Com. v. Paszko

• Decision Date: 14 February 1984
• Citation: 461 N.E.2d 222,391 Mass. 164
• Parties: , 40 A.L.R.4th 350 COMMONWEALTH v. Emilian PASZKO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 222

461 N.E.2d 222

391 Mass. 164, 40 A.L.R.4th 350

COMMONWEALTH v. Emilian PASZKO.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Oct. 3, 1983.

Decided Feb. 14, 1984.

Conrad W. Fisher, Worcester, for defendant.

David S. Ross, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

The defendant, Emilian Paszko, appeals from his conviction of murder in the first degree. Paszko's principal allegations of error are (1) the admission of out-of-court photographic identifications by three witnesses and the admission of an in-court identification by one of the witnesses, (2) the admission of the defendant's statements to his cellmates, (3) the failure to instruct the jurors on the voluntariness of the defendant's statements, (4) the admission of a denim jacket, (5) the scope of the order of reciprocal discovery, (6) the admission of testimony by two witnesses based on their prehypnotic memories, (7) the questioning of Cheryl Paszko, his wife, before the grand jury without informing her of her privilege not to testify and the impeachment of his wife at trial with private conversations, and (8) the timing of the closing arguments and instructions to the jury. ¹ We conclude that there is no reversible error, and no substantial likelihood of a miscarriage of justice. G.L. c. 278, § 33E. Therefore, we affirm Paszko's conviction and decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the facts. ² On June 8, 1980, a customer of Merrigan's Pharmacy in Easthampton alerted the Easthampton police that the drugstore was unattended. Responding to the call, the police arrived at Merrigan's around 11:50 A.M. and found Leslie A. Zive, the pharmacist and owner, lying at the bottom of the cellar stairs. Zive was dead. A cabinet containing Schedule II narcotic drugs ³ was found open and empty. An audit established that numerous Schedule II drugs were missing. The cause of Zive's death was a .22 caliber gunshot wound in the head.

The case against the defendant was circumstantial. The evidence implicating the defendant in the shooting included statements made by him before and after the date of the crime; eyewitness testimony placing a person matching the defendant's description in two nearby pharmacies on the date of the crime; and a .22 caliber black semi-automatic Ruger pistol, ballistically linked to a shell casing found at Merrigan's, that was recovered after the defendant's sister-in-law led police to a site in Vermont where, according to her, the defendant had hidden the weapon two days after Zive's death. ⁴

1. Admissibility of identifications. On the morning of the shooting, George O'Leary, the owner of Tremblay's Pharmacy in Florence, saw a stranger wearing blue denim pants, a denim jacket, and a yellow T-shirt, enter the drugstore at 10:40 A.M. The stranger had an unshaven face, and walked with a pronounced limp in the right leg. The owner was suspicious of the individual, and in order not to be left alone with him, kept a customer waiting until the stranger departed, whereupon the owner immediately called the police. Charles Curtin, the proprietor of the Cottage Pharmacy in Easthampton, saw a man with a dungaree jacket, a colorful cap, facial hair of a few days' growth, and a bad limp in the right leg in Curtin's drugstore shortly after 11 A.M. Jean Washington, a Cottage Pharmacy employee, also saw the man and corroborated Curtin's description. ⁵ Washington watched the stranger after he left and observed him get in a brown automobile. Prior to trial, the three witnesses separately picked out photographs of the defendant as resembling the man seen in the drugstores, but did not make a positive identification of the defendant. Curtin made an in-court identification of the defendant as the person he saw on the morning of June 8, 1980.

The defendant moved to suppress any reference at trial to the three witnesses' out-of-court photographic identifications of the defendant as the man who had visited pharmacies near Merrigan's on the date Zive was killed. The defendant claims error in the judge's ruling admitting evidence of these pretrial identifications as well as the in-court identification by Curtin.

