Com. v. McMaster

• Decision Date: 30 May 1986
• Parties: COMMONWEALTH v. Edward McMASTER.
• Court: Appeals Court of Massachusetts

Page 464

490 N.E.2d 464

21 Mass.App.Ct. 722

COMMONWEALTH v. Edward McMASTER.

Appeals Court of Massachusetts,

Middlesex.

Argued Nov. 20, 1985.

Decided March 26, 1986.

Further Appellate Review Denied May 30, 1986.

Edward A. McMaster, pro se.

Scott Harshbarger, Dist. Atty., and Natalea Skvir, Asst. Dist. Atty., for Com.

Before BROWN, KAPLAN and WARNER, JJ.

WARNER, Justice.

The defendant was convicted of armed robbery (G.L. c. 265, § 17) and larceny of a motor vehicle (G.L. c. 266, § 28[a] ) after a jury trial in the Superior Court. The defendant's appeal raises several issues. Where necessary, we state the relevant facts separately.

1. Motion to suppress. The defendant argues that the motion judge erred in failing to suppress the victim's pretrial identification of the defendant and any subsequent in-court identification because the identification procedure was unnecessarily suggestive and conducive to irreparably mistaken identification.

"We begin our review with the well-settled proposition that the judge's findings of fact are 'binding in the absence of clear error ... and [we] view with particular respect the conclusions of law which are based on them.' Commonwealth v. Correia, 381 Mass. 65, 76 (1980). While the judge's ultimate findings of fact and rulings of law, as they bear on issues of constitutional dimension, are open for reexamination by this court, such ultimate findings are 'entitled to substantial deference by this court.' Commonwealth v. Bookman, 386 Mass. 657, 661 n. 6 (1982). Questions of credibility are, of course, for the ... judge to resolve. Commonwealth v. Meehan, 377 Mass. 552, 557 (1979)." Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985).

Our summary of facts is taken from the judge's findings on the motion to suppress, amplified by some recourse to the transcript of the hearing. On August 15, 1981, Douglas Bolduc was working alone at a gas station on Memorial Drive in Cambridge. About 9:45 P.M., two men, both carrying guns, entered the well-lighted station building. Bolduc was forced to the floor. He heard a gun go off. One of the men, who was standing next to Bolduc, told him to get up and go into a back room. Before telling Bolduc to lie down in the back room, the man took $150 that Bolduc had in his pocket. Both intruders then left. Bolduc got up and saw them drive away. During the incident, Bolduc looked directly at the man who had taken the money from him for about twenty-five seconds and heard him speak twice. Bolduc reported the robbery to the police, giving them descriptions of his assailants.

About 10:35 P.M. that night the police brought Bolduc to Massachusetts General Hospital, after being informed that a gunshot victim had been recently admitted. Bolduc and the police officers were misdirected to a patient's room. Bolduc stated that that patient was not one of the robbers. As Bolduc and the police officers were walking away from that man's room, Bolduc spontaneously identified another man lying on a stretcher as one of the robbers. The man, later identified as Richard Cleveland, had a gunshot wound in his foot, and was arrested. ¹

Looking for the person who had brought Cleveland to the hospital, Bolduc went into a waiting room but he came out and told the police that no one looked familiar. The police asked a hospital employee if the person who had brought Cleveland in was still in the hospital. The employee responded by saying "yes" and pointing to the waiting room. Bolduc went into the room for a second look, this time with a police officer accompanying him, and identified the defendant as the other robber. Bolduc stated, however, that he was not one-hundred percent certain of his identification because the defendant was not wearing the same clothes as the robber.

The defendant was arrested and brought outside to a police cruiser. The defendant said to Bolduc: "You have the wrong person." Upon hearing the defendant's voice, Bolduc said: "Now I know I have the right person."

While the police, the defendant and the victim waited outside for a vehicle to transport the defendant, a Boston police detective, Anthony C. Antonuccio, unconnected with the case, came by and identified the defendant as Edward McMaster.

The defendant questions the accuracy of the judge's findings. First, the defendant argues that when the police asked the hospital employee if the person who brought Cleveland to the hospital was still in the waiting room, the employee pointed at McMaster through the open doorway and stated: "There he is, right there." Second, the defendant disputes the sequence of events which occurred while Bolduc, the defendant and the police waited outside the hospital for another police vehicle. According to the defendant, Antonuccio identified the defendant as McMaster and stated that McMaster had a record for armed robbery; Bolduc then said, "Now I know I have the right man." Finally, the defendant says that the police led Bolduc to believe that clothes similar to what the robbers had been wearing were discovered during a search of the defendant's car.

