Com. v. Lockley

• Decision Date: 17 July 1980
• Citation: 381 Mass. 156,408 N.E.2d 834
• Parties: , 11 A.L.R.4th 722 COMMONWEALTH v. Michael LOCKLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 834

408 N.E.2d 834

381 Mass. 156, 11 A.L.R.4th 722

COMMONWEALTH v. Michael LOCKLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 7, 1980.

Decided July 17, 1980.

John P. Courtney, Newton, for defendant.

Michael J. Traft, Asst. Dist. Atty. (David E. Cherny, Law Student, Boston, with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

On February 1, 1979, Michael Lockley was convicted of the crime of robbing one Iwilla D. Thorn on November 10, 1977, and was sentenced to five years and one day at the Massachusetts Correctional Institution, Concord. He appeals under G.L. c. 278, §§ 33A-33H, and cites as error (1) the denial of his pretrial motion that he be given a polygraph test to be performed at public expense; (2) the denial of his motion that he be permitted to sit at counsel table with his attorney during the trial; and (3) the admission in evidence of certain mugshot photographs of him from which Thorn had identified him. We reverse the conviction and order a new trial for reasons stated below.

The following is a summary of the evidence introduced at trial. On November 10, 1977, at about 10:30 A.M., Thorn was walking down Waban Street in Boston, carrying a large brown shoulder bag. She noticed a young man running toward her on the sidewalk, at first from a distance of somewhat less than a block. She watched him as he approached her, and observed that he was wearing a black topcoat, black cap, black pants, black shoes, and a red and white jersey. She had an opportunity to observe his face. He jogged slowly toward her, and as he reached her he bowed his head, "moaned something," and suddenly Thorn felt that her handbag was gone. She called for help and turned to watch the direction in which the man ran. A mailman who was nearby came to her assistance, and together they ran to an adjacent street where the mailman's car was parked. They then drove around the neighborhood looking for the robber, and saw him several streets away, this time carrying a gold umbrella which had been inside Thorn's handbag. As they started to get out of the car, the robber turned back and retreated down a nearby alley. When she saw the robber the second time he was as far from her, she testified, as the witness stand was from the rear of the court room. They continued to search for the robber, but without success.

Later that day Thorn called the police, and described her assailant to the police officers as a black male, somewhat taller than herself, about seventeen or eighteen years old, weighing about 140 pounds, with a thin build, black hair, and brown eyes, and wearing the clothing previously mentioned.

Two days after the incident, Thorn went to the District 2 police station to view some books of photographs. She looked through one book, and selected a photograph of the defendant as the person who had snatched her bag. The photograph had been taken about three years before. She again described the person substantially as she had before. Three days later, she returned to the police station and viewed some more photographs. On this occasion she selected a more recent photograph of the defendant, taken a year before the crime. She also viewed a loose photograph of the defendant, which was the one she had first identified, and again identified it, but mistakenly stated at trial that the two pictures she viewed that day were the "same photo." She identified the defendant in person at the probable cause hearing and again at trial.

1. Denial of the defendant's motions for polygraph test and for awarding of expenses therefor. Before trial the defendant moved the court to order a polygraph examination of him, and further moved that the court allow payment of extra fees and costs under G.L. c. 261, § 27A, to provide for the cost of the examination. After a hearing on December 12, 1978, a judge of the Superior Court, who was not the judge who later presided at the trial, denied the motions. The defendant argues that this denial constitutes an abuse of discretion because the motion judge, before denying the motions, failed to apply the criteria established by this court in Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974), and Commonwealth v. Vitello, --- Mass. --- ^a, 381 N.E.2d 582 (1978), and because, to the extent that the judge's ruling on the motion for a polygraph examination was influenced by the defendant's indigency, his actions constitute a violation of due process of law and equal protection of the laws, citing Commonwealth v. Possehl, 355 Mass. 575, 577, 246 N.E.2d 667 (1969).

