Com. v. Leaster

Decision Date06 June 1985
Citation395 Mass. 96,479 N.E.2d 124
PartiesCOMMONWEALTH v. Bobby Joe LEASTER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert F. Muse, Boston (Christopher J. Muse, Boston, and Ronald Kovner with him), for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Com.

Daniel E. Callahan, Lynn and Brownlow M. Speer, Boston, for Committee for Public Counsel Services et al., amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LYNCH, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

Bobby Joe Leaster appeals from a Superior Court judge's denial of his motion for postconviction relief seeking a new trial under Mass.R.Crim.P. 30, 378 Mass. 900 (1979), and from the denial of his motion for reconsideration thereof. 1 On June 22, 1971, Leaster was convicted of murder in the first degree, of armed robbery, and of assault and battery by means of a dangerous weapon. The convictions arose out of the robbery of a variety store and the shooting of the store's owner, Levi Whiteside, on September 27, 1970. This court affirmed the convictions on appeal. Commonwealth v. Leaster, 362 Mass. 407, 287 N.E.2d 122 (1972). In 1977, after the trial judge had retired, another judge denied Leaster's motion for a new trial. In 1980, the same judge denied Leaster's further motion for postconviction relief. A single justice of this court denied Leaster leave to appeal the judge's action, and we dismissed Leaster's appeal of the single justice's decision. Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708 (1982).

In 1982, Leaster filed the motion for postconviction relief now under consideration. The same judge who had ruled on the earlier motions denied the motion because of Leaster's failure to submit a supporting affidavit as required by Mass.R.Crim.P. 30(c)(3). Thereafter, in response to a motion for reconsideration accompanied by an affidavit, the judge conducted a hearing and ruled on the motion for postconviction relief on its merits. He denied the motion and, by the allowance of a motion pursuant to G.L. c. 278, § 33E (1984 ed.), by a single justice of this court, Leaster appeals to the full court. We affirm. 2

Leaster argues that he is entitled to a new trial because of certain newly discovered evidence. The principal issue at trial was the identity of Levi Whiteside's killer. Levi's widow, Kathleen, and Nellie Rivera, a customer of the store at the time of the shooting, identified Leaster as the killer. Their testimony was crucial on that issue. Also, there was evidence at the trial that Kathleen had identified Leaster at a hospital parking lot approximately one and one half hours after the shooting. The trial judge admitted the evidence of the parking lot identification only after conducting a voir dire, at the conclusion of which he made findings, warranted by the evidence, that we summarize. The shooting occurred at about 4:05 P.M. A few minutes later, two police officers arrived at the scene of the shooting, obtained descriptions of the robbers, and relayed them to police headquarters. Headquarters broadcast the descriptions and, between 5:15 P.M. and 5:20 P.M., Boston Division 4 Police Officer Frost arrested Leaster. Leaster, at least as to clothing, fitted precisely the description of the alleged assailant. Following headquarters' instructions, Officer Frost drove Leaster in a division 4 police wagon to the Boston City Hospital parking lot where, pursuant to instructions previously received, Frost transferred Leaster to a division 3 police cruiser. The shooting had occurred within the jurisdiction of division 3. As Officer Frost transferred Leaster from one police vehicle to the other, Kathleen Whiteside, accompanied by Sergeant Downey of division 3, came out of the hospital into the parking lot. Upon seeing Leaster, Kathleen stated, "That looks like the man that shot my husband. I'm going over to take a better look." She did that, and said, "That's the man. I see the mark on his eye."

The trial judge also found that, on the morning of the day of the shooting, Kathleen had observed the man who shot her husband, and the man's partner, hanging around the variety store for about thirty minutes. Later, minutes before the shooting, when the two men returned to the store, their presence so aroused Kathleen's suspicion that she suggested to her husband that they call the police. Just before the shooting, the assailant held Kathleen at gunpoint for at least a few minutes. Rivera stared at the assailant face to face for at least three minutes.

The judge found that headquarters had instructed Officer Frost to take the suspect to Boston City Hospital to arrange a confrontation with the victim, Levi Whiteside, and that neither police headquarters nor Officer Frost knew that Whiteside had in fact been pronounced dead at 4:45 P.M. The judge found that the police had not planned a confrontation between Kathleen and the defendant, that the confrontation took place within approximately one hour of the crime, and that permitting the identification to proceed as it did was reasonable police procedure. He concluded that the confrontation was permissible under Commonwealth v. Bumpus, 354 Mass. 494, 501, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969), and Commonwealth v. Connolly, 356 Mass. 617, 623-624, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970).

Finally, the judge found after voir dire that Kathleen had carefully scrutinized the men who had been in the store in the morning and again in the afternoon, and he found that she had "fixed into her mind a mental description of their physical characteristics and their clothing and attire." He concluded that Kathleen's in-court identification had its "preliminary origin in the observations which she made at the time [of the shooting] and is based upon substantial evidence."

