Com. v. Harris

• Decision Date: 03 July 1985
• Citation: 479 N.E.2d 690,395 Mass. 296
• Parties: COMMONWEALTH v. Oscar L. HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 690

479 N.E.2d 690

395 Mass. 296

COMMONWEALTH v. Oscar L. HARRIS.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Feb. 7, 1985.

Decided July 3, 1985.

Dorian Bowman, Cambridge, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for Commonwealth.

Before WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant appeals from his convictions of assault with intent to murder and assault and battery by means of a dangerous weapon. He argues that the trial judge erred in denying his motion to suppress the victim's identifications of him; in excluding evidence of a similar crime that occurred while he was in custody; and in failing to include, in a supplemental jury instruction, an instruction on the Commonwealth's burden of proof. We affirm the convictions.

We set forth the evidence relevant to the issues raised by the appeal. On December 28, 1981, at approximately 11:50 P.M., the victim, an eighteen year old woman, was returning to her home in Milton on an MBTA bus. She saw the defendant get on the bus, walk past her, and take a seat a short distance behind her. When the bus reached her stop, she got off alone, waited for the bus to start up again, crossed the street and began the ten minute walk home. As she crossed the street, she heard the bus stop again, and saw the defendant get off the bus. Shortly thereafter, the defendant came up behind her and put his hand across her mouth. When she screamed, he told her to "[s]hut up," and that he was going to kill her. He turned the victim around to face him, threw her to the ground, and tore off the gold chains that were around her neck. She managed to get away and run a few steps, but the defendant caught her and again threw her to the ground. He took out a knife and stabbed her in the neck, head, and hands. At that moment, several cars drove by and stopped. Several teenaged males jumped out of one of the cars and chased the defendant, while the occupants of another car took the victim to the hospital.

The youths eventually chased the defendant to the front porch of a nearby house. A police officer arrived and found the defendant standing on the front porch with the three youths standing on the lawn surrounding him. The youths told the officer about the attack and the chase. After confirming with the police dispatcher that a stabbing victim was being treated at the hospital, the officer placed the defendant under arrest. Shortly after he had arrested the defendant, the officer heard a radio broadcast of the description that the victim had given of her assailant. She described her assailant as a black male, around twenty-six years old, wearing a brown leather jacket and dark pants. The defendant matched that description. Two police officers then brought the defendant to the hospital for identification.

At the hospital, a police officer told the victim that they had "picked up somebody with your description. We are going to bring him in." About five minutes later, two police officers walked into the victim's hospital room. The defendant stood between them with his hands handcuffed behind his back. Both police officers were white and were in uniform. Neither officer said anything to the victim. The victim looked at the defendant and said, "That's him" or "That's the man that did it." The officers then took the defendant to the police station.

1. Motion to suppress identifications. The defendant moved to suppress the victim's identification of him at the hospital alleging that the procedures used

by the police were unnecessarily suggestive. He also moved to suppress any subsequent in-court identification by the victim on the ground that it would be tainted by the inadmissible out-of-court identification. After a hearing, the trial judge denied the motion to suppress. He concluded that the one-on-one hospital confrontation, viewed in the totality of the circumstances, was not so unnecessarily suggestive as to deny the defendant due process of law, and that, therefore, the out-of-court as well as the in-court identifications were admissible. The defendant contends that the one-on-one confrontation was unnecessary because the victim was not seriously injured and therefore a formal line-up could have been conducted after the victim left the hospital or the following day. He also argues that the procedures used by the police were unnecessarily suggestive. Specifically, he points to the police officer's statement to the victim that they would be bringing someone in who matched the description she had given, to the fact that the defendant was the only black male in the hospital room when the identification took place, and to the fact that two uniformed police officers stood on either side of him, making it apparent that he was under arrest. There was no error.

We have repeatedly held that due process rights are not violated when police arrange a one-on-one confrontation between the victim and a suspect promptly after a criminal event occurs. See, e.g., Commonwealth v. Leaster, 395 Mass. 96, 102-104, 479 N.E.2d 124 (1985); Commonwealth v. Howell, 394 Mass. 654, 660-661, 477 N.E.2d 126 (1985); Commonwealth v. Barnett, 371 Mass. 87, 92, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). Exigent or special circumstances are not a prerequisite to such confrontations. Commonwealth v. Barnett, supra. Commonwealth v. Coy, 10 Mass.App. 367, 371, 407 N.E.2d 1310 (1980). "[I]t makes no difference that the witness's life is not in such jeopardy as to make imperative the immediate preservation of the witness's account of the event. Commonwealth v. Barnett, supra, 371 Mass. at 92, 354 N.E.2d 879. The procedures are 'justified by the need for efficient investigation in the immediate aftermath of crime.... To have the witness view the suspect while his recollection or mental image of the offender is still fresh, before other images crowd in or his attempts to verbalize his impressions can themselves distort the original picture, provides the witness with good opportunity for an accurate identification.... A further consideration is that prompt confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part is or may be in error and releases them quickly to follow another track.' (Citations omitted.) Id." Commonwealth v. Leaster, supra, 395 Mass. at 103, 479 N.E.2d 124.

The defendant has not shown that the procedures used at the hospital added any " 'special elements of unfairness' ... as might take the case out of the general class permitting a confrontation without a lineup" (citation omitted). Commonwealth v. Barnett, supra, 371 Mass. at 93, 354 N.E.2d 879. Some elements of suggestiveness are inherent in all such confrontations. The police officer's statement to the victim that they would be bringing someone in who matched the description she had given was not so suggestive as to make the confrontation unfair. See Commonwealth v. Leaster, supra, ...