The transcript of the hearing on the motions reveals that after a short introduction and brief argument by defense counsel, the judge denied them, stating that, "as I read the Vitello case I just don't see where courts in any way should authorize those examinations, as far as I am personally concerned." Defense counsel requested to be heard further, and stated that he believed that Vitello would support the introduction of polygraph examination results as probative evidence at trial. The judge then pointed out the limited circumstances in which polygraphic evidence would be admissible, i. e., only as to the credibility of the defendant "in the event that the defendant creates the admissibility by taking the witness stand." The judge continued, asking rhetorically, "Are you suggesting then that the trial courts of this commonwealth, in view of that decision, are now compelled to provide every indigent defendant with a polygraph test based on the bare possibility that in the event that they pass it then they can use it to enhance their credibility at the trial, and in the event that they don't pass it then it is not admissible . . . (s)imply by their not taking the witness stand(?)" Defense counsel responded that the motion was addressed to the judge's discretion, and that it should be granted in the interest of fairness. The judge then stated that the "motion" was denied, without further comment. He did not file any written findings or conclusions concerning the motions. ¹

Section 27D of c. 261, as appearing in St.1978, c. 478, § 269, provides a detailed and professedly exclusive procedure for taking an appeal from the denial of a request for fees and costs made under § 27C. The section states, "If the matter arises in the superior court, . . . the appeal shall be to the single justice of the appeals court at the next sitting thereof; . . . Upon being notified of the denial the applicant shall also be advised of his right of appeal, and he shall have seven days thereafter to file a notice of appeal. . . . The decision of the court hearing the appeal shall be final with respect to such request."

In the present case the defendant failed to take an appeal according to the procedure prescribed by statute. Ordinarily this failure would prevent him from raising the issue on this appeal. See, e. g., Little v. Rosenthal, --- Mass. ---, --- - --- ^b, 382 N.E.2d 1037 (1978). However, because there is no indication on the record that the motion judge informed the defendant of his right to appeal under the procedure established by § 27D, as that section requires and because the issue raised requires the interpretation of a statute never before construed by this court, we proceed to undertake review of the defendant's contentions.

The standard for deciding whether a request for "extra fees and costs" ² should be granted is set forth in G.L. c. 261, § 27C, as appearing in St.1978, c. 478, § 269, which states that "(i)f the court makes a finding of indigency . . . it shall not deny any request with respect to extra fees and costs if it finds the document, service or object is reasonably necessary to assure the applicant as effective a prosecution or defense as he would have if he were financially able to pay." This standard is essentially one of reasonableness, and looks to whether a defendant who was able to pay and was paying the expenses himself, would consider the "document, service or object" sufficiently important that he would choose to obtain it in preparation for his trial. The test is not whether a particular item or service would be acquired by a defendant who had unlimited resources, nor is it whether the item might conceivably contribute some assistance to the defense or prosecution by the indigent person. On the other hand, it need not be shown that the addition of the particular item to the defense or prosecution would necessarily change the final outcome of the case. The test is whether the item is reasonably necessary to prevent the party from being subjected to a disadvantage in preparing or presenting his case adequately, in comparison with one who could afford to pay for the preparation which the case reasonably requires.

In making this determination under the statute, the judge may look at such factors as the cost of the item requested, the uses to which it may be put at trial, and the potential value of the item to the litigant. The statute states that "(t)he court shall not deny any request without first holding a hearing thereon." At such a hearing evidence may be introduced as to these factors and to such other factors as the judge may deem relevant to his determination of the request before him.

We do not reach the question whether the judge applied the standard set by c. 261, § 27C, in a clearly erroneous manner, for we hold that he did not conduct a sufficient hearing on the matter before making his determination. Counsel for the defendant stated that the defendant was indigent and that he wished to take a polygraph examination. He submitted the required affidavit of indigency, as well as his two motions. The judge made no initial finding on the question of indigency, and did not inquire of or discuss with counsel the desirability or necessity of polygraphic evidence in the instant case. Rather, he...