Com. v. Powell

• Decision Date: 11 June 2008
• Docket Number: No. 07-P-498.,07-P-498.
• Citation: Com. v. Powell, 888 N.E.2d 370, 72 Mass. App. Ct. 22 (Mass. App. 2008)
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Roderick POWELL.

888 N.E.2d 370

72 Mass. App. Ct. 22

COMMONWEALTH v. Roderick POWELL.

No. 07-P-498.

Appeals Court of Massachusetts, Berkshire.

Argued April 10, 2008.

Decided June 11, 2008.

Terence McGinty, Cambridge, for the defendant.

James F. Petersen, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, VUONO, & FECTEAU, JJ.

FECTEAU, J.

The defendant appeals from convictions in the District Court of breaking and entering into a building and larceny under $250. He argues that the procedure used by the judge in combining a hearing on his motion to suppress his identification by a witness with the jury-waived trial on the merits deprived him of due process of law. The defendant also complains of ineffective assistance of counsel with respect to the admission of hearsay and, lastly, challenges the propriety of the witness's alleged in-court identification of him.¹ For the following reasons, we affirm the convictions.

Early on the morning of August 23, 2006, at approximately 5:20 A.M., while taking her usual morning walk with her husband, Jackie Andrews saw a person climbing out a window of the Gateway Chevrolet automobile dealership on Union Street in North Adams. Although it was still dark, the scene was illuminated by street and parking lot lighting and the witness was only about four car lengths away. While her husband called the police on his cellular telephone, she continued to watch this person, seeing him walking and then running on Union Street. She noticed that the person was wearing distinctive outer clothing, a white hat and teal-colored jacket.

The witness and her husband subsequently flagged down Officer Mantello, who was responding to the scene. The witness gave a description of the person and indicated his direction of flight. Officer Mantello radioed the information to officers in the area. Officer Randall, who had also responded, testified that he saw someone who fit this description on the street a short distance away and detained him. He pat frisked the suspect, the defendant, and engaged him in conversation. Officer Mantello arrived shortly thereafter, and the two officers directed the defendant to empty the contents of his pockets onto the cruiser.²

Meanwhile, the witness and her husband had resumed their walk and came upon the two officers standing at the rear of a cruiser with the defendant. The witness recognized him as the person she saw climbing out the dealership window and identified him as such when asked by Officer Mantello. This was, by her estimation, five to ten minutes after her initial observation and "[m]aybe half a mile" away. Later, during the trial, the witness could not identify the defendant as the person she had seen climbing out the window, but she did reaffirm that the person she saw with the police that morning was the same person she saw in the window. The officers identified the defendant as the person the witness identified to them on the street that morning.

This matter was the subject of a pretrial hearing on December 8, 2006, a couple of weeks before trial, wherein the issue of the admissibility of the one-on-one show-up was discussed.³ The judge suggested at that time that a motion to suppress was the preferred vehicle to challenge the admissibility of the identification. He then stated that, since the trial was to be jury-waived, a hearing on such a motion could coincide with the trial on the merits, to which suggestion trial counsel said, "That's what I was thinking." No objection to this combined procedure was lodged then or on December 26, 2006, the day of the trial.⁴ The motion, affidavit, and memorandum on the defendant's motion to suppress were apparently filed on that day.

The proceedings began with defense counsel making argument on the motion to suppress, followed by that of the prosecutor; during this latter statement, the trial judge suggested that the trial should begin and he would reserve judgment on the motion. Neither side objected to this procedure. During the Commonwealth's presentation of the evidence, the defendant had the opportunity to cross-examine the witness and two officers who were with her and the defendant at the scene. Following the close of the Commonwealth's evidence, and without asking whether the defendant intended to offer any additional evidence on the motion, the judge denied the defendant's motion to suppress. The defendant's trial counsel made no request to offer additional evidence or for an opportunity for further argument given the state of the evidence at that point.

