Com. v. Napolitano

• Decision Date: 02 August 1979
• Citation: 378 Mass. 599,393 N.E.2d 338
• Parties: COMMONWEALTH v. Jerome A. NAPOLITANO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 338

393 N.E.2d 338

378 Mass. 599

COMMONWEALTH v. Jerome A. NAPOLITANO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1979.

Decided Aug. 2, 1979.

Monroe L. Inker, Newtonville (John E. DeVito, Dedham, with him), for defendant.

Michael J. Traft, Asst. Dist. Atty. (Alice Hanlon, Boston, with him), for the Commonwealth.

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

ABRAMS, Justice.

Jerome Napolitano appeals from two convictions of murder in the first degree. ¹ See G.L. c. 278, §§ 33A-33G. Napolitano contends that the trial judge erred in (1) the denial of his motion to suppress identification testimony, (2) the charge to the jury concerning identification testimony, and (3) in the admission of evidence. ² We find no error and affirm the convictions. We also decline to exercise our power under G.L. c. 278, § 33E, to direct the entry of a verdict of a lesser degree of guilt.

1. The motion to suppress. On September 24, 1976, two men, Hugh McGuire and Thomas Willett, were shot by an assailant after a brawl near the Dummy Club in Brighton. Three witnesses observed the killings from different vantage points. Each of the three witnesses identified Napolitano as the assailant. Napolitano claims that the three identifications of him are constitutionally infirm and that it was error for the trial judge to admit the pretrial and in-court identifications by the three witnesses ³ at his trial. We find no error in the denial of Napolitano's motion.

A. The photographic identification. The three witnesses for the Commonwealth selected Napolitano's picture from an array of forty-four photographs. Napolitano argues that the array was impermissibly suggestive because most of the pictures did not resemble him and because the police prompted the witnesses. The record does not support Napolitano's claims.

We summarize the evidence surrounding the photographic identification. On September 24, 1976, Kenneth Weeks was the victim of an assault and battery by a group of men which included the two homicide victims. The assailant, later identified as Napolitano, came over to the men beating Weeks. The assailant pushed Willett and McGuire away from Weeks and then shot them. Weeks observed the assailant for approximately one minute in an area where there were a "couple" of street lights.

Weeks furnished the police with a detailed description of the man who had shot Willett and McGuire, including the man's height, weight, build, age, hair length, and clothing. He also told police that the assailant had a beard and wore glasses.

From Weeks' description a police artist drew up some composite pictures but none of them satisfied Weeks. The police showed Weeks two separate photographic arrays but Weeks made no identification. On February 1, 1977, Weeks was shown a third array consisting of forty-four photographs. Weeks selected Napolitano's picture and said that he was "70 percent sure" Napolitano was the assailant, but that he wanted to see Napolitano in person because the picture did not portray the man's body.

Cory Bush viewed the assailant for four to six minutes from her apartment, 150 to 200 feet from the killings. Bush, who has twenty-twenty vision, gave the police a description of the assailant by height, weight, age and build. She also described the gunman's clothing and said that he had a "scruffy beard."

In March of 1977, the police brought Bush the array of forty-four photographs and asked her "to look through the pictures and see if there's anyone you recognize." Bush eliminated many of the pictures because they were of thin men. She picked out the defendant's picture in one minute.

John MacKenzie saw the shootings from a distance of approximately four car lengths. On the night of the slayings he had consumed twelve beers and was "feeling no pain." ⁴ At some time after Weeks selected the defendant's photograph, MacKenzie was asked to come to police headquarters and look at some photographs. Prior to looking at the array of forty-four pictures, MacKenzie was told "to look through them to see if the person is in there." MacKenzie picked out Napolitano's picture after approximately fifteen or twenty minutes. MacKenzie told the police that he had no "doubt in his mind" and that he was "positive" he had selected the assailant's photograph.

Napolitano asserts that the array was impermissibly suggestive because only three of the forty-four photographs depict heavy men with " scraggly" beards, a consistent description of the assailant. The judge found the group of forty-four photographs was "a fair cross-section." We have examined the photographs, all of which were in evidence at the hearing on the motion to suppress. Several photographs closely resemble that of Napolitano, and there is no evidence that the police in any way suggested to the witnesses which photograph was of the person under investigation. ⁵ Accord, Commonwealth v. Clark, --- Mass. ---, --- ^A, 393 N.E.2d 296 (1979). We conclude that the judge was correct in finding that the array was not impermissibly suggestive. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Commonwealth v. Clark, supra at --- - --- ^B, 393 N.E.2d 296; Commonwealth v. Moynihan,--- Mass. --- ^C, 381 N.E.2d 575 (1978); Commonwealth v. Jones,--- Mass. ---, --- - --- ^D, 377 N.E.2d 903 (1978).

