Com. v. Jones

• Decision Date: 18 September 1972
• Citation: 287 N.E.2d 599,362 Mass. 497
• Parties: COMMONWEALTH v. Walter J. JONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 599

287 N.E.2d 599

362 Mass. 497

COMMONWEALTH v. Walter J. JONES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1972.

Decided Sept. 18, 1972.

Brian T. Callahan, Boston (Edwin C. Hamada and Jerry E. Benezra, Boston, with him), for defendant.

Robert N. Gross, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

TAURO, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from his conviction, after a jury waived trial, on counts 1 and 3 of an indictment charging him with armed robbery of two women at the Pi Alley Theation Boston, on January 12, 1971. ¹ Execution of the defendant's sentences to indeterminate Correctional Institution at Concord has Correctional Institution at Concord has been stayed pending appeal to this court.

The pertinent facts may be summarized as follows: On the night of the robbery, at approximately 9:40 P.M., Miss Karen Small, the inside cashier at the theatre, was preparing to finish work, when three black men entered the lobby. At the time, Miss Small had been joined inside the ticket booth by Mrs. Irene Borrazzo, a friend. The ticket taker told the men to buy their tickets at the outside ticket booth, but Miss Small said it would not be necessary to go outside. Two of the men then approached the women, while the third man remained near the candy counter. The first man, now in front of Miss Small, said they wanted money--not tickets. Simultaneously he and the second man pulled out guns. Miss Small handed the first man $21, including $11 of her own money, and Mrs. Borrazzo turned over twenty-nine cents. All three men then left the theatre.

During the robbery, the first man stood in front of Miss Small at a distance of a few feet for four to five minutes. The second man, later identified as the defendant, stood within three feet of Mrs. Borrazzo for a minute and a half, then roamed the immediate area, but returned shortly to his original position. In all, Mrs. Borrazzo was face to face with the second man for about three minutes, and she also watched him as he moved about near the ticket booth. While at the booth itself, the second man was also directly in view of Miss Small. The lighting was adequate for observation, and both women were able to observe physical and facial characteristics of the two gunmen as well as their manner of dress.

Shortly after the robbery, the women gave police officers detailed descriptions which were then broadcast over the police radio. The second man was identified in the broadcast as a dark skinned Negro male, medium in height, with a short Afro, a mustache, 'fuzz' on the chin, and gold wire-rim glasses, who was neatly dressed and wearing a three-quarter length tan coat. At approximately 10:40 P.M., Officers Sullivan and Fiandaca, who had heard this broadcast, spotted the defendant as he was entering a lounge at the corner of Tremont and Stuart streets. Because the defendant fit the description broadcast for the second man, the officers proceeded to make an arrest. After advising the defendant of his constitutional rights, they transported him to the district 1 station house where he was booked and placed in a cell.

After the defendant was in a cell, Officer Sullivan telephoned the witnesses who assented to come to the station house for further questioning. Both officers then picked up Miss Small and Mrs. Borrazzo and brought them to district 1. At approximately 1 A.M., while the officers were questioning the women in the lobby of the station house, the defendant was led through on the way to a waiting van which took him to police headquarters for fingerprinting and photographing. ² The defendant at the time was dressed in his tan coat and was walking at a normal pace, in handcuffs, between two uniformed police guards. Spontaneously, each woman identified him: 'That's him,' and 'That's the one.' The defendant was in the lobby for no more than a minute. During this time, neither Officer Sullivan nor Officer Fiandaca asked any questions about him or in any way directed the witnesses' attention to him.

The desk officer, who was responsible for ordering the defendant taken through the lobby, testified that he did not know who the women were or why they were at the station house. Although both women were aware that the police had a suspect in custody fitting the description of the second man in the robbery, they received no advance indication of the defendant's entrance into the lobby. Nor were they led to believe that the suspect would be exhibited to them. They were told only that they were at the station house to expand upon their previous descriptions, if possible.

After his arrest, the defendant repeatedly asked for the opportunity to make a telephone call to his employers who were staying at the Parker House hotel, and with whom he claimed to have been at the time of the holdup. At district 1, he was informed of his statutory right to use a telephone (G.L. c. 276, § 33A) as well as of his constitutional rights, but he was never allowed to make a call. At approximately 1:30 A.M., after the witnesses had been returned home, the police went to the hotel and contacted the defendant's employers (two clothiers) themselves. The employers then went to district 1 where they met with the defendant. At trial, they testified that the defendant had not left the hotel until past 10 P.M., more than twenty minutes after the time of the robbery.

