Com. v. Moon

• Decision Date: 03 June 1980
• Parties: COMMONWEALTH v. Andrew A. MOON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 947

405 N.E.2d 947

380 Mass. 751

COMMONWEALTH v. Andrew A. MOON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 1980.

Decided June 3, 1980.

Carol S. Ball, Asst. Dist. Atty., for the Commonwealth.

Richard J. Hayes, South Boston, for defendant.

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

QUIRICO, Justice.

The defendant was indicted for two crimes, assault by means of a dangerous weapon and stealing property of the value of more than one hundred dollars. Prior to trial the defendant filed two motions to suppress evidence. One motion concerned a wallet and its contents and an automobile registration certificate, all taken from the defendant's car by the police without a warrant. The other sought to suppress an identification of the defendant by the victim of the alleged assault after the police showed him a photograph of the defendant taken from the latter's car, and also to suppress any subsequent identifications of the victim by the defendant.

On March 29, 1978, an evidentiary hearing was held on the motions, with two witnesses testifying on the factual issues involved. At the close of the evidence, and after arguments by counsel, the judge, in open court, made a statement commenting on the evidence in the case and on some of the rules of law applicable thereto, and then allowed both motions. At the request of the prosecutor the following day, the judge made written findings of fact and conclusions thereon which he later filed in court.

A single justice of this court granted the Commonwealth's application under G.L. c. 278, § 28E, ¹ for an interlocutory appeal and transferred the appeal to the Appeals Court for hearing. That court reversed the judge's order allowing the motion to suppress the wallet and other articles taken from the defendant's car, and affirmed the order allowing the motion to suppress the identifications. Commonwealth v. Moon, --- Mass.App. --- ^a, 394 N.E.2d 984 (1979).

Each party then filed an application for further review by this court of the holdings of the Appeals Court. The Commonwealth sought further review of the judge's order suppressing the identifications, which the Appeals Court had affirmed, and the defendant sought further review of the judge's ruling suppressing the material seized from the defendant's car, which the Appeals Court had reversed. We allowed both applications. G.L. c. 211A, § 11. We affirm the orders by the judge allowing both motions.

Before considering the judge's orders on the two motions, we address two procedural questions raised by the defendant. The first is a contention that the prosecutor did not save an exception when the judge allowed the two motions in open court. If, as of the date of the orders, March 29, 1978, the prosecution was required to save an exception as a condition to its right to obtain appellate review (a point which this court has not yet decided, see Commonwealth v. Taylor, 374 Mass. 426, --- - --- ^b, 374 N.E.2d 81 (1978), our decision of this case does not require us to decide that question here. The second is a claim that the Commonwealth did not diligently prosecute its interlocutory appeal under G.L. c. 278, § 28E. The record before us shows only that the orders allowing the motions to suppress were made on March 29, 1978; that the application for interlocutory appeal was argued before the single justice on December 6, 1978, and allowed on December 22, 1978; and that the appeal was argued before the Appeals Court on June 13, 1979, and decided on September 27, 1979. There is nothing in the record to explain the reason for the time elapsed between the several steps in the processing of the appeal. The dates and time lapses without more do not permit us to conclude that the Commonwealth did not diligently prosecute its appeal.

We turn now to the principal issue raised by the Commonwealth in this appeal, that is, whether the judge erred in allowing the defendant's two motions to suppress one relating to the items taken by the police officers from the defendant's car, and the other relating to the victim's identification of the defendant.

We have noted earlier in this opinion that at the close of the evidence received at the hearing on the motions the judge made some statements in open court before allowing the motions. Some of those statements may have been sufficient to indicate or to imply factual conclusions which he had apparently reached. However, on the following day the judge filed a formal document entitled "Findings of Fact and Conclusions Thereon" which we assume was intended by him to be the complete formal statement of the factual basis for his action. He made the written findings at the request of the prosecutor who stated that the purpose of the request was to provide a record for a possible appeal from the allowance of the motions. ² It is also appropriate to note that both parties to this appeal, in stating the facts of the case in their briefs, do so by repeating the written findings of the judge almost verbatim.

