Com. v. Leaster

• Decision Date: 05 September 1972
• Parties: COMMONWEALTH v. Bobby Joe LEASTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 122

287 N.E.2d 122

362 Mass. 407

COMMONWEALTH v. Bobby Joe LEASTER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 1, 1972.

Decided Sept. 5, 1972.

William P. Homans, Jr., Boston (Charles H. Lewis, Jr., Roxbury, with him), for defendant.

Alfred E. Saggese, Jr., Asst. Dist. Atty. (Alvin Brody, New Bedford, with him), for the Commonwealth.

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

BRAUCHER, Justice.

The defendant was found guilty of first degree murder, armed robbery, and assault and battery by means of a dangerous weapon, and was sentenced concurrently to life imprisonment and terms of years. He appeals under G.L. c. 278, §§ 33A--33G, assigning as error (1) the admission in evidence of an out-of-court identification, (2) the admission in evidence of hearsay, (3) the admission in evidence of in-court identifications, and (4) the judge's instruction to the jury on the defence of alibi.

We summarize the evidence submitted to the jury. Kathleen and Levi Whiteside operated a variety store (the store). At approximately 4 P.M. on September 27, 1970, while Kathleen was behind the counter, two men entered the store. Levi was in the back room. One of the men ran behind the counter, held a gun to Kathleen's head and told her to open the cash resigter. . levi came from the back room to his wife's assistance and was shot by that man. The two men fled the store with about $200 from the cash register. A customer, Nellie Rivera, was in the store during the robbery.

The police came about 4:25 P.M. and found Levi bleeding on the floor. He was taken to Boston City Hospital, where he died at 4:30 P.M. A description of the two men was obtained from Kathleen and sent out on the police radio. At 5:15 P.M. the defendant was arrested because he fitted the description of the man who shot Levi. The arresting officer took the defendant to the hospitial.

The defendant arrived at the hospital at 5:25 P.M. and was transferred to another police vehicle in the parking lot. At this time Kathleen was leaving the hospital, and she identified the defendant as the man who shot her husband. Both Kathleen and Nellie Rivera also made in-court identifications of the defendant as the man who shot Levi. There was testimony by the defendant that he had been at home at the time of the crime, corroborated by testimony from a woman with whom he was living at that time.

1. The out-of-court identification. After a voir dire hearing the judge excluded from evidence identifications of the defendant made in a police station by Kathleen and Mrs. Rivera about 6 P.M. and 7 P.M. respectively on the day of the crime, but admitted in evidence Kathleen's identification in the hospital parking lot. The defendant argues that the latter ruling was error, maintaining that the parking lot confrontation took place in impermissible prejudicial circumstances while he was in custody and without counsel in violation of his right to due process of law. We summarize the relevant evidence.

Immediately after the arrest, the arresting officer, a Boston Division 4 policeman named Frost, took the defendant in a Division 4 police wagon to the hospital, about a three minute drive from the place of arrest. He testified that he did so at the direction of the police radio dispatcher in order to meet the Division 3 policeman, Sergeant Downey, 'who was in charge of the case,' and to transfer the defendant to the Division 3 police, since the shooting had occurred within their area. Frost did not know at the time whether Levi Whiteside was dead or alive, and testified that he did not intend a bedside identification. At the hospital, Frost saw a Division 3 police car with two other officers in it. He took the defendant 'over to District 3's car and put him in District 3's car.' The defendant was without counsel.

At this moment Kathleen came out of the emergency room door of the hospital with Sergeant Downey. She had gone to the hospital with the police and had stayed until the doctor had pronounced her husband dead. The emergency door was approximately thirty to fortyfeet from the Division 3 police car. The time was approximately 5:25 P.M., and it was daylight. Kathleen testified that she saw the police transferring the defendant from the Division 4 police wagon to the Division 3 police car and that she told Downey: "That look like the man that killed by husband,' so I says, 'Do you mind could I take a better look, please, a closer look, please?' So he says, yes. So he walked me over to the car . . . and it was him. I says 'Yes, this is the man that shot my husband." When Kathleen reached the car the defendant was in the back, and she looked in the rear window. The testimony of Downey, Frost and Kathleen as to these details of the confrontation was consistent except that Downey and Frost testified that Downey had said nothing to Kathleen at the time.

