Com. v. Jones

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; LIACOS
• Citation: 375 Mass. 349,377 N.E.2d 903
• Decision Date: 07 June 1978
• Parties: COMMONWEALTH v. Milton W. JONES, Jr.

Page 903

377 N.E.2d 903 375 Mass. 349 COMMONWEALTH
v.
Milton W. JONES, Jr. Supreme Judicial Court of Massachusetts,Suffolk. Argued Dec. 6, 1977.
Decided June 7, 1978.

Kevin M. Keating, Boston (John F. Toomey, Jr., Boston, with him), for defendant.

[375 Mass. 350] Philip T. Beauchesne, Asst. Dist. Atty., for the Commonwealth.

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Before [375 Mass. 349] HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

[375 Mass. 350] LIACOS, Justice.

The defendant was indicted for murder in the first degree, armed robbery (two indictments), and the unlawful carrying of a handgun. After a jury trial, the defendant was found guilty of murder in the second degree and guilty of the three remaining charges. He was sentenced to life imprisonment on the murder charge as well as to three lesser terms on the other charges to run concurrently with the life sentence. We consider the defendant's appeal pursuant to G.L. c. 278, §§ 33A-33G.

The principal issues in this case involve the identification of the defendant by three witnesses. The defendant argues first that the trial judge erred in denying a motion to suppress identification evidence, and second that the judge erred in denying the defendant's requests for jury instructions on the issue of identification. We consider the issues in that order after relating the material facts. We conclude that there was no error and that the judgments of conviction are to be affirmed.

The murder occurred about 10 P.M. on August 30, 1975, at the Golden Cafe in Roxbury. A patron in the cafe, one Alma Condo, was seated with an employee of the cafe, Rita McLellan, and her daughter, Deborah McLellan. Also present was the owner and operator of the cafe, Albert A. Dunn. Two men entered the cafe, announced a holdup, and jumped over the bar to confront Dunn. One of the men was holding a gun. After a few words were exchanged with Dunn, the robber with the gun put it to Dunn's head and fired. Dunn died as a result of a gunshot wound to his brain. The two men took some money from the cash register and from Rita McLellan's handbag and fled. Rita McLellan called the police, who arrived at the scene within minutes. Although there is some dispute as to whether Alma Condo and Deborah McLellan gave a description of the robbers at that time, it appears that Rita McLellan gave the police a brief description of them.

[375 Mass. 351] Other relevant facts involve the process of identification that led to the arrest of the defendant. For our purposes, it will be helpful to divide the identification process into three stages: (1) pre-arrest identification by photographs; (2) identification at a pre-indictment probable cause hearing; and (3) identification at trial. Each stage will be discussed separately.

1. Pre-arrest Identification by Photographs.

a. Rita McLellan. Two police detectives visited Mrs. McLellan at her home on September 17, 1975, and handed her thirteen photographs. She picked out the photograph of the defendant as the man with the gun. There was no significant conversation with the police either before or after the identification.

b. Deborah McLellan. On or shortly after September 17, 1975, Deborah McLellan was called to the police station and was asked to look at the same photographs. Prior to looking at the photographs, she was questioned regarding the events at the cafe. She became highly excited, or hysterical, much as she had been on the night of the murder. According to the police, she was unable to select any of the photographs due to her excited condition. Deborah testified, however, both at the hearing on the motion to suppress and at the trial, that she did pick out the defendant's photograph from the group of thirteen and had identified it as being a photograph of one of the robbers.

c. Alma Condo. The police detectives visited Mrs. Condo in her home sometime in September and showed her the same thirteen photographs. She was not able to make an identification. Subsequently, Mrs. Condo came to the police station on her own initiative, complaining that she was being followed and that she was afraid. The police presented to her the same thirteen photographs, from which, according to the police, she picked the photograph of the defendant as the man who had been following her. Mrs. Condo's testimony on this point

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was somewhat confused, making it unclear whether she remembered identifying the defendant's[375 Mass. 352] picture as being that of one of the robbers or merely that of the man who had been following her.

d. The judge's findings. With regard to the photographic displays presented to Rita McLellan and Alma Condo, the judge "accept(ed) as truthful and accurate" the testimony of the police detectives at the voir dire hearing on the motion to suppress, and formally adopted that testimony as his findings of fact. That is, the judge adopted the police testimony that Rita McLellan picked out the defendant's picture from the group of thirteen as being that of one of the robbers, and that Alma Condo picked out the same picture as being that of the man who had been following her. The judge added that "(i)nsofar as the photographic identification is concerned, there's been no showing whatsoever, in my view, that the Commonwealth or the police authorities did anything that was in any way suggestive which would have tainted that photographic identification process." He therefore denied the defendant's motion to suppress photographic identification with regard to Rita McLellan and Alma Condo. He also denied that motion with regard to Deborah McLellan after a voir dire, but without making explicit findings of fact.

e. The assignment of error. The defendant assigns as error the judge's denial of the motion to suppress the photographic identification by the three witnesses. The defendant declares in a general, and rather unhelpful, way that the photographic identification was "improper, unduly suggestive and prejudicial." Compare G.L. c. 278, § 33D, as amended by St.1974, c. 458, § 2: "The specific grounds upon which any claim of error is based shall be set forth in a concise form." In his brief, the defendant contends that the thirteen photographs "did not constitute a fair mix of photographs based upon the descriptions which the police had obtained prior to selecting photographs." The defendant thus challenges the particular array of thirteen photographs presented to the witnesses rather than challenging the manner in which the photographs were presented by the police.

[375 Mass. 353] The judge did not benefit from the focus provided in the defendant's brief. The failure of the judge to make a specific reference in his findings to the propriety of the particular array of photographs is thus attributable in substantial measure to the defendant's failure clearly to present the issue. However, a reading of the transcript clearly reveals that the questioning of the witnesses by counsel and by the judge sufficiently illuminated the possible "suggestive" aspects of the photographic identification procedures. ¹ The judge explicitly found, after hearing extensive testimony on all the aspects of the photographic identifications by the three witnesses, ² that there

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was "no showing whatsoever . . . that the Commonwealth or the police authorities did anything that was in any way suggestive . . . . As a matter of fact, as I view the situation, those identifications occurred [375 Mass. 354] prior to the arrest of the defendant Jones, and there is nothing to indicate that the police zeroed in on Jones particularly."

Where subsidiary findings of fact have been made by a trial judge on a motion to suppress, they will be accepted by an appellate court absent clear error. Commonwealth v. White, --- Mass. ---, --- ^a, 371 N.E.2d 777 (1977); Commonwealth v. Sires, 370 Mass. ---, --- n.1 ^b, 350 N.E.2d 460 (1976) (appellate court will accept judge's resolution of conflicting testimony and will not disturb subsidiary findings if warranted by the evidence). Commonwealth v. Hosey, 368 Mass. 571, 574-575 n.1, 334 N.E.2d 44 (1975). The judge's ultimate legal conclusion in the instant case that the photographic identification procedures were not constitutionally invalid is entitled to substantial deference by this court. White, supra; Commonwealth v. Botelho, 369 Mass. ---, --- ^c, 343 N.E.2d 876 (1976). However, such an ultimate legal conclusion, to be drawn from the facts developed at the suppression hearing, is a matter for review by this court, particularly where the conclusion is of constitutional dimensions. Sires, supra; Hosey, supra.

With this scope of review in mind, we consider the...