The written findings made by the judge are the following:

"This matter came on for hearing before me in the Superior Court sitting in Middlesex on the 29th day of March 1978 upon defendant's Motions to Suppress. One motion sought to suppress a photograph and any subsequent in-court identification, and the other motion sought to suppress items seized in the automobile of the defendant.

"After hearing the evidence and reviewing the arguments of counsel for the defendant and the Commonwealth I find the relevant facts to be as follows:

"On June 27, 1977 one Charles Mosesian viewed an individual acting in a suspicious fashion outside the building in which he lived. As a result of that observation Mr. Mosesian left his apartment and went to the garage of that building. At that time he encountered an individual between two automobiles. He confronted the individual at a distance of ten feet for a period of ten to twenty seconds. At that time Mr. Mosesian observed a knife in the possession of the person whom he encountered in the garage. Subsequent to the ten-to-twenty-second observation the individual turned and ran from the witness. The above-mentioned observations occurred during the nighttime in an area which was lighted by 50-watt bulbs placed at intervals of approximately fifteen feet.

"Watertown Police arrived at the scene and the witness provided a description of the person with the knife as being approximately one inch taller than the witness, weighing approximately 160 pounds and having dark hair. At that point a Watertown policeman commented to his partner in the presence of witness Mosesian, 'That sounds like Andy Moon.' Witness Mosesian testified that he heard that comment. The witness then pointed out an automobile which he felt belonged to the person with the knife although he had never seen him within the vehicle. A police check of the registration number of that motor vehicle revealed that it was registered to the defendant Andrew Moon. The police went to that automobile, opened the unlocked door and searched the same. Among other things taken therefrom was a wallet containing the photograph of the defendant. The photograph was exhibited to witness Mosesian who identified the person depicted therein as being the same man that he observed with the knife in the garage.

"CONCLUSIONS. I find that the witness' opportunity to observe the defendant and the description given to the police officers were such that the naming of the defendant on the scene, and the exhibiting to the witness a single photograph of the defendant, were so suggestive as to materially taint any subsequent identification of the defendant either in the photo as exhibited or in court at the time of trial.

"I further find no probable cause for the search of defendant's motor vehicle and the seizure of the items found therein, particularly in light of the fact that the officers were aware of the identity of the registered owner of the vehicle and had no reason to believe that there was any contraband located therein.

"Motions to suppress allowed."

1. Standard of review. The evidence before the judge at the hearing on the motions to suppress consisted entirely of oral testimony. The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. In such a situation, where subsidiary findings of fact have been made by the trial judge, they will be accepted by this court, and we do not substitute our judgment for his, absent clear error. Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972); Commonwealth v. Harmond, --- Mass. ---, --- - --- ^c, 382 N.E.2d 203 (1978); Commonwealth v. Jones, --- Mass. ---, --- - --- ^d, 377 N.E.2d 903 (1978); Commonwealth v. Taylor, 374 Mass. 426, --- ^e, 374 N.E.2d 81 (1978). There is no error, much less clear error, in the judge's subsidiary findings of fact, and it is not contended that the evidence was not sufficient to support the findings.

"We cannot properly be asked to revise a judge's subsidiary findings of fact, where they are warranted by the evidence, or to review the weight (or credibility) of the evidence related to the findings. . . . Nevertheless, it is important to add that the ultimate findings and rulings of a judge may give rise to a meaningful appeal, even in a case where his subsidiary findings are beyond practical challenge. This is true because the ultimate conclusions of a judge on identification (or search and seizure) issues may be of constitutional proportions. This court must, where justice requires, substitute its judgment for that of a trial judge at the final stage." (Commonwealth v. Murphy, supra 362 Mass. at 550-551, 289 N.E.2d at 577 (Hennessey, J., concurring). Commonwealth v. Sires, 370 Mass. 541, 544 n. 1, 350 N.E.2d 460 (1976). Commonwealth v. Harmond, supra --- Mass. at --- - --- ...