Com. v. Leonardi

• Citation: 413 Mass. 757,604 N.E.2d 23
• Parties: COMMONWEALTH v. Mark D. LEONARDI.
• Decision Date: 10 December 1992
• Court: United States State Supreme Judicial Court of Massachusetts

Page 23

604 N.E.2d 23

413 Mass. 757

COMMONWEALTH v. Mark D. LEONARDI.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Oct. 7, 1992.

Decided Dec. 10, 1992.

Frank C. Corso, Boston, for defendant.

John E. Bradley, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and NOLAN, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The defendant appeals from his convictions, after trial by jury, of armed assault in a dwelling house and assault and battery by means of a dangerous weapon. ¹ We transferred this case here on our own motion. The defendant argues that the trial judge erred in: (1) improperly denying the defendant's motion to suppress an out-of-court identification; (2) admitting evidence of a court order directing the defendant to refrain from abusing his former girl friend, Odelia DeMiranda; and (3) admitting evidence of the victim's testimony regarding a telephone conversation with the defendant. There was no error and therefore we affirm the convictions.

From the evidence, the jury could have found the following facts. On the evening of March 29, 1986, the victim was assaulted at the house of his friend, Odelia DeMiranda by a man whom he identified as the defendant. The victim was visiting DeMiranda from California. During the early 1980's, the victim had dated DeMiranda for two years when she lived in California.

That night he awoke to the sound of someone walking through the house. He observed a man standing in the bedroom doorway with a baseball bat across his shoulder. The man moved from the doorway toward the victim and asked, "What possessed you to come here?" as he swung the bat and struck the victim at least four times. The victim sustained blows to his head and arms. He attempted to shield further blows with a chair. The defendant smashed the chair and hit the victim in the legs and shins. This caused the victim to fall to the floor where he was repeatedly hit again.

The defendant then left the room and the victim heard water running. The defendant told the victim to go into the bathroom; the victim was unable to walk, so the defendant pulled him up. Once in the bathroom, the defendant forced the victim into a tub of hot water, where he proceeded to hit him again with the baseball bat and held his face under water for brief periods. He also struck the victim in the face with the bat and his fist. The victim testified that the defendant's face was two to three inches from his. During the assault, the lights were on in both rooms. Further, the defendant identified himself as "Mark," and told the victim to explain his injuries as self-inflicted. The entire ordeal lasted approximately twenty-five to thirty minutes. After the defendant left the bathroom, the victim observed the defendant replacing a window pane near the front door and, subsequently, fleeing the premises. The victim crawled from the bathroom into the bedroom. Approximately thirty minutes later, DeMiranda returned home. On finding the victim, she brought him to Tobey Hospital in Wareham.

While being treated at the hospital, the victim was interviewed by Detective Norman W. Sylvester of the Wareham police department. The victim described his attacker as a white male, between six feet, one inch, and six feet, three inches tall, 170 pounds, with a beard, mustache, and medium-length hair. The victim told the detective that he could identify his assailant.

Detective Sylvester then had a conversation with DeMiranda. As a result, he dispatched an officer to the defendant's residence to request that he come to the police station for questioning. By the time Detective Sylvester arrived at the station the defendant had voluntarily presented himself. Sylvester brought him to a room where he informed the defendant of the investigation and read him his Miranda rights. The defendant denied any wrongdoing and volunteered to go to the hospital to see whether the victim could recognize him. Detective Sylvester again advised the defendant of his Miranda rights in the presence of Sergeant George Randall. The defendant, who was not under arrest, voluntarily accompanied Detective Sylvester and Sergeant Randall to Tobey Hospital in an unmarked police vehicle. On arrival, Detective Sylvester entered the hospital X-ray room and told the victim that he had someone outside who matched the description the victim had given. The detective turned on all the lights in the room and brought in the defendant for viewing. The officers and the defendant stopped three to four feet from the victim. Sylvester testified that the victim stated, "That's the person who assaulted me." Thereafter, the defendant was led from the room, handcuffed, placed under arrest, and transported to the police station for booking. At the station the defendant stated his height to be six feet, three inches and his weight as 170 pounds.

As a result of the assault, the victim required hospitalization for one week, received eighty-seven stitches to his head, and sustained a broken elbow and hand.

