Com. v. Hill

• Court: Appeals Court of Massachusetts
• Citation: Com. v. Hill, 652 N.E.2d 621, 38 Mass.App.Ct. 982 (Mass. App. 1995)
• Decision Date: 14 July 1995
• Docket Number: No. 94-P-1171,94-P-1171
• Parties: COMMONWEALTH v. Michael HILL.

Page 621

652 N.E.2d 621

38 Mass.App.Ct. 982

COMMONWEALTH v. Michael HILL.

No. 94-P-1171.

Appeals Court of Massachusetts.

July 14, 1995.

Charles K. Stephenson, Granby, for defendant.

John J. Conte, Dist. Atty., and Matthew J. Mullaney, Asst. Dist. Atty., for the Com.

RESCRIPT.

A Superior Court jury returned guilty verdicts against the defendant on eight indictments. Those indictments charged the defendant with unarmed burglary (four indictments), breaking and entering in the nighttime with intent to commit a felony (two indictments), and larceny over two hundred fifty dollars (two indictments). His only contention on appeal is that the motion judge (who was not the trial judge) erred when he denied a motion to suppress a prospective in-court identification that was, according to the defendant, fatally tainted by an impermissible earlier identification. The defendant did not object at the trial to the identification, so we determine only whether the error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Boyer, 400 Mass. 52, 57, 507 N.E.2d 1024 (1987). As there was no error, we affirm.

The evidence at the hearing on the motion was that at around 3:00 A.M. on July 17, 1993, the Leominster police, including Officer Richard Kenney, were investigating a reported burglary. They were looking for a particular car on which they had a report, and they spotted it parked near an intersection. Shortly after an officer parked behind the car and approached it on foot, Officer Kenney parked his cruiser at the front of the car, facing it, in a blocking maneuver. Kenney focused his "takedown" lights on the car's interior, and he observed the driver "face to face" for five to ten seconds at a distance of "a car, car and a half length." The car managed to drive around Kenney's cruiser, and a brief car chase ensued. That ended when the driver and his passenger abandoned their car and continued to flee on foot. Kenney chased them on foot and apprehended the passenger, but the driver got away. ¹

Soon thereafter, at the police station, when Kenney was describing the man he had seen and chased, another police officer said, "it sounds like Michael Hill." Almost immediately, another officer produced a photo (of Hill), and Kenney identified him as the man he had seen and chased. Arrest and prosecution followed.

The motion judge found and ruled that the station house identification was impermissibly suggestive and could not be admitted in evidence at trial, but that Kenney would be permitted to identify the defendant in court, if he could do so, because their previous encounter at the parked car constituted a sufficient independent basis for an identification. Commonwealth v. Botelho, 369 Mass 860, 866, 343 N.E.2d 876 (1976). See Smith, Criminal Practice & Procedure §§ 458-460, at 313-314 (1983 & Supp.1995). There was no error. ²

Neither the trial judge when he ruled nor the parties at argument here had the benefit of the Supreme Judicial Court's decision in Commonwealth v. Johnson, 420 Mass. 458, 650 N.E.2d 1257 (1995). There, the court considered a question that it had not previously answered: whether an identification that is the product of an impermissibly suggestive procedure may nevertheless be admitted in evidence if it is shown to be reliable, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), or whether art. 12 of the Massachusetts Declaration...