Com. v. Odware

• Decision Date: 18 March 1999
• Citation: 429 Mass. 231,707 N.E.2d 347
• Parties: COMMONWEALTH v. Carl ODWARE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 347

707 N.E.2d 347

429 Mass. 231

COMMONWEALTH v. Carl ODWARE.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Feb. 2, 1999.

Decided March 18, 1999.

Gail S. Strassfeld, Newton, for the defendant.

Elin H. Graydon, Assistant District Attorney, for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, GREANEY, FRIED, & IRELAND, JJ.

IRELAND, J.

A jury convicted the defendant of murder in the first degree, armed assault with intent to murder, and assault and battery by means of a dangerous weapon. Represented by new counsel on appeal, the defendant claims error in (1) the denial of his motion to suppress certain eyewitness testimony; (2) certain jury instructions; (3) the admission of the testimony of a police officer that a nontestifying witness selected a photograph from a photographic array; and (4) remarks made by the prosecutor during his closing argument. We reject these arguments and discern no reason to exercise our authority pursuant to G.L. c. 278, § 33E, to order a new trial or reduce the jury's murder verdict. Accordingly, we affirm the defendant's convictions.

The jury were warranted in finding the following facts. On February 14, 1994, the defendant shot two men outside a pizza restaurant in Lynn. The first man died from gunshot wounds to his head and chest, and the second survived. The victims were among a large group of young people who were gathered inside and outside the restaurant. Five young men were standing together in front of the restaurant when they noticed the defendant across the street gesturing to them. They crossed the street, spoke to the defendant, and then went inside the restaurant. About two minutes later, the defendant entered the restaurant and gestured for one of the five men to follow him outside. The entire group went outside. Within seconds, the defendant pulled out a gun and pointed it at the group, then fired several shots, killing one victim, and wounding the second victim. The defendant fled, firing one last shot at the group as he retreated. He returned to his apartment where he was seen by a neighbor and his girl friend's sister, with whom he shared an apartment. He later sent his roommate to the police to learn what was happening.

The defendant was not apprehended for more than one year. According to the Commonwealth, on March 28, 1995, he telephoned one of the police investigators and told him that the police were "too stupid to catch him" and that he would "burn [them] up in court." He was arrested in Boston two days later. Once in custody, the defendant gave statements to the police in which he acknowledged having clothing similar to the shooter's, owning a gun of the same caliber as the gun fired, ¹ and being in the vicinity of the shootings when they occurred. At trial, the jury heard an audiotape and read the accompanying transcript of both an edited version of his statement to police and the telephone call to the police two days prior to his arrest.

The Commonwealth's case depended on the testimony of several witnesses who were in and around the restaurant that afternoon, some of whom later identified the defendant as the shooter from photographic arrays and lineups. Sean Duarte saw the defendant repeatedly on the day of the shootings. He was an eyewitness to the shootings, and later identified the defendant from a photographic array and at the grand jury lineup. Other witnesses saw the defendant at the restaurant, but did not see the shootings. Stephen Powell recognized the defendant when he saw him enter the restaurant because he had played basketball with him a couple of times. Powell later identified the defendant from a photographic array. Jadi Lin Graciale, like Powell, saw the defendant as he entered the restaurant to call the group outside. She also identified the defendant at the grand jury lineup. Corey Jordan saw the defendant from his seat in the restaurant, although Jordan could not conclusively identify the defendant in a photographic array or at the lineup. Other witnesses who were not at the restaurant saw the defendant that afternoon. These included Robert Jackson, a pedestrian who heard the shootings and then saw the defendant near the restaurant putting a gun "into his pants"; Frances Teague, who heard the gunshots from her porch and then saw the defendant run past her home as he rushed from the shootings; Mary Sue Eaton, the defendant's roommate who observed his nervous behavior after he returned from the shootings and whom the defendant later forced to go to the police to find out "what was going on"; and Sophia Poe Turner and Arlene Robinson, the defendant's neighbors who saw the defendant just after the shootings.

