --- Mass. ---, --- - --- ^a, 343 N.E.2d 876 (1976); Commonwealth v. Mobley, --- Mass. ---, --- n. 2 ^b, 344 N.E.2d 181 (1976); Commonwealth v. Walker, --- Mass. ---, --- - --- n. 12 ^c, 350 N.E.2d 678 (1976); Commonwealth v. Cranshaw, --- Mass.App. ---, --- ^d, 356 N.E.2d 708 (1976); Commonwealth v. MacMillan, --- Mass.App. ---, --- ^e, 362 N.E.2d 929 (1977). The judge found that "there was nothing impermissibly suggestive about the photographic procedures used" ² and, accordingly, made no finding as to whether the proposed in-court identification would be independent of the photographic identification. See Commonwealth v. Barnett, --- Mass. ---, --- - --- ^f, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Commonwealth v. Chase, --- Mass. ---, --- ^g, 363 N.E.2d 1105 (1977); Commonwealth v. Funderberg, --- Mass. ---, --- ^h, 373 N.E.2d 963. The defendant complains of the finding just quoted, complains of the absence of any express finding that the in-court identification would be independent of the photographic identification, and points to the discrepancies in the evidence as to the robber's height, as to the defendant's hairstyle, and as to whether it was the defendant or one of the other occupants of the car who had gone up to the cashier's booth at 7:00 P.M. on the day of the robbery.

Some of the defendant's contentions might be troublesome in the absence of the case of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which was decided...