Com. v. Jones

• Decision Date: 23 January 1980
• Citation: 9 Mass.App.Ct. 83,399 N.E.2d 1081
• Parties: COMMONWEALTH v. Stephen B. JONES.
• Court: Appeals Court of Massachusetts

Page 1081

399 N.E.2d 1081

9 Mass.App.Ct. 83

COMMONWEALTH v. Stephen B. JONES.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 18, 1979.

Decided Jan. 23, 1980.

Stephen M. Needle, Asst. Dist. Atty., for the Com.

Ralph C. Martin, II, Boston, for defendant.

Before BROWN, GREANEY and PERRETTA, JJ.

GREANEY, Justice.

On August 31, 1978, at approximately 9:00 A.M., an apartment in Roxbury was entered by a black male wearing a ski hat with a nylon stocking partially covering his face. This male proceeded to rape, rob and severely beat the apartment's occupant, a fifty-seven year old woman. As he left, the assailant set fire to the apartment. Stephen B. Jones was subsequently indicted for seven major crimes. ¹ He filed a pretrial motion to suppress out-of-court and proposed in-court identifications by the victim. ² Following a hearing at which the victim and a police detective testified in detail, a Superior Court judge made findings and rulings and ordered the identifications suppressed. The Commonwealth was permitted an interlocutory appeal (G.L. c. 278, § 28E), and that appeal has been transferred here (G.L. c. 211, § 4A). We reverse.

The following is a summary of the relevant evidence at the hearing on the motion. Shortly after the crimes had occurred, Detective Emmet F. McNamara, attached to District 2, received information that the assailant was a black male, in his twenties about five feet ten inches tall, weighing approximately 150 pounds and wearing a striped ski hat. ³ At the scene the detective ascertained the assailant's escape route down a nearby dirt road. On the road a ski hat containing a rolled up lady's stocking was discovered. A closer look at the hat revealed a piece of tape inside bearing the printed name of Stephen Jones. Pursuing this lead, the detective ascertained that two black males with the name of Stephen Jones, one of whom was the defendant, lived in the vicinity of the victim's apartment. A visit to the victim at the hospital produced a positive identification of the ski hat as that worn by her assailant ("That's the hat"), and an identification of the stocking as resembling the one covering her attacker's face. The demonstrative tape in the hat was not brought to the victim's attention, nor did she independently observe it when she examined the hat. The detective next assembled several mugshot photographs of black males for viewing by the victim. The defendant's picture was not among this array; a photograph of the other Stephen Jones was. She rejected all the photographs and in particular rejected the photo of the other Jones as "too dark skinned."

Prime attention now focused on the defendant. Upon discovering that he had once held a hackney license, the detective assembled a new array consisting of seven hackney licenses owned by black males, including one belonging to the defendant. This gallery was shown to the victim on September 8, 1978, at her son's apartment. She positively and unequivocally identified the picture on the defendant's license as that of her assailant ⁴ ("This is the man"). During this viewing the detective avoided mention of the defendant's name and eschewed any action, gesture or comment that might tend to highlight or distinguish the defendant's license from the other six. The victim was also not made privy to information that the defendant had been interviewed at the police station and had supplied handwriting and hair samples for expert analysis.

Following release from the hospital, the victim went to live with her son, a Boston police officer. Although he knew that the defendant was a suspect and that Jones' picture would be among the second array, his mother testified that no communications had ever been exchanged between them as to either fact. During the procedure that produced the identification, the son was dispatched to the kitchen by Detective McNamara, where he could see what was going on but could not comment thereon. ⁵

The victim testified that the criminal incidents spanned a thirty to forty-five minute period during which she viewed the attacker's face at a distance for ten to fifteen minutes, ⁶ and close up for five to ten minutes in the light of a nearby bedroom table lamp. Her description of the assailant before the judge was quite full he was a black male, five feet nine to five feet ten inches tall, ⁷ with brownish eyes wearing a white tee shirt, beige pants, blue sneakers and a blue ski cap with yellowish stripes. She particularly emphasized that her attacker was a light skinned Negro person with "big lips" and a "big nose." She repeated that her positive identification of the hat was without knowledge or sight of the name inside. The defendant's name meant nothing to her, and she firmly disclaimed that any efforts, direct or indirect, had been made by the police or her son to alert her to the defendant's status in the investigation or otherwise to steer her to his picture in the second display. ⁸