1. One assignment of error argued relates to the refusal of the trial judge to permit the defendant to sit among the spectators at voir dire and at trial. The defendant is in police custody. While Denno, 388 U.S. 29o, 87 S.Ct. 1967, 18 L.Ed.2d 1199, is that the prosecution witnesses could not make a reliable identification of him while he was required to sit at his counsel's table during voir dire or in the dock at trial.

Mistaken identification is a danger which may arise in the course of trial proceedings as well as beforehand when the defendant is in police custody. While there is clearly an element of suggestion in the relative isolation of the defendant at the defence table or in the dock (see United States v. Williams, 436 F.2d 1166, 1168 (9th Cir.)), counsel is present to 'ferret out (any) suggestive influences' which he perceives in in-court identification procedures. Cf. United States v. Wade, 388 U.S. 218, 234--237, 87 S.Ct. 1926, 18 L.Ed.2d 1149. In representing the defendant, counsel has the responsibility, by way of cross-examination, to bring to the attention of the trier of facts any circumstances which tend to cast doubt upon a witness's identification testimony. If counsel moves for an in-court lineup or to seat the defendant in the court room audience, we think it is within the sound discretion of the trial judge whether to grant the request. ³ Absent a showing of an abuse of discretion which prejudices the defendant's opportunity for a fair trial, we will not disturb the judge's ruling.

In the instant case, the defendant has failed to show any such abuse of discretion. It was not argued at voir dire or at trial that the identifying witnesses were unusually impressionable or otherwise unreliable. Furthermore, at voir dire, the trial judge found, with ample evidentiary support, that the witnesses' encounter with the robbers at the theatre provided sufficient basis for in-court identifications independent of the police station confrontation. Finally, the trial was before the judge himself, a lawyer highly experienced in evaluating testimony for its reliability, and not before a jury less aware of the hazards of eyewitness identification.

2. The defendant also assigns as error the refusal of the trial judge to permit a psychologist and a psychiatrist to testify at voir dire as to the capacity of the identifying witnesses to observe accurately and to remember correctly.

'(T)here is no room for the opinion of an expert if the subject of his testimony is of such a nature that it may be presumed to be within the common experience of men.' Flynn v. Growers Outlet, Inc., 307 Mass. 373, 376, 30 N.E.2d 250, 252. Commonwealth v. Makarewicz, 333 Mass. 575, 591, 132 N.E.2d 294. See Commonwealth v. Gardner, 350 Mass. 664, 667 216 N.E.2d 558, and cases cited. The admission of expert testimony lies in the sound discretion of the trial judge. Here, the proffered testimony, concerning the the dangers attached thereto, would seem the dangers arrached thereto, would seem to be well within the experience of men, but, in any event, it is certainly within the ken of a trial judge who must constantly deal with problems of identification. The judge below hardly needed the assistance of a psychologist and a psychiatrist to make findings concerning matters which the Supreme Court of the United States and the highest court of this Commonwealth have treated in numerous opinions. See, e.g., United States v. Wade, 388 U.S. 218, 228--239, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Commonwealth v. Guillory, 356 Mass. 591, 593--594, 254 N.E.2d 427. See also Cooper v. Picard, 428 F.2d 1351, 1354 (1st Cir.), habeas corpus issued on remand, 316 F.Supp. 856, 859--861 (D.Mass.). There was no abuse of discretion, much less constitutional error, in excluding the proffered testimony.

3. Lastly, the defendant urges as error the refusal of the trial judge to suppress 'any identification evidence possibly tainted by the . . . confrontation (in the station house)' between the prosecution's chief witnesses and himself. He contends that the denial of his statutory right to use a telephone ⁴ compelled exclusion of all such evidence.

We have expressed the view that, notwithstanding the absence of any express penalty for violation of G.L. c. 276, § 33A, in order to make the statute an effective piece of legislation, courts should suppress unfavorable evidence gained as a result of denying a defendant the right to use a telephone. See Commonwealth...