We set forth the judge's findings, amplified by the undisputed testimony at the suppression hearing. On June 8, 1980, O'Leary called the police after the stranger departed from Tremblay's. On the same day, after Zive's body was found, O'Leary gave a description to the police. He was then shown an array of seven color photographs of young white males with facial hair. A photograph depicting the defendant with long straight hair and a mustache was included, but O'Leary did not select that or any other photograph in this initial array. The next day, O'Leary was shown seven black and white photographs of young white males with facial hair, including a photograph of the defendant that differed from the color photograph in the first array, in that the defendant looked older, had curly hair, had a beard in addition to the mustache, and wore an earring in one ear. ⁶ The defendant was the only person pictured in both arrays. O'Leary selected the defendant's photograph as "most like the person I saw in my store earlier." On the evening of June 8, after hearing a report of Zive's death, Washington called the police and described the man she had seen. Shortly thereafter, she was shown the black and white photographic array. Washington chose the defendant's photograph, stating, "This one looks the most like the one." The next day, she picked the defendant's photograph from the colored array, again stating that it was most representative of the man in the pharmacy. Washington noted that only the defendant's picture appeared in both arrays. Curtin was also shown the two arrays on separate occasions, subsequent to his observation of the man in his drugstore and, likewise, picked the defendant's photograph from each array as being closest to his recollection of that person. At trial, Curtin said that he told the police, "This is the man," but later admitted his identification may not have been so unequivocal. There was no evidence that the witnesses received any prompting from police at the time they made their selections. All three witnesses were able to select the defendant's photographs from the two arrays ⁷ at the April 15, 1981, suppression hearing.

The defendant argues that the inclusion of a photograph of him in each of the two photographic arrays displayed to the witnesses, whereas no other suspect was considered in both arrays, tainted the out-of-court identifications, and Curtin's in-court identification, so severely as to mandate their suppression. We do not agree. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court noted that the danger of misidentification "will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized" (footnote omitted). Id. at 383, 88 S.Ct. at 971. Nonetheless, duplication of a defendant's photograph in one or more arrays has not been held sufficient by itself to compel exclusion of a resulting identification. See Commonwealth v. Kostka, 370 Mass. 516, 523-524, 350 N.E.2d 444 (1976) (witness shown a dozen photographs including two of the defendant); Commonwealth v. Mobley, 369 Mass. 892, 896-897, 344 N.E.2d 181 (1976) (witness shown six photographs including one of the defendant, then shown second array including photograph of the defendant committing unrelated robbery); Commonwealth v. Avery, 12 Mass.App. 97, 421 N.E.2d 787 (1981) (defendant pictured in three of eighteen photographs); Commonwealth v. LaPierre, 10 Mass.App. 641, 411 N.E.2d 1314 (1980) (defendant's photograph contained in three successive arrays); Commonwealth v. Rodriguez, 6 Mass.App. 738, 747, 383 N.E.2d 851 (1978), rev'd on other ground but approved in relevant part, 378 Mass. 296, 305-306, 391 N.E.2d 889 (1979) (no error in failure to suppress second array in which witness selected defendant's photograph but made no positive identification following initial array with same result); United States v. Eatherton, 519 F.2d 603 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975) (witness shown multiple arrays, each including defendant's photograph); United States v. Bowie, 515 F.2d 3 (7th Cir.1975) (witness selected defendant's picture from array of five black and white photographs, then from array of six color photographs; defendant only suspect featured in both arrays). But see United States v. Mears, 614 F.2d 1175 (8th Cir.), cert. denied, 446 U.S. 945, 100 S.Ct. 2174, 64 L.Ed.2d 801 (1980) (improper to include two pictures of defendant in array of seven photographs). Rather, the admissibility of identifications obtained in such circumstances is to be determined with reference to "the totality of the circumstances" of the challenged episode of identification. Commonwealth v. Botelho, 369 Mass. 860, 867, 343 N.E.2d 876 (1976), quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).

In the case we review, there is no allegation that the initial array of seven photographs was in any way suggestive. Cf. United States v. Sanders, 479 F.2d 1193, 1197 (D.C.Cir.1973). Nor, apart from the reappearance of a dissimilar photograph of the defendant in the second array, was the defendant singled out in any manner. Cf. United States v. Gambrill, 449 F.2d 1148 (D.C.Cir.1971). Although the repeated appearance of the defendant in the two photographic arrays is susceptible to criticism, "there was no passing or near passing of the constitutional boundary into fatal suggestiveness." Commonwealth v....