Com. v. Johnson, 97-P-661
| Decision Date | 02 March 1999 |
| Docket Number | No. 97-P-661,97-P-661 |
| Parties | COMMONWEALTH v. Alan JOHNSON. |
| Court | Appeals Court of Massachusetts |
Robert M. Greenspan, Hull, for the defendant.
William T. Harrington, Assistant District Attorney, for the Commonwealth.
Present: PERRETTA, GREENBERG, & SPINA, JJ.
The defendant appeals from his conviction of armed robbery while masked, following a jury trial in Superior Court. The defendant claims error in the (1) denial of his motion to suppress evidence of an out-of-court identification; (2) admission of in-court identification testimony by a witness who he now asserts identified him on the basis of a highly suggestive confrontation; (3) admission in evidence of testimony that a knife recovered from the defendant's residence was similar to the one used by the robber; (4) admission in evidence of testimony that the defendant refused to submit to a court-ordered voice identification procedure; and (5) Commonwealth's closing argument regarding a missing witness. We affirm.
We recite facts that the jury could have found, reserving others for discussion of the specific issues raised on appeal. On April 7, 1994, at approximately 7:00 P.M., Evelyn Spears, branch manager of Bay State Federal Savings Bank (bank) in Norwood, went to the glass automatic teller machine (ATM) vestibule at the front of the bank to lock the door. A man wearing a navy blue mask opened the door and ran past her. He jumped over the teller's counter, knife in hand, and took over $3,000 from the cash drawer of Paula Foley, a teller. When Foley asked what he was doing, the man responded, "What do you think I'm doing?" He then leapt back over the counter, ran out the door and walked quickly across the street in front of the bank. As he crossed the street, he removed his mask, allowing Spears to see the back of his head and his profile. She described him to police as a white man, five feet ten inches to six feet tall, of average build with a long, round freckled face and blue eyes, and short, straight, sandy brown hair, neatly cut in the back. She also said he was wearing jeans, a denim jacket, and a navy blue hooded mask with holes for the eyes, mouth and nose.
On March 3, 1995, the defendant was indicted for armed robbery while masked. After a two-day trial in April, 1996, during which he testified, the defendant was convicted.
1. Denial of motion to suppress out-of-court identification. The defendant claims that the judge erred in denying his motion to suppress evidence of an out-of-court identification by Spears from a photographic array which he claimed was the product of unnecessarily suggestive police procedures. Commonwealth v. Andrews, 427 Mass. 434, 438, 694 N.E.2d 329 (1998).
On September 23, 1994, Detective Neil Murphy of the Norwood police department brought an array of eight photographs of white men, including the defendant, to the bank. Foley, the teller, looked through the photographs but was unable to identify the robber. She then brought the photos to Spears's office and remained there while Spears looked through the stack of photographs, segregated two photographs, and ultimately selected the photograph of the defendant as the robber. Murphy, who was also in Spears's office, said nothing to her while she viewed the array. When Spears had selected the defendant's photograph, Murphy confirmed that she selected the suspect's photograph.
After an evidentiary hearing, the defendant's motion to suppress Spears's out-of-court identification was denied. He argues for the first time on appeal that Spears's identification of him from the array was the result of her prolonged exposure to a composite sketch of the robber that was left in Spears's office for the five months between the April robbery and her September photographic identification.
The defendant did not raise the issue of the composite sketch's suggestiveness in his motion below. "A defendant 'is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to this court on a different ground.' " Commonwealth v. Clark, 378 Mass. 392, 397, 393 N.E.2d 296 (1979), quoting from Commonwealth v. Flynn, 362 Mass. 455, 472, 287 N.E.2d 420 (1972). We therefore review the denial of the motion to suppress under the standard of a substantial risk of a miscarriage of justice. See Commonwealth v. Teixeira, 40 Mass.App.Ct. 236, 239, 662 N.E.2d 726 (1996).
