Com. v. Kazonis

• Decision Date: 02 February 1970
• Parties: COMMONWEALTH v. William J. KAZONIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 333

255 N.E.2d 333

356 Mass. 649

COMMONWEALTH v. William J. KAZONIS.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 3, 1969.

Decided Feb. 2, 1970.

Joseph J. Balliro, Boston, for defendant.

Stanley J. Jablonski, Asst. Dist. Atty. (P. Stephen Turo, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, and REARDON, JJ.

SPALDING, Justice.

The defendant was convicted under twelve indictments arising out of an armed robbery of a bank. ¹ He appeals under G.L. c. 278, §§ 33A--33G.

On December 16, 1965, four men robbed the Shrewsbury Bank and Trust Company in Shrewsbury. One of the robbers entered the officers of the bank's president, Barry Krock, and was observed by a teller, Alice Frappier, and a customer, Arthur W. Harvey, Jr., who was with Krock at the time. Immediately after the robbery, the four men were observed outside the bank by Gene R. Campanale who had just arrived in his car at the bank's parking lot. On the basis of the testimony of the aforementioned witnesses, the defendant was identified as the man in Krock's office, and as one of the four men standing outside the bank beside a car. In the course of the trial the defendant excepted to several rulings relating to these identifications. Assignments involving these rulings include limitations placed on his cross-examination of certain witnesses, and denial of motions to compel the Commonwealth to produce pre-trial statements and photographs used in pre-trial identification. The defendant especially complains of the denial of his motion to exclude the in-court identification of the defendant by the witness Campanale. This in-court identification, it is urged, was tainted by a pre-trial identification procedure that was lacking in due process. Since we are of opinion that this last contention must be sustained and is ground for reversal, we do not discuss the other assignments of error. They are for the most part ancillary to the identification in question, and are not likely to arise on a retrial.

The alleged error in refusing to grant the defendant's motion to exclude Campanale's in-court identification of the defendant arises out of the following evidence introduced at the trial. Campanale was driving slowly between two cars into the parking lot of the bank when he observed a car parked a few feet away. He saw one man seated in the car, one man standing close to it on the far side from him, and two men standing on the stairs of the bank. During the brief period (about a minute) that Campanale was endeavoring to park his car he observed all four men, and looked at the defendant for about twenty or twenty-five seconds. On January 4, 1966, Campanale was interviewed by the police concerning the robbery. On that date, and later on January 12, he was shown photographs and slides, including pictures of Kazonis and the three other men seen at the bank. Although he did identify two of the men, and one man who was not there, he did not select the photograph of the defendant. At the trial he identified the defendant as the man standing near the car in the parking lot. There was evidence that Campanale had made a prior statement identifying this man as Strazzula, one of the men tried for the robbery, though Campanale at the trial testified that he could not remember having done so.

On February 15, 1966, almost two months after the robbery, Campanale was taken to the State police headquarters, where he was given a gray jacket to put on and seated near a teletype machine. He was told to 'look around.' Through an opening he noticed two men in a doorway talking to a police officer, one of whom was several inches taller than the other. The former was identified by Campanale as the defendant. ²

The questions presented are: (1) whether the pre-trial identification was so unnecessarily suggestive as to amount to a violation of due process; and (2) whether the in-court identification was a product of this identification. ³

When a pre-trial confrontation of a witness and suspect is conducted in a manner 'unnecessarily suggestive and conducive to irreparable mistaken identification' there is a denial of due process of law. Stovall v. Denno, Warden, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972. It was there said, 'This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.a.4th Cir. 1966).' While the boundaries of this doctrine have not yet been precisely defined, the Supreme Court has stressed several factors as guidelines for evaluating the fairness of a confrontation. In the Stovall case the confrontation in a hospital room of a recently apprehended suspect was reasonable because the victim was critically wounded and might soon die. In Simmons v. United States, 390 U.S. 377, 384--386, 88 S.Ct. 967, 972, 19 L.Ed.2d 1247, a pre-trial identification by photograph, which concededly fell 'in some respects * * * short of the ideal,' was likewise found not 'impermissibly suggestive.' There is was essential to further police investigation, and the opportunity to observe at the time of the crime and the lack of suggestion in the pre-trial procedure left little possibility of misidentification. As to our own cases on this subject, see Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343; Commonwealth v. Nassar, 354 Mass. 249, 237 N.E.2d 39; Commonwealth v. Blackburn, 354 Mass. 200, 237 N.E.2d 35, and Common wealth v. Sullivan, 354 Mass. 598, 605, 239 N.E.2d 5. In a case where the confrontation occurred some ten months after the crime, where the witness had given conflicting statements on her ability to observe, and where the absence of a lineup was itself suggestive, we have said very recently that a pre-trial identification of a suspect alone with a police...