Her courtroom identification wavered. She was first "sure" that the defendant was her assailant because of his eyes; then she testified that the defendant "looks like him," "something like him" or "resembles him." At other junctures in her examination she testified that she recognized the defendant because he was in the dock, that she was unsure about his eyes, and that she was "doubtful now."

Based essentially on this evidence, the judge found that the victim did not have an adequate opportunity to view her attacker so as to fix his features in her mind. He found that, because the victim had been living with her son after the attack and because the son had some knowledge of the investigation's progress, a substantial likelihood existed that the defendant's identity had been communicated to the victim in advance of her selection of the picture. He determined that the photographic identification procedure was impermissibly suggestive because of this assumed preknowledge on the victim's part and because the defendant's name was conspicuous on the face of the license when "none of the other photographs had any identification on them." The judge ultimately concluded that the out-of-court identification was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification and that the in-court identification was based on the defendant's presence in the dock without an authenticating independent source.

In the context before us, a challenge to identifications as constitutionally suspect requires at the outset a showing by the defendant that the witness was subjected by the police to a pretrial confrontation, " 'so unnecessarily suggestive and conducive to irreparable mistaken identification,' as to deny the defendant due process of law." Commonwealth v. Venios, --- Mass. ---, --- ^a, 389 N.E.2d 395 (1979), quoting from Commonwealth v. Botelho, 369 Mass. 860, 865-868, 343 N.E.2d 876 (1976). The factual search for unnecessary suggestiveness is to be made in light of "the totality of the circumstances" surrounding the questioned procedure. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Our function in review of this type of case is to consider whether the evidence supports the judge's findings of fact, due respect being accorded to his superior opportunity to observe and weigh the testimony; then we are to ascertain whether the findings justify the judge's decision in law. ⁹ Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972). Commonwealth v. Stanley, 363 Mass. 102, 104, 292 N.E.2d 694 (1973). Commonwealth v. Botelho, 369 Mass. 860, 868, 343 N.E.2d 876 (1976).

With respect to the victim's photographic identification on September 8, 1978, the judge ruled that the procedure employed was impermissibly suggestive. That ruling in turn is essentially derived from three groups of factual findings which may be summarized as follows: (1) that the police presented the seven-license array with only the defendant's license and none other bearing the conspicuous display of a name; (2) that during the viewing the victim's son was close enough to observe what was going on (suggesting but not finding that he subliminally guided her choice); and (3) that it was quite probable that the victim's son had advised his mother that the defendant was her assailant and that the defendant's photo would be seen in the spread. These findings are critical to the judge's ultimate result; none receives adequate support in the evidence. ¹⁰

As to the first, we have before us all seven hackney licenses used in the array. They all identically display the pictures of black males on a small standardized card. Each also contains the logos of the Boston police department and the city, the typewritten name and address of the licensee, his signature, the license number and its expiration date. All seven licenses are precisely the same in form and the whole array is a fair, nonsuggestive display of individuals basically similar in features, ages and general appearance. There is nothing in the composition of the display which tends to dramatize the defendant or to single out his license or picture from the others. The array was assembled with a circumspect eye and appears impartial. See United States v. Lustig, 555 F.2d 737, 749 (9th Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978) (array of four or five photos shown to officers without indication of which was suspect not impermissibly suggestive); United States v. Medico, 557 F.2d 309, 311 (2d Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 614, 54 L.Ed.2d 480 (1977) (showing eight photos of white men to each of three witnesses and asking if they recognized any as the robber not suggestive); United States v. Collins, 559 F.2d 561, 563 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977) (photo array of six with subjects of similar age and like hairstyles not impermissibly suggestive). We...