The defendant argues that "if" the sketch resembles him, the fact that it was left with Spears clouds the issue of whether her photographic identification was the result of her memory or a "subconscious assimilation" of the sketch. However, as the defendant concedes, there was no testimony at the motion hearing describing the sketch itself. Nor was there testimony as to who prepared the sketch or how it was prepared. At the motion hearing, Murphy testified only that Spears gave him a physical description of the robber and that a composite sketch was eventually prepared. Spears testified that law enforcement personnel 1 brought the sketch to her the night of the robbery, and that she looked "long and hard" at it but did not totally agree with its depiction of the robber's physical characteristics. Spears also testified that she looked at the sketch from five to twenty times between the night of the robbery and her subsequent identification from the photo array. The sketch was not introduced at trial or at the motion hearing, although defense counsel had the sketch available to show to Spears during her testimony at the motion hearing.
It is the defendant's burden to prove "that the identification procedures were 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny the defendant due process of law." Commonwealth v. Echavarria, 428 Mass. 593, 596, 703 N.E.2d 1137 (1998), quoting from Commonwealth v. Venios, 378 Mass. 24, 27, 389 N.E.2d 395 (1979). The defendant has failed to meet that burden on the record before us. 2
2. In-court identification. The defendant claims that Foley's in-court identification should not have been admitted because it was tainted by Murphy's verbal confirmation of Spears's identification, see Commonwealth v. Bonnoyer, 25 Mass.App.Ct. 444, 451, 519 N.E.2d 791 (1988), and that Foley's identification lacked an independent source, Commonwealth v. Botelho, 369 Mass. 860, 866, 343 N.E.2d 876 (1976). On the morning of trial, two years and one day after the robbery, the Commonwealth informed the defendant that Foley was prepared to identify the defendant as the robber. Defense counsel alternatively requested a voir dire or a motion to suppress Foley's identification, "to explore the possible suggestiveness of that anticipated identification" and the basis for the identification. A limited voir dire 3 was held before the opening of the evidence and outside the presence of the jury, during which the defendant was sequestered in an anteroom with the doors closed. Counsel made no oral motion to suppress, and voiced no objection at the conclusion of the voir dire. During her direct testimony at trial, Foley identified the defendant as the robber. There was no objection.
To establish that Foley's in-court identification was inadmissible, the defendant bears the burden of showing, "by a preponderance of the evidence, that the 'witness[ ] w[as] subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process.' " Commonwealth v. Andrews, 427 Mass. at 438, 694 N.E.2d 329, quoting from Commonwealth v. Johnson, 420 Mass. 458, 463, 650 N.E.2d 1257 (1995). That determination is to be based on the totality of the circumstances surrounding the confrontation. See Commonwealth v. Andrews, supra; Commonwealth v. Botelho, 369 Mass. at 867, 343 N.E.2d 876. In the absence of a motion to suppress the identification testimony, or an objection at the time of the in-court identification, we review the error, if any, under the standard of a substantial risk of a miscarriage of justice. See Commonwealth v. Redding, 382 Mass. 154, 158, 414 N.E.2d 347 (1980); Commonwealth v. Dupont, 2 Mass.App.Ct. 566, 571, 317 N.E.2d 83 (1974).
Although Foley was present when Murphy indicated that Spears had selected the photograph of the person suspected of committing the crime, there was no evidence that Foley ever saw which photo Spears had selected. Moreover, there is strong evidence of an independent basis for her identification of the defendant, from having observed him during the robbery, and her recollection of that event. In her voir dire testimony Foley said she was within two feet of the robber and remembered his eyes and the knife. She further said that she had "seen his eyes for the past two years." At trial she testified that she had an opportunity to view the defendant's eyes through his mask for a period of time, long enough for her to ask a question and for the robber to answer. Foley stood at close range to the robber, no more than an arm's length away. While there was no testimony regarding the lighting in the bank, it apparently was bright enough for Foley to count the bills in her cash drawer and to see detail in the wooden handle of the knife wielded in her face. She testified that her attention was focused on the robber's eyes and the knife, 4 and she identified the defendant based on her recollection of his eyes. Contrast Commonwealth v. Jones, 423 Mass. 99, 101-102, 666 N.E.2d 994 (1996) ().
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