On appeal, the defendant first argues that he was denied his due process right to examine the details of the out-of-court identification through an evidentiary hearing. See Commonwealth v. Dougan, 377 Mass. 303, 316-317, 386 N.E.2d 1 (1979). Such a procedure is not constitutionally required in every instance in which a defendant alleges that an identification is improper. Commonwealth v. Simmons, 383 Mass. 46, 47, 417 N.E.2d 1193 (1981) S.C., 392 Mass. 45, 466 N.E.2d 85, cert. denied, 469 U.S. 861, 105 S.Ct. 196, 83 L.Ed.2d 128 (1984). Commonwealth v. Walker, 421 Mass. 90, 94, 653 N.E.2d 1080 (1995). It is "within the motion judge's authority to decide the motion without an evidentiary hearing" if the defendant's showing does not establish a triable issue of suggestiveness. Commonwealth v. Hap Lay, 63 Mass.App.Ct. 27, 35, 822 N.E.2d 734 (2005), citing Commonwealth v. Walker, supra ("As no voir dire was held, we consider the defendant's affidavit in support of his motion to determine whether it established a triable issue of suggestiveness"). Due to the defendant's failure to preserve this alleged error for appellate review, we review the record to determine whether admission of the identification created a substantial risk of a miscarriage of justice. See Commonwealth v. Dora, 57 Mass.App.Ct. 141, 148, 781 N.E.2d 62 (2003) (miscarriage of justice standard applied to failure to hold voir dire on identification when defense counsel did not raise issue below). Compare Commonwealth v. Simmons, supra at 47-48, 417 N.E.2d 1193 (prejudicial error standard applied to failure to hold voir dire on identification when defense counsel in effect lodged objection below). We hold that it did not.

The defendant did not present circumstances that provide a basis for concluding that the identification procedure was unnecessarily suggestive. While the defendant was given an opportunity to develop this issue on cross-examination,⁵ he appears to rely on the one-on-one nature of the identification as that which amounted to or was indicative of impermissible suggestion by the police. Without more, the occurrence of a one-on-one show-up is not "`so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny the defendant due process of law." Commonwealth v. Venios, 378 Mass. 24, 26-27, 389 N.E.2d 395 (1979), quoting from Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See Commonwealth v. Johnson, 420 Mass. 458, 461, 650 N.E.2d 1257 (1995) ("one-on-one confrontations are not per se excludable"). We have recognized that they are acceptable in a number of cases despite their inherent suggestiveness. Such identifications "permit witnesses to view the suspect while recollection is fresh and before other images crowd in to distort the original picture." Commonwealth v. Walker, 421 Mass. at 95, 653 N.E.2d 1080, quoting from Commonwealth v. Coy, 10 Mass.App.Ct. 367, 371, 407 N.E.2d 1310 (1980). They also allow the police to release innocent subjects and refocus their efforts on other leads. Commonwealth v. Walker, supra.

That the defendant possessed at the time of the identification a hat and jacket that the witness had identified as being worn by the person in the dealership window was not an overly suggestive circumstance created by the police. To the extent that the witness's identification was of those articles as opposed to the defendant, there was an absence of the "extreme" circumstances required to render such indirect proof of the defendant's guilt fundamentally unfair. See Commonwealth v. Simmons, supra at 51-52, 417 N.E.2d 1193; Commonwealth v. Jones, 25 Mass. App.Ct. 55, 62, 514 N.E.2d 1337 (1987); Commonwealth v. Raedy, 68 Mass.App.Ct. 440, 445, 862 N.E.2d 456 (2007). Further, the record shows that the judge was aware of the witness's partial reliance on these articles in identifying the defendant. Trial counsel had the opportunity to bring out the weaknesses of the witness's identification on cross-examination. See Commonwealth v. Shipps, 399 Mass. 820, 833, 507 N.E.2d 671 (1987). Any degree of suggestiveness went to the weight of the identification, not its admissibility. See Commonwealth v. Melvin, 399 Mass. 201, 208, 503 N.E.2d 649 (1987); Commonwealth v. Odware, 429 Mass. 231, 236, 707 N.E.2d 347 (1999).

Moreover, due process does not require exclusion of identification testimony if "the suggestive circumstances do not arise from police activity." Commonwealth v. Odware, supra. The defendant offers only the occurrence of the identification as the witness walked by the location where he was detained. Our review of the record shows that this encounter occurred by happenstance, see Commonwealth v. Charles, 4 Mass.App.Ct 853, 853, 357 N.E.2d 26 (1976),⁶ and there is no suggestion that the police drew the witness's attention to the hat and jacket in the defendant's possession. See Commonwealth v. Marrero, 436 Mass. 488, 494, 766 N.E.2d 461 (2002) ("There is no hint in the record of suggestive tactics on the part of the police that would implicate [the defendant's] due process rights"). "[A]ccidental encounters not brought about by police conduct have been held not to raise due process considerations even if the encounter occurs in a suggestive setting." Commonwealth v. Jones, 423 Mass. 99, 104 n. 5, 666 N.E.2d 994 (1996).⁷

Similarly, the defendant also argues that the conflated procedure of...