The judge's findings are supported by the evidence and are not clearly erroneous. While the account that the defendant offers is supported by some evidence, the determination of the weight and credibility of the testimony is the function of the judge who saw and heard the witnesses. Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980). "Where there has been conflicting testimony as to a particular event or series of events a judge's resolution of such conflicting testimony invariably will be accepted." Commonwealth v. Spagnolo, 17 Mass.App.Ct. 516, 517-518, 459 N.E.2d 1256 (1984).

The defendant did not meet his burden of showing by a preponderance of the evidence that impermissible identification procedures were used. Commonwealth v. Chase, 372 Mass. 736, 745, 363 N.E.2d 1105 (1977). Commonwealth v. Key, 19 Mass.App.Ct. 234, 239, 472 N.E.2d 1381 (1985). Even if we accept the defendant's contention that the identification in the waiting room constituted a one-on-one showup, ² suppression was not required. "We have repeatedly held that due process rights are not violated when police arrange a one-on-one confrontation between the victim and a suspect promptly after a criminal event occurs." Commonwealth v. Harris, 395 Mass. 296, 299, 479 N.E.2d 690 (1985). Commonwealth v. Coy, 10 Mass.App.Ct. 367, 371, 407 N.E.2d 1310 (1980), and cases cited. Here, the confrontation, occurring within one hour of the crime, and as soon as was possible under the circumstances, was sufficiently prompt. Contrary to the defendant's argument, one-on-one confrontations, although disfavored, need not be justified by exigent or special circumstances. Commonwealth v. Barnett, 371 Mass. 87, 91-92, 354 N.E.2d 879 (1976). Commonwealth v. Harris, supra at 299, 479 N.E.2d 690.

Furthermore, there were no special elements of unfairness in the confrontation in the waiting room "as might take the case out of the general class permitting a confrontation without lineup." Commonwealth v. Barnett, supra at 93, 354 N.E.2d 879. There was no indication of "a desire on the part of the police to 'stack the deck' against the defendant." Commonwealth v. Leaster, 395 Mass. 96, 103, 479 N.E.2d 124 (1985). Nor was there an indication of "any police desire or intention to deal with [the defendant] unfairly or to do anything but ascertain the perpetrator of [the crime]." Commonwealth v. Bumpus, 354 Mass. 494, 500, 238 N.E.2d 343 (1968), cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969). The defendant's argument that two incidents that occurred after the confrontation constituted "special elements of unfairness" is precluded by the judge's findings.

2. Jury instructions as to identification testimony. The defendant raises for the first time on appeal the issue whether the judge, in his charge to the jury, erred in omitting portions of the mistaken identification instruction recommended by the Supreme Judicial Court in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311, 391 N.E.2d 889 (1979). ³ Our review, therefore, is limited to a determination whether there is a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). Commonwealth v. Moffett, 383 Mass. 201, 211, 418 N.E.2d 585 (1981).

"It is well settled that a judge need not grant a particular instruction so long as the charge, as a whole, adequately covers the issue. We are concerned 'with the impressions ... [the instructions] conveyed to a reasonable juror' " (citations omitted). Commonwealth v. Key, 19 Mass.App.Ct. 234, 243, 472 N.E.2d 1381 (1985), and cases cited. "We consider [the Rodriguez instructions] to be appropriate to cases in which identification is in issue. Of course, they may be modified or embellished as the evidence and allegations at trial require." (Emphasis supplied.) Commonwealth v. Rodriguez, supra 378 Mass. at 310 n. 1, 391 N.E.2d 889.

The defendant contends that the judge erred in omitting those portions of the Rodriguez charge which are set out in the margin. ⁴ The only omissions which merit discussion in light of the evidence in this case are those set forth in (1), in (2) and in the first sentence of (4). There was testimony from a hospital employee that, immediately prior to Bolduc's identification of the defendant, the employee pointed to the defendant in the waiting room and said: "He's right there" (referring to the person who had brought Cleveland to the hospital). Bolduc testified that he was not sure of his hospital identification--he was "eighty percent" sure--because the defendant was then wearing clothes different from those worn by the robber. Bolduc further testified that, when he identified the defendant at the suppression hearing and at trial, he was not sure that the defendant was one of the robbers.

The judge began his instructions on identification...