Com. v. Pressley

• Decision Date: 15 December 1983
• Parties: COMMONWEALTH v. J.C. PRESSLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1119

457 N.E.2d 1119

390 Mass. 617

COMMONWEALTH v. J.C. PRESSLEY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 4, 1983.

Decided Dec. 15, 1983.

Richard Zorza, Brookline, for defendant.

Ellen M. Donahue, Asst. Dist. Atty., for the Com.

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

NOLAN, Justice.

The defendant was found guilty of unarmed robbery (G.L. c. 265, § 19), following a trial to a jury. He claims error in the failure of the trial judge to instruct the jury on the possibility of a good faith error in the victim's identification of the defendant, and in the procedure for sentencing adopted by the judge. The defendant appealed and we granted him further appellate review after the Appeals Court affirmed the judgment under its summary procedure. Appeals Court Rule 1:28, as amended, 10 Mass.App.Ct. 942 (1980). We reverse the conviction on the first claim of error and, therefore, do not reach the second issue.

There was evidence that while the victim was walking to work on July 29, 1981, about 8 A.M., the defendant approached her from behind, tried unsuccessfully to snatch her shoulder bag and, instead, succeeded in seizing a gold chain which she was wearing. During the incident, the victim recognized the defendant as a young man who lived across the street from her. She asked him why he was robbing her and alerted him to her recognition by saying, "We're neighbors. I'm going to tell your mother. I live right across the street from you." The defendant's rejoinder was, "I don't give a ...." The victim estimated the struggle to be about five minutes. The defendant ran down an alley and the victim screamed. She then continued her walk to work where she notified the police of the robbery.

On returning from work that evening, the victim went to the defendant's home where she found the defendant, one of his brothers, and his mother. The victim's boyfriend and another man accompanied her. She told the mother that one of her sons had robbed her that morning. The mother responded that neither of her sons would do that. The victim then pointed to the defendant and said, "Well, you're the one." The defendant and his brother replied that the defendant had been in the house all day. The victim then recanted her identification by saying that the defendant was not the person who robbed her because, as she later testified, she feared that a fight would ensue between the defendant and her boyfriend.

Following this encounter in the defendant's home, and after the victim and her friends had returned to the victim's apartment, the defendant's mother went across the street to the victim's apartment to ask the victim to inform the police that her son was not the robber. The victim agreed to do so, but she never did. Within a week after the robbery, a police detective went to the victim's place of employment and showed her approximately 100 photographs of men and she picked out the defendant's photograph.

The defendant asked the judge to repeat the jury instructions in United States v. Telfaire, 469 F.2d 552, 558-559 (D.C.Cir.1972) (except for two sentences not here material). We treated these instructions as a model charge on identification by incorporating them as an appendix to Commonwealth v. Rodriguez, 378 Mass. 296, 310-311, 391 N.E.2d 889 (1979). The judge gave the requested instruction in substance. However, after the charge, at a bench conference, the defendant complained that the judge did not instruct on the possibility of good faith error in the victim's identification. The defendant had made no earlier request for such an instruction and the Telfaire charge does not directly address this problem. The defendant was prompted to seek this further instruction because in his charge earlier the judge said, "How do you decide when a witness is telling the truth and lying through his teeth? That's the issue in this case. It's that simple, again." At this bench conference, when this part of the instruction was brought to the judge's attention and defense counsel pointed out that the defendant did not contend that the victim was lying but merely mistaken, the judge declared to counsel that the "evidence in this case is only consistent with whether or not your client is lying or whether or not the...