Com. v. Kelly

• Decision Date: 23 August 1973
• Citation: 300 N.E.2d 443,1 Mass.App.Ct. 441
• Parties: COMMONWEALTH v. JAMES D. KELLY (and two companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 443

300 N.E.2d 443

1 Mass.App.Ct. 441

COMMONWEALTH v. JAMES D. KELLY (and two companion cases ¹).

Appeals Court of Massachusetts, Hampden.

Argued March 12, 1973.

Decided Aug. 23, 1973.

Arthur D. Serota, Springfield, for defendant Kelly.

Jay M. Forgotson, Springfield, for defendant Foulks.

John McDonough, Asst. Dist. Atty. (William Teahan, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

Before HALE, C.J., and GOODMAN and GRANT, JJ.

GOODMAN, Justice.

The defendant Kelly was convicted of armed robbery and sentenced to 12 to 18 years imprisonment. The defendant Foulks was convicted at the same trial on two indictments charging him was being an accessory after the fact to Kelly and one Ola Mae Smith ², respectively. The cases are here under G.L. c. 278, §§ 33A--33G. ³

These cases arise out of a bank robbery of the Union Federal Savings and Loan Association at the Eastfield Mall in Springfield on July 9, 1971, at about two o'clock in the afternoon; about $2,700 were taken. From the testimony it appears that at that time two men entered the bank. One was armed with a long barreled shotgun or rifle and stood by the door. ⁴ The other came behind the counter and ordered the tellers to put the money in a bag he was holding. One of the tellers, Linda Welzyn, identified him as the defendant Kelly. One William Shays testified that at about 2:20 or 2:30 P.M. he saw two men drive into the parking lot at the Eastfield Mall in an automobile, which later turned out to have been stolen. They left the automobile and drove off in a waiting station wagon operated by a woman. ⁵ He identified one of the men as Kelly. The Commonwealth also introduced a photograph of the defendant Kelly and the defendant Foulks sitting in an apartment, rented by Kelly and occupied by Kelly and Foulks, in front of a coffee table on which were a number of packages of currency.

I. The defendant Kelly.

Kelly attacks: (a) the introduction in evidence of and the failure to suppress the photograph, (b) the identification by Mrs. Welzyn, and (c) the introduction by the prosecuting attorney of 'mug shots' of the defendant. The contentions are without merit.

(a) The photograph. The motion to suppress the photograph was based on testimony at a pre-trial hearing by Kelly and Foulks' sister that it was kept in a manila envelope in a dresser drawer and that two detectives came to the apartment in the morning of August 21, 1971, questioned Foulks' sister and 'looked around in the dresser.' She further testified that on August 25th at about 2:30 or 3:00 A.M. four armed policemen 'barged in' and went through the drawers. At no time did they produce a search warrant. She left the apartment and returned on August 28th to take her possessions, including the manila envelope.

The court denied the motion, making no findings. The Supreme Judicial Court has indicated the desirability of findings of fact when a motion to suppress is denied (see Commonwealth v. Frank, 357 Mass. 250, 257 N.E.2d 919 (1970)) and has at times instructed the trial judge to make such findings while the case is pending on appeal. Commonwealth v. Mendes, 361 Mass. 507, 511 (1972). , ^a 281 N.E.2d 243. In this case it would be pointless since our examination of the testimony convinces us that the defendant has not sustained his ultimate burden of proving that the photograph was taken during these searches--quite apart from the testimony at trial by the landlord that his son found that picture on cleaning up the apartment in September after it had been vacated. See Commonwealth v. Causey, 356 Mass. 125, 128--130, 248 N.E.2d 249 (1969).

That the photograph was an accurate representation was not questioned; defense witnesses testified that it was taken as a joke some time before the robbery. The credibility of this testimony was a matter for the jury. The prosecution could obviously not fix a time when the photograph was taken, whether before or after the robbery. However, the photograph showed strapped money on the coffee table and strapped money had been taken in the robbery. And further 'there were strong accompanying circumstances of guilt of an independent character.' Commonwealth v. Coyne, 228 Mass. 269, 272, 117 N.E. 337, 338 (1917). The photograph was obviously not enough to prove criminal conduct. But a robbery having been proved, and evidence having been introduced identifying Kelly as one of the robbers, the jury could properly consider the photograph as having some tendency to point to Kelly's implication. 'Evidence which would be colorless if it stood alone may get a new complexion from other facts which are proved, and, in turn, may corroborate the conclusion which would be drawn from the other facts.' Commonwealth v. Mulrey, 170 Mass. 103, 110--111, 49 N.E. 91, 94 (1898) (Holmes, J.). A bank robbery of strapped money is not such an everyday occurrence as to preclude the jury as a matter of law from finding some corroborative significance in such a photograph. See COMMONWEALTH V. JONES, MASS.,² 275 N.E.2D 143^B.