1. Motion to suppress pretrial identification. The defendant moved to suppress the identification made at the hospital, maintaining that the pretrial identification procedure was unnecessarily suggestive and had caused irreparable mistaken identification and a denial of his due process rights. The defendant denied that his presence at the hospital was voluntary. Further, the defendant asserted that there were no exigent circumstances militating in favor of a one-on-one hospital identification, and that a fair lineup could have been arranged. Correspondingly, the defendant moved to have any subsequent in-court identifications by the victim suppressed. After an evidentiary hearing the judge denied the defendant's motion to suppress, ruling the totality of the circumstances indicated that the identification procedure was not necessarily so suggestive as to deny the defendant his due process rights. While the judge agreed that "it would have been better if Detective Sylvester had not volunteered" that he had someone who fit the description supplied by the victim, it was not so suggestive as to taint the identification. The judge found that both the out-of-court and in-court identifications were admissible. A single justice of this court denied the defendant's application for interlocutory appeal.

In order to suppress identification testimony the defendant must show that the procedures employed, viewed in the totality of the circumstances, were so unnecessarily suggestive and conducive to mistaken identification as to deny the defendant due process of law. See Commonwealth v. Colon-Cruz, 408 Mass. 533, 542, 562 N.E.2d 797 (1990); Commonwealth v. Santos, 402 Mass. 775, 781, 525 N.E.2d 388 (1988); Commonwealth v. Storey, 378 Mass. 312, 317, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980).

There was no error in the judge's ruling that the defendant did not meet the burden of demonstrating that the identification procedure was unnecessarily suggestive. The judge found that identification arose from a straightforward showing to the victim of a person that matched the description supplied by the victim. The judge correctly ruled that exigent circumstances were not required. One-on-one confrontations conducted promptly after the commission of a crime are not violative of due process rights despite the absence of exigent or special circumstances. See Commonwealth v. Storey, supra 378 Mass. at 317, 391 N.E.2d 898 (one-on-one identification not precluded from admission solely because a lineup could have been easily arranged); Commonwealth v. Barnett, 371 Mass. 87, 92, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977) (witness's life need not be in jeopardy). See also Commonwealth v. Williams, 399 Mass. 60, 67-68, 503 N.E.2d 1 (1987); Commonwealth v. Bowden, 379 Mass. 472, 479, 399 N.E.2d 482 (1980); Commonwealth v. Bumpus, 354 Mass. 494, 497-502, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969); Commonwealth v. Jones, 25 Mass.App.Ct. 55, 59-60, 514 N.E.2d 1337 (1987). Such identification procedures are justified by the need for prompt criminal investigation while the victim's "recollection or mental image of the offender is still fresh, before other images crowd in or his attempts to verbalize his impressions can themselves distort the original picture," and it "provides the witness with good opportunity for an accurate identification." Commonwealth v. Barnett, supra 371 Mass. at 92, 354 N.E.2d 879.

Although it would have been better if Detective Sylvester had not told the victim that he was bringing in someone who fit the description given by the victim, we agree with the judge's conclusion that the statement did not create any special element of unfairness. See Commonwealth v. Williams, supra 399 Mass. at 67, 503 N.E.2d 1 (despite officer's statement that he thought he "got the guys," unequivocal identification shortly after alleged crime not impermissibly suggestive); Commonwealth v. Harris, 395 Mass. 296, 299, 479 N.E.2d 690 (1985) (officer's statement that "they would be bringing someone in who matched the description she had given" did not make confrontation unfair); Commonwealth v. Bowden, supra 379 Mass. at 479, 399 N.E.2d 482 (identification admissible where witness gave detailed description of defendant and one-on-one confrontation occurred two hours after murder); Commonwealth v. Napolitano, 378 Mass. 599, 603 n. 6, 393 N.E.2d 338 (1979) (officer's statement that police had "someone here who fits" description not unnecessarily suggestive but merely states purpose of showing photographs to witness); Commonwealth v. Alicea, 376 Mass. 506, 509, 514-515, 381 N.E.2d 144 (1978) (one-on-one identification admissible where witness identified defendant who was voluntarily present one and one-half hours after shooting); Commonwealth v. Chotain, 31 Mass.App.Ct. 336, 341, 577...