Leaster argues that he now possesses evidence, unavailable to him at trial and at the hearings on earlier posttrial motions, that requires a new trial at which Kathleen's out-of-court and in-court identifications would be suppressed. He also contends that, even if he is not entitled to suppression of those identifications, he at least is entitled to present to a new jury previously unavailable evidence which, he contends, would demonstrate infirmities in Kathleen's parking lot identification and, therefore, would minimize the persuasiveness of her in-court identification as well.

The evidence, asserted by Leaster to be newly discovered, is as follows: (1) Officer Frost testified before the grand jury that following the shooting he was on patrol in a police wagon when he heard on the radio that a man answering a particular description was "wanted for murder," that he saw a man fitting that description, and that he took that man to Boston City Hospital to meet Sergeant Downey. In response to a question whether there was any conversation between the victim and Leaster in Frost's presence, Frost answered in the negative and, when asked, "[W]as he dead?," Frost answered, "I believe they just pronounced him dead. It came over the air the man was wanted for murder as well as armed robbery. That is the man we placed in the wagon." 3 (2) A police report that Leaster claims was not produced until the hearing on the motion in question here states: "Lieut. Det. McCallum of Homicide notified by Lieut. Page at 5:00 P.M., date," and "about 5:15 P.M., Patrolman Frost and Erickson ... arrested [Leaster] without a warrant for the murder of Levi Whiteside." (3) In 1983, at the hearing on the motion now being reviewed, Kathleen Whiteside testified that when the police took her husband from the store they covered his face with a sheet or a blanket, and that when they got to the hospital one of the officers told her that her husband was dead before he left the store. Furthermore, the following questions were asked and Kathleen gave the following answers:

Q.: "When you were leaving the emergency room did something happen?"

A.: "Yes, they came up with the paddy wagon. So they had him in it, in there, and so they carried me out and put me in the car, walked me around and put me in the car. And so they said, 'We have someone out here we want to see do you know.' But just as they was coming around, I looked and saw him. I say, 'That's the guy that shot my husband.' I said, 'What's he doing here like that?' So he said, 'We just wanted you to identify him for us.' "

Q.: "Did they tell you, Mrs. Whiteside, why they brought him there?"

A.: "Yes, they told me why they brought him there."

Q.: "Why?"

A.: "Afterwards."

Q.: "Afterwards. What did they say to you?"

A.: "I recognized him as soon as I saw him."

Q.: "Pardon me?"

A.: "I recognized him no sooner I saw him, and I spoke up before the policemen even said anything to me."

Q.: "After you spoke up and saw him, did they say something to you about this person you are pointing at in the courtroom, why they brought him there?"

A.: "I told you they said they brought him there for me to identify him. He wasn't hurting or nothing."

In contrast to that evidence, Officer Frost testified at the trial during voir dire that the information he received on the radio concerned a "shooting" and an armed robbery, and that when he arrived at the hospital he did not know whether the victim was dead or alive. Furthermore, at the voir dire Kathleen Whiteside testified that Sergeant Downey "didn't say anything at all" to her as they left the hospital. "I just looked up and saw [Leaster] as I was coming out of the door," she testified. She did not testify, as she did at the hearing on Leaster's motion, that the police told her after she identified Leaster that they had brought him to the hospital to see whether she could identify him.

1. Standard of review. A trial judge's familiarity with a case may lead him or her to conclude, particularly in the light of...

To continue reading

Request your trial
37 cases
  • Moses v. McWilliams
    • United States
    • Superior Court of Pennsylvania
    • September 28, 1988
  • Commonwealth v. Moore
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 31, 2018
    ...the part of the police to ‘stack the deck’ against the defendant," Dew, 478 Mass. at 307, 85 N.E.3d 22, quoting Commonwealth v. Leaster, 395 Mass. 96, 103, 479 N.E.2d 124 (1985). Public safety was paramount, and a prompt identification served to limit risk to the public and to avoid the esc......
  • Com. v. Vasquez
    • United States
    • Appeals Court of Massachusetts
    • October 16, 2009
    ...against the defendant." Commonwealth v. Sylvia, 57 Mass.App.Ct. 66, 69, 781 N.E.2d 46 (2003), quoting from Commonwealth v. Leaster, 395 Mass. 96, 103, 479 N.E.2d 124 (1985). There is no need for exigent circumstances in order to justify this procedure; "good reason" is sufficient. Ibid. In ......
  • Com. v. Martin
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 19, 2006
    ...look beyond our own borders for evidence of wrongful convictions based on suggestive one-on-one showups. In Commonwealth v. Leaster, 395 Mass. 96, 102-104, 479 N.E.2d 124 (1985), for example, we held that a showup identification made by the wife of a robbery and murder victim, in the parkin......
  • Request a trial to view additional results
1 books & journal articles
  • The Final Countdown: Using Resentencing as Final Judgment in the Post-AEDPA Era.
    • United States
    • Suffolk University Law Review Vol. 52 No. 1, January 2019
    • January 1, 2019
    ...v. United States, 121 F.3d 312, 314, 316 (7th Cir. 1997) (denying petitioner's third filing after AEDPA), with Commonwealth v. Leaster, 479 N.E.2d 124, 125 (Mass. 1985) (considering petitioner's second motion for postconviction relief before (64.) See 28 U.S.C. [section] 2254(d) (2018) (hig......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT