Com. v. Rawlins

• Decision Date: 03 April 1967
• Citation: 225 N.E.2d 314,352 Mass. 293
• Parties: COMMONWEALTH v. Wendall D. RAWLINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 314

225 N.E.2d 314

352 Mass. 293

COMMONWEALTH v. Wendall D. RAWLINS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1967.

Decided April 3, 1967.

Bernard E. Bradley, Jr., Watertown, for defendant.

John C. Mahoney, Asst. Dist. Atty., for the Commonwealth.

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

SPIEGEL, Justice.

The defendant was indicted with one Kenneth E. Witt for armed robbery. The jury returned a verdict of not guilty as to Witt and a verdict of guilty as to the defendant, who received a sentence of twelve to eighteen years. ¹ The trial was subject to G.L. c. 278, §§ 33A--33G, and is here on appeal. There are nine assignments of error, seven of which have been argued.

The following facts are undisputed. About 9:30 P.M. on Friday, February 11, 1966, one Vivian Williams went to the front door of her home to answer the doorbell. She observed two men, one Negro and one white, standing outside her door. The Negro stated that he was a police officer and demanded to be admitted. After he showed her a badge and started to break the door down, Mrs. Williams let him in. When she opened the door they both 'rushed in with guns.' The men beat Mrs. Williams, tied her up and searched through the house. They eventually left, taking a strong box which contained various personal papers.

Mrs. Williams testified that the defendant and Witt were the men who assaulted and robbed her that night. The defendant and Witt both testified and offered the testimony of numerous witnesses which tended to establish the following alibi. On the night in question the two men, who lived in the same rooming house, were having a party at home. At about 8:30 P.M. they drove to a delicatessen to pick up two girls, after which they stopped at a store to purchase some groceries. The girls remained in the car while the two men did the shopping. They returned to the rooming house at approximately 9:30 P.M. Shortly thereafter the defendant, but not Witt, left the party with two guests and returned about fifteen minutes later. He did not leave the party again until about 11:30 P.M.

Two photographs were introduced in evidence each showing the defendant together with several of the guests. There was testimony that these photographs were taken shortly after 10 P.M. that same evening.

1. Assignment 1. Detective Martin testified over the defendant's objection that on February 12, 1966, Mrs. Williams picked out the defendant's photograph from several which were shown to her. The defendant argues that this was inadmissible hearsay testimony 'of accusations made when the defendant was not present.'

This argument ignores Mrs. Williams' identification of the defendant at the trial. Her testimony could be corroborated by showing that she had made the same identification on a prior occasion. COMMONWEALTH V. NASSAR, MASS., 218 N.E.2D 72.^A COMMONWEALTH V. MCLELLAN, MASS., 220 N.E.2D 819^B.

Nevertheless, the defendant contends that '(i)t is not an answer to state that the testimony in the present case was offered, not to show the correctness of Mrs. Williams' identification, but merely the fact that it was made. The fact that it was made was not in dispute.'

There is nothing in the record to indicate that the defendant did not dispute the fact of identification. The defendant made a general objection. As stated above, the evidence was admissible to show a prior identification of the defendant by Mrs. Williams. The evidence being admissible for that purpose, it could not rightly have been excluded on a general objection. Bouchard v. Bouchard, 313 Mass. 531, 537, 48 N.E.2d 161. Mc.cormick, Evidence, § 59. In any event, the testimony of Detective Martin was merely cumulative. 'The admission or exclusion of such evidence rarely constitutes prejudicial error.' Commonwealth v. Rudnick, 318 Mass. 45, 61, 60 N.E.2d 353, 361.

2. Assignment 3. The defendant was arrested about midnight, Saturday, February 12, 1966. The arresting officer testified, 'I advised his rights (sic). 'I am not particularly interested in what you say to me because anything you will say to me now, anything you say to me will be used against you. You can go to the headquarters and use the telephone.' Upon arriving at police headquarters, the defendant used the telephone nine times.' The following morning the defendant was taken to the emergency room in the hospital where Mrs. Williams was being treated. A hospital employee who was present was asked, over the defendant's objection, what Mrs. Williams did after Detective Martin told her to take a good look at the defendant. He answered, 'Mrs. Williams took a good look at the defendant * * * and said, 'Yes, that's the man."

The defendant argues that this testimony was inadmissible 'since * * * (he) was not represented by counsel at the time of the identification.' He contends that this was one of the 'critical stages' of a criminal proceeding and hence he had a right to representation by counsel under the Sixth and Fourteenth Amendments to the Federal Constitution, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.

The case of United States ex rel. Stovall v. Denno, Warden, 355 F.2d 731, 739 (2d Cir.) ^c involved a similar fact situation. The court refused to rule that the defendant had been deprived of his constitutional right to counsel, saying, 'If * * * (he) had had counsel, what could counsel have done to thwart the identification? He could not have demendad * * * (the defendant's) immediate release so that no one might see him. He could not have arranged to have * * * (the defendant) continuously wear a hood or mask over his face to avoid identification, nor could he have ordered the police forthwith to halt their identification activities. * * * (C)ounsel could not have prevented the hospital room identification because 'An accused has no right to be viewed in a lineup rather than singly.' * * * (C)ounsel could not 'have altered the course of events' as to identification, and * * * no confession or 'any other evidence respecting which counsel could have rightfully advised Appellant to refuse to yield' was obtained (citing Kennedy v. United States, 122 U.S.App.D.C. 291, 353 F.2d 462 (D.C.Cir.)).'

This is not a case such as Wade v. United States, 358 F.2d 557 (5th Cir.), in which the defendant was made to utter incriminating words. See Holt v. United States, 218 U.S. 245, 252--253, 31 S.Ct. 2, 54 L.Ed. 1021. We believe that the holding in the Stovall case is sound and are of opinion that the defendant was not deprived of his constitutional right to counsel.

3. Assignment 2. Frank Williams, the husband of the victim, and the owner of a restaurant, was permitted to testify, over the defendant's objection, about an incident involving the defendant at the restaurant in November, 1965. According to this testimony the defendant had been causing a disturbance there and was ejected by Williams.

This evidence was admissible on the issue of a motive for the robbery. The defendant's argument that the jury should have been instructed on the limited purpose for which the evidence was admissible is not persuasive, because no such instruction was requested, nor was the evidence offered for such a limited purpose. Bouchard v. Bouchard, ...