(b) Mrs. Welzyn's identification. At the hearing on the motion to suppress, Mrs. Cook, a teller, was interrogated by the prosecuting attorney in connection with a pre-trial conference in the district attorney's office held within two weeks prior to trial and seven months after the robbery. She was shown pictures of Kelly and testified that the photograph of the defendants described above was also on the table, off to the side somewhere. In the course of her testimony she said that Mrs. Welzyn was also at the pre-trial conference and had seen the photograph. ⁶

Defense counsel made no attempt to inquire from Mrs. Cook beyond the testimony elicited by the prosecuting attorney set out in fn. 6. He did not call Mrs. Welzyn or in any way attempt to develop whether she had in fact noticed the photograph, and, if she had, how, if at all, it had affected her. The pre-trial hearing was concerned almost exclusively with the identification by Mrs. Cook who, as it turned out, did not identify the defendant at the trial in any event.

The defendant also argues that he should have been given a voir dire prior to Mrs. Welzyn's in-court identification. This is based on an exception taken after a bench conference which followed the prosecuting attorney's question whether she recognized anyone and which was apparently not recorded by the stenographer. There was nothing to indicate that there was any objection that the bench conference was not taken ⁷ and there was no attempt thereafter to put on the record the substance of the bench conference which might have been the basis for the exception. In any event, the trial judge was well within his discretion in denying a voir dire. There was no surprise, and the defendant had already had a hearing on his motion to suppress. Rule 101B of the Superior Court (1954). We observe that in any event Mrs. Welzyn had identified the defendant from photographs shortly after the robbery and long before the pre-trial conference of which the defendant complains. She had also had ample opportunity to observe him at the robbery.

(c) The mug shots. The two mug shots--one side view and one front view--to the introduction of which the defendant objects, showed the defendant clean shaven and were offered by the prosecuting attorney to impeach the testimony of the defendant's father that the defendant always wore a moustache. (Mrs. Welzyn had testified that the robber she had identified as Kelly was clean shaven.)

In Commonwealth v. Gerald, 356 Mass. 386, 388, 252 N.E.2d 344, 345 (1969), the Supreme Judicial Court warned, 'There is risk that any use in evidence of photographs of the double type ordinarily used in police identification files will suggest to the jury that the defendant may have a prior criminal record. . . . (U)se (of such photographs) in evidence was undesirable.' See Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966); Commonwealth v. Nassar, 351 Mass. 37, 42--43, 218 N.E.2d 72 (1966); Blue v. State, 250 Ind. 249, 235 N.E.2d 471 (1968). See also cases collect in the annotation in 30 A.L.R.3d 908. The circumstances may be such that the introduction of both views is necessary, e.g., in connection with an identification by a witness (see Commonwealth v. Nassar, 354 Mass. 249, 261, 237 N.E.2d 39 (1968)), but in this case the point that the defendant had at some time been without a moustache could have been made by the introduction of only one of the mug shots. However, defense counsel made no such suggestion, and his objection to both photographs does not appear to have been made on this basis. Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966).

Defense counsel in this case elicited testimony that the mug shots depicted the defendant when he was much younger and long before the present events. However, no motion to strike the photographs was thereupon made, nor had there been any attempt to argue the remoteness of the mug shots when the court ruled on their admissibility.

Accordingly, we need not decide whether the admission of both photographs, if proved to have been taken at a time remote from the robbery, would have been error. In any event, they were minimally prejudicial, if at all, since defense counsel had himself previously elicited from Mrs. Welzyn testimony before the jury that she had made an identification from mug shots soon after the robbery.

II. The defendant Foulks.

Foulks attacks his conviction as an accessory after the fact and contends that his motion for directed verdicts should have been allowed because the evidence was insufficient to convict. G.L. c. 274, § 4, sets out the elements of the crime and provides: 'Whoever, after the commission of a felony . . . assists the principal felon . . . or given such offender any other aid, knowing that he had committed a felony . . . with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory...