Com. v. Key

• Citation: 19 Mass.App.Ct. 234,472 N.E.2d 1381
• Court: Appeals Court of Massachusetts
• Decision Date: 27 February 1985
• Parties: COMMONWEALTH v. Charles KEY.

Page 1381

472 N.E.2d 1381

19 Mass.App.Ct. 234

COMMONWEALTH v. Charles KEY.

Appeals Court of Massachusetts Suffolk.

Argued Sept. 10, 1984.

Decided Jan. 23, 1985.

Further Appellate Review Denied Feb. 27, 1985.

Barry P. Wilson, Boston, for defendant.

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

Before GREANEY, C.J., and CUTTER and WARNER, JJ.

WARNER, Justice.

After a jury trial in the Superior Court, the defendant was found guilty of assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A) and armed robbery (G.L. c. 265, § 17). He was given concurrent sentences of eight to ten years. Prior to trial, the defendant filed a motion to suppress evidence of the victim's identification of him made at a District Court just prior to his arraignment. ¹ After hearing, a judge of the Superior Court made oral findings and denied the motion. At trial the victim testified as to the pretrial corporeal identification and also made an in-court identification of the defendant. The defendant assigns as error: (1) the denial of his motion to suppress the pretrial corporeal identification; (2) the exclusion of evidence that two other men had committed the crimes in question; and (3) the trial judge's failure to give a requested jury instruction regarding the possibility of an honest but mistaken identification. ² We find no error and affirm the convictions.

1. The motion to suppress. The defendant argues that the victim's identification of him in a District Court courtroom just prior to his arraignment hearing was unreliable and resulted from impermissible police procedures in violation of his rights under the Sixth and Fourteenth Amendments to the Constitution. We recite those facts which were found by the motion judge or which were warranted by the evidence presented at the suppression hearing. See Commonwealth v. Bernard, 6 Mass.App. 499, 503, 378 N.E.2d 696 (1978).

During the early evening of February 25, 1979, two black males assaulted and robbed the victim while she was riding on an MBTA Orange Line train bound for Forest Hills. The victim, a graduate student at Harvard University, was reading a book when she became aware of two men hovering over her. One of the assailants, who was standing to the victim's right, flashed a knife and demanded her wedding ring. The victim responded that she could not get it off. Thereupon, the other assailant, later identified by the victim as the defendant, said "then we will cut that finger off," and proceeded to attack her with a butcher knife. Both assailants made several attempts to cut off the victim's ring finger. After these attacks had ceased, the defendant struggled with the victim over her handbag. During the struggle, which lasted between one and two minutes, the victim looked directly at the defendant, who was no more than a foot away. The train was well lighted and the victim had no difficulty seeing the defendant. When the train arrived at the Egleston Station the assailants fled with the victim's handbag. The victim got off at the Forest Hills station, where she reported the crime to the MBTA police. She described the defendant as being in his early twenties, 6'3"' tall with a short "afro" hairstyle, and wearing a beige trenchcoat. ³

The following day the victim went to a Boston police station, where she examined four books containing over two hundred photographs of black men in the same age group as her assailants. After viewing at least two books, the victim positively identified the defendant. Approximately one month later, the victim again identified the defendant, from an array of eleven photographs.

On April 4, 1979, the victim signed a complaint naming the defendant as one of her assailants. Subsequently, on April 6, 1979, the defendant was arrested and taken to the Roxbury District Court to be arraigned. The defendant was "ushered" into the dock area in one of the courtrooms, where he waited for his proceeding to begin. There were a number of men, both black and white, in various parts of the courtroom. At about this time, the police officer who was in charge of the investigation brought the victim to the court. The officer asked the victim to enter the courtroom and look around to see if she recognized anyone. When the victim entered the courtroom, unaccompanied by the officer, the defendant was alone in the dock. The defendant was not handcuffed or restrained in any visible way. After several minutes and after having observed approximately fifteen people, ⁴ the victim left the courtroom and told the officer that the assailant who had had the butcher knife was inside. Some time after the victim had made the identification, the defendant's hearing commenced. During this hearing, counsel was appointed for the defendant.

