Com. v. Hicks

• Decision Date: 03 May 1984
• Parties: COMMONWEALTH v. Darryl HICKS.
• Court: Appeals Court of Massachusetts

Page 1053

460 N.E.2d 1053

17 Mass.App.Ct. 574

COMMONWEALTH v. Darryl HICKS.

Appeals Court of Massachusetts Suffolk.

Argued Nov. 18, 1983.

Decided March 6, 1984.

Further Appellate Review Denied May 3, 1984.

Michael J. Traft, Asst. Dist. Atty. (Robin A. Pearl, Legal Asst. to Dist. Atty., and Francis X. Collins, Asst. Dist. Atty., with him), for the Commonwealth.

Barry P. Wilson, Boston, for defendant.

Before ARMSTRONG, CUTTER and SMITH, JJ.

ARMSTRONG, Justice.

The Commonwealth appeals from a pretrial ruling allowing the defendant's motion to suppress a robbery victim's out-of-court and in-court identifications of the defendant as one of the two men who perpetrated the robbery. The circumstances were these. At 8:00 P.M. on October 7, 1981, the victim, an employee of Boston City Hospital, got out of work and, because he lacked train fare, proceeded to walk towards his home in the South End some distance away. On West Concord Street he was approached by a young man on his left and asked the time. He was then approached by another young man on his right who brandished a knife and asked for money. The victim turned over his small change and also his knapsack, which contained gym clothes, a can of Right Guard deodorant, shaving equipment, and a twelve-inch-long Panasonic AM-FM digital clock radio. The robbery lasted half a minute. The victim went immediately to a nearby fire station and called the police, who arrived on the scene within five minutes. The victim described the incident and the two robbers. The police drove him around the nearby streets for a while, but the robbers were not seen. The police dropped him off at his home.

Shortly thereafter the police detained two men seen walking together who approximated the victim's descriptions in color, age, weight and height, as well as in the colors of their coats. One of the two, the defendant, was seen to be carrying a radio consistent with the one which had been in the victim's knapsack. The police brought the defendant back to West Concord Street for identification. The victim identified the defendant and the other man as the robbers. Thereafter he identified a can of Right Guard deodorant taken from the defendant's pocket as identical in size to the one which had been in his knapsack and the radio seized from the defendant as the one that had been stolen from him in the robbery. (It was readily distinguishable from others of the same make and model because it was missing one knob and a piece of decorative metal trim.) This showup took place roughly one hour after the robbery.

The basis of the suppression motion was a claim that the officer who drove the victim back to West Concord Street to make the identification told him that fellow police officers had apprehended the robbers and recovered the radio. The judge so found on conflicting testimony, and we must and do accept the finding that the statement was made. See Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980); Commonwealth v. Day, 387 Mass. 915, 919, 444 N.E.2d 384 (1983). ¹ The analysis applied by the judge thereafter is not clear from the record. His remarks to counsel before their final arguments on the motion indicated that he would apply to the showup-identification, which he ruled was suggestive, a per se exclusionary rule, and that their arguments should be addressed to the question whether an identification at trial would have a source independent of the initial tainted identification. In his later written memorandum he found that "[t]he men picked up by the police do not resemble the men [the victim] described initially" and concluded that even the initial identification was not solidly enough based to overcome the improper suggestion. We conclude that on either analysis the judge erred and that the motion to suppress should have been denied.

The decision of the Supreme Judicial Court in Commonwealth v. Botelho, 369 Mass. 860, 343 N.E.2d 876 (1976), decided after Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), but before Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), outlined an interpretation then prevalent among some Federal courts concerning the due process requirements applicable to identification evidence. Under that view an impermissibly suggestive pretrial identification was to be excluded from evidence per se, and a subsequent identification could be made at trial only on clear and convincing evidence that the in-court identification had a source independent of the impermissibly suggestive pretrial identification. 369 Mass. at 866, 343 N.E.2d 876. It became clear only after the Botelho case, when the United States Supreme Court decided Manson v. Brathwaite, supra, that the due process clause of the Fourteenth Amendment does not require the per se exclusion of unnecessarily suggestive identifications where the suggestiveness has not caused the identification to be unreliable.

The Botelho case itself recognized that the per se exclusionary rule then applied by many of the Federal courts would not survive as a due process requirement if the United States Supreme Court were to hold that Neil v. Biggers, supra, applied to identifications made after the decision in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Botelho, 369 Mass. [17 Mass.App.Ct. 577] at 872, 343 N.E.2d 876. The Brathwaite case, of course, did so hold. See the discussion in Commonwealth v. Venios, 378 Mass. 24, 27, 389 N.E.2d 395 (1979); Commonwealth v. Gordon, 6 Mass.App.Ct. 230, 235-236, 374 N.E.2d 1228.

Under the Biggers and Manson cases, "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253, quoted in Commonwealth v. Gordon, 6 Mass.App. at 236, 374 N.E.2d 1228. The focus of the reliability analysis is normally on the initial identification, not the later repetitions. Commonwealth v. Wheeler, 3 Mass.App. 387, 392, 331 N.E.2d 815 (1975). If the initial identification is found to have the requisite indicia of reliability, "then subsequent identifications would also appear reliable." Commonwealth v. Botelho, 369 Mass. at 872, 343 N.E.2d 876.

Trial judges do not have discretion to apply or not apply the holdings of Manson v. Brathwaite and Neil v. Biggers. The precedents of the Supreme Court defining the requirements of the Federal due process clause necessarily bind all State courts. Matter of Roche, 381 Mass. 624, 631 n. 8, 411 N.E.2d 466 (1980); Commonwealth v. Bryant, 390 Mass. 729, 741, 459 N.E.2d 792 (1984). The Supreme Judicial Court has not adopted any more restrictive local rule (see, most recently, Commonwealth v. Paszko, 391 Mass. 164, 172 n. 9, 461 N.E.2d 222 [1984] ), and has on several occasions taken note of, and acquiesced in, this court's application of the reliability analysis of the Biggers and Brathwaite cases. See, e.g., Commonwealth v. Venios, 378 Mass. at 27-28, 389 N.E.2d 395; Commonwealth v. Cincotta, 379 Mass. 391, 396-397, 398 N.E.2d 478 (1979); Commonwealth v. Moon, 380 Mass. at 759, 405 N.E.2d 947. ² See also Liacos, Massachusetts Evidence 255 (5th ed. 1981). At the present time the Commonwealth is entitled to put in evidence otherwise admissible identifications that, despite improper suggestiveness, satisfy the reliability test.

The judge did not make findings bearing on each of the reliability factors listed in the Biggers and Brathwaite cases. ³ It has been strongly recommended that judges make such findings. Commonwealth v. Venios, 378 Mass. at 28, 389 N.E.2d 395; Commonwealth v. Storey, 378 Mass. 312, 319 n. 9, 391 N.E.2d 898 (1979); Commonwealth v. Moon, 380 Mass. 751, 405 N.E.2d 947 (1980); Commonwealth v. Marks, 12 Mass.App. 511, ---, Mass.App.Ct.Adv.Sh. (1981) 1727, 1732, 426 N.E.2d 1172; Commonwealth v. Paszko, 391 Mass. at 172, n. 9, 461 N.E.2d at 228 n. 9. Analysis in terms of the Biggers-Brathwaite reliability factors would have directed the judge's attention to certain aspects indicative of reliability despite the unfortunate remarks by the officer who drove the victim to the showup.

The confrontation took place only an hour (or slightly over) after the robbery, well before the underlying dangers of fading memory or image-transferrence could have arisen. See Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 970-971, 19 L.Ed.2d 1247 (1968); Commonwealth v. LaPierre, 10 Mass.App. 641, 642-644, 411 N.E.2d 1314 (1980). The identification was made without hesitation, the victim indicating that he was "positive" on the point. Compare the identification (by Mark) in Commonwealth v. Correia, 381 Mass. 65, 71, 407 N.E.2d 1216 (1980). There was no prior mistaken identification nor prior failure to identify the defendant. See Commonwealth v. Botelho, 369 Mass. at 869, 343 N.E.2d 876. ⁴ The thirty-second duration of the robbery, involving unobstructed face-to-face confrontation under trying circumstances, was "sufficient to fix the robber[s'] face[s] in the mind of the witness." Commonwealth v. Redding, 382 Mass. 154, 158, 414 N.E.2d 347 (1980). See Commonwealth v. Sampson, 7 Mass.App. 514, 519, 388 N.E.2d 1214 (1979) (five to ten seconds gave adequate opportunity to view the criminal). Compare Commonwealth v. Roberts, 362 Mass. 357, 366-367, 285 N.E.2d 919 (1972) (fact that witness viewed assailant for only two or three seconds "[went] to the weight and not to the admissibility of [the] testimony"). It was dark, but the street was lighted, and the victim, who had been walking the streets for a considerable distance and whose eyes were thus presumably accustomed to the lighting condition, made no complaint of difficulty in seeing and could distinguish colors (the coats) and details (the knife).

The contention that the identification was not reliable has focused on the accuracy of the victim's descriptions of the robbers given to police officers five minutes after the crime. The...