Com. v. Nassar

• Decision Date: 07 June 1966
• Citation: 351 Mass. 37,218 N.E.2d 72
• Parties: COMMONWEALTH v. George H. NASSAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 72

218 N.E.2d 72

351 Mass. 37

COMMONWEALTH v. George H. NASSAR.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 4, 1966.

Decided June 7, 1966.

[351 Mass 39]

F. Lee Bailey, Boston, for defendant.

John J. Jennings, Asst. Dist. Atty., for Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

This is an appeal under the provisions of G.L. c. 278, §§ 33A--33G, from a conviction of murder in the first degree. The case is here on a summary of the record, a transcript of the evidence, twenty-two assignments of error, and a motion to amend the assignments of error which was reserved and reported without decision by a single justice.

On September 29, 1964, about 4:50 P.M., Mrs. Rita Buote, accompanied by her daughter Diane, drove into a filling station run by one Irvin Hilton and stopped in front of the pumps. They saw a man, standing in front of the lubritorium door, fire several shots into Hilton who was kneeling before his assailant. The man turned and walked over to the driver's door of the Buote car, crossing diagonally in front of the car. He attempted to open the door, but Mrs. Buote locked it. He then tried to shoot the occupants of the car, but his gun failed to fire. After banging on the car window for a short period of time, he left.

Later that day, police officers showed Mrs. Buote eight to twelve photographs, but she was unable to identify any person in the photographs. Her daughter was also unable to identify them. The following day a police officer drew a sketch from the description given him by Mrs. Buote. Upon completion of the sketch it was shown to Mrs. Buote who stated that it 'resembled' the assailant. The sketch was then published in the newspapers. Another officer, after seeing a picture of the sketch in the newspaper, 'went to the * * * files,' and 'went through' the drawers containing photographs for almost three hours until he 'stopped at one particular photograph.' He took the photograph from the files and together with Sergeant Keenan went to the home of Mrs. Buote, arriving at 7 A.M. She was first shown the profile view which she said 'looked * * * something like' the man she saw at the filling station. Then she viewed the head-on segment of the photograph and identified it as a picture of the man. Later that morning, Mrs. Buote was shown fourteen to sixteen photographs, one of which was of the defendant, and she selected the defendant's photograph from that group. Mrs. Buote's daughter made similar identifications, and both later identified the defendant at a lineup at the police station.

Based on these identifications, the police obtained warrants for the arrest of the defendant and the search of his apartment. The police found certain pay envelopes and 'a pink slip from a printer' ¹ on a desk just inside the apartment door. One Francis Touchet, a friend of the defendant, who was in the apartment, told the police that on September 29 the defendant had returned from work at five-thirty or six. Touchet later testified that the defendant was ill and remained in the apartment on September 29.

Assignment 1. The defendant contends that '(t)he trial judge erred in denying defendant's motions, at the conclusion of voir dire, for a mistrial and a change of venue because it had been demonstrated in the course of voir dire that the jury was contaminated by general prejudice against the defendant and specific prejudice arising from knowledge within the jury panel of defendant's prior criminal record for the crime of murder.'

Although several prospective jurors who were excused for cause knew of the defendant's record, there has been no showing that any member of the trial jury knew anything of the defendant's prior criminal record before the trial. The defendant argues that the questions put by the judge were not sufficiently searching. However, "(i)t is clear from our decisions that the questioning of jurors, other than as required by G.L. c. 234, § 28, rests wholly in the discretion of the judge. Commonwealth v. Taylor, 327 Mass. 641, 646--647, 100 N.E.2d 22. * * *" Commonwealth v. Monahan, 349 Mass. 139, 156, 207 N.E.2d 29, 40. Further, whenever defense counsel asked the trial judge to put an additional question to a particular juror, the trial judge did so. The defendant accepted each member of the jury and did not even exhaust his peremptory challenges. We are satisfied that '(i)n all respects the judge was meticulous to insure the empanelling of a jury free from bias.' Commonwealth v. Kiernan, 348 Mass. 29, 36, 201 N.E.2d 504, 508.