Moreover, given the fact that, at least as far as the record discloses, the police were without a suspect, the array was abundantly fair. Napolitano suggests that in order for the array to be fair, it should have consisted solely of heavy men with beards. We are unwilling to compel the police to show to witnesses only pictures of men with certain features which may be altered. Such a requirement might unduly hamper police investigations and might permit those who commit crimes to escape detection and detention by a simple alteration of appearance. Contrary to Napolitano's claim, the police were not required to limit the array to pictures of heavy men with "scraggly beards." We think the array in this case displays a real effort by the police to secure a fair photographic identification procedure.

Napolitano also argues that the photographic identifications were impermissibly suggestive because police prompted the witnesses. The short answer to this contention is that the record clearly supports the judge's finding that the identifications were not prompted in any way. ⁶

B. The identifications at the probable cause hearing. Bush, Weeks and MacKenzie identified Napolitano at a probable cause hearing in the Municipal Court of the Brighton District. Napolitano contends that all three identifications at the probable cause hearing were impermissibly suggestive because they took place when he was seated in the prisoner's dock, isolated from others in the court room. The three witnesses testified that there were a number of people in the court room.

We recognize that a degree of suggestiveness inheres in any identification of a suspect who is isolated in a court room. Nevertheless, such isolation does not, in itself, render the identification impermissibly suggestive. Commonwealth v. Jones, --- Mass. ---, --- - --- ^E, 377 N.E.2d 903 (1978). What is important is not so much the style of the identification procedure but whether it meets "a certain basic standard of fairness." Commonwealth v. Dougan, --- Mass. ---, --- ^F, 386 N.E.2d 1, 8 (1979).

After seeing and hearing the three witnesses, the judge concluded that their identification had a basis independent of the probable cause hearing. ⁷ The judge's findings of fact are warranted by the evidence and amply justify his conclusions.

Moreover, Napolitano had counsel present at the probable cause hearing to "ferret out (any) suggestive influences" he perceived in the identification procedures. ⁸ Commonwealth v. Jones, 362 Mass. 497, 500, 287 N.E.2d 599 (1972). Commonwealth v. Jones, --- Mass ---, --- - --- ^G, 377 N.E.2d 903 (1978). See Moore v. Illinois, 434 U.S. 220, 229-230, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). There is nothing in this record to suggest that counsel "move(d) for an in-court lineup or to seat the defendant in the court room audience," Commonwealth v. Jones, 362 Mass. at 500, 287 N.E.2d at 602, because of the suggestiveness of Napolitano's placement in the court room. Such a motion cannot be made for the first time in this court.

Counsel argued that the witnesses did not identify Napolitano until four months after the shootings, that two of them were influenced by alcohol while viewing the assailant, and that MacKenzie identified Weeks as the assailant on the night of the shooting. These factors bear on the weight which the trier of fact should place on their identification testimony but not on its admissibility. In sum, the identifications at the probable cause hearing were not constitutionally impermissible. ⁹ See Commonwealth v. Jones, 362 Mass. at 500-501, 287 N.E.2d 599; Commonwealth v. Jackson, --- Mass. ---, --- n. 12 ^H, 386 N.E.2d 15 (1979).

C. Identification by Weeks in Dedham. Napolitano's argument concerning the identification by Weeks in Dedham while he was being arraigned on unrelated charges presents a more serious question. Though Napolitano was represented by counsel at that hearing, neither Napolitano nor his counsel was informed that he was being identified in connection with another crime. Thus his counsel was unable to propose procedures to reduce the suggestiveness inherent in his presence in the prisoners' dock. Further, at the time he was identified in Dedham, it was approximately four months after the crime, and Napolitano may have been wearing a shirt similar to that worn by the assailant on the night of the crime.

Despite these undeniably suggestive factors, the totality of the circumstances surrounding the identification in Dedham demonstrates that the procedure was not constitutionally infirm. Napolitano was not alone in the...