A. Right to counsel

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), a plurality of the Supreme Court held that the Sixth Amendment right to counsel does not extend to pretrial corporeal identification procedures that take place before the defendant has been indicted or otherwise formally charged with a criminal offense. Id. at 689-690, 92 S.Ct. at 1882-1883. ⁵ Under Kirby, the constitutional right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 689, 92 S.Ct. at 1882. See also Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977). The Kirby Court reasoned that the initiation of adversary judicial proceedings triggers the start of a "criminal prosecution" to which the Sixth Amendment right to counsel is limited. Kirby, supra, 406 U.S. at 689-690, 92 S.Ct. at 1882-1883. Moreover, the Supreme Court has emphasized that Kirby is consistent with the purpose behind the right to counsel guarantee, which is to "assure aid ... when the accused is confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984).

In this case, we deal with the period after the complaint and arrest but before arraignment. Interpreting Kirby, the Supreme Judicial Court has held that the complaint and arrest warrant procedures in Massachusetts do not constitute the initiation of adversary judicial criminal proceedings. Commonwealth v. Smallwood, 379 Mass. 878, 884-885, 401 N.E.2d 802 (1980). See also Commonwealth v. Mandeville, 386 Mass. 393, 401, 436 N.E.2d 912 (1982). The court in Smallwood pointed out that District Court clerks and assistant clerks may receive complaints, administer oaths, and issue warrants in the name of the court. Smallwood, supra, 379 Mass. at 885, 401 N.E.2d 802. Thus, recognizing the informal and ex parte nature of the complaint and arrest warrant process, the court concluded: "It would be anomalous to hold that the right to counsel attaches at this stage when indeed a ... suspect has no right to be heard in the proceeding." Id. Accordingly, under Kirby and Smallwood, adversary judicial criminal proceedings are initiated when the defendant is first brought before a magistrate or judge and has an opportunity to be heard.

This conclusion is supported by Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), where a witness testified as to an out-of-court identification that had taken place at the defendant's preliminary hearing. After recognizing that the prosecution had commenced, under Illinois law, when the victim's complaint was filed in court, the Moore Court held that "adversary judicial criminal proceedings" were initiated when the ensuing preliminary hearing occurred. Id. at 228, 98 S.Ct. at 464. Similarly, even though a complaint had issued in the instant case, the defendant's Sixth Amendment right to counsel did not attach until his hearing in the Roxbury District Court had commenced. Accord United States v. Duvall, 537 F.2d 15, 20-22 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Since the challenged identification took place prior to the defendant's hearing, ⁶ the defendant was not deprived of his Sixth Amendment right to counsel.

B. Due process

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Supreme Court established a due process right to exclude identifications resulting from procedures that were "unnecessarily suggestive and conducive to irreparable mistaken identification." Id. at 302, 87 S.Ct. at 1972. The due process clause, however, does not require the per se exclusion of identification testimony where the suggestiveness of the procedure has not rendered the identification unreliable. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Contrast Commonwealth v. Donovan, 392 Mass. 647, 467 N.E.2d 198 (1984) (per se exclusionary rule where Sixth Amendment right to counsel violated). The Brathwaite Court emphasized that "reliability is the linchpin in determining the admissibility of identification testimony." 432 U.S. at 114, 97 S.Ct. at 2253. The reliability of the identification is to be judged according to the following factors: " the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description ..., the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Id. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972). For a thorough discussion and analysis of the relevant principles and cases, see Commonwealth v. Hicks, 17 Mass.App. 574, 576-578, 460 N.E.2d 1053 (1984).

At the threshold, the defendant has the burden of showing, by a preponderance of the evidence, that impermissibly suggestive procedures...