Com. v. Hogg

• Decision Date: 02 April 1976
• Parties: COMMONWEALTH v. Jonathan HOGG.
• Court: Appeals Court of Massachusetts

Page 924

344 N.E.2d 924

4 Mass.App.Ct. 225

COMMONWEALTH

v. Jonathan HOGG.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 15, 1975.

Decided April 2, 1976.

Richard S. Goldstein, Boston, for defendant.

Joseph T. Doyle, Jr., Sp. Asst. Dist. Atty., for the Commonwealth.

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

KEVILLE, Justice.

The defendant Hogg and two codefendants ¹ were convicted of armed robbery and assault with intent to rob after a jury trial in the Superior Court. The defendant's appeal, by way of a bill of exceptions under G.L. c. 278, § 31, presents three issues for review: (1) denial after a voir dire of the defendant's motion to suppress in-court and out-of-court identifications of the defendant by an eyewitness (Hamilton); (2) the exclusion as hearsay, during the voir dire hearing, of questions put by defense counsel to Hamilton concerning conversations between Hamilton and Corcoran ² relating to persons identified by Corcoran at a lineup conducted by the police; and (3) the admission of a pistol in evidence at trial where there was conflicting evidence with respect to its identification.

We summarize pertinent facts drawn from the bill of exceptions. At 2:00 A.M. on August 22, 1971, two MBTA employees, Hamilton and Corcoran, were seated in the front of a bus located at an MBTA garage. The area was well-lighted by pit lights and overhead floodlights. Hamilton's attention was directed by Corcoran to two men armed with rifles thirty or forty feet distant. A third man, armed with a handgun, appeared at the front door and ordered Hamilton and Corcoran from the bus. Hamilton later identified the men as the defendants and identified Hogg as one of those carrying a rifle. Corcoran attempted to flee but was apprehended by the riflemen. Hamilton was ordered by the third man at pistol point to follow in the direction taken by Corcoran. He came upon Corcoran and the riflemen in an area between two buses which was shadowy but in which Hamilton was able to make out the features of the men. Hamilton and Corcoran were ordered to face one of the buses.

From his position Hamilton observed one of the men frisk Corcoran, in the course of which Corcoran's pistol, wallet and wristwatch were taken from him. They remained between the buses for about twenty munutes and were then ordered to another part of the garage. As they proceeded, Hamilton followed the man he later identified as Hogg and was followed by the man with the pistol. The men left after ordering Hamilton and Corcoran to lie face down on the ground. The entire incident took about thirty minutes. Hamilton gave the police a description of the three men upon their arrival at the scene.

The judge held a voir dire hearing on the defendant's motion to suppress Hamilton's in-court and out-of-court identifications of the defendant based upon the defendant's contention that Hamilton's incourt identification was tainted by two earlier photographic identifications and a nontestimonial identification at a District Court which the defendant claimed were impermissibly suggestive. Tow months after the robbery, Hamilton, at a police station, selected pictures of all three defendants from a group of fifty or sixty photographs given to him by the police. A week later he identified the three defendants when he saw them together in the prisoners' dock at a probable cause hearing at a District Court. Much later, about two months prior to trial, an assistant district attorney showed him pictures of the three defendants which he immediately identified.

The judge suppressed only the identifications made at the District Court implicitly for the reason that they were unnecessarily suggestive, although Hamilton's identification on that occasion was made spontaneously. Contrast Commonwealth v. Kazonis, 356 Mass. 649, 652, 255 N.E.2d 333 (1970).

The narrow issue before us on the denial of the motion to suppress is whether the evidence, as set forth in the bill of exceptions, was sufficient to support the judge's findings. Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972). The record demonstrates no error in the judge's implicit finding that Hamilton's initial selection of the defendants' photographs from the group was not the product of impermissible suggestion. Commonwealth v. Finn, 362 Mass. 206, 207--209, 285 N.E.2d 105 (1972). Commonwealth v. Gilday, --- Mass. ---, --- - --- ^a, 327 N.E.2d 851 (1975). See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

During voir dire, Hamilton described his assailants in part as three black men in their early twenties. The group of photographs from which he selected those of the defendants were of black males between twenty and thirty years of age. Hamilton had learned from Corcoran the names of the individuals identified by the latter at a police lineup a few days earlier, but he did not know whether the photographs of those individuals were included in the group from which he made his selection and no suggestion had been made to him by the police. The backs of the photographs picked out by Hamilton identified the defendants by name but Hamilton testified at voir dire and the judge found that he had not looked at the backs of the photographs. Commonwealth v. Ross, 361 Mass. 665, 672, 673, 282 N.E.2d 70 (1972), vacated on other grounds, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973), affd. on reh. 363 Mass. 665, 296 N.E.2d 810 (1973).

In view of Hamilton's decisive selection of the defendants' photographs on this occasion, we attach little or no significance to the judge's failure to suppress his later identification of the defendants' photographs when they were shown to him by the assistant district attorney (see Commonwealth v. Ross, 361 Mass. at 673, 282 N.E.2d 70; Commonwealth v. Wheeler, --- Mass.App. ---, --- ^b, 331 N.E.2d 815 (1975), an identification which the Commonwealth did not seek to introduce at trial.

While there were discrepancies between the descriptions of his assailants which Hamilton testified at voir dire he had given to the police at the scene, and those entered in a police report, we think that the proseuction satisfied its burden of showing by clear and convincing evidence that Hamilton's in-court identification was based upon an independent source, his observation of the defendants during the commission of the crime. Commonwealth v. McGrath, 361 Mass. 431, 436--438, 280 N.E.2d 681 (1972). United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Commonwealth v....