Com. v. Murphy

• Decision Date: 27 October 1972
• Citation: 289 N.E.2d 571,362 Mass. 542
• Parties: COMMONWEALTH v. David G. MURPHY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 571

289 N.E.2d 571

362 Mass. 542

COMMONWEALTH v. David G. MURPHY, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1972.

Decided Oct. 27, 1972.

Alexander Whiteside, Boston, for defendant.

Robert Snider, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

QUIRICO, Justice.

After a joint trial held under the provisions of G.L. c. 278, §§ 33A--33G, David G. Murphy, Jr. (the defendant) and one John J. Whooley were convicted on separate indictments charging that each, with intent to commit larceny, confined and put in fear one Josephine Votta for the purpose of stealing from a safe in a building of Sears, Roebuck and Co., and that each, with such intent, compelled Miss Votta, by intimidation, force and threats, to disclose and surrender the means of opening the safe. G.L. c. 265, § 21. The case is now before us on the defendant's appeal, the appeal of Whooley having been disposed of by us on July 13, 1972, in COMMONWEALTH V. WHOOLEY, MASS., 284 N.E.2D 914^A.

The summary of the evidence in our decision of the Whooley case sufficiently describes the essential details of the crime of which the present defendant was convicted and the nature and extent of his participation therein. He was one of three persons who confined Miss Votta in her car and forced her at gunpoint to give them the combination to a vault and safes of her employer, Sears, Roebuck and Co. The defendant remained in the car and there kept Miss Votta in custody for about an hour and one-half while the other two men went to her place of employment and tried to open the safes. They failed in part because of the sounding of a burglar alarm. Whooley was arrested on the premises, and the defendant fled from the scene in a car.

The sole alleged error argued by the defendant is the denial of the major portion of his pre-trial motion 'to suppress any out of court or in court identifications (of him by Miss Votta) . . . on the grounds that said identifications were made without the knowledge or presence of the defendant's counsel and said identifications may have been induced by unnecessary suggestive techniques in violation of the defendant's (constitutional) rights.' The denial occurred in open court by an oral order of the judge who heard the motion and without express findings of fact. When the appeal first reached us we remanded the case to the Superior Court to enable the judge to make and report his complete and specific findings of fact on which he based his denial of the motion. He has made such findings and has reported them to this court. Since a copy of his report will be filed with the records of this case in the Superior Court, no useful purpose would be served by repeating all of the findings in this opinion. We shall refer to them by the several categories to which the defendant's arguments are directed.

1. The defendant first argues that Miss Votta's identification of his photograph as representing the person who held her in custody in her car while the other two men attempted to break into the safes was made in such circumstances that his conviction should be set aside under the rule laid down in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 697, 971, 19 L.Ed.2d 1247. There the court said the 'convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly sugestive as to give rise to a very substantial likelihood of irreparable misidentification.'

Miss Votta was shown 'hundreds of photographs' by the police on the evening of the crime and about a dozen more on the following day, and she identified none of them. On the second day after the crime she was shown a dozen more photographs and from that group she identified one photograph of the defendant. After reciting detailed findings of the manner in which Miss Votta viewed the photographs on the three days, the judge found as follows: 'I . . . find nothing surrounding her viewing of these photographs to have been so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. In addition, I find that the witness's identification of the defendant's photograph was based solely and completely in her observations of the defendant on the night of March 4, 1970, and was not influenced or tainted by anything that occurred subsequent thereto.' Thus, the simple but complete answer to the defendant's argument on this point is that on the judge's findings it is without factual basis.

2. The next argument relates to Miss Votta's viewing and identification of the defendant in the Municipal Court of the Roxbury District on Saturday, March 7, 1970. The defendant contends this viewing and identification violated his rights under the rule laid down by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, because he was without counsel at the time.

After Miss Votta identified the photograph of the defendant on March 6, 1970, the police arrested him and they requested her to be in the Municipal Court the following morning. While there she saw and identified the defendant as he entered the court room in circumstances described in detail in the judge's findings. The judge found that this identification by Miss Votta 'was based solely and completely on her observations of the defendant on the night of March 4, 1970, and was not influenced or tainted by anything that occurred subsequent thereto,' and further that 'neither the identification nor the circumstances surrounding . . . (it) were so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.'

Notwithstanding these findings, the judge suppressed the identification which took place in the Municipal Court. It is clear from the transcript and his subsequent written findings that he did so only because of the existence of a factual question whether the defendant was represented by counsel when the identification was made, and if he was, whether he or his counsel knew that Miss Votta was in the court room at the time. ¹

Of course the defendant does not claim that it was error to suppress this particular identification, but we have discussed it because the occurrence in the Municipal Court is one of the bases of his claim of error in the ultimate identification of him by Miss Votta in the Superior Court trial. The question whether, on the subsidiary facts found by the judge, he was required to suppress the Municipal Court identification is not before us, and we intimate no opinion that he was required to do so.

3. The defendant's final argument, as stated in his brief, is that 'the in-court identification of . . . (him) by Miss Votta was not found to be and on the evidence could not have been found to be independent of or untainted by the constitutionally improper photographic identification or by the constitutionally improper District Court identification, and its use as evidence accordingly was in violation of' his constitutional rights.

As of the date he filed his brief, the defendant properly questioned the judge's failure to make 'specific findings or rulings as to whether or not the in-court identification (by Miss Votta in the Superior Court) was independent of either the photographic or district court identifications.' See Cooper v. Picard, 428 F.2d 1351, 1353--1354 (1st Cir.). However, that question has since been eliminated by our remand of the case to the Superior Court for the express purpose of making and reporting such findings to us.

In summary the judge concluded (a) that Miss Votta's identification of the defendant's photograph was in no way legally tainted, (b) that her identification of him in the Municipal Court should be suppressed although he did not expressly decide that it was legally tainted, and (c) that 'her in-court identification of the defendant at trial was . . . based upon a clear and independent memory of the man who sat to her right on the night and during the time in question. This clear and independent memory is based solely and completely upon the observations she made on the night and during the time in question and is untainted by anything which may have occurred subsequent thereto.'

The narrow issue before us on the denial of the motion to suppress is whether the evidence warranted the findings made by the judge. While recognizing that the issue is thus limited, the defendant in fact attempts to argue principally on the weight of the evidence rather than on its sufficiency. The determination of the weight of the evidence is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. We hold that the evidence was sufficient to warrant all of the subsidiary findings made by the judge, and that his subsidiary findings support his general findings or conclusions based thereon. On such a record, we accept the judge's findings as true, and we do not substitute our judgment for his thereon. Commonwealth v. D'Ambra, 357 Mass. 260, 262, 258 N.E.2d 74. The findings also meet the requirements laid down in Cooper v. Picard, 428 F.2d 1351, 1353--1354 (1st Cir.), habeas corpus granted 316 F.Supp. 856 (D.Mass.).

The judge correctly applied to the facts found by him the pertinent portions of the rules laid down in the now familiar cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. There was no error. If this disposition of the defendant's contentions seems curt, peremptory or summary, such treatment of them should come as no surprise to anyone who has read the following language from our opinion of April 10, 1970, in ...