The judge found as a fact 'based upon pure inference that the reason Frost was told to take the suspect (defendant) to the Boston City Hospital was in order to arrange a face-to-face confrontation with the victim, Levi Whiteside,' that neither Frost nor police headquarters knew Levi was dead, and that the confrontation in the parking lot 'was not pre-arranged. The police had no plans for a confrontation or identification of the suspect by Mrs. Whiteside.'

The confrontation occurred after the decisions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and before the decision in Kirby v. Illinois, 406 U.S. 682, 92 s.Ct. 1877, 32 L.Ed.2d 411. The evidence supports the judge's findings that the confrontation was an accident which occurred in an effort to arrange a legitimate bedside confrontation with a dying victim. See Commonwealth v. Connolly, 356 Mass. 617, 623--624, 255 N.E.2d 191, cert. den. sub nom. Connolly v. Massachusetts, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79; Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199. 'That an eyewitness accidentally confronts a suspect erases any problem of illegality where the police make no attempt to elicit improperly such an identification.' Commonwealth v. D'Ambra, 357 Mass. 260, 263, 258 N.E.2d 74, 76. See Kirby v. Illinois 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, n. 5; United States v. Pollack, 427 F.2d 1168, 1169 (5th Cir.); United States v. Seader, 440 F.2d 488, 496 (5th Cir.); People v. Logan, 25 N.Y.2d 184, 193, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. den. sub. nom. Logan v. New York, 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513. This 'chance meeting' was 'neither avoidable, unfair, nor suggestive.' Allen v. Moore, 453 F.2d 970, 974 (1st Cir.). If Downey had acted, as suggested by defence counsel, to prevent Kathleen from crossing the parking lot the effect would have been suggestive.

In addition, the confrontation occurred less than one and one-half hours after the shooting and was 'in the course of (or immediately following) a criminal episode.' Commonwealth v. Bumpus, 354 Mass. 494, 501, 238 N.E.2d 343, 347, cert. den. sub nom. Bumpus v. Massachusetts, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579. Even before Kirby v. Illinois, supra, we held the Wade-Gilbert per se exclusionary rule inapplicable to such a confrontation. Evidence of the identification is admissible where, as in this case, the confrontation was in 'the totality of the circumstances' not 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny due process of law. Commonwealth v. Bumpus, supra, at 499--501, 238 N.E.2d 343, citing Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Commonwealth v. Connolly, 356 Mass. 617, 623--624, 255 N.E.2d 191; Commonwealth v. Breen, 357 Mass. 441, 446--447, 258 N.E.2d 543; Commonwealth v. Gray, 357 Mass. 771, 257 N.E.2d 924; COMMONWEALTH V. STROUD, MASS. , 281 N.E.2D 599.^A See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, n. 5; United States v. Davis, 399 F.2d 948, 950--952 (2d Cir.), cert. den. sub nom. Davis v. United States, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 449; Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284--1285, cert. den. 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245; United States ex rel. Springle v. Follette, 435 F.2d 1380, 1382--1383 (2d Cir.), cert. den. sub nom. Springle v. Zelker,401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331.

2. The admission of hearsay evidence. The defendant assigned as error the admission of testimony by Downey and Frost concerning remarks made by Kathleen to them at the time of the hospital parking lot identification and out of the hearing of the defendant. Downey testified that Kathleen told him, while going from the hospital to the parking lot, 'that looks like the man who shot my husband. Can I go over and have a better look?' He also testified that on reaching the car she said, 'That is the man who shot my husband. I recognize the mark under his eye.' Frost testified that when Kathleen arrived at the car she said, 'That's the man that shot my husband.'

Even though the evidence was hearsay as to the truth of the identification of the defendant as the man who shot Levi, it was properly admitted. Kathleen had previously testified to the identification and we have held that testimony to be admissible. The evidence disputed here was admitted under a limiting instruction to the jury that it be considered only to corroborate the fact that Kathleen did at that time and place make the identification, not as proof of the truth of the identification itself. See Glassman v. Barron, 277 Mass. 376, 382, 178 N.E. 628; Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359; Commonwealth v. McGrath, 351 Mass. 534, 539, 222 N.E.2d 774; National Labor Relations Bd. v. G. W. Thomas Drayage & Rigging Co., Inc., 206 F.2d 857, 860 (9th...