The police investigation focused on numerous suspects, including the defendant. The police prepared separate photographic arrays for four of the suspects. One array (GQ array) contained the photograph of a suspect known as "GQ," and one contained the defendant's photograph (Hardaway [an alias] array). Investigators also created a flyer containing the defendant's photograph, which they obtained from a Lynn police department mugshot that was on file from an earlier, unrelated arrest. The flyer was intended for intradepartmental use only. Three days after the shootings, however, Bernard Robinson, a friend of the victims, obtained a copy of the flyer when he was in the police station for an unrelated arrest. Robinson showed the flyer to several of the witnesses at the murder victim's wake and funeral. The Hardaway array and the flyer contained the same photograph.

1. Suppression of identification evidence. The defendant moved to suppress the testimony of six witnesses, arguing that their testimony was tainted by exposure to the flyer. After an evidentiary hearing, the motion judge suppressed the testimony of one of the six contested witnesses. The defendant argues on appeal that the in-court and out-of-court identifications made by two of these witnesses, Duarte and Graciale, also should have been suppressed because they saw the flyer containing the defendant's photograph prior to making their identifications. The defendant urges us to conclude that viewing the flyer was unnecessarily suggestive, that the Commonwealth failed to demonstrate an independent basis for the identifications, and that admission of the identifications was prejudicial.

(a) Duarte's identification. On the day of the shootings, Duarte was among the group of five men, and witnessed a man gesture to them from across the street. Duarte crossed the street with the group and stood facing the man from about two feet away for about ten seconds. He saw him jogging away from the group moments later. He also saw the man enter the restaurant to call the group outside, just prior to the shootings, and stood outside facing him prior to, and during, the shootings. Soon after the shootings, Duarte gave the police a description of the shooter.

Duarte attended the victim's wake and funeral, where he first saw the flyer and noted that it "really looks like" the shooter. On February 20, 1994, Duarte picked GQ as the shooter from the GQ array. On March 9, 1994, after viewing the GQ and Hardaway arrays, he chose the defendant as the shooter and disavowed his earlier identification of GQ. In April, 1995, Duarte identified the defendant at a grand jury lineup.

(b) Graciale's identification. On the day of the shootings, Graciale saw a man enter the restaurant from a short distance away. She gave the police a description of him shortly afterward, and then viewed photographs at the police station without making an identification. At the victim's wake, she saw the defendant's photograph in the flyer and told Robinson that it was the man she saw on the day of the shootings. Her only identification of the defendant took place at the grand jury lineup in April, 1995, fourteen months after she saw the flyer. The motion judge concluded that her identification of the defendant "was based solely upon her observations of him at [the restaurant], not from the brief period she had seen his picture on the flyer."

(c) Discussion. Where a defendant alleges that witness identifications arise from unnecessarily suggestive circumstances, the "defendant has the burden to prove, by a preponderance of the evidence, that the witness was subjected by the State to a pretrial confrontation ... 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny the defendant due process of law." Commonwealth v. Otsuki, 411 Mass. 218, 232, 581 N.E.2d 999 (1991), quoting Commonwealth v. Venios, 378 Mass. 24, 26-27, 389 N.E.2d 395 (1979). The judge, in considering whether identification testimony should be suppressed, must examine "the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive." Commonwealth v. Otsuki, supra at 232-233, 581 N.E.2d 999. If a defendant establishes that a confrontation was unnecessarily suggestive, then the identifications are excluded based on due process rights guaranteed by art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Johnson, 420 Mass. 458, 462-465, 650 N.E.2d 1257 (1995); Commonwealth v. Botelho, 369 Mass. 860, 865-869, 343 N.E.2d 876 (1976). Subsequent identifications are admissible only if the Commonwealth demonstrates by clear and convincing evidence that the identifications have an independent source. See Commonwealth v. Johnson, supra at 463, 650 N.E.2d 1257, citing Commonwealth v. Botelho, supra at 868, 343 N.E.2d 876.

Common-law principles of fairness are another basis to exclude witness identification testimony. See Commonwealth v. Jones, 423 Mass. 99, 109, 666 N.E.2d 994 (1996). In Jones, the witness saw the defendant only briefly at the time of the identification. Prior to the identification and without assistance from the Commonwealth, the witness saw the defendant shackled to a co-defendant in court for more than one hour. See ...