Assignment 2. The defendant excepted to the statement in the prosecutor's opening that a police officer 'came upon a photograph which he thought looked like the composite' sketch of a suspect. Assignment 3. The defendant also excepted to the statement in the opening that 'an identifying witness said to police officers showing her a photograph of defendant, 'That's the man that killed Irvin Hilton in the gas station."

The defendant cites no authority, and presents no argument, in support of his views on these assignments. Rule 13 of the Rules for the Regulation of Practice before the Full Court (1962), 345 Mass. 787. Travelers Ins. Co. v. Safeguard Ins. Co., 346 Mass. 622, 623, 195 N.E.2d 86. Instead he states in his brief the following: 'We know of no possible authority for the admissibility of a police officer's opinion of likeness in these circumstances; and of no possible authority for the hearsay declaration of the eyewitness viewing a suspect's photograph in his absence. We invite the argument of the commonwealth on these questions, and especially for the justification for making such remarks in an opening statement in a capital case.' The foregoing 'invitation' could hardly be called an argument. Nevertheless, because of the gravity of the offence charged against the defendant, we deem it advisable to treat with these assignments.

We first discuss assignment 2. 'The competency of * * * (the opinion evidence of a nonexpert) rests upon two necessary conditions; first, that the subject matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time; and second, that the facts upon which the witness is called to express his opinion, are such as men in general are capable of comprehending and understanding.' Commonwealth v. Sturtivant, 117 Mass. 122, 137. Noyes v. Noyes, 224 Mass. 125, 129, 112 N.E. 850. Commonwealth v. Russ, 232 Mass. 58, 81, 122 N.E. 176. Since the sketch and the photograph were in evidence, the opinion of the officer was inadmissible. Our review of the evidence, however, convinces us that the refusal to exclude this incompetent matter in the opening statement of the prosecutor was not prejudicial.

Regarding assignment 3 the defendant did not take exceptions when witnesses testified to their identification of the defendant's photograph prior to the trial. Even if the defendant had excepted, there was no error. As was stated by the Supreme, Court of Maryland in a somewhat similar situation, in Basoff v. State, 208 Md. 643, 651, 119 A.2d 917, 921, 'We think it is evident that an identification of an accused made by a witness for the first time in the court room may often be of little testimonial force, as the witness may have had opportunities to see the accused and to have heard him referred to by a certain name; whereas a prior identification, considered in connection with the circumstances surrounding its making, serves to aid the court in determining the trustworthiness of the identification made in the courtroom.' We are of opinion that the prior identification of the photograph was admissible. See Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359.

Assignment 4 and 8. Each of these raises the issue whether a description of the process by which the police selected the defendant's photograph to show to the Buotes should have been excluded. Assignment 4 refers to the defendant's motion for a mistrial after the prosecutor in his opening statement said that a patrolman, while in the Lawrence police station, 'decided to check through some photographs and see if he could find someone that matched * * * (the sketch) * * *. (H)e came upon a photograph which he through looked like the * * * (sketch) * * *. He took the picture out * * *. The picture was shown to Mrs. Buote.' Assignment 8 is an exception to the officer's testimony that he 'went to the identification files.' It is common knowledge that the 'identification files' of the police contain pictures of men who have previously been connected with criminal activity, and, therefore, testimony about the process by which the photograph was selected should be excluded.

Assignment 6. The defendant claims that '(t)he trial judge erred in denying defendant's motion for a mistrial when, through the offer of a photograph clearly indicating the defendant to be a convict the prosecutor and judge made such fact perfectly apparent to the jury despite the strenuous objection of the defendant.'

Prior to the admission of the photograph in evidence the prosecutor stated in the presence of the jury that on the back of the photograph of the defendant which he sought to introduce in evidence 'there are some things * * * that Mr. Bailey (the defendant's lawyer) may want covered.' The judge informed the jury that the writing on the back of the photograph was hearsay and 'not evidence worthy of consideration of the jury.' The photograph was handed to the jury 'with the admonition that * * * (they) not turn the picture over; look only on the face.'

The photograph was properly admitted to enable the jury to test the identification made by the Buotes. We find nothing in the statements of the judge or the prosecutor to suggest the nature of the material on the back of the photograph. There was no error.

Assignment 5. These are exceptions to the...